CENTRAL LOGIC, INC.
LICENSE AND SERVICES AGREEMENT
This License and Services Agreement (the “Agreement”) is entered into between Central Logic, Inc., a Delaware corporation (“Licensor”), and the entity agreeing to these terms (“Licensee”).
THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU CLICK THE “I ACCEPT” BUTTON BELOW, OR, IF APPLICABLE, THE DATE THE AGREEMENT IS COUNTERSIGNED (THE “EFFECTIVE DATE”).
IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY TO THESE TERMS; (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (III) YOU AGREE ON BEHALF OF THE PARTY THAT YOU REPRESENT TO THIS AGREEMENT. IF YOU DON'T HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY PLEASE DO NOT CLICK THE “I ACCEPT” BUTTON BELOW (OR, IF APPLICABLE, DO NOT SIGN THIS AGREEMENT). THIS AGREEMENT GOVERNS LICENSEE'S ACCESS TO AND USE OF THE LICENSED DELIVERABLES (AS DEFINED BELOW) OFFERED BY LICENSOR.
NOW THEREFORE, in consideration of the above premises and the mutual promises set forth below and subject to the terms and conditions hereof, the parties hereto agree as follows:
- CERTAIN DEFINITIONS. For purposes of this Agreement, the term “Licensed Deliverables” shall mean any and all of the following:
- DERIVATIVE WORK. The term “Derivative Work” means any revision, enhancement, modification, translation, abridgment, condensation or expansion of any Licensed Deliverable or any form in which any Licensed Deliverable may be recast, transferred, or adapted.
- information. The term “Information” means information resulting from the use of any or all of the Licensed Deliverables.
- LICENSED MATERIALS. The term “Licensed Materials” refers to any and all materials including documentation and support material, including any on-line training materials, in hard copy or electronic format (if available) designed to assist Licensee in the understanding, application, capability, maintenance, or use of the Licensed Deliverables which are delivered to Licensee by Licensor pursuant to and/or during the term of this Agreement, and any updates or modifications thereof.
- The term “Software” refers to (i) the proprietary software made available to Licensee pursuant to the terms of this Agreement as more fully described on Exhibit A hereto, (ii) any Add-ons as described on Exhibit A hereto (the “Add-ons”), and (iii) any Licensor delivered updates, upgrades, enhancements, or modifications to the Software, which will be delivered at Licensor’s sole discretion.
- LICENSE GRANT. Licensor hereby grants, and Licensee hereby accepts, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-sublicensable, non-transferable, license during the term of this Agreement to use the Licensed Deliverables as set forth herein (the “License”) and as more fully set forth on or limited by Exhibit A Licensee shall not have any rights to the Licensed Deliverables except as expressly granted in this Agreement. Licensor reserves to itself all rights to the Licensed Deliverables not expressly granted pursuant to this Agreement.
- COPYRIGHT and TITLE. The Licensed Deliverables and any copy thereof, in whole or in part, and all copyrights, trade secrets and other proprietary rights therein, including any Derivative Work are and will remain the sole property of Licensor, regardless of the use made by Licensee of the same and in any format, and are protected by certain United States and international copyright laws and trademark laws. The License confers no title of ownership in the Licensed Deliverables and is not a sale of any rights in the Licensed Deliverables. Licensee shall treat the Licensed Deliverables with at least the same standard of care as it treats any other material copyrighted and/or trademarked by a third party, in no case less than a reasonable standard of care. Licensee agrees not to, and to use its best efforts to cause its customers and any permitted sublicensees, if any, not to, challenge Licensor’s ownership in or enforceability of Licensor’s rights in and to any Licensed Deliverable or any related technology.
- WARRANTY and INDEMNITY. Licensor shall defend, indemnify and hold harmless Licensee and its respective affiliates, directors, officers, employees, agents and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), and judgments, in each case based on third-party claims that Licensee’s authorized use of the Software violates or infringes any U.S. patent that has issued as of the Effective Date, copyright, trademark, or trade secret; provided that (a) Licensee gives Licensor prompt written notice of the claim; (b) Licensor has full and complete control over the defense and settlement of the claim; (c) Licensee provides assistance in connection with the defense and settlement of the claim as Licensor may reasonably request; and (d) Licensee complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials). Licensor shall have the right to settle the claims of any claimant(s) in its sole and absolute discretion. Licensor will have no obligation under this Section 4 for any infringement to the extent that it arises out of or is based upon: (i) any unauthorized combination, operation, or use of the Software if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Software required by or provided by Licensee, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Software outside of the scope of the License; (iv) Licensee’s failure to use the latest release of the Software or to comply with instructions provided by Licensor, if the alleged infringement would not have occurred but for such failure; or (v) any modification of the Software not made by Licensor where such infringement would not have occurred absent such modification. Licensee will reimburse Licensor for any costs or damages that result from the actions in the foregoing sentence. This Section 4 states Licensor’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for the actual or alleged infringement by Licensor of any third-party intellectual property right by the Software. Licensor warrants that: (1) it shall perform any services provided hereunder in a professional and workmanlike manner; and (2) the Licensed Deliverables will operate in substantial conformity with the applicable Licensed Materials provided to Licensee.
- TERM, FEE AND PAYMENT. The License granted by this Agreement shall be for an Initial Term as set forth on Exhibit A hereto which shall begin as of the Effective Date. In consideration of the License rights granted above, Licensee shall pay the Fees set forth on Exhibit A, each due as set forth thereon. At the end of the Initial Term and each renewal term (if any), the License and the term of this Agreement shall automatically renew for subsequent one-year terms, unless terminated in accordance with Section 13 below. The fees for a subsequent term shall be at the then current price unless Licensor notifies Licensee of a price change before the end of the then-current term, and shall be due in the same manner as set forth on Exhibit A. All amounts payable hereunder by Licensee shall be payable in United States funds. The Licensee agrees to pay any and all fees, assessments, and taxes associated with the amounts due under this Agreement. A finance charge shall be imposed on all account balances outstanding over 30 days from the date of invoice. The finance charge is 1.5% per month or the highest rate allowed under applicable law, whichever is lower. During the term of this Agreement and for three years thereafter, Licensee will keep current, complete, and accurate records regarding the reproduction, use and distribution of the Software. Licensee will provide such information to Licensor and certify that it has paid all fees required under this Agreement within fifteen business days of any written request, so long as no more than one request is made in any twelve-month period. Licensee will, after reasonable prior notice from Licensor, provide Licensor and its representatives reasonable access to Licensee’s premises, records, and personnel so that Licensor may audit and confirm that Licensee complies with this Agreement. If an audit reveals any reproduction, use, or distribution of the Software or any Licensed Deliverables that is not compliant with this Agreement, Licensee will promptly comply with this Agreement and make an additional payment as contemplated by this Agreement, plus interest at the rate specified in this Section 6. If the amount of the underpayment is 5% or greater, Licensee will promptly reimburse Licensor for its reasonable costs of conducting such audit.
- Licensee shall not assign or otherwise transfer the License granted hereby or the rights granted hereunder without the prior written consent of Licensor. A request by Licensee to assign or otherwise transfer the License granted hereby must be in writing and Licensor shall have absolute, complete and unqualified discretion in granting or denying such request. Any attempt to assign or otherwise transfer any of the rights, duties or obligations hereunder without compliance with this Section is and shall be void ab initio. Licensor shall be permitted to assign this Agreement to any successor to all or substantially all of the assets of Licensor or the business unit of Licensor that is in the business of licensing the Licensed Deliverables, whether by merger, acquisition, asset sale, exclusive license, stock sale or otherwise.
- PERMISSION TO COPY Licensed Deliverables. Licensee may copy the Licensed Deliverables only as reasonably necessary to support a use authorized under this License. Licensee shall maintain and place on any copy of the Licensed Deliverables which it reproduces any notice(s) and/or legend(s) embedded in and/or affixed to the Licensed Deliverables. Licensee shall reproduce and include the copyright notice on any copy. All copies of the Licensed Deliverables, whether provided by Licensor or made by Licensee as permitted by this Agreement, shall remain the property of Licensor. All other copying is prohibited.
- UPDATES AND SUPPORT SERVICES. Licensor may provide updates to the Software without additional charge. Licensor will provide Licensee with support as long as Licensee is not in default of any material terms of this Agreement. The support in using the Licensed Deliverables may occur at the discretion of Licensor by phone, email, web conference, or mail request(s) to Licensor for help on incidental needs related to use of Software. Licensee shall also have web access to online Licensor support materials, for its internal use only, at no additional charge. Subject to the terms and conditions of this Agreement, Licensor shall provide the Software on a twenty-four (24) hours a day, seven (7) days a week basis (“24x7”) throughout the Term. Licensee acknowledges and agrees that from time to time the Software may be inaccessible or inoperable due to malfunctions, periodic maintenance procedures, repairs or upgrades which Licensor may undertake from time to time, service malfunctions and causes beyond the reasonable control of Licensor or which are not reasonably foreseeable by Licensor, including, without limitation, interruption or failure of telecommunication or digital transmission links, including an event of Force Majeure (as set forth in Section 24 of this Agreement), delays or failures due to Licensee’s internet service provider, hostile network attacks, network congestion or other failures. Licensee agrees that Licensor may not have control over the stability and throughput speed of the internet or the availability of the Software on a continuous or uninterrupted basis. Regardless of the cause of any interruption in the normal availability of the Software, Licensor shall use commercially reasonable efforts to promptly re-establish the Software. Licensor shall provide 24x7 phone or email support for High Priority Interruptions and phone or email support on a Business Day basis for Medium Priority Interruptions and Low Priority Interruptions. Licensor shall use commercially reasonable efforts to provide a reasonable (in Licensor’s reasonable discretion) interim resolution or operational workaround within twelve (12) hours of notification by Licensee of a High Priority Interruption and within two (2) business days of notification by Licensee of a Medium Priority Interruption. Licensor shall maintain a “Uptime Percentage” of 99.0%, which term is defined as a calculation of (Base Time – Downtime) / Base Time. “Downtime” means the time in a calendar month the Licensee cannot use the Software without material errors occurring, beginning when Licensor receives notice from Licensee regarding the such material errors and ending when Licensee is able to use the Software without material errors occurring or a workaround is provided. Downtime does not include scheduled maintenance or service malfunctions and causes beyond the reasonable control of Licensor or which are not reasonably foreseeable by Licensor. “Base Time” means the number of hours in a calendar month less maintenance hours. The parties agree that if the 99.0% Uptime Percentage is not satisfied for any calendar month, then Licensee is entitled to a pro-rated credit against any applicable fees paid by Licensee as follows: 10% for Uptime Percentage of 97.0% - 98.9%, 20% for Uptime Percentage of 95.0% - 96.9%, and 30% for Uptime Percentage below 95.0%. The Licensee may apply such credits to the prorated fees due to Licensor solely for the Site(s) impacted in the applicable calendar month. “High Priority Interruptions” means failures of the Software that are significant enough that Licensee cannot conduct business. “Business Day” means from 8am to 4pm Pacific Time on non-weekend and non-holiday days. “Medium Priority Interruptions” means failures of the Software that has a non-critical impact on Licensee’s Business. “Low Priority Interruptions” means failures of the Software that have a minor impact on Licensee’s operations.
- TRADE SECRETS. The Licensed Deliverables are trade secrets of Licensor and contain valuable proprietary products and trade secrets of Licensor, embodying substantial creative efforts and confidential information, ideas, and expressions. Licensee shall take appropriate action to protect the confidentiality of the Licensed Deliverables. Licensee shall not modify, translate, disassemble, create Derivative Works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the Licensed Deliverables in whole or in part, or otherwise use, copy, reproduce or distribute any Licensed Deliverable except as expressly permitted hereunder. The provisions of this section shall survive the termination of this Agreement.
- CONFIDENTIALITY. All information that either party receives from the other that is marked “confidential” by the disclosing party (hereinafter the “Disclosing Party”) or that would reasonably be considered confidential by a party experienced in the industry (hereinafter “Confidential Information”) shall be kept confidential, and each party agrees to treat (and take precautions to ensure that its employees treat) the Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth below; provided, however, that Licensor may disclose this agreement to a party performing financial or legal due diligence with respect to Licensor.
Each party agrees, during the term hereof and thereafter, to keep confidential all Confidential Information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof with at least the same standard of care with which it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable standard of care in the protection of Confidential Information); provided, however, that neither party shall have any such obligation with respect to the use or disclosure to third parties of such Confidential Information as can be established to: (a) have been known publicly; (b) have been known generally in the industry on a non-confidential basis before communication by the Disclosing Party to the recipient (hereinafter the “Recipient”); (c) have become known publicly; (d) have been known otherwise by the Recipient before communication by the Disclosing Party; (e) have been received by the Recipient without any obligation of confidentiality from a source (other than the Disclosing Party) lawfully having possession of such information.
If the Recipient is required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas, regulatory processes (including those of self-regulatory organizations), or similar process) in connection with any proceeding to disclose or otherwise becomes legally compelled to disclose any Confidential Information, the Recipient shall provide the Disclosing Party with prompt written notice and, if requested by the Disclosing Party after receipt of such notice, the Recipient shall provide Disclosing Party with reasonable assistance (subject to reimbursement by the Disclosing Party of all reasonable and out-of-pocket expenses incurred by the Recipient in providing such assistance) so as to enable the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Agreement. If such a protective order or other remedy is not obtained or if the Disclosing Party waives compliance with this Section 11, the Recipient may disclose Confidential Information, but only such Confidential Information as it is legally required to disclose in the reasonable opinion of counsel to the Recipient, and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information disclosed. Licensee’s obligations under this paragraph will survive the termination of this Agreement or of any License granted under this Agreement for whatever reason.
- OTHER RESTRICTIONS. Licensee may not (a) rent, loan, license, market, or sell the Licensed Deliverables or copies thereof, in whole or in part, to any part; (b) use the Licensed Deliverables to provide services to third parties (e.g., as a service bureau); or (c) circumvent or disable any security or other technological features or measures of the Licensed Deliverables, in each case except as may be specifically provided on Exhibit A Licensee hereby agrees (i) to notify its employees and agents who may have access to the Licensed Deliverables of the restrictions contained in this Agreement and (ii) to ensure their compliance with such restrictions.
- TERMINATION. If a party hereto provides a written notice to terminate to the other party at least 60 days prior to the end of the initial term or subsequent renewal terms set forth in Section 6 and, with respect to the Licensee, ceases use of the Licensed Deliverables on or prior to the end of the then current term, the License granted herein shall terminate at the end of that term. Licensor may immediately terminate this Agreement, or any License granted under it, by giving Licensee written notice of termination if Licensee commits a material breach hereof. Upon any termination of this Agreement, Licensee shall cease all use of the Licensed Deliverables, destroy or return to Licensor all copies of the Licensed Deliverables then in Licensee's possession and take such other actions as Licensor may reasonably request in writing to ensure that no copy of the Licensed Deliverables remain in Licensee's possession. If Licensee terminates this Agreement with or without cause, there shall be no refund of the fees paid or due to be paid hereunder.
- COMPLIANCE WITH LAWS. Licensee will comply with all applicable export and import control laws and regulations in its use of the Licensed Deliverables and, in particular, Licensee will not export or re-export the Licensed Deliverables without Licensor’s prior written consent, and, if such consent is granted, without Licensee first obtaining all required United States and foreign government licenses. Licensee shall obtain at its expense all necessary licenses, permits and regulatory approvals required by any and all governmental authorities as may from time to time be required in connection with its activities related to this Agreement. Additionally, the parties agree, to the extent applicable, to comply with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the requirements of the Department of Health (“DOH”), the Joint Commission on the Accreditation of Healthcare Organizations (“Joint Commission”), the National Committee on Quality Assurance (“NCQA”), and the laws, rules, and regulations concerning protected health information as set forth in the Business Associate Agreement attached hereto as Exhibit B, as applicable. To the extent permitted by applicable law, Licensee will defend, indemnify, and hold harmless Licensor from and against any violation of such laws or regulations by Licensee or any of its agents, directors, or employees.
- DISCLAIMER OF WARRANTY. Except FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 4 ABOVE Or ELSEWHERE IN this Agreement, THE LICENSED DELIVERABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STatutory, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE BEARS ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THE LICENSED MATERIALS AND TO THE ACCURACY AND USE OF THE INFORMATION. WITHOUT LIMITING THE FOREGOING, Licensor DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE LICENSED Deliverables SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some states may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee. Any warranties made in this Agreement are for the benefit of Licensee only. In no event does Licensor make any warranty, and Licensor shall have no liability, with respect to the results or accuracy of any scan or analysis performed by Licensor and/or the Licensed Deliverables with respect to the security or compliance features or status of any application.
- LIMITATION ON LIABILITY. In no event will Licensor, its suppliers, shareholders, officers, employees or agents be liable for any lost profits, indirect, incidental, special, punitive or consequential damages, including damages due to loss of data or goodwill, arising out of this Agreement or the use of or reliance upon the Licensed Deliverables or Information, even if Licensor has been advised of the possibility of such damages. In no event shall Licensor be liable for procurement costs of substitute products or services or any unauthorized use or misuse of any Licensed Deliverables or Information, except in the case of Licensor’S WILFULL MISCONDUCT with respect to such use or misuse. Licensee assumes responsibility for the use and results obtained from the Licensed Deliverables. UNDER NO CIRCUMSTANCES WILL Licensor’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO LICENSOR DURING THE IMMEDIATELY PRECEDING TWELVE-MONTH PERIOD (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). The parties agree that this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. Because some states may not allow the exclusion or limitation of consequential or incidental damages, such limitations may not apply to Licensee.
- GOVERNING LAW. This Agreement shall be governed by the laws of the State of Utah, U.S.A.
- REMEDIES. Licensee agrees that the obligations of Licensee provided herein are necessary and reasonable in order to protect Licensor and its business interests, and Licensee expressly agrees that monetary damages alone may be inadequate to compensate Licensor for any breach by Licensee of its covenants and agreements set forth herein. Accordingly, Licensee acknowledges that the unauthorized use, transfer, or disclosure of the Licensed Deliverables or Information, or copies thereof will (a) substantially diminish the value to Licensor of the proprietary interest that are the subject of this Agreement; (b) render Licensor’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use the Licensed Deliverables or Information, Licensor shall be entitled to equitable relief to protect its interest therein, including but not limited to, preliminary and permanent injunctive relief. For such purposes, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts found within the State of Utah, and they do agree that venue shall be proper in the County of Salt Lake in the State of Utah. In addition to any other remedies that may be available, in law, in equity or otherwise, Licensor shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Licensee, without the necessity of proving actual damages.
- ATTORNEY FEES. In case of arbitration or action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
- ENTIRE AGREEMENT; AMENDMENT. This Agreement and Exhibit A together are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
- NON-WAIVER. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
- NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, express or implied, is intended to confer on any person, other than the parties to this Agreement, any right or remedy of any nature whatsoever.
- SEVERABILITY; BINDING EFFECT. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be impaired. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and, to the extent permitted by Section 7, assigns.
- FORCE MAJEURE. Licensor will not be liable for, or be considered to be in breach of, or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Licensor’s reasonable control, so long as Licensor uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
- Notices. All notices, consents, and other communications permitted or required to be given hereunder (herein referred to as a “Notice”) shall be in writing and addressed as follows: (i) if to Licensor, to the address set forth on the signature page hereto with a copy (which shall not constitute notice) to:
Kunzler Bean & Adamson, PC
Attn: James Platt
50 W. Broadway, 10th Floor
Salt Lake City, Utah 84101
and (ii) if to Licensee, to the address on the signature page hereto. Any party may change its address or email address for notification purposes by giving the other party Notice of the new address or email address and the date upon which it will become effective in accordance with the terms of this Section. A Notice shall be deemed to have been received as of the next business day in the jurisdiction of its receipt following its transmission by electronic mail.
- Invoices. Any invoices to Licensee hereunder (herein referred to as an “Invoice”) shall be in writing sent as set forth in Section 25. If sent via electronic mail or other electronic transmission, the Invoice shall be deemed to have been received as of the next business day in the jurisdiction of its receipt following its electronic transmission.
- DEFENSE. Each party (the “Indemnifying Party”) will defend the other party (“Indemnitee”) from any actual or threatened third party claim arising out of or based upon Indemnifying Party’s (1) material breach of any of the provisions of this Agreement (2) gross negligence, fraud, willful misconduct, and (3) violation of any law, rule, or regulation. Indemnitee will: (a) give Indemnifying Party prompt written notice of the claim; (b) grant Indemnifying Party full and complete control over the defense and settlement of the claim so long as such settlement is approved by Indemnitee; (c) assist Indemnifying Party with the defense and settlement of the claim as Indemnifying Party may reasonably request and at Indemnifying Party’s expense; and (d) comply with any pre-approved settlement or court order made in connection with the claim.
- INDEMNIFICATION. Indemnifying Party shall indemnify Indemnitee against: (a) all damages, costs, and attorneys’ fees finally awarded against Indemnitee in any proceeding under Section 27; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by Indemnitee in connection with the defense of such proceeding (other than when Indemnitee has accepted defense of such claim); and (c) if any proceeding arising under Section 27 is settled, Indemnitee will pay any amounts to any third party agreed to by Indemnitee in settlement of any such claims.
- DATA. Each Party will own the statistical and other data such party collects related to Licensee’s use of the Licensed Deliverables hereunder, provided that any such data disclosed to third parties shall be in an aggregated format and contain no reference to and shall not be attributable to the other party or any particular individual. For avoidance of doubt, any aggregate or statistical data that Licensor provides to Licensee under this Agreement shall remain the sole property and Confidential Information of Licensor. In addition, Licensor is hereby granted a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify, or distribute, including by incorporating into Licensor’s products and other inventions, any suggestions, enhancement requests, recommendations or other feedback provided by Licensee hereunder.
- HIRING OF EMPLOYEES. Licensee agrees that it shall neither hire nor solicit for hiring the employees of the Licensor during the Term and for a period of one year following the expiration thereof, provided such obligation shall not apply to a bona fide response to a general solicitation which was not targeted at a particular employee or contractor. The parties hereto agree that the damages from breach of this provision would be extremely difficult to measure, and therefore agree to adopt as a measurement of liquidated damages (and not as a penalty) owed to Licensor by Licensee the amount of one year’s salary of such employee.
- USE OF NAME. Licensor may identify Licensee in Licensor marketing materials. Licensee hereby grants Licensor a non-exclusive right to use Licensee’s trademarks, logos, and other materials provided by Licensee to Licensor for this purpose.
- MUTUAL WARRANTIES. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
[Signature Page Follows]