Last updated: May 23, 2019
These Software as a Service Terms and Conditions (together with any applicable Order Form issued hereunder, the “Agreement”), effective as of the date set forth on an applicable Order Form (“Effective Date”), is between Agnes Intelligence, Inc., a Delaware corporation, with an address at c/o John H. Snyder PLLC, 555 Fifth Avenue, Suite 1700, New York, NY 10017 ("Agnes"), and the Client named in such Order Form (“Client”). Agnes and Client agree as follows:
1.1 License. Subject to the terms and conditions of this Agreement, Agnes (a) will use commercially reasonable efforts to host, operate and maintain the services as set forth on the Order Form, which may include the Agnes platform (the “Platform”) and/or other services offered by Agnes (collectively, the “Services”), (b) grants Client a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services and (c) grants Client a non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. For clarity, unless otherwise specified by Agnes in writing, any and all rights or licenses granted by Agnes to Client shall only apply to Client and not Client’s affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with Client.
1.2 Access and Account Setup. Upon execution of an Order Form, Agnes will provide Client with a unique login and password to access the Services web pages which are hosted and maintained by Agnes. Client shall be responsible for the acts or omissions of any person who accesses the Services using logins provided to or created by Client. Agnes reserves the right to modify or discontinue any part of the Services at any time without notice notice to Client, provided that in the event such modification or discontinuance materially reduces the functionality of the Services, Client may terminate this Agreement upon at least thirty (30) days’ prior written notice to Agnes, and Agnes shall provide Client with a pro-rated refund of any pre-paid fees for Services not performed by the effective date of termination. From time to time, Agnes personnel may log in to the Service under Client’s account in order to maintain or improve the Service, including providing Client assistance with technical or billing issues. Client hereby acknowledges and consents to such access.
1.3 Service Availability. Agnes will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades. Agnes will attempt to notify Client electronically via the Service in advance of any planned downtime. Notwithstanding the foregoing, Agnes will not be liable for any failures in the Service or any other problems which are related to (a) the Client Content (b) outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Agnes’s facilities or control.
1.4 Service Support. Agnes will provide Client with e-mail support for Client’s use of the Service during Agnes’s regular business hours. Client agrees that Agnes is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Client’s systems or hardware.
1.5 Client Content. As used herein, the term “Content” includes, without limitation, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, including without limitation all Client Content (as defined below). All Content created through or submitted to the Services by Client (collectively “Client Content”) is the sole responsibility of Client. Client acknowledges and agrees that Agnes will not assume any, and hereby disclaims all, responsibility and liability for Client Content and any modifications thereto. Client hereby grants Agnes a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Client Content in connection with providing the Services to Client.
1.6 Use Restrictions. Except as expressly permitted in this Agreement, Client shall not directly or indirectly (a) use any of Agnes’s Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, harvest, scrape, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (f) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services, (g) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Services, or (h) permit any third party to engage in any of the foregoing proscribed acts.
1.7 Limitations. Agnes will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Client use of the Services not in accordance with this Agreement or any relevant documentation provided by Agnes, (b) failures in any telecommunications, network or other service or equipment outside of Agnes’s or its service providers’ facilities, (c) Client's or any third party’s products, services, negligence, acts or omissions, (d) any force majeure or other cause beyond Agnes’s reasonable control, or (e) unauthorized access, breach of firewalls or other hacking by third parties.
2. PROPRIETARY RIGHTS
Subject to the rights and licenses expressly granted hereunder, Client shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Client Content. Subject to the limited rights and licenses expressly granted hereunder, Agnes (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services, the Platform, all Content (excluding the Client Content), all Agnes trademarks, names, logos, all copies, modifications and derivative works thereof, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein. Additionally, all Client (a) suggestions for correction, change or modification to the Services, (b) evaluations, and (c) other feedback, information and reports provided to Agnes hereunder (collectively, “Feedback”), will be the property of Agnes, and Client shall and hereby does assign any rights in such Feedback to Agnes. Client agrees to assist Agnes, at Agnes’s expense, in obtaining intellectual property protection for such Feedback, as Agnes may reasonably request.
3.1 Definition. Each party agrees that the business, technical and financial information, including without limitation, the Services, the Platform, all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, designated in writing as confidential or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). For the avoidance of doubt, any and all data provided to Client through the Services (other than Client Content) shall be considered Agnes’s Confidential Information. Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party.
3.2 Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
3.3 Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
4. PAYMENTS; TAXES
Client shall pay to Agnes fees as set forth in an applicable Order Form in accordance with the terms therein. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, and Client agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Agnes’s net income.
5. LIMITED WARRANTY AND DISCLAIMERS
5.1 General. Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding to which it is a party or by which it may be bound; and (d) it will perform its obligations hereunder in accordance with all applicable laws.
5.2 Client. Client represents and warrants that (a) Client has all rights to grant the licenses to Agnes set forth herein, including without limitation to Client Content, without infringement or violation of any applicable laws or third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and (b) Client shall not make available through the Services any Content that is disparaging, obscene, offensive, or otherwise inappropriate or that contains any viruses or any other harmful code.
EXCEPT AS PROVIDED IN SECTION 5.1 HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, AGNES HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7.1 Client. Client agrees to defend against and hold Agnes harmless from any claim by a third party that arises from or is related to (a) any Client Content, (b) Client’s use of the Services in violation of this Agreement, and to indemnify Agnes for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.
7.2 Agnes. Agnes agrees to (a) defend against and hold Client harmless from any claim by a third party that Services infringe a valid U.S. patent (issued as of the Effective Date), or any copyright or trade secret, of such third party and (b) indemnify Client for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any part of the Services become or, in Agnes’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Agnes may, at its option (1) obtain for Client the right to continue using the Services or (2) replace or modify the Services so that such services become non-infringing. If (1) and (2) are not reasonably available to Agnes, Agnes may terminate this Agreement upon written notice to Client and refund to Client a pro-rated amount of any pre-paid fees. Agnes shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) any use of the Services not strictly in accordance with this Agreement or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Services not created by or for Agnes, (iii) any Client Content, or (iv) Client’s continuing allegedly infringing activity after being notified thereof. The foregoing states the entire liability of Agnes, and Client’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.
7.3 Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
8. LIMITATION OF LIABILITY
EXCEPT for any breach of SECTION 3 (CONFIDENTIALITY) OR LIABILITIES TO THIRD PARTIES PURSUANT TO SECTION 7 (INDEMNIFICATION), In no event shall EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), for any (A) interruption OF USE, LOSS OR INACCURACY of data, loss oF, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) damages, IN THE AGGREGATE, in excess of the amountS PAID TO IT (IN THE CASE OF AGNES) OR PAID AND PAYABLE BY IT (IN THE CASE OF CLIENT) HEREUNDER DURING THE SIX (6) MONTHS PRECEDING SUCH CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
9. TERM AND TERMINATION
9.1 Term. Unless otherwise specified in an applicable Order Form or terminated as provided herein, this Agreement shall commence on the Effective Date and shall automatically renew month-to-month unless either party notifies the other party of its intent not to renew at least thirty (15) days prior to the end of the then current monthly term.
9.2 Termination. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party (ten (10) days in the case on non-payment).
9.3 Effects of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive. The provisions of Sections 2 (Proprietary Rights), 3 (Confidentiality), 7 (Indemnification), 6(Disclaimers), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 shall survive.
10. GENERAL PROVISIONS
10.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations or agreements (oral or written), between the parties regarding the subject matter hereof. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement.
10.2 Publicity. Client hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of Agnes’s marketing and promotional efforts. From time to time upon Agnes’s request, Client agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases and writing testimonials and case studies with statements attributed to a named employee of Client).
10.3 Modification and Waiver. No change, consent or waiver under this Agreement will be binding on either party unless made in writing and physically signed by an authorized representative of both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
10.4 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.5 Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof. Exclusive jurisdiction and venue for actions related to this Agreement will be JAMS Dispute Resolution, in New York, pursuant to the streamlined procedures then in force.
10.6 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
10.7 Notices. All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
10.8 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
10.9 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Client without Agnes's written consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
10.10 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
c/o John H. Snyder PLLC
555 Fifth Avenue, Suite 1700
New York, NY 10017