1.1. “Authorized User” means any end-user, employee, or contractor affiliated with the Client who is authorized in accordance with Section 5.4 to access the Product.
1.2. “Affiliate” means, with respect to a Party, any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term “control” (or variants of it) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
1.3. “Documentation” means the user manuals and operator instructions related to the Hosted Applications and Services that are furnished by Pointel to the Client in any format, including paper and electronic, in conjunction with the Product.
1.4. “Fees” means the fees charged for the Product by Pointel set forth in the Work Order.
1.5. “Hosted Applications and Services” means the Pointel software applications and services identified in the Work Order, as revised from time to time by mutual written Agreement of the Parties.
1.6. “Intellectual Property Rights” means all intellectual and similar property rights including patents, patent applications, inventions, discoveries, copyrights, licenses, trademarks, trademark applications, trade secrets, service mark, trade dress, mask work, confidential or proprietary technical and business information, know-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions, improvements, and accessions to any of the foregoing and other like rights.
1.7. “Product” means the Hosted Applications and Services and Documentation provided by Pointel pursuant to this Agreement.
1.8. “Subscription Term” shall mean that period specified in the Work Order which Client will have online access and use of Pointel’s Product.
1.9. “Work Order” means a mutually executed document describing the Hosted Applications and Services to be provided by Pointel and other terms pursuant to this Agreement.
2.1. Pointel agrees to provide Client access to the Product on the terms and conditions set forth in the Work Order. Client understands and agrees that unless otherwise lawfully terminated pursuant to this Agreement, Client shall continue to pay Fees for the use of the Product during the Subscription Term of this Agreement. Therefore, subject to Section 4, in the event, the Client elects to cancel before the expiration of the Subscription Term, unless the Client lawfully terminates the Agreement pursuant to Section 4.3, Client will be liable for the payment of the Fees. The Work Order shall be incorporated fully into this Agreement as though set forth in length herein. In the event of any conflict between the Work Order and this Agreement, the Work Order shall govern.
The Client has no ownership rights in the Product. The Client has the license to use the Product set forth in Section 5 as long as this Agreement remains in full force and effect. Ownership of the Product and all Intellectual Property Rights therein shall remain at all times with Pointel. Any other use of Pointel’s Product or proprietary property by any person, business, corporation, government organization, or any other entity other than the Client and its affiliates is strictly forbidden and is a violation of this Agreement. Pointel acknowledges that any information, data, output, reports, records, or other material generated by Client’s use of the Product or inputted by Client into the Product, including without limitation any Client or customer information (collectively “Client Data”), are the sole and exclusive property of Client and contain Client’s confidential and proprietary materials. Notwithstanding anything to the contrary, Pointel shall have the right to use, analyze, and distribute reports from the Client’s data provided Pointel de-identifies all relevant indicators and characteristics that identify the Client’s confidential information. No additional connections of any kind, nor any maintenance or repair shall be made to the Product by or on behalf of Client without the prior written authorization of Pointel.
4. SUBSCRIPTION TERM; TERMINATION
4.1. This Agreement will commence upon effective as of the Subscription Term set forth in the Work Order, unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive one-year terms unless at least thirty (30) days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
4.2. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within thirty (30) days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 4.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the thirty (30)-day cure period.
4.3. Customer may terminate this Agreement prior to the end of the Subscription Term by providing 90 days written notice, which includes electronic mail, to Pointel of Customer’s intent to terminate.
4.4. At any time during this Agreement, or upon the expiration or any termination of this Agreement, Pointel will deliver to Client the then-most recent back-up of the Client Data in an industry-standard format specified by Client at the cost of $5,000, which sum shall be paid in accordance with Section 6.1. Pointel will deliver the back-up to the Client within thirty (30) days of any such expiration or termination.
5.1. Pointel hereby grants to Client during the Subscription Term a revocable, non-exclusive, non-transferable, personal license to use the Product subject to this Agreement. Nothing in this Agreement will be deemed to prohibit or limit Pointel’s right to perform similar services for any other party during or after the term of this Agreement
5.2. The license grant is to (i) use the Product as provided herein for Client’s internal use only, until the subscription is terminated as provided in this Agreement; (ii) access, load, store, and operate the Product with browser software; and (iii) access the Product, including its content, via the Internet.
5.3. This license grant is for use of the Product, as it exists as of the effective date of this Agreement or as it may be modified by Pointel from time to time during the Subscription Term.
5.4. The license granted herein is granted to Authorized Users designated or assigned by the Client, subject to the limitations set forth in the Work Order.
6.1. Pointel shall invoice Client, and Client shall pay to Pointel the fees (“Fees”) in accordance with the annexed Work Order. All prices quoted in this Agreement are in U.S. Dollars.
6.2. All fees in this Agreement are non-refundable, including for termination by Client other than -a termination in accordance with Section 4.2.
7. UNAVAILABILITY OF SERVICE
7.1. Unless otherwise indicated in the Work Order, the Product shall be accessible twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, for which no less than seven (7) days written notice shall be provided by Pointel, setting forth the time and duration of the downtime, and except for any loss or interruption of services due to causes beyond the control of Pointel or which are not reasonably foreseeable by Pointel, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. In the event of any loss or interruption of the Product, Client’s sole and exclusive remedy and Pointel’s sole and exclusive liability for any loss or interruption of the Product shall be as follows: for loss or interruption of the Product which is due to (i) causes from scheduled maintenance and required repairs requiring downtime in excess of the amount set forth above, (ii) causes beyond the control of Pointel, or (iii) causes which are not reasonably foreseeable by Pointel, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of the service that exceeds a continual period of eight(8)) hours, Client shall receive a credit against future Product Fees equal to a pro-rata portion of the Product Fees for the period of downtime (which shall be a pro-rata portion of the Pointel Product Fee as noted in the Work Order).
8. RULES AND REGULATIONS
8.1. The Client understands that Client must use the Product provided herein lawfully and responsibly and for Client’s internal use only. Notwithstanding any use permitted herein, Client agrees that Client shall NOT, without the prior written consent of Pointel:
8.1.1. Decompile, reverse engineer, disassemble, or create derivative works from the Product;
8.1.2. Remove or obscure any proprietary notices, including, but not limited to, any and all copyright, trademark, and patent designations contained in the Product;
8.1.3. Upload, post, e-mail, transmit, publish, re-publish, distribute, create abstracts from, display, or otherwise make available the Product to any third Parties including posting any content to newsgroups, mail lists, or electronic bulletin boards;
8.1.4. Assign, rent, lend, lease, sell, sublicense, transfer, export from the United States, copy, reproduce, modify, adapt, translate, reverse engineer, decompile, disassemble, extract components from, or create derivative works of the Product, except as authorized under this Agreement;
8.1.5. Remove, modify, hide, or otherwise make unreadable or non-viewable any notice, legend, advice, watermark, or other designation contained on the Product, component thereof, or output there-from;
8.1.6. Use the Product for illegal activities of any kind, including but not limited to the unlawful copying, distribution, or transmission of any legally protected materials (including without limitation protected text, music, graphics, trademarks, trade secrets, computer software, and all other forms of intellectual property), the violation of U.S. export restrictions, trafficking in obscene material, drug dealing, fraud, scam operations, and any other act that violates any state, federal law, or international law;
8.1.7. Unauthorized posting or linking of the Pointel Product hosting site; or
8.1.8. Permit the Product to be used in connection with a service bureau or otherwise used for processing the data of any third party (not including an Affiliate of the Client).
8.2. Pointel has no obligation to monitor the Client’s use of the Product or retain the content of any user session. However, Pointel reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process, or lawful governmental request.
9. MISUSE OF LOG-IN INFORMATION
9.1. The client agrees that it will not and shall maintain policies to prevent Authorized Users to misuse or disclose log-in user identification names and passwords except as authorized by Pointel, which policies shall, at the minimum, prohibit the (1) transfer of log-in user names and passwords, (2) posting of log-in information in a public forum including, but not limited to, an internet chat room or other websites, or (3) publishing of the log-in information for disclosure to third parties.
9.2. Failure to comply with the foregoing shall constitute a breach of this Agreement, which may result in termination of this Agreement.
9.3. Client shall promptly upon obtaining knowledge thereof notify Pointel of any known or suspected unauthorized use(s) of Client’s access to the Product, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Client’s log-in information.
10. CONFIDENTIAL INFORMATION
10.1. “Confidential Information” shall mean the Product, documentation, specifications, terms and conditions of this Agreement, and data related to Pointel or Client. Confidential Information shall include, but is not limited to, the identities of the other Party’s customers, as well as information maintained by such other Party regarding those customers, and all computer programs and procedures developed by such other Party in connection with this Agreement. The Parties acknowledge the confidential and proprietary nature of the Confidential Information and agree that neither Party shall reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation, or other entity, other than the Party’s employees with a need to know such Confidential Information to perform employment responsibilities consistent with Party’s rights under this Agreement. The Parties shall safeguard and protect the Confidential Information from theft, piracy, or unauthorized access in a manner at least consistent with the protections the Party uses to protect its own most confidential information. The Parties shall inform their employees of their obligations under this Agreement, and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by the other Party, to prevent any unauthorized disclosure, copying, or use of the Confidential Information.
10.2. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving Party; (b) is rightfully known to the receiving Party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information; (d) the receiving Party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing Party.
10.3. A Party shall notify the other Party immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach of these confidentiality obligations, and shall fully cooperate with the other Party to help it in regaining possession of the Confidential Information and preventing the further prohibited use or disclosure of the Confidential Information.
10.4. Pointel, at Client’s expense, agrees to use commercially reasonable efforts to assist Client by providing access and information with respect to security protocols and treatment of Confidential Information in the event of an internal or external audit of Client.
10.5. Each Party acknowledges that the unauthorized disclosure or use of the disclosing Party’s Confidential Information is likely to cause irreparable harm to the disclosing Party, for which the award of damages will not be an adequate remedy. Consequently, the disclosing Party shall be entitled to obtain preliminary and permanent injunctive relief to restrain such unauthorized disclosure or use, in addition to any other relief to which the disclosing Party may be entitled at law or in equity.
11.1. Pointel warrants (a) it has the full right, power, and authority to enter into this Agreement; (b) it shall provide the Product using required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; (c) it will be in compliance with all laws applicable to Pointel’s obligations under this Agreement; and (d) Pointel will use reasonable efforts to ensure the Product does not contain any “Harmful Code”. For purposes of this Section, “Harmful Code” means and includes virus, trojan horse, worm, backdoor, or other malicious software code, the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software; or any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program.
11.2. Client warrant that it(a) it has the full right, power, and authority to enter into this Agreement; and (b) will allow access to and will use the Product only as this Agreement authorizes and that it is in compliance with all laws applicable to its obligations under this Agreement.
POINTEL MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OTHER THAN THOSE IN THIS AGREEMENT, AND FURTHER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE ACCURACY OF THE DATA FROM WHICH THE PRODUCT IS COMPILED, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCT IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6 AND 10, POINTEL DISCLAIMS ANY WARRANTY THAT THE HOSTED SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM POINTEL ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
13. LIMITATION OF LIABILITY
13.1. IN NO EVENT SHALL POINTEL’S LIABILITY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE PRODUCT, WITH THE DELAY OR INABILITY TO USE THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE PRODUCT, OR OTHERWISE ARISING OUT OF THE USE OF THE PRODUCT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, EVEN IF POINTEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND POINTEL’S LIABILITY IN ALL CASES SHALL NOT EXCEED THE AMOUNT PAID TO POINTEL BY CUSTOMER.
13.2. Subject to Section 13.1, Client’s sole remedy in the event of any breach of this Agreement by Pointel shall be the termination of this Agreement and a refund of any advances paid to Pointel.
The client shall pay or reimburse Pointel for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however, designated, which are levied or imposed by reason of the performance by Pointel under this Agreement; excluding, however, income taxes which may be levied against Pointel. Each Party will be responsible for its own income taxes, employment taxes, and property taxes.
During the term of this Agreement and for a period of two (2) years thereafter, Neither party shall directly or indirectly recruit or solicit for employment any employee who has been involved in the performance of this Agreement.
16. GENERAL PROVISIONS
16.1. Force Majeure: Neither Party shall be liable to the other if it is unable to perform any of its obligations under this Agreement due to events beyond its control, including, without limitation: (a) natural disasters such as floods, droughts, earthquakes, hurricanes, cyclones, etc.; (b) fire, explosion, strike, lock-out, sabotage, or failure of transportation; and (c) actions or decrees of governmental bodies. The Party who has been so affected by the force majeure event shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of non-performance exceeds thirty (30) days from the receipt of notice of the force majeure event, the Party whose ability to perform has not been so affected may by giving written notice terminate this Agreement and any prepaid amounts shall be refunded in full.
16.2. Notices: Unless otherwise provided, whenever provision is made herein for giving, service, or delivery of any notice, such notice shall be in writing and shall be deemed to have been duly given, served, or delivered, either upon personal delivery or delivery confirmation by a national overnight courier service, at their addresses hereinabove indicated. The Parties agree to notify each other of address changes promptly.
16.3. Assignment; Binding Effect: Neither Party shall assign or subcontract the whole or any Party of this Agreement without the other Party’s written consent; except that (a) a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and full fill all of the assigning party’s obligations under this Agreement, and (b) Client may assign this Agreement without Pointel’s consent to an affiliate of Client. Any attempt to assign or subcontract in contravention of this Section 16.3 shall be null and void and of no force and effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, legal representative, successors, and permitted assigns.
16.4. No Third-Party Beneficiaries: No person not a party to this Agreement, including Client’s personnel, shall have or acquire any rights by reason of this Agreement, nor shall any Party to this Agreement have any obligations or liabilities to such other third party by reason of this Agreement.
16.5. Forum; Costs: This Agreement shall be governed and construed in accordance with the laws of the State of New Jersey. The prevailing party in any such action shall be entitled to recover attorney’s fees, expenses, and court costs.
16.6. Entire Agreement: This Agreement and the exhibits annexed hereto, if any, constitute the entire agreement between the Parties. No change, waiver, or discharge hereof shall be valid unless it is in writing and executed by both Parties.
16.7. Section Headings: The section and subsection headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof.
16.8. No Waiver: No delay or omission by either Party hereto to exercise any right or power occurring upon any noncompliance or default by the other Party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the Parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity, or otherwise.
16.9. Severability: In the event any part of this Agreement is found to be void or invalid, the remaining provisions of this Agreement shall nevertheless remain in full force and effect as though the void and invalid parts were deleted.
16.10. Counterparts: This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the Parties.