TERMS AND CONDITIONS FOR MASTER SUBSCRIPTION AND SERVICES AGREEMENT
WHEREAS Customer wishes to obtain access to the Hummingbird PXM Performance Platform and obtain related Services from Kalibri Labs in accordance with the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and conditions set forth herein, and intending to be legally bound hereby, each of Kalibri Labs and Customer agrees as follows:
1.1 “Access Right” means a right granted to Customer, as a licensee of a Hummingbird Performance Platform Solution, to access and use the Hummingbird Performance Platform and the related functionality contained therein during a Subscription Term.
1.2 “Confidential Information ” means all non-public business, financial, marketing, and technical information of Kalibri Labs or Customer that by its nature should be recognized as confidential or proprietary.
1.3 “Customer Data” means the original, unprocessed information provided to Kalibri Labs by Customer via FTP, other file transfer method, or direct entry into a Kalibri Labs web-based application.
1.4 “Laws” means all federal, state, county and municipal laws, ordinances, regulations and orders applicable to either party’s performance under this Agreement, as they exist now and as they may be amended from time to time.
1.5 “Or” includes “and/or”, except in the construction “either…or”.
1.6 “Permitted Users” means Customer personnel (including but not limited to temporary employees and contract employees) authorized by Customer to access and use a Hummingbird Performance Platform Solution on Customer’s behalf. “Permitted Users” do not include any third-party outsourcing providers, facilities managers, consultants, contractors, suppliers or vendors or unless Kalibri Labs has otherwise given Customer written authorization for such persons to be granted an Access Right. An Access Right to a Hummingbird Performance Platform Solution by third-party Permitted Users under this Agreement is strictly limited to use for Customer’s benefit in connection with the Permitted Users’ performance of services for Customer and as may be governed by this Agreement.
1.7 “Hummingbird Performance Platform Solution” means the bundled suite of the Services and Hummingbird Performance Platform being offered by Kalibri Labs under this Agreement.
1.8 “Related Materials” means documentation, operating instructions, user manuals, and other materials furnished to Customer by Kalibri Labs in printed or electronic format that are pertinent to the use of a Hummingbird Performance Platform Solution.
1.9 “Service Fees” means the fees payable by Customer to Kalibri Labs in connection with Services.
1.10 “Services” means customer services (such as implementation and Support (each as defined herein)) to be provided by Kalibri Labs to Customer as set forth onSchedule 1
1.11 “Subscription Fee(s)” means the subscription fees for the Hummingbird Performance Platform Solution payable by Customer.
1.12 “Subscription Term” means the term of a subscription to the Hummingbird Performance Platform Solution set forth on Schedule 2.
1.13 “Term” means the term of this Agreement as set forth in Section 11.1.
2.0 License Granted and Restrictions on Use
2.1 License Grant. Subject to the conditions herein, Kalibri Labs agrees to grant Customer a limited, non-exclusive, non-transferable, non-sublicensable Access Right to the Hummingbird Performance Platform Solution during the applicable Subscription Term(s), commencing upon the first issuance of necessary logins and passwords to the initial Permitted Users.
2.2 Restrictions on Use. Except as set forth in this Agreement, the Hummingbird Performance Platform Solution and any Access Right may not be sold, assigned, leased, sublicensed, or otherwise transferred or made available for use by third parties, in whole or in part, by Customer without Kalibri Labs’s prior written consent. Customer shall not (a) modify, translate, or create derivative works of the Hummingbird Performance Platform Solution, or any portion or component thereof, (b) copy, frame or mirror any part or content of the Hummingbird Performance Platform Solution, (c) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of any part of the Hummingbird Performance Platform Solution, (d) access any Hummingbird Performance Platform Solution in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of any Hummingbird Performance Platform Solution, (e) use any Hummingbird Performance Platform Solution to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (f) rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to any part of the Hummingbird Performance Platform Solution, (g) use the Hummingbird Performance Platform Solution for timesharing or service bureau purposes or otherwise for the benefit of a third party; (h) remove or otherwise alter any proprietary notices or labels from the Hummingbird Performance Platform Solution or any portion thereof, (i) use any Hummingbird Performance Platform Solution to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (j) interfere with or disrupt the integrity or performance of any Hummingbird Performance Platform Solution or third-party data contained therein, (k) attempt to gain unauthorized access to any Hummingbird Performance Platform Solution or their related systems or networks, or (l) access or use the Hummingbird Performance Platform Solution other than as expressly provided in this Agreement and in the Documentation. Nothing in this Agreement shall prohibit Customer from sharing the views or displays generated by the Hummingbird Performance Platform Solution with Customer’s owners, sub-contractors or business partners.
2.3 Ownership. Kalibri Labs and its licensors retain all ownership of, and all intellectual property rights in, the Hummingbird Performance Platform Solution, including but not limited to all patents, provisional patents and applications, trademarks, copyrights, trade secrets, and other property or intellectual property rights. Customer shall acquire no rights therein other than those limited rights of use specifically conferred by the license terms of this Agreement. Customer shall retain ownership of all Customer Data conveyed to Kalibri Labs as part of this Agreement, provided that Kalibri Labs shall have a non-exclusive, perpetual, irrevocable, transferable, fully-paid and royalty free, worldwide right and license (with the right to sublicense through all tiers) to use, copy, modify, display, perform, distribute, disseminate, transfer and create derivative works of any Customer Data: (i) for delivery to any third party so long as any analytics derived from the Customer Data pertaining to competitive properties is at least 30 days old and is composed of at least five providers reporting data upon which each disseminated statistic is based, no individual provider's data represents more than 25 percent on a weighted basis of that statistic, and any information disseminated is sufficiently aggregated such that it would not allow recipients to identify the data submitted by any particular provider ; and (ii) in order for Kalibri Labs to provide the Hummingbird Performance Platform Solution to the owner, operator or managing company of a specific property or properties included in the Customer Data, provided that these customers will only have access to the Hummingbird Performance Platform Solution for the properties in which they have an ownership or management interest. Kalibri will “normalize” customer codes into industry standard categories.
2.4 Intenionally Left Blank
2.5 Passwords and Logins. Customer agrees to hold the Hummingbird Performance Platform Solution, and all logins and passwords for the Hummingbird Performance Platform Solution, in confidence, and to protect the confidential nature thereof, and shall not disclose any trade secrets contained, embodied or utilized therein, to anyone other than a Permitted User having a need for such disclosure, and then only to allow use of the Hummingbird Performance Platform Solution as authorized herein. Customer shall (i) be responsible for Permitted Users’ compliance with this Agreement, including all confidentiality and usage restrictions herein, (ii) immediately terminate a Permitted User’s access to the Hummingbird Performance Platform Solution if the Permitted User ceases to be an employee of Customer, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Hummingbird Performance Platform Solution, and notify Kalibri Labs promptly of any such unauthorized access or use, (iv) provide true, accurate, current and complete information on Customer and all Permitted Users, and maintain and promptly update such information to keep it true, accurate, current and complete, (v) not share logins or passwords to the Hummingbird Performance Platform Solution, and (vi) use the Hummingbird Performance Platform Solution only in accordance with Law (as defined herein).
3.1 Generally. The Services to be provided by Kalibri Labs are set forth on Schedule 1.
3.2 Customer’s Duties. Customer will, at Customer’s expense:
(a) Cooperate with, and obtain Permitted Users’ cooperation with, Kalibri Labs in connection with Kalibri Labs’s performance of Services;
(b) Designate in writing individuals who shall have the sole authority to make decisions on behalf of Customer;
(c) Provide all Customer Data on a timely basis and in the format and fields specified by Kalibri Labs in Schedule 3 , including complying with all data interface and metadata requirements and procedures. Customer is solely responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, legality, quality, integrity, coding, categorization, formatting, completeness, and consistency of all Customer Data, and of the means by which it acquired such Customer Data. Customer shall immediately notify Kalibri Labs if it becomes aware of any transmission issues or data errors and cooperate with Kalibri Labs’ staff to correct any data errors and missing or changed Customer Data.
(d) Provide all necessary information concerning Customer’s and its Permitted Users’ operations, answer questions, make decisions, and give approvals, all as necessary for Kalibri Labs to perform the Services.
(e) Participate in preparation and execution of acceptance test cases, and population of any databases required for development or testing purposes;
(f) Ensure that Kalibri Labs has resources from and access to Customer’s vendors and business partners from whom Kalibri Labs needs data, software, application interfaces, log-ins and other information in order to perform its Services;
(g) Ensure that Kalibri Labs has access to Customer’s, and its and their respective vendors and business partners’ working test environments.
Kalibri Labs’ performance is conditioned on the timely cooperation and performance of Customer, its Permitted Users, and Customer’s vendors, business partners and other third parties, and Kalibri Labs shall not be responsible for delays or nonperformance by Customer, its Permitted Users, Customer’s vendors, business partners or other third parties. Kalibri Labs reserves all rights available to it, including the right to revise the fees or project schedule upon prior written notice to and approval from Customer as a result of delays or non-performance by Customer, its Permitted Users, Customer’s vendors, business partners and other third parties.
3.3 Third-Party Services. Kalibri Labs reserves the right to retain the services of third-party subcontractors and service providers to assist it in its discharge of obligations under this Agreement. Regardless of any subcontract, Kalibri Labs shall remain Customer’s sole point of contact under this Agreement. Kalibri Labs warrants that such third-party subcontractors and service providers will be held to the same standards as Kalibri Labs as defined in Sections 5.0 herein.
3.4 Access to Customer Systems. If Kalibri Labs is given access, whether on-site or through remote facilities, to any Customer computer or electronic data storage system, in order for Kalibri Labs to perform any of its obligations hereunder, Kalibri Labs shall limit such access and use solely to perform such Services or other obligations and will not attempt to access any computer system, electronic file, software or other electronic services other than those specifically required to perform the Services or other obligations. All user identification numbers and passwords disclosed to Kalibri Labs and any information obtained by Kalibri Labs as a result of Kalibri Labs’s access to, and use of, Customer computer and electronic storage systems shall be deemed to be, and shall be treated as, Customer Proprietary Information under the applicable provisions of this Agreement.
4.1 Generally. Subscription Fees and Service Fees for the Hummingbird Performance Platform Solution will be payable as set forth in Schedule 2 .
4.2 Taxes. Subscription Fees and other Services Fees as stated do not include applicable taxes. Customer agrees to bear and be responsible for the payment of all taxes, except for taxes based upon Kalibri Labs’ income or employees, including but not limited to, all sales, use, rental receipt, personal property, customs duties or levies or other taxes, which may be levied or assessed in connection with this Agreement. Customer shall pay such tax when due or reimburse Kalibri Labs as Kalibri Labs may request. If any tax is required to be paid by Kalibri Labs resulting from this Agreement, the full amount of such tax, including any interest and penalties, will be billed to Customer separately, whether or not this Agreement is then in effect, and promptly paid by Customer.
4.3 Payment Terms. All payments under this Agreement must be made no later than thirty (30) days from the invoice date. Kalibri Labs may impose a late payment charge equal to the lesser of (a) one and one half percent (1.5%) per month or (b) the maximum rate allowed by Law, beginning thirty-one (31) days from the invoice date.
4.4 Nonpayment. If any invoice remains unpaid, in whole or in part thirty (30) days after its due date, Kalibri Labs may declare Customer in default. If Customer disputes in good faith the charges or amounts thereof set forth in any invoice within thirty (30) days of the invoice date, such disputed charges or amounts may remain unpaid until the earlier of resolution of the dispute or sixty (60) days from notification by Customer to Kalibri Labs of the grounds for dispute, and such nonpayment will not constitute a default under this Agreement, provided Customer has a reasonable basis for such dispute and has paid all undisputed amounts by the due date. If the amount is not disputed in good faith, Customer shall have ten (10) days in which to cure the default. If the amount remains unpaid at the end of the ten (10) day notice period, Kalibri Labs may, at its option, (a) suspend Customer’s Access Rights or Kalibri Labs’s performance of Services in whole or in part, (b) terminate any or all of Customer’s Access Rights hereunder, or (c) terminate this Agreement. Suspension or termination under these circumstances shall not relieve Customer of any obligation to pay Subscription Fees for the then-current Subscription Term, nor shall it relieve Customer of its obligation to pay other Services Fees. In such event, Customer agrees to reimburse Kalibri Labs for any reasonable costs, fees, and expenses incurred in connection therewith, including reasonable attorneys’ fees.
5.0 Confidential Information
5.1 Protection. Each party shall treat the other’s Confidential Information in the same manner as it treats its own confidential and proprietary information but shall, in all events, use at least reasonable efforts to protect the confidentiality thereof.
5.2 No Disclosure. Except as expressly permitted under this Agreement, neither party shall distribute or disclose the other’s Confidential Information to any third party without the other’s consent. Kalibri Labs Confidential Information shall be used only by Customer and Permitted Users for the purposes set forth herein.
5.3 Exceptions. Notwithstanding the provisions of Section 5.2, and subject to Section 5.4 and applicable copyright and intellectual property Law, neither party shall have any obligations regarding disclosure of any Confidential Information of the other which (a) is already known to such party, (b) is or becomes publicly known through publication or otherwise and through no wrongful act of such party, (c) is received from a third party without similar restriction and without breach of this Agreement or any other obligation to the other party, (d) is shown by documentary evidence to have been independently developed by such party, (e) is required to be disclosed by Law, provided that such party provides the other party with advance notice of any proposed disclosure under this subsection, in order to give the other party the opportunity to contest such disclosure or obtain a protective order, or (f) is approved for release or distribution by written authorization of the other party.
5.4 Kalibri’s Confidential Information. Kalibri Labs Confidential Information includes, but is not limited to, the Hummingbird Performance Platform Solution, including but not limited to, all screen displays and documentation. Notwithstanding any other provision of this Section 5.0 to the contrary, Customer shall have no right to modify, improve, enhance, analyze, decompile, disassemble, engineer, reverse engineer, distribute, or disclose any portion of any Hummingbird Performance Platform Solution, except as expressly permitted in this Agreement, without Kalibri Labs’s prior written consent.
5.5 Customer’s Confidential Information. Customer Confidential Information includes, but is not limited to, all Customer Data and Customer Systems. Notwithstanding the foregoing, Kalibri Labs is permitted to utilize the Customer Data as permitted by this Agreement.
5.6 Feedback License. Kalibri Labs shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Hummingbird Performance Platform Solution any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Permitted Users, relating to the operation of the Hummingbird Performance Platform Solution (collectively “Feedback”) provided such Feedback does not incorporate any Customer Confidential Information.
5.7 Compliance with Laws. Each party shall be responsible for ensuring that performance of its obligations and exercise of its rights under this Agreement comply with Laws. If this Agreement or any practices which could be, or are, employed in performance of this Agreement are inconsistent with or do not satisfy the requirements of any Laws, the parties shall agree in good faith upon an appropriate amendment to this Agreement to comply with such Laws.
6.0 Limited Warranties
6.1 Right to License. Kalibri Labs warrants to Customer it has the right to offer the Hummingbird Performance Platform Solution to Customer and its Permitted Users, and that it has the right and power to enter into this Agreement.
6.2 Performance. Kalibri Labs warrants that the Hummingbird Performance Platform shall substantially conform to the specifications in its documentation, as it exists as of the Effective Date. Kalibri Labs’s sole obligation under this warranty (which shall be Customer’s exclusive remedy) shall be to use reasonable efforts to correct demonstrated material defects as soon as practicable.
6.3 Services Warranty. Kalibri Labs warrants that its Services will be performed in a good, professional, and workpersonlike manner and in accordance with industry standards. Kalibri Labs’s sole obligation under this warranty (which shall be Customer’s exclusive remedy), shall be to use reasonable efforts to promptly reperform nonconforming Services, provided that Customer has reported such nonconforming Services to Kalibri Labs within thirty (30) days after their performance.
6.4 Third Party Products. Only the Hummingbird Performance Platform Solution is warranted by Kalibri Labs. Customer accepts responsibility for the selection and use of, and the results obtained from, any third party software, hardware or content used by Customer or any Permitted User in conjunction with the Hummingbird Performance Platform Solution, even if obtained with the assistance of, or in consultation with, Kalibri Labs. If Kalibri Labs determines that an error, malfunction or defect is due to a problem with third party software, hardware or content, Kalibri Labs will so inform Customer, and it will be Customer’s responsibility to obtain and pay for any repairs or modifications required.
6.5 Limitations. The warranties set forth in Sections 6.1 through 6.4 above are expressly subject to the limitations of Section 8.0.
6.6 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH ABOVE, KALIBRI LABS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND DISCLAIMS ANY AND ALL SUCH WARRANTIES. Kalibri Labs does not warrant that: (a) operation of the Hummingbird Performance Platform Solution shall be uninterrupted or error free, (b) functions contained in the Hummingbird Performance Platform Solution shall meet the Customer’s requirements, (c) the Hummingbird Performance Platform Solution shall operate in combination with other hardware or software. Kalibri Labs’s warranty obligations shall be void if any Hummingbird Performance Platform Solution is modified without the written consent of Kalibri Labs.
6.7 Customer Warranties. Customer warrants to Kalibri Labs that (i) it has the right and power to enter into this Agreement, (ii) it and all of its Permitted Users have, and shall maintain, all licenses, authorizations and accredidations required by Law, and (iii) Customer has and will maintain all rights, authorizations and approvals necessary to provide the Customer Data to Kalibri Labs and allow Kalibri Labs to perform the Services hereunder.
7.0 Application Support
7.1 Commencing upon Kalibri Labs providing access to the Hummingbird Performance Platform Solution, and subject to the payment of the applicable Subscription Fees, Kalibri Labs will provide to Customer the following support services for the Hummingbird Performance Platform Solution (collectively, the “Support Services”): (a) clarifying and assisting in the operation of the features and functions of the Hummingbird Performance Platform Solution; (b) clarifying the Related Documentation; (c) administration of the Hummingbird Performance Platform Solution, including account provisioning and issuing credentials to Customer and Permitted Users; (d) assisting in identifying and verifying the causes of suspected errors in the Hummingbird Performance Platform Solution; (e) providing notice to Customer of all updates (which may include software enhancements as well as correction of material defects or errors) to the Hummingbird Performance Platform Solution certified by Kalibri Labs for release into the Hummingbird Performance Platform during the applicable Subscription Term and (f) training as described in Schedule 1. Any updates so released shall be part of the Hummingbird Performance Platform Solution and subject to the terms and conditions of this Agreement.
7.2 Kalibri Labs will provide telephone Support Services to assist Customer with advice concerning use of the Hummingbird Performance Platform Solution and assistance in resolving problems encountered by Customer. Kalibri Labs will provide telephone support to Customer with respect to the Hummingbird Performance Platform Solution during the hours of 9:00 AM - 5:00 PM Eastern Time Monday through Friday (“Standard Support Hours”). Outside of Standard Support Hours, telephone support Services will be on a call back basis.
7.3 Support Services do not include, and Kalibri Labs is not obligated to provide, any of the following: (i) custom programming Services; (ii) onsite Services at Customer’s or any Permitted User’s site; (iii) support for the use or combination of any Hummingbird Performance Platform Solution with software or other materials not provided by Kalibri Labs; (iv) support for alterations to or modification of any Hummingbird Performance Platform Solution in any manner by anyone other than Kalibri Labs without Kalibri Labs’s written prior authorization; (v) use of other than the then-current release of the Hummingbird Performance Platform Solution; (vi) use of the Hummingbird Performance Platform Solution not in accordance with the Related Materials; (vii) support or troubleshooting of general IT issues or issues not directly related to the Hummingbird Performance Platform Solution.
8.1 Replacement. Should the Hummingbird Performance Platform Solution become, or in Kalibri Labs’s opinion be likely to become, the subject of a claim of infringement of a patent, trade secret or copyright, Kalibri Labs may (a) procure for Customer, at no cost to Customer, the right to continue to use the Hummingbird Performance Platform Solution, (b) replace or modify the Hummingbird Performance Platform Solution, at no cost to Customer, to make it non-infringing, provided that the same function is performed by the replacement or modified Hummingbird Performance Platform Solution, or (c) if in Kalibri Labs’s judgment the right to continue to use the Hummingbird Performance Platform Solution cannot be reasonably procured or the Hummingbird Performance Platform Solution cannot reasonably be replaced or modified, terminate the Access Right and/or this Agreement, and credit Customer a pro-rated portion of any prepaid Subscription Fees for any unused portions of the Subscription Term.
8.2 Indemnity by Kalibri Labs. Kalibri Labs will defend, indemnify, and hold Customer harmless from and against any loss, cost, and expense that Customer incurs because of a claim that the Hummingbird Performance Platform Solution infringes any United States patent, trademark, trade secret, copyright or other intellectual or proprietary right of a third party. Kalibri Labs’s obligations under this indemnification are expressly conditioned on the following:
(a) Customer must promptly notify Kalibri Labs in writing of any such claim;
(b) Customer must in writing grant Kalibri Labs sole control of the defense of any such claim and of all negotiations for its settlement or compromise, provided that no such settlement or compromise shall impose any monetary or other obligations on Customer. If Customer chooses to represent Customer’s own interest in any such action, Customer may do so at Customer’s own expense, but such representation must not prejudice Kalibri Labs’s right to control the defense of the claim and negotiate its settlement or compromise); and
(c) Customer must cooperate with Kalibri Labs to facilitate the settlement or defense of the claim.
8.3 Exceptions. Kalibri Labs and its licensors shall have no liability for, and Kalibri Labs’s indemnification obligations under this Section 8.0 shall not apply to, any claim of infringement based on (i) the use or combination of any Hummingbird Performance Platform Solution with software, hardware or other materials not provided or expressly approved by Kalibri Labs; (ii) alteration or modification of any Hummingbird Performance Platform Solution in any manner by anyone other than Kalibri Labs, its licensors, agents, or vendors without Kalibri Labs’s written prior authorization; (iii) use of the Hummingbird Performance Platform Solution not in accordance with the Related Materials; or (iv) use of the Hummingbird Performance Platform Solution which use breaches this Agreement.
8.4 Indemnity by Customer. Customer will defend, indemnify, and hold Kalibri Labs harmless from and against any loss, cost, and expense that Kalibri Labs incurs because of a claim that the Customer Data or use of the Hummingbird Performance Platform Solution (as opposed to the Hummingbird Performance Platform itself) infringes any United States patent, trademark, trade secret, copyright or other intellectual or proprietary right of a third party. Customer’s obligations under this indemnification are expressly conditioned on the following:
(a) Kalibri Labs must promptly notify Customer in writing of any such claim;
(b) Kalibri Labs must in writing grant Customer sole control of the defense of any such claim and of all negotiations for its settlement or compromise, provided that no such settlement or compromise shall impose any monetary or other obligations on Kalibri Labs. If Kalibri Labs chooses to represent Kalibri Labs’s own interest in any such action, Kalibri Labs may do so at Kalibri Labs’ own expense, but such representation must not prejudice Customer’s right to control the defense of the claim and negotiate its settlement or compromise); and
(c) Kalibri Labs must cooperate with Customer to facilitate the settlement or defense of the claim.
8.5 THIS SECTION 8.0 STATES THE ENTIRE LIABILITY OF KALIBRI LABS WITH RESPECT TO INFRINGEMENT BY ANY HUMMINGBIRD PERFORMANCE PLATFORM SOLUTION OR ANY PORTIONS THEREOF, AND KALIBRI LABS SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT.
9.0 Limitation of Liability; Disclaimers
9.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, ANY HUMMINGBIRD PERFORMANCE PLATFORM SOLUTION OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL KALIBRI LABS BE LIABLE TO CUSTOMER, ANY PERMITTED USER OR ANY THIRD PARTY FOR ANY LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR LOSS OF DATA, ARISING OUT OF CUSTOMER’S OR ANY PERMITTED USER’S USE OF, OR INABILITY TO USE, ANY HUMMINGBIRD PERFORMANCE PLATFORM SOLUTION, OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES.
9.2 KALIBRI LABS’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
9.3 Customer and Kalibri Labs specifically understand and agree that Kalibri Labs, in providing the Hummingbird Performance Platform Solution, may serve as a conduit for information provided by third parties and that Kalibri Labs may rely on such information. Kalibri Labs assumes no responsibility or liability for the accuracy, completeness, propriety, or legality of information which may be provided, directly or indirectly, by or on behalf of Customer or any third party, or of the services to which such information may relate.
10.0 Force Majeure
Kalibri Labs shall not be liable for non-performance or delays caused by acts of God, wars, terrorist acts, riots, strikes, fires, shortage of labor or materials, labor disputes, governmental restrictions, failures or interruptions of the Internet, utilities, communications, satellite or network services (including those of Kalibri Labs and its service providers), Customer’s failure to timely perform its duties under Section 3.2, or other causes beyond Kalibri Labs’s reasonable control.
11.0 Term and Termination.
11.1 Term. The Term of this Agreement shall commence on the Effective Date and continue for the period specified in Schedule 2, unless this Agreement is sooner terminated or renewed in accordance with this Section 11.0.
11.2 Renewal. Either party may terminate this Agreement upon the expiration of the Term by providing at least one hundred twenty (120) days prior written notice thereof to the other. If no notice of termination is given prior to the end of the initial Term, this Agreement shall be renewed for additional one-year periods until terminated by either party. Any such renewal term shall be at Kalibri Labs’ then current Subscription Fees and Services Fees.
11.3 Termination for Breach. Either party may terminate this Agreement for a material breach by the other party that is not cured within thirty (30) days after written notice, except that a material breach of Section 5.0 shall permit immediate termination by the non-breaching party without any cure period.
11.4 Insolvency, Bankruptcy, Cessation of Business. Each party may terminate this Agreement or suspend its performance hereunder, if the other party becomes insolvent or bankrupt or ceases to do business; becomes unable or admits in writing its inability to pay all debts as they mature; makes a general assignment for the benefit of or enter into any composition or arrangement with creditors; authorizes, applies for, or consents to the appointment of a receiver, trustee, or liquidator of all or a substantial part of its assets or has proceedings seeking such appointment commenced against it which are not terminated within thirty (30) days of such commencement; files a voluntary petition under any bankruptcy or insolvency Law, or has proceedings under such Laws instituted against it which are not terminated within thirty (30) days of such commencement.
11.5 Suspension of Service. Notwithstanding anything herein to the contrary, in the event of any breach by Customer and/or a Permitted User, Kalibri Labs may, upon written notice to Customer and/or the applicable Permitted User, suspend, limit or terminate Customer’s and/or any given Permitted User’s access to or use of any Hummingbird Performance Platform Solution, or any portion thereof. Kalibri Labs shall have no liability to Customer, its Permitted Users or any third party for any termination of this Agreement or suspension of access or use of any Hummingbird Performance Platform Solution.
11.6 Survival. Neither expiration nor termination of this Agreement shall terminate those obligations and rights of the parties pursuant to provisions of this Agreement which by their express terms are intended to survive and such provisions shall survive the expiration or termination of this Agreement. Without limiting the foregoing, the respective rights and obligations of the parties under Sections 2.2 through 2.5, 4.0, 5.0, 6.5, 6.6, 9.0, 10.0, 11.5, 11.6, and 12.0 shall survive the expiration or termination of this Agreement regardless of when such termination becomes effective.
12.1 Notices. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) upon transmission if sent via telecopier, with a confirmation copy sent via overnight mail; and (d) one (1) business day after deposit with a national overnight courier, in each case to the respective addresses listed on the first page of this Agreement (or to such other address as may be specified upon notice).
12.2 Assignment. Customer shall not assign or otherwise transfer this Agreement, in whole or in part, whether by operation of law or otherwise, nor delegate or subcontract any of its rights or obligations hereunder, without Kalibri Labs’s prior written consent, not to be unreasonably withheld or delayed. Kalibri Labs shall have the right to assign this Agreement, in whole or in part, to an affiliate or, in whole, to a third party in connection with a sale of assets or other transfer or disposition of its business operations. Any attempted assignment in violation of this Section 12.2 shall be null and void and of no force or effect. The Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
12.3 Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by Kalibri Labs and Customer. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.
12.4 Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement.
12.5 Public Announcements. Customer grants Kalibri Labs the right to use Customer’s name, logo, trademarks and/or trade names in Kalibri Labs press releases, product brochures and financial reports indicating that Customer is a customer of Kalibri Labs. All other public statements or releases shall require the mutual consent of the parties. Kalibri grants Customer the right to use Kalibri Labs’ logo, trademarks and/or trade names in Customer press releases, product brochures and financial reports indicating that Kalibri Labs is a partner of Customer.
12.6 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
12.7 Headings. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
12.8 Governing Law; Jurisdiction. This Agreement shall be deemed to be made under and shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of law rules. All actions brought with respect to this Agreement shall be brought exclusively in the federal courts in the District of Delaware or the state courts located in Wilmington, Delware, and all parties consent to personal jurisdiction and venue therein.
12.9 Independent Contractors. The parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either Customer or Kalibri Labs partners, joint venturers, principals, agents or employees of the other. Neither Party shall have any right, power or authority, express or implied, to bind the other. Kalibri Labs shall have the sole right to supervise, manage, contract, direct, procure, perform, or cause to be performed, all Services and other work to be performed by Kalibri Labs under this Agreement.
12.10 Equitable Relief. Customer agrees that any violation by it or any of its Permitted Users of the provisions or covenants of this Agreement contained in Sections 2.2 through 2.4 or 5 will cause immediate and irreparable harm to Kalibri Labs for which money damages will not constitute an adequate remedy at law. Therefore, Customer agrees that, in the event it or any of its Permitted Users breach or threaten to breach said provisions or covenants, Kalibri Labs shall be entitled to injunctive and/or other preliminary or equitable relief, in addition to any other remedies available at law, without having to prove actual damages or to post a bond.
12.11 Conflicts in Interpretation. The following order of precedence shall be followed in resolving any inconsistencies between the terms of this Agreement and the terms of any Schedule or other documents: first, the terms contained in the body of this Agreement (which may give priority to an Schedule for certain purposes); second, the terms of the Schedule; and third, the terms of any other documents referenced in any of the foregoing.
12.12 Entire Agreement. This Agreement, including all Schedule, constitutes and expresses the entire agreement and understanding between the parties and supersedes all previous communications, presentations, negotiations, understandings, or agreements, whether written or oral, with respect to the subject matter hereof. Neither party is relying on any representations not expressly set forth in this Agreement.
12.13 Amendment. This Agreement may not be modified or amended except by a written instrument signed by the parties.
12.14 Arms-Length Transaction. The parties each acknowledge, represent and agree that they have negotiated this Agreement at arms’ length; that they have read this Agreement and the attached Schedules; that they fully understand the terms thereof; that they have consulted with and have been fully advised by independent legal counsel with respect thereto; and that therefore, for purposes of interpreting this Agreement, neither party shall be considered the author or drafter, and the Agreement shall not be construed against either party on that basis.