This Master Software-as-a-Service (SaaS) Agreement (this “Agreement”) governs your use of the Label Insight Services. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “you” or “your” or “Customer” shall refer to such entity and its affiliates. You may not access the Label Insight Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Label Insight Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
WHEREAS, Label Insight has designed a proprietary software-as-a-service platform and database (the “LI SaaS Platform”) designed to provide a variety of software-as-a-service offerings to its customers, including providing such customers with access to certain ingredient, attribute, nutrient value, certification information and other data and images for food and consumer products from a variety of sources, and other data capturing systems and reporting systems for assistance with product knowledge and competitive analysis; and
WHEREAS, Customer desires to procure certain access to the LI SaaS Platform and related services from Label Insight, and Label Insight wishes to provide such access and services to Customer, pursuant to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Services. Subject to and conditioned on Customer’s and Customer’s Authorized Users’ compliance with the terms and conditions of this Agreement, Label Insight shall provide to Customer the services (collectively, the “Services”) described in the applicable Statement(s) of Work entered into between the parties, in accordance with the Specifications set forth on such Statement(s) of Work. Label Insight reserves the right, in its sole discretion, to make any changes to the Services and LI Materials that it deems necessary or useful to maintain or enhance the quality or delivery of Label Insight’s services to its customers, the competitive strength of or market for Label Insight’s product offerings, the Services’ cost efficiency or performance, or to comply with applicable Law. Label Insight is providing the Services to Customer on a nonexclusive basis.
1.2 Service Levels. The Services will be provided in accordance with the service levels described on Schedule 1.
1.3 Authorization; Permitted Use(s). Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with the terms and conditions of this Agreement, during the Term Label Insight hereby authorizes Customer to access and use the Services and such LI Materials as Label Insight may supply or make available to Customer solely for the Permitted Use(s) as set forth on the applicable Statement of Work.
1.4 Reservation of Rights and Feedback. Except for the specific, limited rights and licenses being granted by Label Insight under this Agreement, all other rights, licenses, title and interest in to the Services, the LI Materials and the Third Party Materials are and will remain with Label Insight and the respective rights holders in the Third Party Materials. Customer grants Label Insight a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services and the LI Materials any suggestions, enhancements, recommendations, corrections or other feedback provided by Customer or its Authorized Users relating to Label Insight’s operations or the Customer’s use of the Services and/or LI Materials.
1.5 Service and System Control. Except as otherwise expressly provided in this Agreement or an applicable Statement of Work, Label Insight has and will retain sole control over the operation, provision and maintenance of the Services and LI Materials, including the LI Systems, the location where any of the Services are performed, and the maintaining, upgrading, correcting, repairing and/or replacing of any applicable Service Software.
1.6 Suspension or Termination of Services. Label Insight may, directly or indirectly, and by use of a disabling device or any other means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or LI Materials without incurring any resulting obligation or liability, if: (a) Label Insight receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Label Insight to do so; or (b) Label Insight has reason to believe that: (i) Customer or its Authorized User(s) have failed to comply with any material term of this Agreement or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or its Authorized User(s) are, have been or are likely to become involved in fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section does not limit any of Label Insight’s other rights or remedies, whether at law, in equity or under this Agreement.
1,7 Service Managers. Each party shall maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding each Statement of Work entered into hereunder. The initial service manager of each party shall be set forth in the Statement of Work for the applicable Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under such Statement of Work. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
- Customer Obligations.
2.1 Customer Systems and Cooperation. Customer shall: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide LI Personnel with such access to Customer’s premises and Customer Systems as is necessary for Label Insight to perform the Services; (c) be responsible for all actions of Authorized Users that access or use the LI Materials and Services, including the Authorized Users’ compliance with Label Insight’s End User License Agreement (https://public-assets.labelinsight.com/labelinsight/Label_Insight_eula.pdf); and (d) provide all cooperation and assistance as Label Insight may reasonably request to enable Label Insight to exercise its rights and perform its obligations under and in connection with this Agreement. Label Insight is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement, except to the extent caused by Label Insight or LI personnel or its agents.
2.2. Corrective Action Notice; Security. If Customer or its Authorized User(s) become aware of any actual or threatened, intentional or unintentional, activity prohibited by this Agreement (including violation of the applicable Permitted Uses(s)), Customer shall immediately: (a) take all reasonable and lawful measures within Customer’s control that is necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and LI Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Label Insight of any such activity. Customer has and will retain sole responsibility for all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services, the maintenance and security of the Customer Systems, the security and use of Customer’s and its Authorized Users’ Access Credentials, and all access to and use of the Services and LI Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Service Software, and shall be responsible for any unauthorized use of the Services.
- Fees; Taxes; Payment Terms.
3.1 Fees. Customer shall pay Label Insight the fees set forth in each Statement of Work (“Fees”) subject to the terms of this Section 3. All Service Software (SaaS) solutions shall be billed annually in advance and not subject to refund, unless otherwise specifically set forth in a Statement of Work or as provided in Section 6.3(c) below.
3.2 Payment. Except as otherwise specifically set forth in a Statement of Work, Customer shall pay all Fees on the date of signature of Statement of Work Order Form. Customer shall make all payments hereunder in U.S. dollars. Customer shall make payments to the account specified in Schedule 2 or such other account as Label Insight may specify in writing from time to time. Customer shall maintain within its organization a person to serve as its primary point of contact for communication and inquiries from Label Insight regarding open invoices or related items, such person to be identified on Schedule 2, as updated by Customer from time to time. If Customer fails to make any payment when due, and in addition to all other remedies that may be available, interest shall accrue on such past due amount(s) at the rate of 1.5% per month compounded monthly, or, if lower, the highest rate permitted under applicable Law, and Customer shall reimburse Label Insight upon demand for all costs incurred by Label Insight in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees.
3.3 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Label Insight’s income.
3.4 No Deductions or Setoffs. All amounts payable to Label Insight under this Agreement shall be paid by Customer to Label Insight in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
- Intellectual Property Rights. All right, title and interest in and to the LI Materials, including all Intellectual Property Rights therein, are and will remain with Label Insight and all right, title and interest in and to the Third-Party Materials will remain with the respective rights holders in such Third-Party Materials. Customer has no right, license or authorization with respect to any of the LI Materials or Third-Party Materials except as expressly set forth in an applicable Statement of Work or third-party license. All other rights in and to the LI Materials and Third-Party Materials are expressly reserved by Label Insight and the respective third-party licensors.
5.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 5.2, “Confidential Information” means (i) all technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing, financial and other material, proprietary information disclosed in writing by the Disclosing Party to the Receiving Party and marked as “confidential,” and (ii) the material terms of this Agreement and the Statement(s) of Work; provided however, and notwithstanding the foregoing, all LI Materials are the Confidential Information of Label Insight, except as excluded by Section 5.2.
5.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known by the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; or (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality.
5.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; provided, a Receiving Party may share a copy of this Agreement with its representatives or third parties performing due diligence or auditing activities with respect to the Receiving Party; (b) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (c) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Article 5.
5.4 Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Article 5; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 5.4, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
- Term and Termination.
6.1 Term. This Agreement commences on the effective date of the initial Statement of Work and continues until terminated in accordance with the terms of this Agreement (the “Term”). Each Statement of Work will have a separate term for the applicable Services. Notwithstanding anything herein to the contrary, this Agreement shall remain in full force and effect during the term of any Statement of Work.
6.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Label Insight may terminate this Agreement and any or all Statements of Work then in effect, effective on written notice to Customer, if Customer breaches (i) the Permitted Use provisions set forth in any Statement of Work or (ii) Article 5 (Confidentiality) of this Agreement; (b) either party may terminate the applicable Statement(s) of Work if the other party materially breaches this Agreement or such adversely affected Statement(s) of Work, effective on written notice to the other party if such material breach is incapable of cure; provided, if such material breach is capable of cure, the termination shall be effective only if such material breach remains uncured thirty days after the non-breaching party provides the breaching party with written notice of such breach; for clarity, an uncured material breach of an individual Statement of Work by a party shall not terminate or otherwise effect any other then-current Statement(s) of Work between the parties; (c) either party may terminate this Agreement effective immediately upon written notice to the other party if there is no Statement of Work then in effect and there has not been a Statement of Work in effect between the parties in the prior six (6) month period; and/or (d) either party may terminate this Agreement and the Statement(s) of Work, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, and in the case of an involuntary petition, such involuntary petition is not removed within sixty (60) days of its filing; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction in connection with bankruptcy or other similar proceedings.
6.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement or any Statement of Work, except as expressly otherwise provided in this Agreement or in the Statement of Work: (a) all rights, licenses, consents and authorizations granted by Label Insight therein to the Customer, including Customer and its Authorized Users’ use of any Services or LI Materials, will immediately terminate; (b) Customer shall destroy all documents and tangible materials containing, reflecting, incorporating or based on any LI Materials or Label Insight’s Confidential Information, permanently erase all LI Materials and Label Insight’s Confidential Information from all Customer Systems, and, upon Label Insight’s request, certify to Label Insight in a signed, written instrument by an officer of Customer that Customer has complied with the requirements of this Section 6.3(b); (c) if Customer terminates this Agreement pursuant to Section 6.2(b), Customer will be relieved of any obligation to pay any Fees on the terminated Statement(s) of Work attributable to the period after the effective date of such termination and Label Insight will refund to Customer any Fees paid in advance for Services on such Statement(s) of Work that Label Insight has not performed as of the effective date of termination; (d) if Label Insight terminates this Agreement pursuant to Section 6.2(a) or Section 6.2(b), all Fees that would have become payable under the terminated Statement(s) of Work will become immediately due and payable, and Customer shall pay such Fees, together with any previously-accrued but not yet paid Fees, on receipt of Label Insight’s invoice therefor; and (e) with respect to information and materials then in its possession or control, a Receiving Party may retain a Disclosing Party’s Confidential Information solely to the extent and for so long as required by applicable Law, provided that all information and materials described in this Section 6.3(e) will remain subject to all confidentiality, security and other applicable requirements of this Agreement.
6.4 Force Majeure. In no event will Label Insight be liable or responsible to Customer or any other Person, or be deemed to have defaulted under or breached this Agreement or such Statement(s) of Work, for any failure or delay in fulfilling or performing any term of this Agreement or such Statement(s) of Work when and to the extent such failure or delay is caused by any circumstances beyond Label Insight’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority; provided, however, Customer may terminate the affected Statement(s) of Work pursuant to Section 6.2(b) above if a Force Majeure Event continues uninterrupted for a period of 60 days or more. In the event of any failure or delay caused by a Force Majeure Event, Label Insight shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and Label Insight shall use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
6.5 Surviving Terms. Any right or obligation of the parties in this Agreement and/or any Statement of Work that, by its nature, should survive termination or expiration of this Agreement and/or any Statement of Work, will survive any expiration or termination of this Agreement, including, without limitation, the rights and obligations set for forth in Sections 3 – 10 of this Agreement.
- Representations and Warranties.
7.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
7.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1, ALL SERVICES AND LI MATERIALS ARE PROVIDED “AS IS” AND LABEL INSIGHT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND LABEL INSIGHT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. Customer acknowledges and agrees that the results obtained from any use of the Services or LI Materials, and the conclusions, decisions or actions based on such use, are in the sole control of the Customer and are the sole responsibility of customer. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, LABEL INSIGHT MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR LI MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS AND SOFTWARE ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
8.1 Indemnification by Label Insight. Label Insight will defend Customer against any action, claim, suit, litigation or proceeding made or brought against Customer by a third party alleging that the Services or LI Materials infringe or misappropriates a third party’s Intellectual Property Rights (a “Claim Against Customer”), and Label Insight will indemnify Customer from any Losses awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Label Insight in writing of, a Claim Against Customer, provided Customer (i) promptly gives Label Insight written notice of the Claim Against Customer, (ii) gives Label Insight sole control of the defense and settlement of the Claim Against Customer (except that Label Insight may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (iii) gives Label Insight all reasonable assistance in connection with such Claim Against Customer, at Label Insight’s expense. If Label Insight receives information about a potential Claim Against Customer, Label Insight may in its discretion and at no cost to Customer (x) modify the Services or LI Materials so that they are no longer claimed to infringe or misappropriate, (y) obtain a license for Customer’s continued use of the Services or LI Materials in accordance with this Agreement and the Statement(s) of Work, or (z) terminate Customer’s subscription for the infringing portion of the Services or LI Materials upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services or LI Materials are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or LI Materials or any part thereof with software, hardware, data, or processes not provided by Label Insight, if the Services or LI Materials on their own would not infringe without such combination; (3) a Claim Against Customer arises from any Services or LI Materials for which there is no charge by Label Insight; or (4) a Claim Against Customer is based on Customer’s use of the Services or LI Materials in violation of this Agreement or the Statement(s) of Work.
8.2 Indemnification by Customer. Customer will defend Label Insight against any action, claim, suit, litigation or proceeding made or brought against Label Insight by a third party alleging that materials, images, information, documents, data, specifications or other content provided by or on behalf of Customer or its Authorized Users to Label Insight or otherwise contributed by Customer or its Authorized Users into the Services or LI Materials infringes or misappropriates such third party’s Intellectual Property Rights, or arising from Customer’s use of the Services or LI Materials in an unlawful manner or in violation of the Agreement or the Statement(s) of Work (each a “Claim Against Label Insight”), and Customer will indemnify Label Insight from any Losses awarded against Label Insight as a result of, or for amounts paid by Label Insight under a settlement approved by Customer in writing of, a Claim Against Label Insight, provided Label Insight (i) promptly gives Customer written notice of the Claim Against Label Insight, (ii) gives Customer sole control of the defense and settlement of the Claim Against Label Insight (except that Customer may not settle any Claim Against Label Insight unless it unconditionally releases Label Insight of all liability), and (iii) gives Customer all reasonable assistance in connection with such Claim Against Label Insight, at Customer’s expense.
8. 3 Exclusive Remedy. This Article 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Article 8.
- Limitations of Liability.
9.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL LABEL INSIGHT OR ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER (INCLUDING ANY STATEMENT(S) OF WORK) UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF LABEL INSIGHT ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY RECEIVED BY LABEL INSIGHT FROM CUSTOMER UNDER THIS AGREEMENT AND THE APPLICABLE STATEMENT OF WORK IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST INCIDENT IN WHICH LIABILITY AROSE.
10.1 Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
10.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
10.3 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement or any Statement of Work have binding legal effect only if in writing and addressed to the party set forth on the signature page hereto at the address set forth on the signature page hereto (or to such other address or such other person that such party may designate from time to time in accordance with this Section 10.3). Notices sent in accordance with this Section 10.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified mail, return receipt requested, postage prepaid.
10.4 Headings; Interpretation. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; and (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
10.5 Entire Agreement. This Agreement, together with the schedules, exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter, including any Non-Disclosure Agreements, Confidentiality Agreements or other similar agreements. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date; (c) third, the applicable Statement(s) of Work, and (d) fourth, any other documents incorporated herein by reference. For the sake of clarity, this Agreement is a “Master Licensing Agreement” as that term is defined in Label Insight’s End User License Agreement.
10.6 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement or any Statement of Work, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Label Insight’s prior written consent, which consent Label Insight shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement and the Statement(s) of Work for which Label Insight’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement and any Statement(s) of Work. Any purported assignment, delegation or transfer in violation of this Section 10.6 is void. This Agreement and the Statement(s) of Work are binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
10.7 No Third-party Beneficiaries. This Agreement and the Statement(s) of Work are for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement or the applicable Statement(s) of Work.
10.8 Publicity. Each party will provide to the other party all press releases and other public-facing marketing materials relating to this Agreement in which the other party’s name, logo or trademarks are displayed, and each party will not publish any press releases or other public-facing marketing materials without the other party’s prior written consent (by e-mail acceptable), which shall not be unreasonably withheld, conditioned or delayed. For clarity, the use of the other party’s name, logo or trademarks on a party’s website shall require the prior written consent of such other party. Notwithstanding the foregoing, a party may include the other party’s name and a factual description of the work performed under this Agreement in its list of references and in the experience section of proposals to other parties, in internal business planning documents, and in its reports to employees, stockholders and directors of such party.
10.9 Amendment and Modification; Waiver. No amendment to or modification of this Agreement or any Statement of Work is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof or any Statement of Work 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.
10.10 Severability. If any provision of this Agreement or any Statement of Work 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 such Statement of Work or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement or such Statement of Work so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby or thereby be consummated as originally contemplated to the greatest extent possible.
10.11 Governing Law; Submission to Jurisdiction. This Agreement and the exhibits, schedules, attachments and appendices hereto shall be governed by the internal laws of the State of Illinois, without regard to its conflict of laws provisions. Any Action with respect to this Agreement and the exhibits, schedules, attachments and appendices hereto or any matter arising out of or in connection with this Agreement shall be brought exclusively in state or federal courts located in Cook County in the State of Illinois. By execution and delivery of this Agreement, each party hereto hereby accepts for itself and its Affiliates, generally and unconditionally, the sole and exclusive jurisdiction of the aforesaid courts and appellate courts thereof. Each party hereto hereby irrevocably and unconditionally waives any objection which such Person may now or hereafter have to the laying of venue of any of the aforesaid Actions arising out of or in connection with this Agreement brought in the courts referred to above and hereby further irrevocably waives and agrees, to the extent permitted by applicable Law, not to plead or claim in any such court that any such Action brought in any such court has been brought in an inconvenient forum. Final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
10.12 Waiver of Jury Trial. Each party hereto, for itself and its affiliates, hereby irrevocably and unconditionally waives to the fullest extent permitted by applicable law all right to trial by jury in any action (whether based on contract, tort or otherwise) arising out of or relating to the actions of the parties hereto or their respective affiliates pursuant to this agreement or in the negotiation, administration, performance or enforcement hereof.
10.13 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Article 5 or any applicable Permitted Use as set forth in a Statement of Work would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
10.14 Audit. During the Term and for one (1) year after its termination or expiration, Label Insight (or its duly authorized representative) may conduct an audit of the books and records (electronic or otherwise) of Customer that specifically pertain to the obligations of Customer under this Agreement or any Statements of Work that were in effect within the one year period immediately prior to the termination or expiration of this Agreement, including, but not limited to, the use of the Service Software only by Authorized Users and solely in connection with such Permitted Use(s).
10.15 Attorneys’ Fees. In the event that any Action is instituted or commenced by either party hereto against the other party arising out of this Agreement or any Statement of Work, the court having jurisdiction over such Action shall, as part of its final judgment, award the substantially prevailing party its reasonable attorneys’ fees and court costs from the non-substantially prevailing party.
10.16 Counterparts. This Agreement and any applicable Statement of Work may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute a single agreement. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
“Access Credentials” means any user name, password, security key or code, or other method used to verify an individual’s identity and authorization to access and use the Service Software.
“Authorized User” means the Customer’s employees and agents authorized to access the LI Materials and Services by Customer and Label Insight, and any other individuals authorized to use the Services as identified in each Statement of Work.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“LI Materials” means the Service Software, Specifications and LI Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Label Insight in connection with the Services or otherwise comprise or relate to the Services or LI Systems.
“LI Systems” means the information technology infrastructure used by or on behalf of Label Insight in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Label Insight or through the use of third-party services.
“Service Software” means the LI SaaS Platform and any other Label Insight software applications, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Label Insight provides remote access to and use of as part of the Services, as further described in the applicable Statement(s) of Work.
“Specifications” means any specifications for the Services set forth in a Statement of Work.
“Statement of Work” means a separate agreement or order form to be entered into by the parties hereto as to the specific Services being provided to Customer in accordance with Section 1.1.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Label Insight.
- Service Level. Subject to the terms and conditions of the Agreement, Label Insight will use commercially reasonable efforts to make the Service Software Available (defined below) at least 99.5% of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). “Available” means the Service Software is available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specification(s) (defined in the Statement of Work(s)). For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Service Software will be considered un-Available nor any Service Level Failure (defined below) shall be deemed to have occurred in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Service Software that is due, in whole or in part, to any:
(a) Act or omission by Customer or any Authorized User/access to or use of the Service Software by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications];
(b) Customer’s failure to meet its obligations in Article 2 (Customer Obligations) in the Agreement;
(c) Customer’s or its Authorized User’s lack of Internet connectivity;
(d) Occurrence and continuance of a Force Majeure Event;
(e) Failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Label Insight pursuant to this Agreement;
(f) Scheduled Downtime (defined below); or
(g) Disabling, suspension or termination of the Services pursuant to Section 1.6 of the Agreement.
“Service Level Failure” means a material failure of the Service Software to meet the Availability Requirement.
- Service Level Failures and Remedies.
(a) Credits. In the event of a Service Level Failure during a given Service Period, Label Insight shall issue a credit (a “Service Credit”) to Customer as follows:
|Availability in such Service Period||Service Credit|
|97.50% – 99.49%||2.0% of the monthly Fees due specifically for the Service Software that experienced a Service Level Failure for the applicable Service Period|
|95.50% – 97.49%||4.0% of the monthly Fees due specifically for the Service Software that experienced a Service Level Failure for the applicable Service Period|
|93.50% – 95.49%||6.0% of the monthly Fees due specifically for the Service Software that experienced a Service Level Failure for the applicable Service Period|
|91.50% – 93.49%||8.0% of the monthly Fees due specifically for the Service Software that experienced a Service Level Failure for the applicable Service Period|
|89.50% – 91..49%||10.0% of the monthly Fees due specifically for the Service Software that experienced a Service Level Failure for the applicable Service Period|
|Less than 89.50%||15.0% of the monthly Fees due specifically for the Service Software that experienced a Service Level Failure for the applicable Service Period|
(b) Reporting Service Level Failures. Notwithstanding anything in this Schedule or the Agreement to the contrary, Label Insight has no obligation to issue a Service Credit in connection with a Service Level Failure unless Customer reports the Service Failure to Label Insight promptly after becoming aware of it, and Customer requests an applicable Service Credit by written notice to Label Insight within 30 days of the Service Level Failure; and
(c) Payment; Remedies. Any undisputed Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred; provided, if such Fees for the Service Period were pre-paid, Label Insight shall issue a refund to Customer within 30 days of the final resolution of any claim made by Customer with respect to a Service Credit. This Section 2(c) of Schedule 1 sets forth Label Insight’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
- Scheduled Downtime. Label Insight will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Service Software between the hours of 12:01 a.m. and 6:00 a.m. Central Time; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Service Software (“Scheduled Downtime”).
- Service Support. The Services include the following support services (“Support Services”).
(a) Helpdesk. Label Insight’s support team (the “Helpdesk”) can be reached between 8 a.m. and 6 p.m. Central Time Monday through Friday (“Business Hours”) with the exception of U.S. holidays. Client shall report errors and defects in the Service Software to the Helpdesk at the following:
(b) Response/Resolution Levels. The Company shall provide Support Services in accordance with the timescales and priorities out in the tables below. Response and resolutions times are measured from the time Customer reports the error or defect to Label Insight by e-mail at firstname.lastname@example.org.
|Priority||Response Time||Resolution Time|
|Critical (description below)||2 hours if reported during Business Hours; otherwise by 10 a.m. Central Time on the next business day.||48 hours|
|High (description below)||6 hours if reported during Business Hours; otherwise by 2 p.m. Central Time on the next business day.||96 hours|
|Medium (description below)||24 hours||5 days|
|Low (description below)||24 hours||7 days|
|Critical||Service Software has stopped responding or is so severely impacted that work cannot continue. The error has one or more of the following characteristics: – Data corrupted; – A critical documented function is not available; – Service Software hangs indefinitely, causing unacceptable or indefinite delays for resources or response; and – Service Software crashes, and crashes repeatedly after restart attempts.|
|High||Partial loss of service. Important functions are unavailable with no workaround; however, operation of the Service Software by an Authorized User can continue on a restricted basis.|
|Medium||Minor loss of service. The impact is an inconvenience, which may require a workaround to restore functionality. Operation of the Service Software by an Authorized User is not adversely affected.|
|Low||A minor issue causing an inconvenience. There is no loss of service. The impact does not impede the operation of the Service Software.|