Last Revised: 6 August 2020
Thank you for using Reality AI Tools and or embedded software created by Reality AI. These TERMS OF SERVICE (this "Agreement") govern your use of the Reality AI Tools software (the "Software") and your use of embedded software created by Reality AI or exported from Reality AI Tools (the "Embedded Software"). By accessing or using the Software, Embedded Software and related services of Reality Analytics, Inc. ("Reality," "we" or "us"), you ("you" or "Customer") agree to be bound by this Agreement. Notwithstanding the foregoing, if you have signed a separate subscription agreement or embedded software agreement with us governing your use of the Software or Embedded Software, the terms of such agreement will apply instead of this Agreement.
If you are accessing or using the Software or Embedded Software on behalf of a company or other entity, then you represent and warrant that you have the authority to bind such company or other entity to this Agreement, and you agree to this Agreement on behalf of such company or other entity. The terms "You" and "Customer" shall include such company or other entity.
We may modify this Agreement from time to time. Any modifications to this Agreement will be posted on our website or otherwise communicated to you in writing. If we make material modifications, we will use reasonable efforts to notify you. All modifications to this Agreement will become effective ninety (90) days after the date they are first posted or communicated to you, except changes required by law which shall become effective immediately.
BEFORE YOU SIGN THE ORDER FORM OR CHECK THE BOX STATING "I HAVE READ AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT", PLEASE CAREFULLY READ THIS AGREEMENT. BY CHECKING THIS BOX OR SIGNING THIS FORM, YOU ARE AGREEING TO BE BOUND BY AND TO COMPLY IN ALL RESPECTS WITH THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS, THEN DO NOT CHECK THIS BOX OR SIGN THIS FORM.
Reality and Customer are sometimes referred to individually as a "Party" and collectively as the "Parties."
1. SOFTWARE AND SERVICES
1.1. General Scope. To access the Software or Embedded Software, Customer must subscribe to a Reality AI Tools subscription by submitting a Reality AI Sales Order Form or a Purchase Order (the "Order") to Reality, which shall set forth the subscription term, renewal terms and supplemental services, if any. Reality may modify, amend, alter, update, supplement or replace the Software (which, among other things, determines the functionality and appearance of some or all of the Software features) from time to time, in whole or in part, without any notice (except for material changes to functionality as reasonably practicable), without incurring any liability to Customer, and without any change to any of Customer's payment or other obligations.
1.2. License. Subject to the terms and conditions of this Agreement, during the Agreement Term, Reality will provide the Software or Embedded Software for Customer in accordance with this Agreement. Reality hereby grants to each named authorized user of Customer (each, an "Authorized User") of the Customer a personal, limited, revocable, non-exclusive, non-transferable right during the Agreement Term to access and use the Software pursuant to the terms of this Agreement. The right of Customer to use the Software is limited to use for Customer's internal business purposes. The right of the Customer to use the Embedded Software is limited to internal purposes and limited to run on no more than 100 processors, unless otherwise stated on the Order as required by Section 1.7. For purposes of this Agreement, any actions or omissions by Authorized Users shall be considered that of Customer, and the term "Customer" shall include all Authorized Users (regardless of whether such persons are employees of Customer). Except for the limited licenses granted in this Section 1.2 and in Section 2, no other license or right shall be deemed granted or implied under this Agreement.
1.3. Restrictions. Except as permitted herein, Customer shall not itself, directly or indirectly (a) copy, license, sell, transfer, make available, or otherwise distribute the Software or Embedded Software to any other entity or person; (b) access the Software or Embedded Software with software or means other than as described herein; (c) modify, port, translate, or create derivative works of the Software or Embedded Software; (d) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Software or Embedded Software by any means (except to the extent permitted by mandatory laws); (e) sell, lease, license, sublicense, copy, market or distribute the Software or Embedded Software, except as stated in the Order; (f) remove any proprietary notices, labels or marks from the Software or Embedded Software; (g) breach or otherwise circumvent any security or authentication measures of the Software or Embedded Software, (h) access, attempt to access, temper with, or use any unauthorized or non-public areas or parts of the Software or Embedded Software, (i) release to a third party the results of any benchmark testing of Software or Embedded Software, or (j) copy the Software of Embedded Software to, or use the Software or Embedded Software with, any device not provided directly by Reality or authorized in writing by Reality.
1.4. If Reality determines in good faith that suspending access to the Software, Embedded Software, and/or Data (as hereafter defined) by Customer or any end user is advisable (i) for security reasons, (ii) in response to a request from law enforcement or a governing body or in relation to legal proceedings, (iii) to protect Reality from liability, or (iv) for the continued normal and efficient operation of the Software, Embedded Software, and/or Data, then following Reality's written notice to Customer describing such conditions, the corresponding performance obligations of Reality under this Agreement shall be suspended accordingly until such matter is resolved to Reality's reasonable satisfaction (if necessary, with Reality's reasonable assistance at Reality's then-prevailing rates at the Customer's expense), provided, that during such period, the Customer's obligations to continue paying Fees (as defined below) shall continue.
1.5. The Software shall be made available pursuant to the Service Level Agreement (SLA) set forth below.
1.6. Supplementary professional services. Reality may offer supplementary services, including for data collection and labeling, in accordance with one or more Statements of Work setting forth, at a minimum, the services, deliverables, timing and pricing for the Services that shall be signed by both Parties to be effective (each a "Statement of Work" or "SOW"). Additionally, Customer may purchase other support, consulting and training services under and pursuant to the terms of a SOW. Any SOWs, if applicable, are attached to the Order.
1.7. Upgrades. At Reality's sole discretion, Reality may, during the Agreement Term, make available updates and upgrades to the Software or Embedded Software to Customer as such updates and upgrades are made generally available to Reality's other customers. At Reality's discretion, before the date each such update or update is generally released, Reality may provide notice to Customer of the expected release date and a description of the functionality contained in the release.
2. LICENSING OF EMBEDDED SOFTWARE
2.1. Licensing of Embedded Software. Any non-internal use, re-sale or license for use on more than 100 processors must be clearly stated on the Order, which shall also specify the specific Embedded Software to be licensed (the "Licensed Technology") and the specific permitted use in Company's products (the "Licensed Products").
2.2. Integration Testing. Prior using the Licensed Technology in combination with the Licensed Products where the Licensed Technology is provided as an embedded component of, or is otherwise integrated with, the Licensed Products (the "Integrated Offering"), the Company must test the proposed implementation of the Licensed Technology in connection with the proposed Licensed Product to confirm that the Licensed Technology, when operated as integrated or embedded with such Licensed Product, yields substantially the same outputs based on the same inputs under substantially the same conditions as Reality's validation testing of the cloud-based versions of such Licensed Technology prior to delivery to the Company. Subject to the terms and conditions of this Agreement, Reality hereby grants the Company during the Agreement Term a limited, personal, non-exclusive, non-transferable (except as permitted under Section 12.1), fee-bearing (as set forth in Section 3) license, without the right to sublicense, to install and test the Licensed Technology with the Licensed Products in order to integrate and/or embed such Licensed Technology with such Licensed Products pursuant to Section 2.4 below.
2.3. Delivery of Licensed Technology. Reality will electronically deliver to the Company a copy of the Licensed Technology, in object code form, along with related documentation. The Licensed Technology shall be deemed accepted upon delivery.
2.4. Integration of Licensed Technology. The Company shall be solely responsible for performing any integration work to integrate and/or embed the Licensed Technology with the Licensed Products and for procuring any additional software, migration tools or third party products needed to integrate and use the Licensed Technology as integrated or embedded with the Licensed Products. This Agreement does not contain a license to use any third party products, and Reality makes no representations or warranties as to the terms of any license or the operation of any third party product, including the Licensed Products, in connection with the Licensed Technology. So long as the Company continues to maintain its subscription under the Subscription Agreement, at the Company's reasonable request, Reality shall assist the Company with respect to any integration work.
2.5. Specifications. When the Company believes it has successfully integrated the Licensed Technology with the Licensed Products, the Company will provide a complete and accurate description of, and specifications for, the Integrated Offering to Reality.
2.6. License Grants. Subject to the terms and conditions of this Agreement, Reality hereby grants to the Company, during the Agreement Term, a limited, personal, non-exclusive, non-transferable (except as permitted under Section 12.1), fee-bearing (as set forth in Section 3) license, without the right of sublicense, to reproduce and distribute the Licensed Technology (in object code only) solely as an integrated or embedded part of the Integrated Offering.
2.7. Restrictions. The Company may not: (a) access or use the Licensed Technology except as expressly permitted hereunder; (b) disclose, provide, distribute, license, sublicense, sell, assign or transfer the Licensed Technology, in whole or in part, to any Person, or allow any Person to in any way access or utilize the Licensed Technology other than pursuant to the Company's right to distribute the Licensed Technology to customers as incorporated in the Integrated Offering pursuant to the license granted in Section 2.6; (c) modify or create derivative works based in whole or in part on any Licensed Technology, except to integrate and/or embed the Licensed Technology with Licensed Products to develop the Integrated Offering; (d) remove from the Licensed Technology any language or designation indicating the confidential nature thereof or the proprietary rights or trademarks of Reality or its licensors; (e) breach or otherwise circumvent any security or authentication measures of the Licensed Technology, (f) access, attempt to access, tamper with, or use any unauthorized or non-public areas or parts of the Licensed Technology or (g) reverse engineer, decompile, decode, disassemble or otherwise attempt to discover any of the source code of the Licensed Technology. The Company may not distribute or sublicense the Licensed Technology on a stand-alone basis.
2.7. Ownership of Licensed Technology. The Licensed Technology is licensed, not sold to the Company. As between Reality and the Company, Reality retains all right, title, and interest in and to the Licensed Technology, including, but not limited to, all patent, copyright, trade secret, trademark and other intellectual property rights associated therewith. If and to the extent that the Company acquires any ownership interest in or to any technology or intellectual property rights in or related to the Licensed Technology, the Company hereby assigns all such interests and rights to Reality. In no event shall anything in this Agreement or in Reality's conduct or course of dealing convey any license, by implication, estoppel or otherwise, under any patent, copyright, trademark or other intellectual property right not explicitly licensed. All rights not expressly granted to the Company under this Agreement are reserved by Reality and/or its licensors.
2.8. Maintenance and Support. During the Agreement Term, so long as the Company continues to maintain its subscription under the Agreement, Reality will, at no additional cost, provide, during Reality's regular business hours, general maintenance services for the Licensed Technology. Such maintenance services will include bug fixes in accordance with Reality's standard practices. Notwithstanding the foregoing, the Parties agree and acknowledge that the maintenance services hereunder do not include correcting any classification error resulting from the Company's use of the Licensed Technology. If the Company reports any error in its use of the Licensed Technology, the Parties shall discuss potential solutions to re-train the applicable classifiers through use of the Software pursuant to the Agreement. The Company shall be solely responsible for providing technical support for the Licensed Technology and the Integrated Offering to its customers. Reality has no obligation to provide any support directly to the Company's customers.
2.9. Company Responsibilities. The Company agrees and acknowledges that it is solely responsible for, and Reality shall have no liability with respect to: (a) the content of any communications and data conveyed to the Company's users or customers regarding the Licensed Technology or the Integrated Offering; (b) compliance with all applicable governmental, legal and regulatory requirements and laws concerning use of the Licensed Technology and any information transmitted by or to the Company's users through use of the Licensed Technology or the Integrated Offering; (c) the collection, storage, processing and/or use of personally identifiable information of individuals obtained through use of the Licensed Technology or the Integrated Offering or other data collected from consumers through use of the Licensed Technology or Integrated Offering; and (d) all Company branding elements in connection with the Integrated Offering.
3. INVOICING AND PAYMENT
3.1. Invoicing. Customer agrees to pay to Reality all fees as set forth in the Order submitted by Customer (the "Fees"), and reimburse Reality for all expenses indicated in the Order. Nothing contained in any Order, invoice or other document provided by Customer will modify or add to the terms of this Agreement, and any conflicting or additional terms in any Order or other Customer-generated documents are hereby rejected by Reality. Reality shall submit invoices to Customer in accordance with the terms of each Order.
3.2. Payments. Unless otherwise stated in the Order, Customer agrees to make payments for Fees to Reality in United States Dollars, either by mail or wire transfer within 30 days of the date of invoice in accordance with the remittance information contained on the invoice.
3.3. Payments for Licensed Technology. The Company agrees to pay to Reality the License Fee for any Licensed Technology pursuant to the terms of the Order. If the payment of any amounts due from the Company hereunder are delayed for any reason, the Company will pay Reality interest on the unpaid principal amount from and after the date on which the same became due at a rate of one and one half percent (1.5%) per month (or the maximum interest rate allowed by law, whichever is less).
3.4. Taxes. The Fees do not include any governmental excise, sales, use, personal property, value-added, income or ad-valor taxes, levies, duties or fees of any type or amount (collectively, the "Taxes"). Any and all such Taxes payable in connection with the licensing or delivery of the Software or Embedded Software shall be in addition to such fees and prices and shall be the sole responsibility of Customer. If Customer is required to deduct or withhold any Taxes from any payment due to Reality, then (a) the amount payable to Reality shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3), Reality receives an amount equal to the amount it would have received had no such deductions been made, (b) Customer shall make such deductions, (c) Customer shall pay the full amount deducted to the relevant governmental authority in accordance with applicable law and (d) Customer shall promptly provide Reality satisfactory evidence of such payment upon request. Customer shall indemnify and hold Reality harmless from and against any such Taxes.
3.5. Records; Audit Right for Licensed Technology. If the License Fee for any Licensed Technology is based on units sold or some other measure, during the Agreement Term and for one (1) year thereafter, the Company will keep detailed complete and accurate records of all sales of the Integrated Offerings and other information indicated in the Reports delivered to Reality pursuant to the Order, and, upon reasonable advance notice and no more than once per twelve-month period, Reality will have the right to engage at its own expense an independent auditor reasonably acceptable to the Company to examine the Company's records pertaining to the Licensed Technology and the calculation of the License Fee amounts owed to Reality. If any audit shows that the Company underpaid the fees due to Reality as to the period subject to the audit, then the Company will promptly pay all deficient amounts owed to Reality as indicated by the results of any such audit, with interest pursuant to Section 3.3. If any such audit reveals underpayments of more than five percent (5%) of the correct amount of fees due for the audited period, the Company shall pay the costs of such audit.
4. PROPRIETARY RIGHTS
4.1. Customer Materials. Customer owns or has rights to all content, materials and technology supplied by Customer to Reality ("Data") hereunder. Customer hereby grants to Reality a nonexclusive, nontransferable, limited license to use Data provided to Reality under this Agreement. Customer reserves all other rights with respect to Data. Except as set forth herein, with respect to the foregoing license, Customer grants no rights or licenses under its intellectual property rights to Reality.
4.2. Software and Services. As between Customer and Reality, Reality or its licensors retains all right, title, and interest in and to the Software, Embedded Software and Services, together with any modifications, improvements, derivative works or upgrades thereof, and any other materials created or developed in the performance of this Agreement, in each case including, but not limited to, all patent, copyright, trade secret, trademark and other intellectual property rights associated therewith. Subject to the foregoing, any configuration parameters and derived data developed and/or customized by Reality for Customer based on the Data in connection with Customer's use of the Services (the "Configuration Parameters") shall be owned by Customer, including, but not limited to, all patent, copyright, trade secret, trademark and other intellectual property rights associated therewith. Reality hereby assigns to Customer all of Reality's rights to the Configuration Parameters. Furthermore, Reality will not resell or license Embedded Software based on the Configuration Parameters, nor will it use the Data to create Embedded Software for other Reality customers without Customer's prior written consent.
4.3. In no event shall anything in this Agreement or in Reality's conduct or course of dealing convey any license, by implication, estoppel or otherwise, under any patent, copyright, trademark or other intellectual property right not explicitly licensed. All rights not expressly granted to Customer under this Agreement are reserved by Reality and/or its licensors.
6. CONTENT, DATA PRIVACY AND LEGAL COMPLIANCE
6.1. Customer Responsibility. Customer is solely responsible for, and Reality shall have no liability with respect to: (a) the content of all communications and data conveyed to users, including the Authorized Users, of the Software or Embedded Software; (b) compliance with all applicable governmental, legal and regulatory requirements and laws concerning the information transmitted to the Software or Embedded Software by Customer's users, including the Authorized Users, communications made by or to Customer's users, including the Authorized Users, and the delivery and content of any messages to such users; (c) the collection of personally identifiable information of individuals obtained in providing the Software or Embedded Software; (d) all Customer branding elements; (e) any requirements for maintaining records or logs as in relation to the Software or Embedded Software; (f) obtaining all necessary consents under applicable laws and regulations in order to allow Reality to use the Data (as defined above) in accordance with this Section 6 and (g) proper training of Authorized Users in the use of the Software or Embedded Software in compliance with this Agreement.
6.2. Access Controls. Customer will receive unique user names, passwords and access tokens from Reality. Such user names, passwords and access tokens are the sole means through which Customer may access and use the Software. Customer agrees to keep the user names, passwords and tokens provided by Reality confidential, and not to disclose them to anyone else, publish them, or allow anyone other than Authorized Users to use them. Customer shall require Authorized Users to comply with Customer's obligations under this Agreement.
Customer shall be solely responsible for all Data transmitted by its Authorized Users or any other person or entity gaining access to the Software via Customer's user names and passwords. Customer shall adopt, implement and enforce access control procedures that, at a minimum: (1) limit the use of the Software and Embedded Software to Authorized Users; and (2) check for validation of Data accuracy. Customer shall be solely responsible for any breach or failure of its access control procedures, irrespective of any electronic or other control procedures put in place by Reality that may be designed to, or capable of, detecting or notifying Customer of any such breach or failure.
7. CONFIDENTIALITY
7.1. Definition. "Confidential Information" shall mean (a) any information conveyed in written, graphic, machine-readable, or other tangible form, provided that such information is conspicuously marked or designated as confidential or proprietary, (b) any information conveyed orally or electronically where such information is either designated as confidential or proprietary at the time of such oral or electronic disclosure and confirmed, in writing, as confidential or proprietary within fifteen (15) days of such oral or electronic disclosure, (c) for Reality, the Software or Embedded Software, (d) and data that a reasonable person would or a party should understand is confidential by reason of its content, nature or value or the manner or circumstances in which it is obtained by or disclosed to such party. Notwithstanding the above, information shall not be deemed Confidential Information to the extent that it (i) was generally known and available in the public domain at the time it was disclosed or subsequently becomes generally known and available in the public domain through no fault of the recipient; (ii) was rightfully known to the recipient at the time of disclosure and this can be shown by reasonable evidence; (iii) is disclosed with the prior written approval of the disclosing party; (iv) was independently developed by the recipient without any use of the Confidential Information of the disclosing party; or (v) becomes known to the recipient from a source other than the disclosing party without breach of this Agreement and this can be shown by reasonable evidence. The obligation not to use or disclose Confidential Information will remain in effect until one of these exceptions occurs. Nothing in this Section 7 shall extend or otherwise amend or modify any license granted in this Agreement.
7.2. No Disclosure. Each party agrees not to disclose any Confidential Information transferred to it by the other party. Notwithstanding the immediately preceding sentence, either party may disclose Confidential Information to its contractors who are bound by written obligations of confidentiality substantially similar to and, in any event, no less stringent than those set out in this Section 7 and who have a need to know to carry out the purposes of this Agreement. Each party shall protect the other's Confidential Information from unauthorized dissemination and use and shall, in doing so, use the same degree of care that such party uses to protect its own like information but such party must use at least the degree of care that is reasonable under the circumstances. Neither party will use the other party's Confidential Information for purposes other than those necessary to further the purposes of this Agreement. Except as expressly provided in this Agreement, no ownership or license rights are granted in any Confidential Information.
7.3. Return of Confidential Information. The receiving party shall return to the disclosing party, destroy or erase all Confidential Information of the disclosing party in tangible form: (i) upon the written request of the disclosing party; or (ii) upon the expiration or termination of this Agreement, whichever comes first, and in both cases, the receiving party shall certify promptly and in writing that it has done so; provided, that a party shall be entitled to retain such Confidential Information as is necessary for purposes of complying with laws or regulations, as permitted by this Agreement, or for evidentiary purposes.
8. TERM AND TERMINATION
8.1. Term. The initial term of this Agreement shall begin on the date Customer first accesses the Software and, unless terminated earlier in accordance with the terms hereof, will continue for the period listed in an Order (the "Agreement Term"). The term may be extended for additional months of service as set forth in the Order, subject to Reality's acceptance.
8.2. Termination. Either Party may terminate this Agreement immediately upon written notice if the other Party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days from receipt of a written notice specifying such breach. Notwithstanding the foregoing, Reality may terminate this Agreement immediately upon written notice to Customer if Customer breaches its obligations hereunder related to Reality's intellectual property rights or commits, or permits any third party to commit, any breach of confidentiality obligations under Section 7 (Confidential Information).
8.3. Effect of Termination. The licenses granted in this Agreement shall immediately terminate on the effective date of expiration or termination of this Agreement, regardless of cause. Upon the termination of this Agreement, Customer shall immediately remit to Reality all Fees, expenses and taxes payable hereunder, and Reality shall be under no obligation to deliver any further services under this Agreement.
8.4. Survival. Notwithstanding anything to the contrary in this Section 8, the provisions of Sections 5 (Proprietary Rights), 6 (Content, Data Privacy and Legal Compliance), 7 (Confidentiality), 8.3, 8.4, and 9 through 12, including all payment obligations incurred prior to or on expiration or termination, shall survive termination or expiration of this Agreement.
9. WARRANTY DISCLAIMER
9.1. No Warranty. Customer acknowledges that this Agreement provides for ongoing services. Accordingly, in lieu of a warranty, Reality provides the SLA to Customer as set forth below.
9.2. Disclaimer. Without limiting Reality's obligations under the SLA, and except as expressly provided in this Section 9, the Software, Embedded Software, Licensed Technology, Services, Maintenance or Support are provided on an "AS IS" and "AS AVAILABLE" basis without warranty of any kind. REALITY AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, VALIDITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, REALITY DOES NOT WARRANT THAT THE SERVICES OR LICENSED TECHNOLOGY SHALL MEET COMPANY'S REQUIREMENTS, THAT THE SERVICES OR LICENSED TECHNOLOGY SHALL OPERATE IN THE COMBINATIONS SELECTED BY COMPANY, INCLUDING THE LICENSED PRODUCTS, OR THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE. COMPANY UNDERSTANDS AND AGREES THAT THE DISCLAIMER OF WARRANTIES IN THIS AGREEMENT IS A FUNDAMENTAL PART OF THIS AGREEMENT AND THAT REALITY WOULD NOT AGREE TO ENTER THIS AGREEMENT WITHOUT SUCH DISCLAIMER.
9.3. No Commitments to Third Parties. Reality makes no warranties, representations or commitments to the Company's customers regarding the Licensed Technology, and the Company shall not make any warranty, representation or commitment to its customers on behalf of Reality. The Company shall be solely responsible for any such warranties, representations or commitments to its customers. The Company shall indemnify and hold the Company harmless from and against any Costs incurred by Reality resulting from any Claims based on or related to any representation or warranty made by the Company regarding the Licensed Technology that was not specifically authorized in writing by Reality.
9.4. Internet Connections. Reality does not and cannot control infrastructure outside of the Software. Customer's connections to the Internet and/or to telecommunications networks may be impaired or disrupted independent of Reality. Although Reality will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Reality cannot guarantee that such events will not occur. Accordingly, Reality disclaims any and all liability resulting from or related to such events.
10. INDEMNIFICATION
10.1. By Reality. Reality shall indemnify, defend and hold harmless Customer from and against any and all liabilities, damages, losses, costs and expenses, including reasonable attorneys' fees and other expenses incurred in the investigation and defense of any Claim (collectively, "Costs"), in each case as incurred by Customer in connection with any claim, inquiry, investigation, demand, proceeding, suit and/or action (each, a "Claim") brought by a third party against Customer alleging that the Software or Licensed Technology directly infringes any United States patent, copyright or trademark, or misappropriation a trade secret, of such third party. Notwithstanding anything to the contrary in the foregoing, Reality's obligations under this Section 10.1 (By Reality) shall not apply to any use of open source software incorporated in the Software.
10.2 . Limited Remedies. If the Software, Embedded Software or Licensed Technology becomes, or in the opinion of Reality, is likely to become, the subject of an infringement claim or action, Reality may, at its option and in its sole discretion: (a) procure, at no cost to Customer, the right to continue using the Software, Embedded Software or Licensed Technology; (b) replace or modify the Software,Embedded Software or Licensed Technology to render it non-infringing, provided there is no material loss of functionality; or (c) if, in Reality's reasonable opinion, neither (a) nor (b) above are commercially feasible, terminate the Agreement; provided that if Reality chooses to so terminate this Agreement Reality will remain liable for indemnifying Customer under Section 10.1 with respect to any alleged infringement occurring prior to the effective date of termination.
10.3. Exclusions. Reality will have no obligation or liability under this Section 10 (Indemnification) for any claim or action regarding any claim resulting from any of the following: (i) use of Data; (ii) modification of the Software, Embedded Software or Licensed Technology by a party other than Reality; (iii) the combination or use of such Software, Embedded Software or Licensed Technology with other products, processes, or materials not provided by Reality if the Software, Embedded Software or Licensed Technology itself would not infringe; (iv) where Customer continues allegedly infringing activities after being provided with modifications that would have avoided the alleged infringement; (v) modification of the Software, Embedded Software or Licensed Technology by Reality based on specifications or requirements supplied by Customer; or (vi) Customer's use of the Software, Embedded Software or Licensed Technology not in accordance with the terms of this Agreement.
10.4. Exclusive Obligation. This Section 10 (Indemnification) states the sole obligation and exclusive liability of each Party (express, implied, statutory or otherwise), and the sole remedy of the other, for any claims or actions of infringement misappropriation or other violation of any intellectual property or other proprietary right relating to the Software, Embedded Software or Licensed Technology.
10.5. By Company. Company shall indemnify, defend and hold harmless Reality and its affiliates, and its and their employees, officers, directors, agents, successor and assigns, licensors, and third party suppliers (the "Reality Indemnitees"), from and against any and all Costs incurred by any Reality Indemnitee in connection with any Claim brought by a third party against such Reality Indemnitee resulting from or arising out of or in connection with the use by Customer of the Software, Embedded Software, Licensed Technology or any third party related goods and services provided under the terms of this Agreement, except to the extent that any such Claim is subject to indemnity by Reality under Section 10.1.
10.6. Indemnification Procedures. A Party entitled to indemnification under this Section 10 (an "Indemnified Party") shall give prompt written notification to the Party from whom indemnification is sought (the "Indemnifying Party") of the commencement of any action, suit or proceeding relating to a Claim for which indemnification may be sought or, if earlier, upon the assertion of any such Claim by a third party (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a Claim as provided in this Section 10.6 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice). Within fifteen (15) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party's indemnification obligations, the Indemnifying Party shall reimburse the Indemnified Party for all costs and expenses, including attorney fees, incurred by the Indemnified Party in defending itself within thirty (30) days after receipt of any invoice therefor from the Indemnified Party. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld, delayed or conditioned. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto, that imposes any liability or obligation on the Indemnified Party or that acknowledges fault by the Indemnified Party without the prior written consent of the Indemnified Party.
11. LIMITATION OF LIABILITY
11.1. Application. Nothing in this Agreement shall be taken to exclude or limit liability to the extent that such exclusion or limitation is not permitted by applicable law.
11.2. LIMITATION OF LIABILITY. EACH PARTY'S LIABILITY TO THE OTHER PARTY AND ITS OFFICERS, AGENTS, CUSTOMERS AND EMPLOYEES FOR ANY CLAIM ARISING UNDER THIS AGREEMENT OR OTHERWISE ARISING FROM THE TRANSACTIONS CONTEMPLATED HEREIN, REGARDLESS OF THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO ACTIONS FOR BREACH OF CONTRACT, STRICT LIABILITY, RESCISSION AND BREACH OF WARRANTY) WILL NOT EXCEED THE AGGREGATE FEES ACTUALLY PAID TO REALITY DURING THE TWELVE MONTHS PRIOR TO THE EVENTS GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL CUSTOMER'S PAYMENTS DURING THE AGREEMENT TURN BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THE LIMIT.
11.3. NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS OF PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.4. Exceptions to Limitations. The limitations and exclusions in Sections 11.2 and 11.3 shall not apply in respect of any liability arising out of (i) any breach of Article 7, (ii) Customer's breach of Section 1.3 or either Party's infringement or misappropriation of the other Party's intellectual property, (iii) either Party's indemnity obligations under Section 10, or (iv) the willful misconduct or gross negligence of either party.
12. GENERAL PROVISIONS
12.1. Assignment. Customer shall not assign or otherwise transfer its rights or obligations under this Agreement to a third party unless such assignment is approved in writing by Reality. For the avoidance of confusion, an assignment or transfer of Customer's rights or obligations shall be deemed to include, but not be limited to, a change in the direct or indirect ownership or control of fifty percent (50%) or more of the voting stock of Customer. Notwithstanding the foregoing, Customer may assign its rights hereunder in their entirety pursuant to (i) a merger with, (ii) the sale of substantially all of its assets to, or (iii) a consolidation with a third party; provided Customer provides Reality with prompt written notice of such sale, merger or consolidation; and provided, further, that the third-party assignee agrees, in writing, to be bound by all of the obligations of Customer under this Agreement.
12.2. Force Majeure. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, act of terror, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
12.3. Notices. All notices under this Agreement shall be sent in writing to the notice address of each Party as set forth in the Order. All such notices shall be deemed to be received by the other party three (3) days after the postal date or on the date the receipt is signed confirming delivery by a courier mail company, whichever is earlier. The parties may mutually agree that certain types of routine approvals and notices of a non-legal nature may be given by electronic mail.
12.4. Relationship Between the Parties. In all matters relating to this Agreement, Customer and Reality shall act as independent contractors. Except as may be otherwise expressly permitted hereunder, neither party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity.
12.5. Insurance. If the Order specified Licensed Technology under Section 2, at all times during the Agreement Term, the Company shall maintain the following coverages in force with companies having an AM Best rating of A VIII or higher, unless otherwise approved in writing in advance by Reality:
a. Commercial General Liability Insurance with a limit of not less than $1,000,000 per occurrence; and
b. Errors & Omissions Insurance with a limit of not less than $1,000,000 per occurrence.
All policies shall be on a primary basis and without any right of contribution from any insurance carried by Reality. The Company shall provide proof of such insurance to Reality upon Reality's request. The Company shall provide not less than thirty (30) days' written notice to Reality prior to a cancellation, non-renewal or material change of the above policies.
12.6. Non-Solicitation. During the Agreement Term and for twelve (12) months thereafter, the Company shall not, without the prior written consent of Reality, solicit, offer to employ or in any manner endeavor or attempt to employ any Reality employee, provided that the foregoing shall not apply to a general advertisement or solicitation (or any hiring pursuant to such advertisement or solicitation) that is not specifically targeted at such employee.
12.7. Non-Disparagement. During the Agreement Term, the Company will not defame or disparage Reality or any of its officers, directors, employees, shareholders and/or agents, in any manner intended or reasonably likely to be harmful to them or their business, business reputation or personal reputation.
12.8. Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland without giving effect to principles of conflicts of laws.
a. If the Company is an entity incorporated in the United States, the Parties hereby submit to the exclusive jurisdiction of the federal and state courts situated in the State of Maryland and the applicable service of process.
b. If the Company is an entity incorporated outside the United States, the Parties hereby irrevocably agree that any controversy or claim directly or indirectly arising from or relating to this Agreement (including this Section 12.8), or the breach thereof, shall be finally resolved by binding arbitration administered by the International Institute for Conflict Prevention and Resolution ("CPR"), in accordance with the CPR Rules for Administered Arbitration by a panel of three (3) arbitrators, of whom each Party shall designate one, with the third arbitrator to be designated by the two Party-appointed arbitrators. Such arbitration shall be conducted in the State of Maryland in the English language. The arbitrators shall establish procedures under which each Party will be entitled to conduct discovery and shall award to the prevailing Party in any such dispute the costs and expenses of the proceeding, including reasonable attorneys' fees. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et. seq., and except as set forth below, the arbitral award shall be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. The arbitrators shall award only such damages as are permitted to be awarded pursuant to this Agreement and each Party expressly waives and foregoes any right to punitive, exemplary or similar damages unless applicable law prohibits such waiver. The arbitrators must render their award within thirty (30) days following the last hearing scheduled by the arbitrators and at that time state the reasons for their award in writing. An appeal may be taken under the CPR Arbitration Appeal Procedure from any final award of an arbitral panel in any arbitration arising out of or related to this Agreement that is conducted in accordance with such procedure. Unless otherwise agreed by the Parties and the appeal tribunal, the appeal shall be conducted at the place of the original arbitration. Notwithstanding the foregoing, either Party shall be entitled to apply to any court of competent jurisdiction for preliminary injunctive relief, without bond, to restrain any actual or threatened conduct in violation of this Agreement or to specifically enforce the other's obligations under this Agreement, including as set forth in Section 12.9.
12.9. Injunctive Relief. Each Party recognizes and acknowledges that any use or disclosure of Confidential Information by the receiving Party in a manner inconsistent with the provisions of this Agreement may cause irreparable damage to the disclosing Party for which remedies other than injunctive relief may be inadequate, and the receiving Party agrees that in any request by the disclosing Party to a court of competent jurisdiction for injunctive or other equitable relief seeking to restrain such use or disclosure, the receiving Party will not maintain that such remedy is not appropriate under the circumstances. The Parties further agree that in the event such equitable relief is granted in the United States, they will not object to courts in other jurisdictions granting provisional remedies enforcing such United States judgments.
12.10. Partial Invalidity; Waiver. If any provision of this Agreement or the application thereof to any Party or circumstances shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event the Party shall use reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision. Any deviation by either Party from the terms and conditions required under applicable laws, rules and regulations shall not be considered a breach of this Agreement. No failure of either Party to exercise any power or right given either Party hereunder or to insist upon strict compliance by either Party with its obligations hereunder, and no custom or practice of the Party at variance with the terms hereof shall constitute a waiver of either Party's right to demand exact compliance with the terms of this Agreement.
12.11. Entire Agreement; Headings; Counterparts. This Agreement, the Order and any Statements of Work attached to the Order, constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements and undertakings between the Parties. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument. Any signature page delivered via any means of electronic communication shall be binding to the same extent as an original signature page.
12.12. Export Controls; Government Use. Customer will comply with all applicable export and import laws and regulations and, unless authorized by applicable governmental license or regulation, not directly or indirectly export or re-export any technical information or software subject to this Agreement to any prohibited destination. If software or services are being acquired by or on behalf of the U.S. Government or by a U.S Government prime contractor or subcontractor (at any tier), the software, services and related documentation are "commercial items" as that term is defined at 48 C.F.R. 2.101. The software and documentation consists of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein.
12.10. Publicity. Reality may refer to Customer in the same manner that it refers to clients generally, including in a client list and on its website; provided that any other advertising, marketing or promotion materials utilizing Customer's name and marks shall be subject to the prior written approval of Customer in each instance.
APPENDIX A: HOW WE PROTECT YOUR INFORMATION
We take reasonable and appropriate measures to protect Personal Information from loss, misuse, and unauthorized access, disclosure, alteration and destruction, considering the risks involved in the processing and the nature of the personal information. Our website is scanned on a regular basis for security holes and known vulnerabilities to make your visit to our site as safe as possible. We use regular Malware Scanning, and we implement a variety of security measures when a user provides information, to maintain the safety of your personal information.
Your personal information is contained within secured networks and is only accessible by a limited number of persons who have special access rights to such systems, and are required to keep the information confidential. If a security breach causes an unauthorized intrusion into our system that materially affects you, then the Company will notify you as soon as possible and later report the action we took in response
ACCESS TO PERSONALLY IDENTIFIABLE INFORMATION
If your personally identifiable information changes or you wish your information to be removed from our records, you may update or delete it by [email protected]
Additionally, we will give you access to your personally identifiable information that we hold within 30 days of a request to access, which can be sent to [email protected]
If you wish to stop receiving e-mail communications, please click on the ‘unsubscribe' link on any of our communications. We will retain your information for as long as required to deliver your service, agreement or resolve any issues. Please note that we cannot always delete records of all historical data; for example ─ we are required to retain certain records for financial reporting, compliance and traceability reasons.
THIRD PARTY WEBSITES
Any information, communications, or materials you submit to us via a Social Media platform is done at your own risk, without any expectation of privacy. We cannot control the actions of other users of these platforms or the actions of the platforms themselves. Your interactions with those features and platforms are governed by the Privacy Policies of the companies that provide them. Our website may include links to other websites, whose privacy practices may be different from ours. If you submit personally identifiable information to any of those sites, your information is governed by their Privacy Policies. We encourage you to carefully read the Privacy Policy of any website you visit.
CHANGES TO PRIVACY POLICY
We may make changes to this Privacy Policy which come into effect upon updating this page. We recommend reviewing this Privacy Policy so you are aware of any changes that affect what you are consenting to by interacting with the website, submitting a query, requesting information or otherwise interacting with the Company.
Renesas
9175 Guilford Road, Suite 201
Columbia, MD 21046 USA
+1 347 523 4480