The Gluware® Standard Terms and Conditions of Sale are subject to the applicable commercial arrangements under which the Gluware Software (as defined in the Gluware EULA) is provided, including, but not limited to, term of contract, cost of service and payment terms specified in i) one or more sales orders, customer orders, service agreements or service orders with Company or its Service Providers or with an authorized Company reseller (a “Reseller”) or ii) any Gluware evaluation agreement, (“Commercial Agreement”) and the Gluware End User License Agreement, (“Gluware EULA”). The Commercial Agreement is made as of the date set forth on the Commercial Agreement signature page, (“Effective Date”) by and between Gluware, Inc., (herein referred to as “Company”) and (“Customer”) the end user identified on the applicable Commercial Agreement, the following terms and conditions of which are thereby accepted by Customer’s signature.
1.1 Definition of Confidential Information
“Confidential Information” means any technical and non-technical information related to the Company’s business and current, future and proposed products and services of Company, including for example and without limitation, Company information concerning research, development, design details and specifications, financial information, procurement requirements, engineering and manufacturing information, customer lists, business forecasts, sales information, marketing plans and business plans, in each case whether or not marked as “confidential” or “proprietary”.
1.2 Confidentiality Obligations
All information disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) (collectively, “Confidential Information”), shall remain the sole property of the Disclosing Party. Except for the specific rights granted by the applicable Commercial Agreement, these Gluware Standard Terms and Conditions of Sale or the Gluware EULA, the Receiving Party shall not use any Confidential Information of the Disclosing Party for its own account. The Receiving Party shall use the highest commercially reasonable degree of care to protect the Disclosing Party’s Confidential Information. The Receiving Party shall not disclose Confidential Information to any third party without the express written consent of the Disclosing Party (except solely for the Receiving Party’s internal business needs, to employees, consultants, agents and representatives who are bound by a written agreement with the Receiving Party to restrict the disclosure and use of such Confidential Information in a manner consistent with the terms herein). For avoidance of doubt, the terms of the applicable Commercial Agreement, these Gluware Standard Terms and Conditions of Sale and the Company’s intellectual property shall be considered Company’s Confidential Information. The prohibitions contained in this Section 1.2 shall not apply to information that is: (i) available to the public other than by a breach of the Commercial Agreement; (ii) rightfully received from a third party not in breach of an obligation of confidentiality; (iii) independently developed by the Receiving Party without access or reference to the Disclosing Party’s Confidential Information or in violation of the applicable Commercial Agreement, these Gluware Standard Terms and Conditions of Sale or the Gluware EULA; or (iv) was known to the Receiving Party or had been previously possessed by the Receiving Party without restriction against disclosure at the time of receipt thereof by the Receiving Party. Further, the Receiving Party may disclose Confidential Information produced in compliance with applicable law or a court order, provided the Disclosing Party is given reasonable prior notice of such law or order and an opportunity to attempt to preclude or limit such production. Subject to the above, the Receiving Party agrees to cease using any and all materials embodying the Disclosing Party’s Confidential Information, and to promptly return such materials to the Disclosing Party upon request.
2.1 Indemnification by Company
Company, at its expense, shall defend, indemnify and hold Customer harmless from and against any loss, damages or liability to the extent arising out of, or related to, a claim, suit or proceeding (collectively, the “Claims”) that the use by Customer of the Gluware Software in the manner provided in the applicable Commercial Agreement, including these Gluware Standard Terms and Conditions of Sale and the Gluware EULA, infringes a United States patent or a United States copyright or trade secret right of any third party, provided that Customer: (i) promptly notifies Company of such Claims; (ii) provides Company with full control of the defense and settlement of each such Claim; (iii) cooperates with Company in such defense and settlement, and (iv) does not settle any such Claim or suit without Company’s prior written consent. Customer may participate in the defense and settlement of any Claim with counsel of its choice at its own expense provided that Company shall continue to have sole control of such defense or settlement. The indemnification obligations set forth in this Section 2.1 shall not apply to, and Company shall have no indemnification obligations with respect to third party materials.
If Customer’s use of the Gluware Software under these terms is, or in Company’s opinion is likely to be, enjoined based on a Claim for which Company is obligated to provide indemnification under Section 2.1, then Company may, at its sole option and expense, either: (i) procure for Customer the right to continue using the Gluware Software under the terms of the applicable Commercial Agreement; (ii) replace or modify such Gluware Software so that it is non-infringing and substantially equivalent in function to the enjoined application; or (iii) if options (i) and (ii) above cannot be accomplished despite the reasonable efforts of Company, then Company may terminate Customer’s rights and Company’s obligations under the terms and conditions of the Gluware EULA with respect to the applicable Commercial Agreement.
THE FOREGOING INDEMNITY AND LIMITED REMEDY ARE COMPANY’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.
2.3 Indemnification by Customer
Customer shall indemnify, defend and hold harmless Company, its affiliates and service providers and each of their respective officers, directors, managers, members, shareholders, employees and agents (collectively, the “Indemnitees”) from and against any and all liabilities, claims, demands, losses, damages, costs and expenses, including reasonable attorneys’ fees, related to or arising out of (a) use of the Gluware Software by Customer (except for claims for which Company is to provide indemnification under Section 2.1); (b) any Customer Content meaning any files, software, scripts, multimedia images, graphics, audio, video, text, data or other objects, including any third party content or materials, originating or transmitted from or through Customer, and its employees or agents, and/or uploaded or routed to, passed through and/or stored on or within the GN Systems or otherwise provided to Company or transmitted or routed using the Gluware Software or the Customer System meaning Customer’s network equipment and services to perform all work required under the applicable Commercial Agreement; (c) any specifications or modifications requested by Customer; (d) the use of the Gluware Software in combination with products not provided by Company; (e) failure to use updated or modified versions of an application provided by Company; or (f) use of the Gluware Software other than as specified in the Documentation by Company; or (g) any conduct, acts or omissions of any authorized user; provided that Company: (i) promptly notifies Customer of such Claims; (ii) provides Customer with full control of the defense and settlement of each such Claim; (iii) cooperates with Customer in such defense and settlement, and (iv) does not settle any such Claim without Customer’s prior written consent. Company may participate in the defense and settlement of any Claim with counsel of its choice at its own expense provided that Customer shall continue to have sole control of such defense or settlement.
Termination of the applicable Commercial Agreement or as set forth in the Gluware EULA and this Section 4.
(a) If Customer fails to make any payment due hereunder, and fails to cure such breach within fifteen (15) days after receiving written notice from Company, then Company may immediately upon written notice, terminate all access to the Gluware Software, terminate the applicable Commercial Agreement and declare all sums due and to become due hereunder, immediately payable.
(b) Customer shall return, or at Company’s option, destroy, all of Company’s Confidential Information and provide written certification of its compliance with this requirement. Customer shall certify such return or destruction to Company within thirty (30) days of the termination date.
4. Limitation of Liability
EXCEPT FOR A PARTY’S (A) BREACH OF CONFIDENTIALITY OBLIGATIONS, (B) INDEMNIFICATION OBLIGATIONS, OR (C) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL (I) EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY AND/OR ANY CUSTOMER’S AGGREGATE LIABILITY TO COMPANY FOR ALL CLAIMS, WHETHER IN CONTRACT, TORT, INDEMNITY OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER PURSUANT TO THE SALES ORDER WHICH GAVE RISE TO THE CLAIM FOR DAMAGES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Neither party may assign the applicable Commercial Agreement or these terms and conditions or any rights or obligations under the applicable Commercial Agreement without the written consent of the other party, which consent may not be unreasonably withheld. Notwithstanding the foregoing, either party may each assign the applicable Commercial Agreement to a third party without such consent, in the event of or in connection with a merger, reorganization or the sale of all, substantially all or a majority of its assets or voting securities, unless such third party is a direct competitor of the other party.
6. Relationship of the Parties
Nothing contained in the applicable Commercial Agreement, these Gluware Standard Terms and Conditions of Sale or the Gluware EULA shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever. The applicable Commercial Agreement or these terms and conditions confer no rights upon either party except those expressly granted herein.
The applicable Commercial Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
8. Injunctive Relief
The parties agree that in the event of any breach or threatened breach of Sections 3 (“Restrictions on Use”) and 5 (“Intellectual Property Rights”) in the Gluware EULA and Section 1 herein (“Confidential Information”) by Customer, Company will suffer an irreparable injury, such that no remedy at law will afford Company adequate protection or appropriate compensation for such injury. Accordingly, in addition to remedies available at law, Customer hereby agrees that Company shall be entitled to specific performance of Customer’s obligations under these terms and conditions and the applicable Commercial Agreement, without bond, as well as such further injunctive relief granted by a court of competent jurisdiction.
The rights and obligations contained under the following sections in the applicable Commercial Agreement, these Gluware Standard Terms and Conditions of Sale and the Gluware EULA (Payment Terms, Restrictions on Use, Limited Warranty, Disclaimer of Warranties, Confidential Information, Indemnity, Limitation on Liability, Term, Termination, Survival, Intellectual Property Rights, Arbitration, Governing Law and Miscellaneous) shall survive any termination or expiration of the applicable Commercial Agreement.
10. Entire Agreement
The applicable Commercial Agreement, these Gluware Standard Terms and Conditions of Sale along with the Gluware EULA collectively are the complete and entire agreement between the parties with respect to the subject matter hereof. In case of a conflict between the above references the strictest terms will take precedence. The applicable Commercial Agreement, these Gluware Standard Terms and Conditions of Sale or the Gluware EULA may not be modified except when agreed upon in writing and executed by duly authorized representative of each party.