Generation Ready Inc. Standard Terms and Conditions for the License and Purchase of Products and Services
These Standard Terms and Conditions (“Standard Terms”) are part of and incorporated by reference into an Agreement (“Agreement”) for the license of GRI Software or Products or the purchase of Services. Such an Agreement will consist of (a) these Standard Terms, (b) signed Price Quote (“Quote”) or Order Form (“Form”) or Proposal (“Proposal”), and (c) any documents or instruments attached to or incorporated by reference into the Agreement.
“Client Data” means all data and documents owned or licensed by Client (whether in electronic format or otherwise) that Client or its authorized users (a) have directly entered or stored in Client’s account on a GRI System which may include data and records regarding Client’s authorized Users, students, faculty, or administrators; (b) Client’s data set(s) provided to GRI to be loaded by GRI into Client’s account; (c) data selected by Client from the GRI Databank to be loaded by GRI into Client’s account; and (d) Client-provided third party materials including but not limited to rubrics, checklists, observation or evaluation forms, or similar tools to be loaded into Client’s account.
“Client Technology” means Client’s network, servers, computers and other equipment, browser, software, Client Data, or data used in Client’s operations.
“Confidential Information” means any and all non-public educational, technical, financial or business information whether disclosed orally, visually, or in written, electronic or other form or media, that is clearly marked “confidential” or “proprietary”, or that ought to be treated as confidential under the circumstances surrounding the disclosure (including this Agreement and Client Data) that is possessed or obtained by the Disclosing Party and furnished to the Receiving Party, either directly or indirectly, or becomes known to the Receiving Party as a consequence of its relationship or access to the Disclosing Party.
“Deliverables” means Products, GRI Software or Professional Development Services described in a Proposal or other document.
“Documentation” means any text materials including user or technical manuals, training manuals and specifications pertaining to the GRI Software, Products or Professional Development Services and provided by GRI to Client in any form.
“GRI Content” means any materials including but not limited to instructional and assessment materials, courses, lessons, graphics, documents, designs, information, text, audio, images and other similar materials that are incorporated into Products, GRI Software and Documentation, and may include materials that are created, owned or licensed by GRI as of the Effective Date.
“GRI Databank” means a collection of information, data and content from various sources such as government agencies, educational institutions, experts, consultants and the public domain, and includes GRI data and content both licensed and owned, which GRI makes accessible to its clients as a convenient resource. GRI does not claim to hold any rights or permissions for data housed in the GRI Databank. Client is responsible for obtaining any and all necessary rights and permission for use of GRI Databank content.
“GRI Intellectual Property” or “GRI IP” means proprietary information of GRI including GRI Content, GRI Software, Documentation, Software Maintenance, copyrights, patents, trade secrets, or other intellectual property made available to Client under this Agreement.
“GRI Recommended Browser” means the browser requirements set forth in the Agreement.
“GRI Software” means the hosted application and any software that is included, provided with, or embedded in any Product marketed and offered for license by GRI and may include Third Party Software and open source software.
“License Period” means the effective period of time during which Client is granted a non-exclusive license to access the hosted solution and/or access and use the Products subject to the terms and conditions of this Agreement.
“Order Form” means the order form from GRI which when executed forms the basis of the Agreement between Client and GRI.
“Product” means content that is created, owned, licensed or controlled and marketed and offered for license or sale by GRI which includes GRI IP, GRI Content, Documentation, Third Party Software, GRI Software and GRI Marks.
“Professional Development Services” means any services related to education professionals and administrators, including training and consulting services.
“Proposal” means the document issued by GRI which states the scope of Professional Development Services, the GRI Software and the Products which might include the prices, timeline, and Deliverables to be provided by GRI to Client under this Agreement.
“Quote” means the Price Quote from GRI which when executed forms the basis of the Agreement between Client and GRI.
“Purchase Order” means an order or other official document issued by Client which authorizes payment. No other terms contained in any Client Purchase Order are considered part of this Agreement.
“Software Maintenance” means maintenance and support activities related to any GRI Software.
“Scope of Services” shall minimally include estimated time to be worked, activities, and estimated start and end date for the work to be performed.
“Third Party Software” means software licensed to GRI by a Third Party under a separate agreement, or any open source software used by GRI in its Products and offerings.
“Users” means those individuals employed by, associated with, or affiliated with Client who, during the term of the Agreement, are authorized by Client to access and use the GRI Software and Products and may include Client’s faculty, administrators, and staff.
“Work Product” means all tangible and intangible information, data, work, documents, reports, materials, deliverables, technology, know-how, customizations and things conceived, created, produced, developed or delivered under or in connection with this Agreement.
- Purpose and Effective Date. An Agreement by and between Generation Ready Inc. (“GRI”) and the Client (“Client”) for the license of GRI products or the purchase of GRI services will consist of (a) these Standard Terms, (b) a signed Price Quote (“Quote”) or a signed Order Form (“Form”) or a signed GRI Proposal (“Proposal”), and (c) any other documents or instruments (“Other Documents”) attached to or incorporated by reference by the parties. GRI and Client are referred to individually as a “Party” and collectively as the “Parties. An Agreement is deemed effective as of the date of last signature on the Quote, Form, or Proposal (“Effective Date”). In the event of any conflict or ambiguity among the aforementioned documents, and except as otherwise provided in this Agreement, such conflict or ambiguity shall be resolved in accordance with the following order of precedence: (1) the Quote, Form, or Proposal; (2) these Standard Terms; and (3) the Other Documents.
III. PRODUCTS AND SERVICES.
- Availability. During the License Period, GRI will house GRI Software and Products on data center servers, and will use commercially reasonable efforts to make the GRI Software and Products available (subject to routine or required maintenance periods) to Client and its Users twenty-four (24) hours per day, seven (7) days per week.
- Access. GRI will provide Client with certain User IDs and passwords (“Passwords”) for use by Client and its Users to access and use the Products. Access for Client and its Users will be via the worldwide web using a browser and internet connection compliant with GRI recommendations. Access by the Client and its Users is subject to the terms of this Agreement. All GRI Software and Products will be deemed accepted by Client upon the availability to Client of access to the GRI Software, and Client waives any right to revoke acceptance thereafter.
- Open Source Software. GRI may use open source software in connection with GRI Software and Products licensed under this Agreement. GRI use of open source software is “AS IS” and GRI makes no representations or warranties, either express or implied, with respect to open source software provided to Customer under this Agreement. GRI will not be liable for any damages arising out of the use or distribution of open source software.
- Customization. All right, title and interest in and to a Customization either in its documentation or in the content or software provided is owned by GRI. GRI grants Client a limited license to use any Customization as described in a Proposal or other documents that are incorporated by reference into the Agreement.
- Software and Product Training. Any training delayed due to Client may be forfeited involving any Product or Software.
IV. SOFTWARE MAINTENANCE SERVICES.
- Updates. From time to time, GRI may develop or license updates, upgrades, bug fixes, or modifications to the GRI Software (“Updates”). Software Maintenance Services may be included in a Quote, Form or Proposal, or Other Documents incorporated by reference into the Agreement. GRI reserves the right to alter the features, specifications, capabilities, functions, licensing terms, availability, or other characteristics of any GRI Software or Documentation from time to time. Client will be notified in advance of any Updates or significant software or platform changes beyond standard Software Maintenance. On the general release date of an Update, GRI will provide Client with such Update and any related Documentation at no additional charge to Client. GRI has no other obligation to provide Client with Updates or related Documentation. Access to and use of any GRI-provided Updates or Documentation will be governed by this Agreement.
- Limitation. GRI shall have no obligation to provide any maintenance or support services of any kind with respect to any hardware or software product other than the GRI Software stated in Agreement.
V. PROFESSIONAL DEVELOPMENT SERVICES.
- Scope of Services. GRI shall provide Client with Professional Services in accordance with an attached document (“Scope of Services”).
- Performance. In the event Client believes that any Professional Services have been performed in a deficient manner, Client will provide GRI with written notice specifically describing such deficiency within ten (10) business days of such performance, and after receipt of such notice, GRI shall have a reasonable amount of time to investigate and remedy any actual deficiency.
- Additonal Services . Any request for additional professional services must be made in writing and signed by both Parties prior to the implementation of any additional services. GRI will review any such request for change, and GRI may in its sole discretion accept the change and reschedule the services. All notifications of any additional services can be done via email.
- Reduction of Service. Any reduction in Services requested by Client requires a fourteen (14) day written day notice. If the Service has already been performed or expenses have already been incurred by GRI, Client must pay for the rendered Services and/or expenses.
- Unused Training or Consulting Services. Should any scheduled training or consulting Services be delayed by Client due to lack of funding and Client is unable to rolled the cost into subsequent school year, Client’s obligation for such Services will terminate and any prepaid fees will be returned to Client. If Services are cancelled due to lack of funding, Client will not be allowed to purchase same or similar services from another source for the remaining term of this Agreement. Any training or consulting service days that are cancelled for convenience by Client prior to the expiration or termination of this Agreement will be forfeited and no refund will be made for any fees paid.
VI. CLIENT OBLIGATIONS.
A. System Access. Client must use a web browser and have internet connectivity that conforms to GRI minimum requirements as stated in the GRI Agreement.
B. User Activity. Client is responsible for all activities of its Users and for their compliance with the terms of this Agreement. Client will (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; (ii) use reasonable efforts to prevent unauthorized access to or use of the Products or the Documentation, including among other things use of User identification numbers and passwords, IP address verification, or other secure methods of User verification, and notify GRI promptly of any unauthorized access or use of the software; and (iii) in connection with this Agreement, comply and ensure compliance by all Users, with all applicable local, state, and federal laws, rules and regulations, including the Family Educational Rights And Privacy Act (“FERPA”).
VII. INTELLECTUAL PROPERTY.
A. License. During the Term, GRI hereby grants to Client a limited, non-exclusive, non-transferable license in the United States (without right to sublicense) to access and use Products for which Client has paid the applicable Fees, solely for the purpose of internal education, training services and related activities (and in no event for the provision of services or assistance to any other parties, including any other educational institutions), that are specified in the GRI Quote, Form, or Proposal.
B. Documentation. Solely with respect to Documentation, Client may make an unlimited number of copies (either in hardcopy or electronic form) of Documentation provided that such copies are used only for Client’s internal educational and training purposes and are not republished or distributed beyond Client’s premises or to any third parties.
C. Ownership; Limitations on Use and Disclosure. Except for the rights expressly granted to Client under this Agreement, GRI and its licensors will retain all worldwide right, title and interest in and to the GRI Software and Products, including all technology and intellectual property and proprietary rights. Client will not sell, license, sub-license, rent, modify, distribute, copy, reproduce, frame, mirror, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of the GRI Software and Products. Client will not act or permit any action that would impair any of GRI’s or its licensors’ rights in the GRI Software and Products. Client agrees not to: (a) disassemble, reverse compile, reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the GRI Software and Products (or any portion thereof); (b) distribute, lend, rent, sell, transfer or grant sublicenses to, or otherwise make available the Software or Products (or any portion thereof) to third parties, including, but not limited to, making such GRI Software or Products available (i) through resellers, OEMs, other distributors, or (ii) as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the GRI Software or Products (or any element thereof) into other applications of Client or third parties; (d) use or transmit the GRI Software or Products in violation of any applicable law, rule or regulation, including any export/import laws; (e) in any way access, use, or copy any portion of the GRI Software or Products (including the logic and architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the GRI Software or Products; (f) remove, obscure or alter any copyright notices or any name, logo, tagline or other designation of GRI or its licensors displayed on any portion of the GRI Software or Products, (g) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights, (h) intentionally send or store any viruses, worms, time bomb Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs, or (i) attempt to gain unauthorized access to the GRI Software, Products, or its related systems or networks. Client shall not permit any third party to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred by GRI as a result of such actions.
- Work Product, GRI Marks. Except as provided herein, to the extent any Work Product contains copyrightable material that can be considered “work made for hire” as the term is defined under 17USC§101, such material will be deemed “work made for hire” and GRI will be the author and owner of said work. If such Work Product is not deemed “work made for hire,” Client hereby assigns all copyrights in such Work Product to GRI. Client will not use GRI’s Marks (“Marks”) without prior written authorization from GRI. The Marks are, and will remain, GRI’s sole and exclusive property, and Client has not acquired, and will not acquire (by operation of law, this Agreement, or otherwise), any right, title, or interest in any of GRI’s Marks other than as explicitly provided in writing by GRI.
E. Client Data.
- Client may direct and instruct GRI to load data into GRI Software by providing data set(s) to GRI and/or alternatively, Client may direct and instruct GRI to load data held in the GRI Databank by requesting such data from the GRI order form. Client will clearly identify all Client Data to be loaded into the GRI Software, including any third party materials, in the applicable order form.
- Client is responsible for and will obtain any and all necessary rights and permission for use of Client Data including any data or content selected from the GRI Databank. GRI is in no way responsible for obtaining or verifying that Client has appropriate rights or permissions for the use of Client Data which may include data selected from the GRI Databank. For clarification, GRI does not claim to hold any rights or permissions for any data housed in the GRI Databank. Client will indemnify and hold harmless GRI for any and all claims, damages etc. that arise from Client’s breach of this clause.
- Client hereby grants GRI a nonexclusive, royalty-free, fully paid-up, worldwide license to access, use, and distribute Client Data solely for the purpose of performing GRI’s obligations under this Agreement. Except for the foregoing, GRI shall have no right, title, or interest in any Client data.
- To enable GRI to effectively execute its obligations under this Agreement, Client may be requested from time to time, to provide data related to a baseline analysis in order to facilitate the Work specificity to determine analysis for scoping and planning tasks. GRI may request all available student-level and instructional leader-level assessment information, related files, student-level test data, achievement and growth reports, annual progress reports, subgroup progress reports and similar information for this purpose. GRI shall use and disclose this information only to fulfill its obligations under this Agreement and in accordance with applicable laws including but not limited to FERPA. Client warrants that it has the right to provide, and to permit GRI to so use, all materials that it furnishes to GRI.
F. Additional Provisions.
Client acknowledges and understands that Products may include Third Party Software or other third party intellectual property. Such Third Party Software or intellectual property is provided to Client subject to the same terms and conditions of the applicable GRI license agreement. Nothing contained herein shall be construed to grant to Client any rights or license to use any Third Party Software or intellectual property not expressly permitted by GRI’s license for those materials. GRI and Client agree to maintain any Personally Identifiable Information confidential under all applicable state and federal laws.
VIII. FEES AND PAYMENT.
A. Fees. All Fees are non-cancellable and non-refundable for Products delivered, Services rendered, and expenses incurred. Client shall have no right to the refund of any Fees paid or payable for any Products or Services based on Client’s lack of use or implementation of the Products or Services, including any Unused Training Services, for whatever reason.
B. Invoicing and Payment. All Fees for Services will be invoiced from the completion of the work and all Fees for Software or Products will be invoiced upon access to the Software or Products. Client agrees to pay the net mount of each invoice, without offset or deduction, within thirty (30) days after the invoice date. If any amount is not paid upon the due date, then GRI shall be entitled to receive the amount due plus interest thereon at the rate of 8% annually (or such lower rate as shall be the highest permissible contract rate under applicable law) on all amounts that are not paid on or before the due date.
C. Taxes. Except to the extent that Client provides GRI with a valid tax exemption certificate authorized by the appropriate taxing authority, GRI will invoice Client for, and Client agrees to promptly pay any taxes, impositions, or other charges imposed or levied by any governmental authority, including any sales, use, value-added, or withholding taxes, in connection with this Agreement.
D. Audits. GRI may audit Client’s and its Users’ use of the Products for compliance with the terms and conditions of this Agreement within three (3) years after end of the License Period, but no more than once annually. Client shall cooperate with and comply with any reasonable request of GRI in connection with the audit, and shall provide GRI with access, on Client’s premises during regular business hours and on reasonable notice, to any and all documents and information necessary or appropriate for GRI to complete the audit. In the event that the audit reveals a deficiency in Client’s User reporting or any failure to fully comply with the terms and conditions of this Agreement, then, in addition to all of GRI’s other rights and remedies, Client shall promptly reimburse GRI for all reasonable fees, costs, and expenses (including attorneys’ fees) incurred by GRI in connection with such audit.
E. Termination of License. Any license(s) granted under this Agreement will be automatically terminated and revoked upon the termination of this Agreement. GRI reserves the right to revoke any license granted under this Agreement upon the occurrence of a material breach of this Agreement by Client or its Users which is not fully cured within ten (10) days after the date of first occurrence. Upon the revocation or termination of a license, Client and all Users must immediately discontinue their access to and use of the applicable Products, and Client and Users must destroy all copies of such Products that they have obtained or made.
A. Confidentiality and Nonuse Obligations. The receiving Party agrees (a) not to use Confidential Information, except in connection with the purpose of the Agreement; (b) to maintain the confidentiality of Confidential Information using the same standard of care that Recipient applies to protect its own confidential information (but which in any event shall be not less than a reasonable standard of care); (c) not to disclose any Confidential Information to any third party, except to Recipient’s and its affiliates’ respective employees, representatives, consultants, or agents who are bound by obligations to maintain the confidentiality of the Confidential Information and who are involved in evaluation of the Confidential Information for the purpose; and (d) to be responsible for enforcing obligations of confidentiality with respect to such employees, representatives, consultants, or agents.
B. Protection of Confidential Information. If the receiving Party becomes aware of any unauthorized use or disclosure of the disclosing Party’s Confidential Information, the receiving Party will promptly and fully notify the disclosing Party of all facts known to it concerning such unauthorized use or disclosure. The restrictions upon disclosure and use of the Confidential Information will cease to apply to any specific portion of Confidential Information which the receiving Party can demonstrate:
- is or hereafter becomes generally available to the trade or public other than by reason of any breach hereof;
- was already lawfully known to the receiving Party, prior to the date of disclosure;
- is disclosed to the receiving Party by a third party who is not otherwise under an obligation of confidentiality; or
- is developed by or on behalf of the receiving Party independently, without reliance on or access to the Confidential Information received hereunder.
A. By GRI. GRI will defend, indemnify, and hold harmless Client and its Representatives against any and all losses, liabilities, claims, costs, damages, and expenses, including without limitation, reasonable attorney’s fees and court costs incurred or which may be incurred by Client directly or indirectly arising out of or resulting from: (a) any act or omission made by GRI or its representatives related to Services performed for Client hereunder which is negligent or which constitutes a breach of any of the terms of this Agreement; (b) any untrue or inaccurate representation made by GRI in this Agreement; or (c) the infringement or alleged infringement of any trade secrets, copyrights, trademarks, trade names, or other proprietary or contractual rights of any third party arising from the Services, Software or reports, data, analyses, processes, or other deliverables produced or delivered by GRI to Client in connection with the Services. If GRI IP becomes or in GRI’s opinion is likely to become the subject of an infringement claim, GRI may, in its sole option and expense, to (i) procure for Client the right to continue using such GRI IP as provided hereunder; (ii) modify such GRI IP to that it is no longer infringing; (iii) replace such GRI IP with a product of equal or superior functionality or (iv) require the return or cessation of use of the GRI IP and refund Client the portion of the attributable fees paid. THE RIGHTS GRANTED TO CLIENT UNDER THIS SECTION SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND GRI’S SOLE LIABILITY FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHT.
B. By Client. To the extent allowed by law, Client agrees to indemnify, defend, and hold harmless GRI and its shareholders, directors, officers, employees, agents, contractors, affiliates, and subsidiaries from and against any and all Claims, and any losses, damages, settlements, taxes, contributions, penalties, fines, costs, or expenses (including reasonable attorneys’ fees), arising from: (i) any act or omission on the part of Client, any party acting on Client’s behalf, and any User; (ii) any injuries or death to any GRI personnel, or any damage to GRI property suffered in the performance of the Services, except as may result from the gross negligence or willful misconduct of GRI; (iii) the occurrence or nonoccurrence of any event alleged to be proximately caused by any Client Data or Client Technology; (iv) any allegation that any Client Technology or Client Data infringes any third party patent, trademark, copyright, or other right; and (v) the use of any Product or Service by Client or any User. Client further agrees GRI shall have no liability for, and Client agrees to indemnify and hold harmless GRI, its suppliers, directors, officers, agents and employees from and against, any and all Claims, damages, judgments, assessments, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of, or in connection with, any communications generated by Client or its Users and any content created by Client or its Users using the GRI Software other than as expressly permitted by this Agreement.
XI. WARRANTIES AND DISCLAIMERS.
A. GRI Software and Service Warranties. GRI warrants that GRI Software will operate substantially in accordance with the applicable software Documentation during the License Period provided that the GRI Software is used in accordance with GRI’s recommended browser configurations, and that Software Maintenance Services and Professional Services will be performed in a professional, workmanlike manner during the Term. This warranty is voided to the extent any modification or use of GRI Software, Software Maintenance Services or Professional Services is not authorized by GRI. Client must notify GRI of any breach of this warranty promptly in writing. Upon GRI’s receipt of such notice, GRI may, at its election and expense, decide to (i) as soon as commercially practical, consistent with industry practice, modify the affected GRI Software to conform in all material respects with the applicable Documentation; (ii) re-perform Software Maintenance Services and Professional Services at no charge or provide a replacement for the affected GRI Software which conforms in all material respects with the applicable Documentation; or (iii) terminate access to and use of the affected GRI Software, Software Maintenance Services and Professional Services and refund to Client a pro-rated portion of the Fees paid that is attributable to the either GRI Software or Services. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE CLIENT’S SOLE REMEDY AND GRI’S SOLE LIABILITY WITH RESPECT TO A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.
B. GRI Content and Third Party Software Warranties. ALL GRI CONTENT AND THIRD PARTY SOFTWARE IS PROVIDED BY GRI “AS IS” AND “AS AVAILABLE.” GRI MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO BROWSER CONFIGURATION OR THIRD PARTY SOFTWARE. Client expressly waives any claim that it may have against GRI based upon any alleged or actual product liability or infringement of any patent, copyright, trade secret, or other intellectual property right with respect to any GRI Content or Third Party Software, as well as any right to indemnification from GRI resulting from any such claim made by a third party. GRI hereby transfers to Client, to the extent transferable, whatever freely transferrable warranties and indemnities GRI receives from the producer of the Third Party Software.
C. Disclaimers. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES AND REPRESENTATIONS CONTAINED IN THIS AGREEMENT, ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL OTHER REPRESENTATIONS AND WARRANTIES CONCERNING ANY PRODUCT OR SERVICE, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE HEREBY EXPRESSLY DISCLAIMED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY, OR NON-INTERFERENCE, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS LIMITED WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GRI MAKES NO WARRANTY OR REPRESENTATION AS TO THE RESULTS; ACCURACY, RELIABILITY OR END-USER CONNECTIVITY; SPEED OF THE GRI SOFTWARE; THAT THE OPERATION OR CONNECTIVITY OF THE GRI SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT THE GRI SOFTWARE WILL BE FREE OF ALL POSSIBLE METHODS OF ACCESS, ATTACK, OR INTRUSION.
XII. LIMITATIONS OF LIABILITY.
A. No Consequential Damages and Limitation of Damages. NEITHER PARTY SHALL BE ENTITLED TO, AND NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING COVER, BUSINESS INTERRUPTION, LOSS OF PROFIT, REVENUE, DATA, OR GOODWILL, OR CLIENT TECHNOLOGY DAMAGE, FAILURE, OR MALFUNCTION, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF HOW SUCH DAMAGES WERE CAUSED, AND REGARDLESS OF WHETHER THE REMEDY SET FORTH HEREIN (A) FAILS OF ITS ESSENTIAL PURPOSE, OR (B) SOUNDS IN CONTRACT, TORT, STATUTORY LAW OR OTHERWISE. IN NO EVENT SHALL EITHER PARTIES AGGREGATE RECOVERY FOR ANY AND ALL CLAIMS EXCEED THE GREATER OF (i) FEES ACTUALLY PAID BY CLIENT FOR THE PRODUCT(S) OR SERVICE(S) GIVING RISE TO THE CLAIM(S); OR (ii) THE TOTAL SUM OF FIFTY THOUSAND DOLLARS ($50,000). THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
C. Indemnification for Claims Regarding Certain Content. GRI is not responsible for any Client or its Users communications (including content) or data, even if such content is obscene, illegal, or otherwise offensive. Client agrees GRI shall have no liability for, and agrees to indemnify and hold harmless GRI, its suppliers, directors, officers, agents and employees from and against, any and all Claims, damages, judgments, assessments, losses, liabilities and expenses arising out of, or in connection with, any communications generated, and any content created by Client or its Users using GRI Software and Products.
D. Applicability. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. Client agrees that the limitations of liability and disclaimers set forth in this Agreement will apply regardless of whether Client has accepted the Software or any other Product or Service delivered by GRI.
XIII. TERMINATION OF AGREEMENT.
- Nonpayment. If Client fails to pay any invoice when due and does not make such payment within ten (10) business days after receipt of notice from GRI of such failure, GRI may, in its sole and absolute discretion, either (a) suspend access to any GRI Software or Product or the delivery or performance of any Service under Quote, Form or Proposal until such payment is made, or (b) terminate this Agreement.
- Material Breach. Either Party may terminate this Agreement at the discretion of the non-breaching Party, upon the material breach of the other Party which material breach has remained uncured for a period of ten (10) days after the date of notice to the breaching Party. In the event that Client terminates this Agreement for a material breach by GRI, GRI shall return a pro-rated portion of the Fees received by GRI from Client pursuant to this Agreement for the Products and/or Services that are the subject of the breach.
- Insolvency. Either Party may immediately terminate this Agreement at their discretion, with notice, upon (i) the Party by or against the other Party due to insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of the other Party’s debts; (ii) the other Party making an assignment for the benefit of creditors; (iii) the other party becoming insolvent; or (iv) the other Party’s dissolution or ceasing to do business (or its adoption of a resolution for either).
- Effects. Termination or expiration of this Agreement shall not relieve Client of any obligation to pay any Fees due and payable to GRI prior to the effective date of the termination or expiration. The exercise of the right to terminate this Agreement shall be in addition to any other right and remedy provided in this Agreement or existing at law or in equity that is not otherwise excluded or limited under this Agreement.
- Injunctive Relief. Client agrees that GRI will be entitled to enforce this Agreement by injunction or other legal or equitable relief in any court of its choice without the necessity of posting bond or security, in addition to its right to seek monetary damages or any other remedy.
B. Recitals and Exhibits. All recitals herein, and all schedules, and exhibits, attached hereto and referred to herein, are integral and material parts of this Agreement, and are hereby incorporated into this Agreement as if set forth at length herein.
C. Force Majeure. Neither Party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than obligations relating to payment, confidentiality, and protection of ownership and intellectual property rights) resulting from acts or events beyond the reasonable control of such party (a “Force Majeure Event”), including acts of war, terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor dispute, governmental act, failure of the internet, power failure, or energy, utility, or telecommunications interruptions, provided that the delayed Party: (i) gives the other Party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such delay or nonperformance. In the event that a Force Majeure Event lasts for more than 90 days, and the delayed Party cannot correct its delay or nonperformance during that period of time, the other Party may terminate the affected portions of this Agreement.
D. Relationship of the Parties. GRI is an independent contractor with respect to Client. Neither Party is or shall be considered to be an employee, agent, distributor, partner, joint venturer, or representative of the other Party, and neither Party shall have the authority to act on behalf of or in the name of the other Party, or to bind the other Party in any manner whatsoever.
E. Non-Solicitation. During the Term or any renewal of the Term, and for a period of 6 months thereafter, Client may not, directly or indirectly, solicit or make offers of employment to hire, in any capacity, or accept any services or work, from any employees, or contractors of GRI.
F. Governing Law. Any action related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to conflicts of laws principles that would result in the application of the laws of another jurisdiction.
G. Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be subject to modification by the court and shall be interpreted so as best to accomplish the objectives of the original portion to the fullest extent permitted by law, and all other provisions shall remain in full force and effect.
H. Assignment. Without the written consent of the other Party, neither this Agreement, nor any rights hereunder, may be assigned, and any such assignment shall be null and void, except that GRI may assign all of its rights and obligations under this Agreement to any person or entity that controls GRI, is controlled by GRI or is under common control with GRI or any successor in interest that acquires all or substantially all of the assets of GRI.
I. Third Parties. Except with respect to Third Party Software, there are no third party beneficiaries to this Agreement.
J. Waivers. Any waiver of any rights under this Agreement must be in writing and signed by the waiving Party, and any such waiver shall not operate as a waiver of any further right hereunder.
K. Entire Agreement; Construction. This Agreement is the entire agreement between the Parties with respect to its subject matter, and supersedes all prior or contemporaneous, conflicting or additional communications, negotiations or agreements. As used in this Agreement, the term “including” shall mean “including, without limitation,” the term “includes” shall mean “includes, without limitation,” and terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular.
L. Amendments. This Agreement may be amended only in writing and signed by both Parties; and any purported oral amendment to this Agreement shall be void and have no effect.
M. Promotion. Client agrees that GRI may use Client’s name, logo, and trademarks, and may disclose that Client is a Client of GRI, in GRI’s advertising, promotion and similar public disclosures; provided however, that without Client’s prior consent, such advertising, promotion or similar public disclosures shall not indicate that Client in any way endorses any GRI Products or Services.
N. Notices. All notices under this Agreement will be in writing and will be deemed given upon: (i) receipt thereof if delivered by facsimile, electronic mail, hand delivery, or overnight delivery service; or (ii) three days after deposit in the U.S. mail, postage prepaid, return receipt requested, if mailed. Notices to GRI will be addressed to the attention of the Legal Department. Notices to Client will be addressed to the individual who executes the Agreement on behalf of Client.
O. Headings. The headings contained