Terms of Service
Last updated: March 8, 2018
- Corlina Module Software License and Restrictions.
1.1 License Grant. Subject to Customer’s and its Authorized Users’ payment of all applicable fees, Corlina grants Customer during the Term a non-exclusive, non-sublicensable, non-transferable, royalty-bearing license to copy and install the number of copies of the Corlina Module specified on Schedule B or an applicable Order, solely in object code form and solely on devices solely located on the Authorized Premises, that Customer wishes to track via the Services.
1.2 License Restrictions. Customer shall not, and Customer shall prohibit Authorized Users and all other third parties from: (a) reverse engineering, disassembling, decompiling or otherwise attempting to derive the source code of the Corlina Module; (b) selling, renting, leasing or otherwise making the Corlina Module available to any other third party on a service bureau basis or otherwise; (c) modifying, improving, creating derivative works of or distributing the Corlina Module; (d) making, having made, selling, having sold, or using the Corlina Module in any manner other than is permitted under this Agreement; (e) bypass or breach any security device or protection; (f) access or use the Corlina Module in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party; and (g) using the Corlina Module in any manner that violates applicable laws, rules or regulations.
2.1 Services. Subject to Customer’s and its Authorized Users’ payment of all applicable fees, during the Term, Corlina shall use commercially reasonable efforts to provide to Customer and its Authorized Users the services described in the attached Schedule B or in an applicable Order (collectively, the “Services”) solely for the Permitted Use in the Authorized Premises and accordance with the Specifications and terms and conditions in this Agreement. This authorization is non-exclusive and non-transferable.
2.2 Service and System Control. Corlina has and will retain sole control over the operation, provision, maintenance, access to, use of and management of the Services, Corlina Systems and Corlina Materials, including the location(s) where any of the Services are performed, the selection, deployment, modification and replacement of the Service Software, and the performance of Support Services, Service maintenance, upgrades, corrections and repairs. Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Corlina Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (a) information, instructions or materials provided by any of them to the Services or Corlina; (b) results obtained from any use of the Services or Corlina Materials; and (c) conclusions, decisions or actions based on such use.
2.3 Changes. Corlina reserves the right, in its sole discretion, to make any changes to the Services and Corlina Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Corlina’s services to its customers, (ii) the competitive strength of or market for Corlina’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing Customer may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if mutually agreed, implement all such requested changes for an additional fee. No requested changes will be effective unless and until agreed to by both parties in writing.
2.4 Subcontractors. Corlina may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
2.5 Suspension or Termination of Services. In addition to Corlina’s other rights and remedies, Corlina may, directly or indirectly, and by use of a Corlina Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or Corlina Materials, without incurring any resulting obligation or liability, if: (a) Corlina receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Corlina to do so; or (b) Corlina believes, in its good faith discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated.
- Customer Obligations.
3.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Corlina Personnel with such access to Customer’s premises and Customer Systems as is necessary for Corlina to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Corlina may reasonably request to enable Corlina to exercise its rights and perform its obligations under and in connection with this Agreement.
3.2 Effect of Customer Failure or Delay. Corlina is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
3.3 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Corlina Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. Customer shall not perform any stress test, load test, or security test on the Services, Corlina Materials or Corlina System without Corlina’s prior written consent.
3.4 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
- Customer Restrictions.
4.1 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles or defense services; and (c) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Corlina Systems or any Corlina Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
4.2 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Corlina Materials except as expressly permitted by this Agreement and, in the case of Third-Party Technology, the applicable third-party license agreement. Customer represents and warrants that Customer and Authorized Users shall not and shall not permit any third party to: (a) copy, modify or create derivative works or improvements of the Services or Corlina Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Corlina Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Corlina Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or Corlina Materials or access or use the Services or Corlina Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services or Corlina Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Corlina Systems or Corlina’s provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Corlina Materials, including any copy thereof; (h) access or use the Services or Corlina Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Corlina customer, or that violates any applicable law; or (i) otherwise access or use the Services or Corlina Materials beyond the scope of the authorization granted under Section 2.1.
- Downtime; Supplemental Terms.
5.1 Scheduled Downtime. Corlina will use commercially reasonable efforts to schedule downtime for routine maintenance of the Services (“Scheduled Downtime”).
5.2 Implementation and Support Services. The Services include Corlina’s implementation and support services set forth in the Specifications. Customer may purchase enhanced support services separately at Corlina’s then current rates.
5.3 Supplemental Terms. Customer’s use of certain Services may be subject to Supplemental Terms, which shall be incorporated herein when provided to Customer unless Customer terminates in accordance with Section 9.3(c) within ten (10) days after being notified and provided a copy of such Supplemental Terms (unless otherwise mutually agreed by the parties).
- Fees; Payment Terms.
6.1 Fees. Customer shall pay Corlina the fees set forth in Schedule B or an applicable Order (“Fees”) in accordance with this Section 6.
6.2 Fee Increases. Corlina may increase Fees no more than once annually by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of that contract year, and Schedule B or the applicable Order will be deemed amended accordingly.
6.3 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is 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 or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Corlina’s income.
6.4 Payment. Customer shall pay all Fees net thirty (30) date of invoice. Customer shall make all payments hereunder in US dollars. Customer shall make payments to the address or account specified in Schedule B or the applicable Order or such other address or account as Corlina may specify in writing from time to time.
6.5 Late Payment. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (a) Corlina may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Corlina for all costs incurred by Corlina in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, Corlina may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
6.6 No Deductions or Setoffs. All amounts payable to Corlina under this Agreement shall be paid by Customer to Corlina in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax to the extent required by applicable law).
- Intellectual Property Rights.
7.1 Reservation of Rights. Except for the limited license granted Section 1.1 and limited authorization set forth in Section 2.1, nothing in this Agreement grants any right, title or interest in or to (including any license or authorization under) any Intellectual Property Rights in or relating to, the Services, Corlina Materials (including, without limitation, the Corlina Module) or Third-Party Technology, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Corlina Materials (including, without limitation, the Corlina Module) and the Third-Party Technology are and will remain with Corlina and the respective rights holders in the Third-Party Technology.
7.2 Customer Data. As between Customer and Corlina, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in this Agreement.
7.3 Consent to Use Customer Data. Customer hereby irrevocably grants to Corlina its Subcontractors and the Corlina Personnel as are necessary or useful to perform the Services a non-exclusive, sub-licensable, transferable, fully paid-up, royalty free, worldwide license to copy, modify, display, perform and distribute the Customer Data as necessary to perform the Services in accordance with this Agreement.
8.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, ideas, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations.
8.2 Exclusions. Confidential Information does not include information: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 8.3, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 8.
8.4 Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure.
- Term and Termination.
9.1 Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until the later of (a) the expiration of all Orders entered into hereunder or (b) the expiration of the Service Period for the Services provided under Schedule B (the “Term”).
9.2 Renewal of Service Period. Except as otherwise set forth in Schedule B or an applicable Order, the Initial Service Period shall automatically renew for additional twelve (12) month periods (each, a “Renewal Period”) following the then-current Initial Service Period or Renewal Period, as applicable, unless (i) Customer or Corlina deliver a notice of non-renewal not less than thirty (30) days prior to the then-current Initial Service Period or Renewal Period, as applicable, or (ii) Corlina does not invoice Customer for a Renewal Period within thirty (30) days following the end of the then-current Initial Service Period or Renewal Period, as applicable.
9.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Corlina may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Corlina’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 8 (Confidentiality);
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) Customer may terminate this Agreement, effective not less than thirty (30) days after delivery of written notice to Corlina, in the event that Corlina provides or modifies any applicable Supplemental Terms and Customer elects not to continue receiving Services hereunder pursuant to the terms and conditions of such Supplemental Terms.
9.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Customer shall immediately cease all use of any Services or Corlina Materials and (i) promptly return to Corlina all documents and tangible materials containing, reflecting, incorporating or based on Corlina’s Confidential Information;
(c) Corlina may disable all Customer and Authorized User access to the Services and Corlina Materials;
(d) Customer shall pay Corlina all Fees incurred as of the termination date; and
(e) if Customer requests in writing at least thirty (30) days prior to the effective date of expiration or termination, Corlina shall, within thirty (30) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Corlina, provided that Customer has at that time paid all Fees and Reimbursable Expenses then outstanding and any amounts payable after or as a result of such expiration or termination.
9.5 Data Backup. The Corlina Systems are programmed to perform routine data backups from time to time. Corlina will deliver to Customer its then most current back-ups of Customer Data within thirty (30) days after the earlier of termination or expiration of this Agreement.
9.6 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 1.2, 3.2, 3.3, 4, 5.3, 6, 7, 8, 9.4, 10.3, 10.4, 11 – 14.
- Representations and Warranties.
10.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
10.2 Additional Corlina Representations, Warranties and Covenants. Corlina represents and warrants that Corlina will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
10.3 Additional Customer Representations, Warranties and Covenants. Customer represents and warrants that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Corlina and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.
10.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, ALL SERVICES, THIRD-PARTY TECHNOLOGY, THE CORLINA SYSTEM AND CORLINA MATERIALS ARE PROVIDED “AS IS” AND CORLINA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER. CORLINA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CORLINA MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, THE CORLINA SYSTEM OR CORLINA MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. WITHOUT LIMITING THE FOREGOING, Corlina shall not be responsible or liable in connection with any impaired ability of Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User/access to or use of the Services by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Service downtime or degradation due to a Force Majeure Event or any other circumstances beyond Corlina’s reasonable control, including Customer’s or any Authorized User’s misuse of the Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Corlina pursuant to this Agreement; (f) Scheduled Downtime; or (g) any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Services as permitted by this Agreement.
11.1 Corlina Indemnification. Corlina shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party that Customer’s use of the Corlina Module or the Services (excluding Customer Data and Third-Party Technology) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (a) access to or use of the Services or Corlina Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Corlina; (b) modification of the Services or Corlina Materials other than: (i) by or on behalf of Corlina; or (ii) with Corlina’s written approval in accordance with Corlina’s written specification; or (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Corlina.
11.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Corlina from and against any and all Losses incurred by such Corlina Indemnitee in connection with any Action by a third party arising out of or relating to any: (a) Customer Data, including any collection, use, processing, storage or disclosure of data, including Customer Data and Personal Information in breach of applicable data security and data privacy protection laws or regulations, and Customer’s policies and contractual obligations; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Corlina’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Corlina; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; (d) use of the Services and Corlina Materials in breach of any applicable laws; (e) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
11.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
11.4 Mitigation. If any of the Services or Corlina Materials are, or in Corlina’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Corlina Materials is enjoined or threatened to be enjoined, Corlina may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Services and Corlina Materials materially as contemplated by this Agreement; (b) modify or replace the Services and Corlina Materials, in whole or in part, to seek to make the Services and Corlina Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Corlina Materials, as applicable, under this Agreement; or (c) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and Corlina Materials.
11.5 Sole Liability. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND CORLINA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND CORLINA MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT.
- Limitations of Liability.
12.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL CORLINA OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF CORLINA AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES CORLINA RECEIVED FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE ALLEGED INCIDENT. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Force Majeure.
In no event will Corlina be liable or responsible for or be deemed to have defaulted under 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 any circumstances beyond Corlina’s reasonable control (a “Force Majeure Event”).
14.1 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.
14.2 Public Announcements. Corlina may include Customer’s name and logo in its lists of Corlina’s current or former customers of Corlina in promotional and marketing materials.
14.3 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party at the address set forth in the Preamble of this Agreement or to such other address or such other person that such party may designate in writing from time to time. Notices sent in accordance with this Section 14.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; or (c) on the day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.4 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. The definitions set forth on Schedule A are hereby incorporated in this Agreement as if they were set forth herein. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments and appendices, the following order of precedence governs: (a) first, solely with respect to an applicable Services covered by any Supplemental Terms (if any), such Supplemental Terms; (b) second, this Agreement (including the definitions set forth in Schedule A), excluding its exhibits, schedules (other than Schedule A), attachments, appendices, Orders and any Supplemental Terms; (c) third, the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date (including, for clarity, Schedule B); and (d) fourth, any other documents incorporated herein by reference.
14.5 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Corlina’s prior written consent. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 14.5 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
14.6 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
14.7 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, 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.
14.8 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such term shall be severed from the Agreement and shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
14.9 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the state and federal courts located Santa Clara County, California.
14.10 Waiver of Jury Trial. Each 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 or the transactions contemplated hereby.
14.11 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Customer, Section 3.1, Section 3.2 or Section 4.1, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
14.12 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and court costs from the non-prevailing party.
14.13 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.