These TERMS OF SERVICE (this “Agreement”), effective as of the date of first acceptance (“Effective Date”), is by and between Elucidata Corporation, a Delaware corporation with offices at 625 Massachusetts Ave., Second Floor, Cambridge, MA 02139 (“Elucidata”), and the customer accepting this Agreement (“Customer”).
BY ACCESSING AND/OR USING ELUCIDATA’S SUBSCRIPTION SERVICES AND/OR PROFESSIONAL SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT THEY HAVE FULL AUTHORITY TO LEGALLY BIND THE CUSTOMER TO THIS AGREEMENT. IF THE CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH THIS AGREEMENT OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN CUSTOMER WILL NOT BE AUTHORIZED TO RECEIVE ELUCIDATA’S SUBSCRIPTION SERVICES AND/OR PROFESSIONAL SERIVCES.
- Elucidata provides certain software subscription, implementation and development services for life sciences customers.
- Customer desires to retain Elucidata to provide such services, and Elucidata is willing to perform such services under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Elucidata and Customer agree as follows:
- Elucidata Services. Elucidata agrees to use commercially reasonable efforts to provide the software subscription services (“Subscription Services”) and/or software implementation and development services (“Professional Services,” together with Subscription Services the “Services”) to Customer as detailed in an order form entered into by the parties which references this Agreement (each an “Order Form). An Order Form may incorporate one or more statements of work setting forth additional details of Professional Services to be provided (each an “SOW”), each of which are herein incorporated by reference. Customer understands that Elucidata’s performance may be dependent, in part, on Customer’s actions. Accordingly, Customer will provide Elucidata with the items and assistance specified in the applicable Order Form in a timely manner as defined in the Order Form. As defined in the Order Form, dates or time periods relevant to performance by Elucidata shall be appropriately and equitably extended to account for any delay in the provision by Customer of any such items or assistance to the extent any such delays affect Elucidata’s ability to perform in accordance with the schedule set forth in the applicable Order Form. Any Subscription Services provided are supported as detailed in the service level agreement attached hereto as Exhibit A. Any Professional Services will be performed in accordance with Section 7.
- Updates, Enhancements. Elucidata may, in its sole discretion, issue updates, bug fixes or other changes to the Subscription Services (each an “Update”) to the extent such Update does not materially impair Customer’s use of the Subscription Services. Elucidata will use commercially reasonable efforts to notify Customer of an Update that may materially impair Customer’s use of the Subscription Services. In the event Customer desires for Elucidata to develop customizations or enhancements of the Subscription Services (each an “Enhancement”), Elucidata will provide such Enhancement to Customer and Customer will pay the fees for such Enhancement as specified on an Order Form.
- Elucidata Representatives. Elucidata shall, in its sole discretion, designate employees and/or contractors to perform the Services set out in each Order Form and this Agreement. Elucidata will be responsible for any breach of this Agreement by its employees or contractors.
2. Grant of Rights for Subscription Services; Restrictions and Responsibilities
- Grant of Rights. As detailed on an Order Form, and subject to compliance with this Agreement, Elucidata hereby grants to Customer a nonexclusive, nontransferable right, during the subscription term set forth in the applicable Order Form, to allow users designated by Customer (“Authorized Users”) to access and use the Subscription Services solely for Customer’s internal business use. Customer is responsible for all acts and omissions of Authorized Users as if done by Customer.
- Restrictions. Customer shall not use the Subscription Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not, directly or indirectly, and shall not permit Authorized Users or any third party to: (i) copy, modify, or create derivative works of the Subscription Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Subscription Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services, in whole or in part; (iv) remove any proprietary notices from the Subscription Services; (v) use the Subscription Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) utilize the Subscription Services to create, develop, enhance, or modify any competing product or service. Customer is responsible and liable for all uses of the Subscription Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Authorized Users, and any act or omission by any such Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
- Suspension. Elucidata may suspend Customer’s and/or any Authorized User’s access to any portion or all of the Subscription Services if: (i) Elucidata reasonably determines that (a) there is a disruption, security risk, threat or attack on the Subscription Services or to any other customer or vendor of Elucidata; (b) Customer, or any Authorized User, is using the Subscription Services for fraudulent or illegal activities; (c) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (d) Elucidata’s provision of the Subscription Services to Customer or any Authorized User is prohibited by applicable law; (e) any vendor of Elucidata has suspended or terminated Elucidata’s access to or use of any third-party services or products required to enable Customer to access the Subscription Services; or (f) Customer fails to timely pay any undisputed invoices.
- Equipment. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, and web servers.
- Customer Facilities. Customer shall (i) provide Elucidata with access to Customer information, equipment, and facilities that are reasonably required and requested by Elucidata in performing the Services, including without limitation reasonable and necessary on-line access, working space and office support as Elucidata may reasonably request when working at Customer’s facilities, provided, however, that Elucidata is and remains in compliance with any confidentiality and data-security provisions of this Agreement; (ii) require that Customer’s supporting personnel respond promptly to any reasonable requests from Elucidata for instructions, information, or approvals to enable Elucidata to provide the Services; (iii) cooperate with Elucidata in its performance of the Services; and (iv) take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Elucidata’s provision of the Services.
- Third-Party Software. To the extent an Order Form details third-party software which may be licensed from time to time by Elucidata for Customer’s use in conjunction with the Services (“Third-Party Software”), Customer understands and agrees that Customer’s use of any Third-Party Software will be governed by such third party’s license terms and conditions. Customer understands and agrees that Elucidata is not responsible for Customer’s nor any third party’s obligations relating to any Third-Party Software and Elucidata specifically disclaims any liability relating thereto. Elucidata will, to the extent permitted by its vendors, pass through any warranties and indemnifications provided by the manufacturer of the Third-Party Software.
- Fees. In consideration of the provision of Services pursuant to an Order Form, Customer shall pay the fees set out in the applicable Order Form within thirty (30) days from Customer’s receipt of the same.
- Late Payments. Except for invoices that the Customer disputes in good faith, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Elucidata for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and expenses. In addition to all other remedies available under this Agreement or at law (which Elucidata does not waive by the exercise of any rights hereunder), if the Customer fails to pay any undisputed amounts when due hereunder, then Customer will be in material breach of this Agreement, and Elucidata may, at its sole option, suspend the provision of any Services and/or terminate this Agreement in accordance with Section 9(b).
- Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Elucidata’s income, revenues, gross receipts, personnel or real or personal property or other assets.
4. Confidential Information and Restrictive Covenants
- NDA. In the event the parties have entered into a non-disclosure agreement (“NDA”), then the terms of such NDA shall be incorporated by reference and shall control in the event of any conflict with this Section 4. In the event the parties have not entered into an NDA, then the provisions of this Section 4 shall apply.
- Nondisclosure. Each party (“Receiving Party”) shall not disclose, publish, or disseminate the Confidential Information (as defined below) of the other party (“Disclosing Party”) to anyone other than such Receiving Party’s employees and contractors with a need to know such Confidential Information and who are bound by a written agreement to protect the confidentiality of such Confidential Information no less protective than the provisions of this Section 4, or as required by applicable law in accordance with this Section 4. Each party agrees to take the same measures used to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care, to prevent any unauthorized use, disclosure, publication, or dissemination of the other party’s Confidential Information. Each Receiving Party agrees to use and disclose the Disclosing Party’s Confidential Information for the sole purpose of carrying out such Receiving Party’s rights and obligations under this Agreement and shall be responsible and liable for all such usage and/or disclosure. Receiving Party may disclose Confidential Information if and to the extent that such disclosure is required by applicable law, regulation, or court order, provided that, as permitted by applicable law, Receiving Party (i) uses reasonable efforts, at Disclosing Party’s expense, to limit the disclosure by means of a protective order or a request for confidential treatment and (ii) provides Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
- “Confidential Information” means confidential and proprietary information of a party, whether in oral, written or other form, which is marked “confidential” or “proprietary,” or which should reasonably be deemed to be confidential. Confidential Information does not include information that: (1) is now or subsequently becomes generally available to the public through no fault or breach of the Receiving Party; (2) the Receiving Party can demonstrate to have had rightfully in its possession prior to disclosure by the Disclosing Party; (3) is independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party; or (4) the Receiving Party rightfully obtains such information form a third party without a breach of confidentiality.
- Return of Confidential Information. In addition to each party’s obligations upon the expiration or termination of this Agreement, upon either party’s request, the other party shall return all of the requesting party’s Confidential Information in its possession or under its control in accordance with the requesting party’s directions and shall not thereafter retain any copies of the other party’s Confidential Information.
- Non-Solicit. Customer recognizes that Elucidata’s employees and contractors are a valuable resource of Elucidata’s. Accordingly, Customer agrees that it will not, from the Effective Date hereof until the one (1) year anniversary of the termination date of this Agreement, either alone or in conjunction with any other party, directly or indirectly, (a) induce or encourage (or attempt to induce or encourage) any employee or contractor of Elucidata to leave the employ of, or terminate or alter his/her/its engagement with, Elucidata, whether for purposes of employing or contracting any such employee or contractor in a competing business or for any other reason, or (b) interfere in any way with the relationship between Elucidata and any such employee or contractor.
5. Customer Data and Intellectual Property Rights
- Customer Data. Except as otherwise set forth in this Agreement, Customer owns all right, title and interest in and to all data or other information made available to Elucidata by Customer or Authorized Users (“Customer Data”). By providing Customer Data to Elucidata, Customer represents that it has the right to do so and Elucidata has the right to use such Customer Data in the performance of its duties relating to the operation of the Services. Customer further acknowledges and agrees that the Services are solely intended to analyze publicly available and unrestricted access NIH data; and data for which Customer and its Authorized users have obtained all necessary use rights. In connection with Customer’s and each Authorized User’s access and use of the Services, Customer will not attempt to, and Customer will ensure its Authorized Users do not attempt to, identify any individual human research participants (i.e., PHI or PII) from any data source contained in the Services. Customer further acknowledges and agrees that if Customer and/or any of its registered users download unrestricted-access data from NIH-designated data repositories, that Customer expressly agrees to acknowledges in all oral or written presentations, disclosures, or publications, the specific dataset(s) or applicable accession number(s) and the NIH-designated data repositories through which Customer accessed such data.
- Services. Customer acknowledges and agrees that the Services, and any copies, updates, and/or derivative works thereof, along with the right to make, have made, practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, and/or create works derivative of any of the foregoing, exclusively belong to and are the property of Elucidata. Customer further acknowledges and agrees that: (i) any existing technology, methods, processes, techniques, software (including source code, object code and any portions thereof) content, ideas, information and related intellectual property (including without limitation all patent, copyright, trademark, trade secret and other intellectual-property or proprietary rights therein) of Elucidata, any derivatives or improvements to the foregoing created or developed by Elucidata (alone or with others), or otherwise any of the foregoing created, developed by or on behalf of Elucidata outside of this Agreement, that is later used in the performance of Services, or (ii) generally applicable tools, concepts, processes, models, techniques, software, and the like developed or created in connection with the Services without reliance on the Confidential Information of Customer exclusively belong to and are the property of Elucidata (the “Elucidata IP”). The parties agree that Elucidata will own all right, title and interest in and to the Elucidata IP. Except for the limited rights granted to Customer in this Agreement, all other rights, title and interest in the Elucidata IP are reserved by Elucidata.
- Aggregated Statistics and Application Monitoring. Notwithstanding anything to the contrary in this Agreement, Elucidata may monitor Customer’s and each Authorized User’s access and use of the Subscription Services and collect and compile meta-data, data and information related to Authorized User’s access and use of the Subscription Services that is and can be used by Elucidata for application monitoring, pricing, and Elucidata’s technology management purposes (“Application Monitoring Data”). The same data may be aggregated and anonymized to compile statistical and performance information related to the provision and operation of the Subscription Services (“Aggregated Statistics”). Customer acknowledges that Elucidata may compile Aggregated Statistics based Customer Data. Customer agrees that Elucidata may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer, any Authorized User, or Customer’s Confidential Information. Customer and each Authorized User hereby grant to Elucidata a non-exclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide license to access, revise, reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as necessary for Elucidata to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, transferrable, royalty-free, worldwide license to access, revise, reproduce, distribute, and use and display Customer Data incorporated within the Aggregated Statistics. Customer acknowledges that, as between Customer and each Authorized User on the one hand, and Elucidata on the other hand, Elucidata owns all right, title, and interest, including all intellectual property rights therein, in and to the Aggregated Statistics, and Application Monitoring Data.
- Professional Services Deliverables. “Deliverable” means any Professional Services deliverable which is specified in an Order Form executed hereunder, including, but not limited to, any design, module, software, product, or other material, or component thereof including underlying any associated documentation, to be developed for and delivered to Customer by or on behalf of Elucidata pursuant to this Agreement. Customer shall own all right, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual-property or proprietary rights therein that may be secured in any place under laws now or hereafter in effect) in and to such Deliverable. For the avoidance of doubt, Deliverables do not include Elucidata IP.
- Third-Party Software. All rights, title, and interest in and to Third-Party Software are as described in the applicable Third-Party Agreement.
- Publicity. The parties agree that each may reasonably use and publicly display the trademarks, service marks, logo and trade names of the other party solely in accordance with the other party’s standard guidelines and policies.
- Customer Indemnification. Customer shall indemnify, defend and hold harmless Elucidata, its affiliates, and its and their respective employees, principals, agents, licensors, successors and assigns, from and against any and all costs, damages or losses (including reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or resulting from a third-party claim, demand, suit or proceeding (each, a “Claim”) (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; or (ii) based on Customer’s or any Authorized User’s negligence, willful misconduct, violation of law or breach of this Agreement.
- Elucidata Indemnification. Elucidata shall indemnify, defend and hold harmless Customer, its employees, principals and agents, from and against any Losses arising out of or resulting from any Claim (i) that the Subscription Services, when used in accordance with the terms of this Agreement and the applicable Order Form, infringes or misappropriates such third party’s intellectual property rights; or (ii) based on Elucidata’s negligence, willful misconduct, violation of law, or breach of this Agreement.
- Indemnification Procedure. The party seeking indemnification (the “Indemnified Party”), agrees to promptly notify the party against whom indemnification is sought (the “Indemnifying Party”) in writing following receipt of notice of any Claim, which notice shall assert such Claim and set forth in reasonable detail the basis for indemnification (such notice, the “Indemnification Notice”). The failure to so notify the Indemnified Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party. The Indemnifying Party shall be entitled to participate in the defense of any Claim and, subject to the Indemnifying Party’s delivery of written notice thereof to the Indemnified Party within thirty (30) days after the Indemnifying Party’s receipt of the Indemnification Notice, or within such shorter period as may be required to timely respond to such Claim, shall be entitled to control and appoint lead counsel reasonably satisfactory to the Indemnified Party for such defense, in each case at its own expense. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall have the right to control such defense at the Indemnifying Party’s reasonable expense. The party not controlling such defense may participate therein at its own expense. Each Party shall cooperate in the defense of any Claim. The Indemnified Party shall not agree to any settlement of a Claim without the prior written consent of the Indemnifying Party. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of such Claim if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party or involves an admission of fault or wrongdoing by an Indemnified Party.
7. Warranties and Disclaimer
- Each party represents and warrants to the other that; (i) it has the requisite power and authority to execute and deliver this Agreement and perform its obligations herein: (ii) this Agreement has been duly authorized, executed, and delivered by each party, and is a legal, valid, and binding obligation of each party, enforceable against such party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar laws and principles of equity affecting creditors’ rights and remedies generally; and (iii) this Agreement does not violate, conflict with, result in a breach of the terms, conditions, or provisions of, or constitutes a default or an event of default under any other agreement to which such party is a party.
- Elucidata represents and warrants to Customer that it will perform and provide all Services in a professional and workmanlike manner in accordance with the Order Form and applicable law.
- OTHER THAN THE WARRANTIES SPECIFICALLY MADE IN THIS AGREEMENT, THE SERVICES ARE AVAILABLE “AS-IS” AND “AS-AVAILABLE.” ELUCIDATA AND ITS LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES. EXCEPT FOR WARRANTIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, ELUCIDATA DOES NOT WARRANT THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ELUCIDATA WILL CORRECT ALL DEFECTS. FURTHER, ELUCIDATA AND CUSTOMER ACKNOWLEDGE AND AGREE THAT ELUCIDATA DOES NOT AND CANNOT GUARANTEE ANY SPECIFIC BUSINESS OUTCOME OR RESULT FROM CUSTOMER’S USE OF THE SERVICES UNDER THIS AGREEMENT.
8. Limitation of Liability
- EXCEPT FOR EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- EXCEPT FOR EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBGLIATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID OR PAYABLE BY CUSTOMER TO ELUCIDATA DURING THE LESSER OF (1) THE TWENTY-FOUR (24) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (2) THE SUBSCRIPTION TERM SET FORTH IN THE APPLICABLE ORDER FORM.
9. Term, Termination and Survival
- This Agreement shall commence as of the Effective Date and continue until the completion of all Services detailed in any Order Form unless sooner terminated pursuant to this Section 9 (the “Term”). Each Order Form shall have the term as set forth therein.
- Either party may terminate this Agreement and/or any Order Form(s), effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
A. Materially breaches this Agreement and/or the applicable Order Form(s), and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
B. Becomes insolvent or admits its inability to pay its debts generally as they become due.
C. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing.
D. Is dissolved or liquidated or takes any corporate action for such purpose.
E. Makes a general assignment for the benefit of creditors.
F. Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Notwithstanding anything to the contrary in this Agreement, Elucidata may terminate this Agreement and/or any Order Form(s) before the expiration of the Term immediately upon written notice to Customer if Customer fails to pay any amount when due hereunder and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment; provided that Elucidata may, at its sole option, and without waiving such termination right, suspend performance under this Agreement and/or any Order Form until Customer brings its payment obligations current.
- Upon expiration or termination of this Agreement and/or any Order Form, Customer shall immediately discontinue all use of the Subscription Services and Customer shall pay Elucidata all fees accrued through the effective date of termination under each terminated Order Form within thirty (30) days of Elucidata’s invoice therefor. Payment of this final invoice shall not bar any remedy, legal equitable, or otherwise available to Elucidata, and no expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination or entitle Customer to any refund.
- Any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
10. General Provisions
- Non-Disparagement. Each party agrees and covenants that such party shall not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the other party or its businesses, or any of its employees, officers, now or in the future.
- Order of Precedence. In the event that there is a conflict between the terms of this Agreement and the terms of and Order Form, the terms of the Order Form shall govern only with respect to such Order Form.
- Entire Agreement. This Agreement, the NDA (if any), and the Exhibits, including and together with any related Order Forms, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
- Notice. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other party at the address that the receiving party may designate from time to time in accordance with this Section. Unless otherwise agreed herein, all Notices must be delivered by email, personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid).
- Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party.
- Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Elucidata. Any purported assignment or delegation in violation of this Section 10 shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations under this Agreement. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. Except with respect to Indemnified Parties, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Choice of Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Massachusetts without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Massachusetts.
- Dispute Resolution. Except with respect to disputes regarding intellectual property rights, confidentiality, and payment of fees, the parties will first attempt in good faith to promptly resolve any dispute arising under this Agreement by good faith negotiation by senior executives. If such dispute has not been resolved within thirty (30) days of a party’s initiation of negotiations, the dispute shall be submitted at the request of such party to final and binding arbitration before a single arbitrator. Such arbitration shall be held in Cambridge, Massachusetts and in accordance with the then current rules of the American Arbitration Association applicable to commercial disputes and under the authority of the Federal Arbitration Act. The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this arbitration provision or to the arbitrability of any claim or counterclaim. This arbitration provision shall be treated as an agreement independent of the other terms of the Agreement. The arbitrator shall have the power to determine the validity of this Agreement. A decision by the arbitrator that this Agreement, or any part thereof, is null and void shall not for that reason alone render this Section 10(n) invalid. The decision of the arbitrator shall be final, conclusive, and binding on the parties. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. The costs of the arbitration, including the arbitrator’s fees, shall be borne equally by the Parties. The arbitrator shall make a final award of legal costs (including reasonable attorneys’ fees) and damages, if applicable, to the prevailing Party. Nothing in this Section 10(n) shall prohibit Elucidata from seeking equitable relief from a court of competent jurisdiction for Customer’s breach of Section 4 or Section 5.
- WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY ORDER FORMS, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Agreement, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
- Force Majeure. Elucidata shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Elucidata including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of sixty (60) days, Customer shall be entitled to give notice in writing to Elucidata to terminate this Agreement.
Service Level Agreement
This Service Level Agreement (“SLA”) applies to all Subscription Services. Terms not otherwise defined below will have the same meaning as in the Agreement.
1. Service Level Definitions
“Available” means the Subscription Service can be accessed by Customer’s Authorized Users.
“Availability” means the percentage resulting from the following expression: the number of minutes in a calendar month minus the number of minutes the Subscription Services are not Available in such month excluding Excused Downtime, divided by the number of minutes in such month.
“Downtime” means the minutes in a calendar month (excluding holidays and weekends) that the Subscription Services are not Available following Customer’s notice to Elucidata.
“Excused Downtime” means the Downtime due to: (a) Service Modifications; and (b) circumstances beyond Elucidata’s reasonable control (e.g., force majeure events, general Internet outages, third party or Customer controlled service or infrastructure failures and delays, network intrusions, denial-of-service, or other similar attacks or interference by anyone other than Elucidata or its agents).
“Monthly Subscription Fees” means the amount resulting from the following expression: the number of days in a calendar month falling under the Subscription Services Term divided by the number of days of such Term, multiplied by such Subscription Services fees for such Term.
“Service Modifications” means any necessary or required maintenance, repairs, updates, or other modifications to the Subscription Services, and the systems, networks, and infrastructure used by Elucidata to operate and provide the Subscription Services.
“Subscription Services” means the Subscription Services detailed in an Order Form.
“Support” means telephone and electronic mail helpdesk support on weekdays (excluding holidays) during the hours of 9:00 am through 8:00 pm Eastern time.
2. Monitoring Elucidata shall continuously log, monitor, and keep system records of the Subscription Services Availability and shall make commercially reasonable efforts to communicate outages and events impacting accessibility. Customer may initiate a Support ticket by clicking on the Intercom Support Button within the Polly platform or at any time by emailing firstname.lastname@example.org. Elucidata will use commercially reasonable efforts to respond to all Support tickets within one (1) business day.
3. Service Modification Notice Elucidata shall provide Customer with notice prior to a planned Service Modification if: (a) Elucidata believes that the Service Modification will materially impact the Availability of the Subscription Services; and (b) such notice will not pose a security risk to Elucidata or its customers.
4. Fee Credits for Availability Events If the Availability of the Subscription Services falls below 99.9% in any calendar month (“Availability Event”), Customer will be entitled to request a credit of one (1) week’s Subscription Services fees be applied against Customer’s fees for the next renewal Term of such Subscription Services (“Fee Credit”) by submitting notice to Elucidata in writing. Such notice must be sent within thirty (30) days following the end of the calendar month in which the Availability Event occurred for Customer to be eligible to receive a Fee Credit. Elucidata will validate each Availability Event against Elucidata’s system records and will have final authority regarding all Fee Credits.