Growflux product and software TERMS AND CONDITIONS
Section 1. Applicability. These terms and conditions (“Terms” or “Agreement”) govern the sale of the goods (“Product”) and the license of Software (as defined below) by GrowFlux, Inc., a Delaware corporation (“Company”). By purchasing the Product and/or licensing the Software, you (“Customer” and together with Company, the “Parties”, and each a “Party”) represent that you are over the age of 18, have the right and authority to bind yourself and your company, as applicable, and agree to be legally bound by the Terms. These Terms comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
Section 2. Product Delivery.
(a) The Product will be delivered within a reasonable time after the date of purchase. Company shall not be liable for any delays, loss or damage after delivery of the Product to the Delivery Point (as defined at the time of purchase).
(b) Company shall deliver the Product to the Delivery Point using Company’s standard methods for packaging and shipping such Product, and Customer shall take delivery of the Product at the time that the Product has been delivered to the Delivery Point.
(c) Company may, in its sole discretion, without liability or penalty, make partial shipments of Product to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the quantity purchased under this Agreement.
(d) If for any reason Customer fails to accept delivery of any of the Product, or if Company is unable to deliver the Product at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Product shall pass to Customer; (ii) the Product shall be deemed to have been delivered; and (iii) Company, at its option, may store the Product until collected by Customer, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(e) The quantity of any installment of Product as recorded by Company on dispatch from Company’s place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary. Company shall not be liable for any non-delivery of Product unless Customer gives written notice to Company of the non-delivery within five (5) business days of the date when the Product would in the ordinary course of events have been received. Any liability of Company for non-delivery of the Product shall be limited to delivering the Product within a reasonable time or adjusting the invoice respecting such Product to reflect the actual quantity delivered.
Section 3. Title and Risk of Loss of Product. Title and risk of loss passes to Customer upon delivery of the Product at the Delivery Point. As collateral security for the payment of the Price of the Product, Customer hereby grants to Company a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Product, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Pennsylvania Uniform Commercial Code.
Section 4. Inspection and Rejection of Nonconforming Product.
(a) Customer shall inspect the Product within five (5) business days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Product unless it notifies Company in writing of any Nonconforming Product during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Company. “Nonconforming Product” means only the following: (i) product shipped is different than identified in this Agreement; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Customer timely notifies Company of any Nonconforming Product, Company shall, in its sole discretion, (i) replace such Nonconforming Product with conforming Product, or (ii) credit or refund the Price for such Nonconforming Product. Customer shall ship the Nonconforming Product to Company at Company’s expense and risk of loss,. If Company exercises its option to replace Nonconforming Product, Company shall, after receiving Customer’s shipment of Nonconforming Product, ship to Customer, at Company’s expense and risk of loss, the replaced Product to the Delivery Point.
(c) Customer acknowledges and agrees that the remedies set forth in Section 4(b) are Customer’s exclusive remedies for the delivery of Nonconforming Product. Except as provided under Section 4(b), all sales of Product to Customer are final and Customer has no right to return Product purchased under this Agreement to Company.
Section 5. Software License and Services
(a) “Software” shall mean, collectively, (1) the software licensed to Customer by Company as embedded as firmware in Product and (2) software that is separately subscribed to by Customer as part of this Agreement which Company delivers to Customer in downloadable form or which is hosted on servers owned or operated by Company (“Company Subscription Software”), along with all associated Documentation and including all Updates to that software. All Software required to be delivered by Company shall be delivered in operational format but without object code or source code form.
(b) License. Subject to the terms of this Agreement, Company hereby grants to Customer, during the term of this Agreement, a limited, non-exclusive, non-transferable license, without right of sublicense, to access and use the Software for Customer’s internal business purposes and only for the number of authorized users specified at the time of order. Company further grants to Customer a limited, non-exclusive, non-transferable license, without right of sublicense, to internally use copies of the most current version of any Company-developed documentation which formally describes the details of Software, including reference manuals and on-line help files (“Documentation”) solely in connection with use of the Software licensed to Customer in accordance with this Agreement.
(i) License Restriction and Verification. Only Customer’s employees shall be permitted to use the Software. Without Company’s written permission, which may be withheld by Company at its sole discretion, Customer shall not sell, lease, assign, sublicense or otherwise transfer or disclose the Software, in whole or in part, to any third party. Customer may not allow any third party to access or use the Software, except with Company’s written permission. Customer shall not, and shall not allow others, to reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of any part or portion of the Software. In the event Customer is granted access to source code, Customer shall only use it to support and maintain the Software and Customer may not create derivative works or allow others (except consultants who have signed a confidentiality agreement with Company) access to the Software. Customer shall not attempt to exceed any limitations on the volume or duration of permitted usage specified in the order, or attempt to circumvent or disable any features, mechanisms, or technological protection measures in the Software. With reasonable advance notice, Customer shall permit Company or its authorized representatives reasonable access, during normal business hours, to the location(s) where the Software is used in order for Company to verify Customer’s compliance with the terms and conditions of this Agreement. In addition, Company may include features in the Software to monitor usage solely for the purpose of determining compliance with this Agreement and assessing any applicable per-usage fees. Customer will not attempt to block or circumvent such monitoring. In the event that Customer has more Registered Users than Customer has paid for, then Customer shall immediately pay the then-current list price for such additional Registered Users.
(ii) Ownership. The Software subject to this Agreement is licensed, not sold by Company to Customer, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Software. Notwithstanding any other provision to the contrary contained herein, Customer shall not receive any right, title or interest, including but not limited to copyright, in or to (i) the Software; (ii) any Software modifications, enhancements, changes and derivative works; or (iii) any intellectual property related to the foregoing (i) or (ii), including, but not limited to, the design, concepts and documentation. Customer shall not be entitled to any royalties for features added to the Software based on Customer's suggestions or feedback. Company reserves all rights to the Software not expressly granted to Customer in accordance with this Agreement.
(iii) Access. At the time of delivery or registration, Company shall deliver to Customer all necessary passwords, access instructions and documentation for use of Company Subscription Software subject to this License. Customer shall provide all necessary data, information, and sufficient internet connectivity to Company to ensure timely and proper deployment of the Software.
(c) Software Support and Maintenance. Support and maintenance shall be provided to Customer exclusively by Company, or its designee. Company will provide the support and maintenance services described in Sections 5(c)(i) through 5(c)(iv) below provided that Customer has paid applicable license fees in accordance with this Agreement, is current with payment of annual support and maintenance fees, and, if applicable, meets any minimum usage requirements. Such fees do not include expenses, and Customer shall also reimburse Company for all expenses, including any necessary travel and lodging, incurred in providing support and maintenance services.
(i) Error Correction. Subject to the Exclusions in Section 5(c)(iv) of this Agreement, Company shall promptly correct any Error(s) in the Software. In such case, Company may provide a temporary solution to the problem where one is available and shall correct the problem at its sole expense as soon as reasonably practicable.
(ii) Updates. Company shall provide Updates to the Software to Customer when such are made available to Company’s other customers receiving support and maintenance.
(iii) Maintenance Term and Renewal. The initial maintenance term for each Software shall commence upon Acceptance of the Software and shall terminate one year from that date. Acceptance will be deemed to occur when access to the Software is delivered to Customer, unless Customer notifies Company, in writing, within thirty (30) days of delivery, of Errors that prevent usage. In that case, Acceptance will occur when Software curing those Errors has been delivered. At the end of each term, maintenance and support shall automatically renew for an additional year unless either party provides notice of termination to the other party thirty days prior to the end of the then current term. Notwithstanding the foregoing, if Customer subscribes to maintenance and support for any Software, Customer must purchase maintenance and support for all Software which Customer licenses under this Agreement.
(iv) Exclusions. To the extent problems arise from (i) Customer’s unauthorized modification of the Software; (ii) services provided by a party other than Company; (iii) Customer’s operational error with respect to the Software or the hardware upon which the Software operates; (iv) hardware problems; or (v) problems with third party software, support rendered by Company in helping Customer to identify and resolve such problems (including telephone support) may, at Company’s option, be billed at Company’s then current hourly rate plus Expenses. Support and maintenance will not be provided unless Customer has installed the latest Updates, within six (6) months of release of each Update.
(d) Software Term and Termination. The Software License provided pursuant to this Agreement shall terminate upon (1) termination of all subscriptions that include licensed Software, (2) mutual agreement of the parties, or (3) termination for cause as provided in this Section 9.
(i) Termination for Cause. Either party may terminate the licenses provided for under these Terms for a material breach by the other party of any of the Terms, provided that (1) the terminating party has provided the breaching party with written notice of the breach and 60 days to cure such breach, and (2) the breach still exists at the time of termination. In the event that one party terminates less than all of the licensed Software, the other party may at its option terminate all other Software licenses between the parties. Upon written notice to Customer, Company may immediately terminate any Attachment or the entire Agreement for breach of Section 5(b)(i) of the Terms, without giving Customer the opportunity to cure. In the event of termination by either party under this Section 5(d), the license to use any or all Software may, at Company’s option, be revoked by Company.
(ii) Obligations upon Termination. Upon the expiration or termination of this Agreement for any reason, all fees and Expenses shall become due and payable immediately by Customer to Company. Customer shall immediately cease all use of the Software and promptly destroy all copies of the Software and related Documentation.
Section 6. Installation and Training. Company may provide reasonable training, at no additional charge, to each Customer sufficient to permit Customer to effectively use the Product and/or Services subject to this Agreement. Company shall provide necessary training materials to Customer to facilitate such training. Training shall be scheduled at times reasonably convenient for both Company and Customer. Training for Products shall be conducted at the facilities where Customer has installed the Products. Training for Software may be conducted, at Company’s discretion, either remotely or at the facilities where Customer is using the Software.
Section 7. Price. Customer shall purchase the Product from Company at the price set forth at the time of purchase (the “Product Price”). Customer shall subscribe to Company Subscription Software on a monthly basis at the rate set forth at the time of subscription (the “Software Price” and collectively with Product Price, “Prices”). Company may increase the Software Price, from time to time, at Company’s discretion. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, shipping and handling costs, and other costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personnel or real or personal property or other assets.
Section 8. Payment Terms. With respect to Product, Customer shall pay fifty percent (50%) of the invoiced amount at the time of order and the remaining fifty percent (50%) within thirty (30) days after the Product is delivered. With respect to Company Subscription Software, Customer shall pay the initial monthly license fee upon the software’s activation. Customer shall make all payments hereunder by wire transfer or check and in U.S. dollars. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
Section 9. No Setoff. Customer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to Company or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Company or its affiliates, whether relating to Company’s or its affiliates’ breach or nonperformance of this Agreement or any other agreement between Customer or any of its affiliates, and Company or any of its affiliates, or otherwise.
Section 10. Warranties.
(a) Product Warranty. Company warrants to Customer that, for a period of five years from the date of shipment of the Product (“Product Warranty Period”), its Product will be free from material defect in material and workmanship and will substantially conform to manufacturer specifications under normal use for the Product Warranty Period. Company does not warrant that the Product will meet Customer's requirements. Company may, at its sole discretion, void the warranty if it appears the Product has been modified, disassembled, not properly maintained, has been repaired without Company’s express written authority, or has not been used in accordance with Company’s specifications.
(b) Software Warranty. Company warrants that the Software will perform within the performance ranges outlined in the Documentation on the Specification System. Company does not warrant that the Software will meet Customer's requirements or that the operation of the Software will be uninterrupted. Company may, at its sole discretion, void the warranty if Customer violates Section 5(b) above or if appears it appears the Product or the Software has been modified, disassembled, not properly maintained, has been repaired without Company’s express written authority, or has not been used in accordance with Company’s specifications.
(c) Maintenance, Installation, Training, and Service Warranty. To the extent provided, Company warrants that during the term of the Agreement, it shall provide all maintenance, installation, training, and services (“Services”) in a timely, professional, and workmanlike manner using a level of care and skill that is consistent with industry standards of performance. In the event that any Service does not conform to the foregoing warranty, Company shall, at Customer’s election, either repeat performance of any Service required under this Agreement or refund any fees paid by Customer with respect to such nonconforming Service.
(d) EXCEPT FOR THE WARRANTY SET FORTH IN SECTIONS 10(a) THROUGH 10(c), COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCT OR SOFTWARE, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS (DEFINED BELOW) OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(e) Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Product. Third-Party Products are not covered by the warranty in Section 10(a). For the avoidance of doubt, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(f) Company shall not be liable for a breach of the warranty set forth in Sections 10(a) or 10(b) unless: (i) Customer gives written notice of the defect, reasonably described, to Company within ten (10) business days of the time when Customer discovers or ought to have discovered the defect; (ii) Company is given a reasonable opportunity after receiving the notice to examine such Product or Software and Customer (if requested to do so by Company) returns such Product to Company’s place of business at Company’s cost for the examination to take place there; and (iii) Company reasonably verifies Customer’s claim that the Product or Software are defective.
(g) Company shall not be liable for a breach of the warranty set forth in Sections 10(a) or 10(b) if: (i) Customer makes any further use of such Product or Software after giving such notice; (ii) the defect arises because Customer failed to follow Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product or Software; or (iii) Customer alters, modifies, or repairs such Product or Software without the prior written consent of Company.
(h) Subject to Section 10(f) and Section 10(g) above, with respect to any such defective Product during the Warranty Period, Company shall, in its sole discretion, repair or replace such Product (or the defective part) or Software.
(i) THE REMEDIES SET FORTH IN SECTION 10(h) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTIONS 10(a) THROUGH 10(c).
Section 11. Limitation of Liability.
(a) EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER PARTY NOR ITS REPRESENTATIVES IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) EXCEPT FOR ANY LIABILITY THAT ARISES PURSUANT TO THE INTELLECTUAL PROPERTY INDEMNIFICATION SET FORTH IN SECTION 13(b) BELOW, IN NO EVENT SHALL A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF THE PRODUCT OR SOFTWARE, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO COMPANY FOR THE PRODUCT SOLD OR SOFTWARE LICENSED.
Section 12. Compliance. Customer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
Section 13. Indemnification.
(a) General Indemnification. Subject to the terms and conditions of this Agreement, each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its officers, directors, managers, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to any claim of a third party (a “Third Party Claim”) or Party alleging:
(i) breach or non-fulfillment of any material representation, warranty, or covenant set forth in this Agreement by Indemnifying Party;
(ii) any grossly negligent or more culpable act or omission of Indemnifying Party (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
(iii) any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Indemnifying Party; or
(iv) any failure by Indemnifying Party to materially comply with any applicable laws.
(b) Intellectual Property Indemnification. Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless Customer and its officers, directors, managers, employees, agents, affiliates, successors and permitted assigns (collectively, the “Customer Indemnitees”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, award against any Customer Indemnitee in a final non-appealable judgment arising out of any Third Party Claim alleging that any of the Product, Software, or Customer receipt or use thereof infringes any Intellectual Property Right of a third party. If the Product, any part of the Product or the Software becomes, or in Company’s opinion is likely to become, subject to a Third Party Claim that qualifies for intellectual property indemnification coverage under this Section 13(b), Company shall, at its sole option and expense, notify Customer in writing to cease using all or a part of the Product or Software, in which case Customer shall immediately cease all such use of such Product on receipt of Company’s Notice. Notwithstanding anything to the contrary in this Agreement, Company is not obligated to indemnify or defend any Customer Indemnified Party against any claim (direct or indirect) under this Section 13(b) if such claim or corresponding Losses arise out of or result from, in whole or in part, a Customer Indemnitee’s: (i) negligence or more culpable act or omission (including recklessness or willful misconduct; (ii) bad faith failure to comply with any of its obligations set forth in this Agreement; (iii) use of the Product or Service in any manner that does not materially conform with any usage instructions provided by Company; (iv) marketing, advertising, promotion, or sale or any product containing the Product or Software; (v) use of the Product or Software in combination with any products, materials, equipment, or software supplied to Customer by a Person other than Company or its authorized representatives, if the infringement would have been avoided by the use of the Product or Software not so combined; (vi) any modifications or changes made to the Product or Software by or on behalf of any Person other than Company or its representatives, if the infringement would have been avoided without such modification or change; or (vii) failure to update the Software to a version that would have avoided infringement. For the purposes of this agreement, “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor's certificates, petty patents, and patent utility models); (ii) all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world (each, a “Trademark”); (iii) internet domain names, whether or not Trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, data, data files, and databases and other specifications and documentation; (v) all inventions, discoveries, trade secrets, business and technical information, and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein; (vi) semiconductor chips, mask works, and the like; and (vii)) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.
(c) Notwithstanding anything to the contrary in this Agreement, this Section 13 does not apply to any claim (direct or indirect) for which a sole or exclusive remedy is provided for under another section of this Agreement, including Sections 2, 4, 5, and 10.
(d) Promptly after receipt by an Indemnified Party of notice of the assertion of a Third Party Claim against it, such Indemnified Party shall give notice to the Indemnifying Party of the assertion of such Third Party Claim, provided that the failure to notify the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party, except to the extent that the Indemnifying Party demonstrates that the defense of such Third Party Claim is prejudiced by the Indemnified Party’s failure to give such notice.
(e) If an Indemnified Party gives notice to the Indemnifying Party pursuant to Section 13(d) of the assertion of a Third Party Claim, the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, to the extent that it wishes (unless (i) the Indemnifying Party is also a person against whom the Third Party Claim is made and the Indemnified Party determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim), to assume the defense of such Third Party Claim with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party shall not, so long as it diligently conducts such defense, be liable to the Indemnified Party under this Section 13 for any fees of other counsel or any other expenses with respect to the defense of such Third Party Claim, in each case subsequently incurred by the Indemnified Party in connection with the defense of such Third Party Claim, other than reasonable costs of investigation. If the Indemnifying Party assumes the defense of a Third Party Claim, (i) such assumption will conclusively establish for purposes of this Agreement that the claims made in that Third Party Claim are within the scope of and subject to indemnification, and (ii) no compromise or settlement of such Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s prior written consent unless (A) there is no finding or admission of any violation of law or any violation of the rights of any person; (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party shall have no liability with respect to any compromise or settlement of such Third Party Claims effected without its prior written consent. If notice is given to an Indemnifying Party of the assertion of any Third Party Claim and the Indemnifying Party does not, within fifteen (15) days after the Indemnified Party’s notice is given, give notice to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party will be bound by any determination made in such Third Party Claim or any compromise or settlement effected by the Indemnified Party.
(f) THIS SECTION 13 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH INDEMNIFIED PARTY FOR ANY LOSSES COVERED BY THIS SECTION 13.
Section 14. Assumption of the Risk. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCT OR SOFTWARE IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY COMPANY, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCT.
Section 15. Insurance. During the term of this Agreement and for a period of one year thereafter, each Party shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum no less than two million dollars ($2,000,000) with financially sound and reputable insurers. Upon a Party’s request, the other Party shall provide such Party with a certificate of insurance from its insurer evidencing the insurance coverage specified in this Agreement.
Section 16. Audit. At its own expense, during normal business hours and at any time during with the Product or Software are being used, but not more than once in any twelve (12) month period, Company, or its authorized representative, shall have the right upon reasonable advance notice to audit and inspect Customer’s use of the Product and/or Software in order to verify compliance with these Terms. Upon Company’s reasonable request, which shall not occur more than once in any twelve (12) month period, Customer shall deliver to Company a report, as defined by Customer, evidencing Customer’s use of Company Subscription Software licensed under this Agreement. In the event an audit reveals Customer’s non-compliance with these Terms, or if Company believes in good-faith that a report is inaccurate, Company shall be permitted to perform a re-audit notwithstanding the twelve (12) month limitation. In the event an audit reveals that Customer underpaid any fees to Company, Customer shall pay such underpaid fees based upon Company’s list of prices in effect at the time of the audit.
Section 17. Company’s Right of Termination. In addition to any remedies that may be provided in this Agreement, Company may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for five (5) business days after Customer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Section 18. Customer Data. Customer shall retain all right, title, and interest (including intellectual property rights) in and to data derived from Customer’s use of the Products and/or Software (“Customer Data”). Customer hereby grants Company a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data derived from Customer’s use of the Products and/or Services. Customer agrees that Company will have the right to create data by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer (“Aggregate/Anonymous Data”). Company shall retain all right, title, and interest (including intellectual property rights) in and to the Aggregate/Anonymous Data and Company may use Aggregate/Anonymous Data for any business purpose during or after the term of this Agreement, including without limitation to develop and improve Company’s products and services and to create and distribute reports and other materials. For clarity, Company will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer. Company agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification, which are described in more detail on Customer’s website, currently available at https://www.growflux.com/privacy-policy/.
Section 19. Confidential Information. All non-public, confidential or proprietary information of either Party (“Disclosing Party”), including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed to the other Party (“Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Disclosing Party in writing. With respect to Company, its confidential information shall include, but is not limited to, the Software, any documentation for the Software, and algorithms used in the Software. Upon the Disclosing Party’s request, the Receiving Party shall promptly return all documents and other materials received from the Disclosing Party. The Disclosing Party shall be entitled to injunctive relief for any violation of this Section 19. This Section 19 shall not apply to information that is: (a) in the public domain; (b) known to the Receiving Party at the time of disclosure; or (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party who is not under an obligation to maintain confidentiality with the Disclosing Party.
Section 20. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) Section 9, Section 10, Section 11, Section 13, Section 14, Section 18, and Section 19 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement. All other provisions of this Agreement shall not survive the expiration or earlier termination of this Agreement.
Section 21. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the other Party at its address set forth above (or to such other address that the receiving Party may designate from time to time). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section 21.
Section 22. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Section 23. Amendments. This Agreement may only be amended by written agreement signed by a duly authorized representative of each Party.
Section 24. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any 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, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section 25. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Customer’s rights under Section 2, Section 4, Section 5, Section 11 and Section 13 are Customer’s exclusive remedies for the events specified therein.
Section 26. Assignment; Delegation. The Customer may not assign any of its rights under this Agreement or delegate any performance or obligation, except with the prior written consent of Company. Any attempt to subcontract, delegate, transfer or otherwise assign this Agreement in violation of this Section 25 shall be null and void.
Section 27. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective permitted successors and permitted assigns.
Section 28. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the previous sentence, the Parties hereby designate the Indemnified Parties as third-party beneficiaries of Section 13, having the right to enforce Section 13.
Section 29. Governing Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto (if any), and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania; provided that United States federal law, including the United States Federal Arbitration Act, shall govern all issues concerning the validity, enforceability and interpretation of the arbitration provision set forth in Section 30.
Section 30. Arbitration. Except for any claim seeking injunctive relief, any and all disputes arising out of or relating to this Agreement or the transactions contemplated herein, including the negotiation, execution, interpretation, performance or non-performance of this Agreement, shall be solely and finally settled by binding arbitration administered by JAMS in accordance with the then current JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”) by a panel of three arbitrators selected by JAMS in accordance with the Rules (the “Arbitrators”). The Arbitrators shall be lawyers experienced in matters relating to commercial transactions, and shall not have been engaged or employed by, or in any way affiliated with, each of the Parties, or any of their Affiliates, at any time in the five (5) year period immediately prior to the commencement of the arbitration proceedings. The place of arbitration shall be Philadelphia, Pennsylvania. Except as set forth in this Section 30, each of the Parties hereto renounces all recourse to litigation as to matters subject to arbitration hereunder, and agree that the award of the Arbitrators shall be final and subject to no judicial review, except as expressly provided by applicable law. The Arbitrators shall decide the issues submitted to them in accordance with: (a) the provisions and commercial purposes of this Agreement; and (b) the laws of the Commonwealth of Pennsylvania (without regard to its conflicts of laws rules). The Arbitrators shall issue a written award setting forth the reasons for their decision. Judgment on the award of the Arbitrators may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, each Partner shall have the right, exercised in accordance with Section 30, to seek injunctive or comparable equitable relief to enforce the provisions of this Agreement without first seeking or obtaining any decision of the Arbitrators with respect to the subject matter of this Agreement, even if a similar or related matter has already been referred to arbitration in accordance with the terms of this Section 30.
Section 31. Consent to Jurisdiction. With respect to any matter not to be decided by Arbitrators pursuant to Section 30, and with respect to any action to enforce an Arbitrator’s decision or award pursuant to Section 30, each Partner irrevocably submits for itself and its Affiliates, and its and their property, to the exclusive jurisdiction of any state court located in Philadelphia, Pennsylvania or in any Federal Court having jurisdiction over Philadelphia County, Pennsylvania and each Partner hereby (a) consents to the jurisdiction of any such state or Federal Court and to service or process by registered or certified mail, return receipt requested, or by any other manner provided by law, (b) agrees not to object to venue of any such court, and (c) agrees not to bring any proceeding or action arising out of or relating to this Agreement or the transactions contemplated hereby in any other court.
Section 32. Waiver Of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO THIS AGREEMENT (IF ANY), IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT (IF ANY), OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 33. Punitive and Consequential Damages. EACH PARTY HEREBY (A) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING ANY LOST PROFITS) IN ANY ARBITRATION PROCEEDING RELATING TO THIS AGREEMENT (OR ANY TRANSACTION CONTEMPLATED HEREBY OR ASSOCIATED HEREWITH); AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AMONG OTHER THINGS, BY THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 33.
Section 34. Force Majeure. Any delay or failure of Company to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
Section 35. 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, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.