Master Services Agreement
This Master Services Agreement, including all Order Forms, addenda, exhibits, and schedules hereto (collectively, this “Agreement”), is between Ontic Technologies, Inc., a Delaware corporation, located at 4009 Marathon Blvd., Austin, Texas 78756 (“Ontic”) and [name/incorporation/address] Client (“Client”), and is effective as of the date of last signature below (“Effective Date”). Ontic and Client are each referred to individually as a “party,” and collectively as the “parties.”
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS.
“Ancillary Services” means any initial implementation, onboarding, enablement, and data migration services to be provided by Ontic to Client as set forth on an Order Form.
“Client Data” means the data or information Client enters into the SaaS Platform by, or on behalf of Client, by a User. Client Data does not include any Ontic Data.
“Data” means the Client Data and Data Feeds.
“Data Feeds” means the proprietary data feeds from Ontic’s third-party vendor sources accessible by Client through the Ontic Services.
“Feedback” means all suggestions, comments, opinions, input, ideas, reports, information, know-how, or other feedback provided by the Client (whether in oral, electronic, or written form) to Ontic related to the Ontic Services. Feedback will not include any Client Data.
“Internal Purposes” means Client’s internal business use of the Ontic Services for the purposes of searching and retrieving Ontic Data to help fulfill Client’s protective intelligence and security requirements, solely for Client’s benefit and not for the benefit of any third party.
“Ontic Data” means (i) Data Feeds and (ii) the anonymized statistical information derived from Client’s use of the SaaS Platform that is combined with similar data of Ontic’s other clients and de-identified in such a way as to comply with any applicable laws governing the de-identification of such information.
“Order Form” means each mutually agreed upon order form or statement of work that specifies the Ontic Services, including the type or quantity of items, including the number of seats or users, the fees for such items and any additional terms applicable to the use of such items.
“Ontic Services” means any and all of the Data Feeds, services, software, and other offerings provided by Ontic pursuant to this Agreement, including the SaaS Platform, the offerings provided through https://ontic.co/, and any mobile applications and APIs provided by Ontic. Ontic Services may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates, and sample data sets, as provided by Ontic.
“SaaS Platform” means everything in Ontic’s proprietary multi-tenancy software as a service platform, and related services located in any related mobile software applications for access to and use of certain components of the SaaS Platform, the https://ontic.co domain and subdomains, including application programming interfaces (APIs), software, code, algorithms, hosted services, and web interfaces through which Users may access the Data Feeds.
“Security Incident” means a violation of security policies, acceptable use policies, or standard security practices. A Security Incident does not include unsuccessful attempts or activities that do not compromise the security of Data or the SaaS Platform, including but not limited to, unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other unsuccessful attempts to penetrate computer networks or servers maintained by Ontic or its subcontractors.
“Strategic Intelligence Services (SIS)” means the Ontic team that utilizes the SaaS Platform and supports Clients in achieving their business objectives through planning, conducting, and completing open source intelligence (OSINT) and research only at Client’s direction SIS may obtain and input public records and other publicly available data into Client’s instance of the SaaS Platform, at Client’s request and direction. The information identified by SIS is subject to Client’s verification and authentication. At no time will a SIS team member provide an assessment of risk, assign a threat level, or provide security directives. The data found by the SIS team is not meant to be an exhaustive investigation, and other relevant information may exist.
“Support Services” means Strategic Intelligence Services (“SIS”) and/or Threat Assessment Management (“TAM”), as agreed upon by the parties and specified in an executed Order Form or statement of work (“SOW”). No Deliverables will be delivered under any SOW, nor will any intellectual property rights vest in Client, unless otherwise stated in the applicable SOW.
“Threat Assessment Management (TAM)” means Ontic’s comprehensive threat assessment solution, including threat assessment training, threat management strategic review, or program implementation and guidance, as specified in a SOW.
“User” is a distinct named user who is an employee or independent contractor of Client, who Client authorizes to access and use the Ontic Services. User shall not include any third parties.
2. ONTIC SERVICES.
a. Ontic Services Client’s use of the Ontic Services, Support Services, and Ancillary Services is subject to and governed by the terms and conditions in this Agreement, including those in the applicable Order Form. In the event of a conflict between the terms in an Order Form and this Agreement, the terms in the Order Form shall control with respect to the Ontic Services provided under such Order Form. Subject to and conditioned on Client’s compliance with the terms and conditions of this Agreement and those in the applicable Order Form, Ontic grants Client a non-exclusive, non-sublicensable, non-transferable, revocable, limited right during the Term to use the Ontic Services in a secure manner only for Internal Purposes. Ontic shall take all commercially reasonable efforts to make the SaaS Platform available in accordance with the Service Level Agreement provided at https://ontic.co/legal/sla (“SLA”).
b. License to Client Data Client grants to Ontic a non-exclusive, revocable, royalty-free, worldwide right and license to copy, cache, store, reproduce, perform, display, use, distribute, and transmit the Client Data, for the purpose of providing and improving the Ontic Services to Client and to provide onboarding, training and troubleshooting as required.
c. Ancillary Services/Support Services. Ontic shall perform the Ancillary Services and Client agrees to pay Ontic the corresponding fees as set forth on an applicable Order Form. The Support Services shall be performed in a timely, workmanlike, and professional manner by qualified personnel in accordance with the applicable Order Form or SOW. In connection with Ontic’s provision of Ancillary Services or Support Services, Client shall perform any tasks, fulfill any necessary responsibilities, and provide any necessary assistance reasonably requested by Ontic in connection with Ontic’s provision of those Services.
3. RESTRICTIONS.
a. Restrictions. Except as expressly authorized in this Agreement or by Ontic, Client will not, and will not permit any third party to: (i) access or use the Ontic Services, Support Services or Ancillary Services for any other purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy, modify, adapt, or create derivative works of the Ontic Services; (iii) rent, lease, loan, resell, transfer, sublicense, display or distribute the Ontic Services to any third party; (iv) use or offer any functionality of the Ontic Services or Ancillary Services on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet “links” to the Ontic Services, or “frame” or “mirror” the Ontic Services on any other server, or wireless or Internet-based device; (v) decompile, disassemble, translate or reverse-engineer the Ontic Services or otherwise attempt to derive the Ontic Services source code, algorithms, methods or techniques used or embodied in the Ontic Services; (vi) disclose to any third party the results of any benchmark tests or other evaluation of the Ontic Services; (vii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Ontic Services; (viii) use the Ontic Services or Ancillary Services to build a similar or competitive product or service; (ix) use the Ontic Services to transmit code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses; (x) use the Ontic Services, Support Services or Ancillary Services for any purpose authorized under the Fair Credit Reporting Act, 15 U.S.C. Section 1681, et seq. (“FCRA”), as amended; (xi) use the Ontic Services, Support Services or Ancillary Services for any illegal, unauthorized or otherwise improper purposes, such as but not limited to, defame, abuse, harass, stalk, threaten, promote injury against any individual or group or otherwise violate any applicable laws; or (xii) store any patient medical records or Protected Health Information (as defined by HIPAA), credit card or other payment information, or any personal information of a minor.
b. Users. Any User may operate the Ontic Services on Client’s behalf solely under the terms and conditions of this Agreement, provided that: (i) Client is responsible for ensuring that any such Users fully comply with the terms and conditions of this Agreement on the same basis as applicable to Client; (ii) such use is only in connection with Client’s Internal Purposes; (iii) such use does not represent or constitute an increase in the scope of the rights provided hereunder; and (iv) Client remains fully responsible and liable for any and all acts or omissions by such Users related to this Agreement, whether or not Client has authorized a particular use or User and regardless of Client’s knowledge of such use.
4. CONFIDENTIALITY.
a.“Confidential Information” means information that either: (i) is designated as confidential by the Discloser at the time of disclosure; or (ii) would reasonably be understood by the Recipient, given the nature of the information or the circumstances surrounding its disclosure, to be confidential, including without limitation, Discloser’s product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions, and know-how disclosed by Discloser to Recipient, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date. Confidential Information of Ontic also includes the Ontic Services and the existence and terms and conditions of this Agreement.
b. Use and Disclosure of Confidential Information. A party which receives Confidential Information under this Agreement (“Recipient”) may not use the Confidential Information from the party which discloses Confidential Information under this Agreement (“Discloser”) in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement. Recipient will: (i) hold Confidential Information in strict confidence and take reasonable precautions to protect and secure such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own Confidential Information); and (ii) not divulge any Confidential Information to any third party without the prior written consent of Discloser, other than to employees, contractors or professional advisors who have a legitimate “need to know” such Confidential Information. Recipient will remain responsible and liable for each such person’s compliance with this Agreement.
c. Confidentiality Period; Return or Destruction of Confidential Information. Irrespective of any termination of this Agreement, Recipient’s obligations with respect to Confidential Information under this Agreement expire two (2) years from the date of receipt of the Confidential Information (except with respect to any trade secrets where such obligations will be perpetual). Upon termination of this Agreement or written request by Discloser, the Recipient will: (i) cease using the Confidential Information; and (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within thirty (30) days of such request or termination. Upon Discloser’s request, the Recipient will certify in writing that it has returned or destroyed all copies of the Discloser’s Confidential Information.
d. Exclusions. This Agreement imposes no obligations with respect to information which: (i) was in Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third party, who has no restriction on disclosure; or (iv) is developed by Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order, provided Recipient makes reasonable efforts, to the extent legally permitted, to provide Discloser with notice of such disclosure as promptly as possible and uses diligent efforts to limit, at Discloser’s expense, such disclosure and obtain confidential treatment or a protective order, and has allowed Discloser to participate in the proceeding.
5. TERM AND TERMINATION.
a. Term. This Agreement will be effective from the Effective Date and shall continue for so long as an applicable Order Form remains outstanding unless earlier terminated, as set forth below (the “Term”).
b. Termination. This Agreement may be terminated, effective upon written notice: (i) by Ontic if Client breaches Section 3 or Section 4 of this Agreement; (ii) by Client if Ontic fails to meet its SLA Platform Uptime Commitment (as defined in the SLA). Additionally, this Agreement may be terminated for cause, effective upon written notice: (iii) by either party (A) if the other party materially breaches this Agreement and such breach is incapable of cure; (B) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (C) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and is not discharged within ninety (90) days of filing thereof.
c. Effect of Termination. Immediately upon termination, (i) all Order Forms and rights granted under Section 2 of this Agreement, including any access to Data Feeds or provision of Support Services (if any), will immediately terminate and Client will immediately cease all use of the Ontic Services; (ii) Client will destroy the Data Feeds in its possession, or upon request by Ontic, return to Ontic the Confidential Information that is in its possession or control; (iii) any and all of Client’s outstanding payment obligations under each Order Form will immediately become due; and (iv) if this Agreement is terminated by Client pursuant to Section 5(b)(ii) or 5(b)(iii)(A) or (B), Ontic will refund any pre-paid but unused Fees paid by Client prior to the effective date of such termination. Sections 1, 3 – 12, and 14 – 16, will survive termination of this Agreement.
d. Client Data. Within thirty (30) days following the expiration or termination of this Agreement, Client may request in writing that Ontic extract all then-available Client Data from the SaaS Platform and Ontic will transfer such Client Data in a commercially reasonable timeframe and manner to Client. Following such thirty (30) day time period, Ontic reserves the right to destroy any such Client Data to the extent not legally prohibited.
6. OWNERSHIP.
a. Ontic Services. Ontic or its third-party vendors retain and reserve all rights not expressly granted in this Agreement. Ontic, its suppliers or its third-party vendors own all worldwide right, title, and interest in and to the Ontic Services, including all worldwide intellectual property rights related thereto. Except as expressly stated in this Agreement, Ontic does not grant Client any rights in the Ontic Services. The Ontic Services are copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. Ontic, its suppliers or its third party vendor sources shall remain the sole and exclusive owner of all worldwide right, title, and interest in and to the Ontic Data, including all intellectual property rights related thereto. Except as expressly stated in this Agreement, Ontic, its suppliers or its third party vendor sources do not grant Client any rights, including any related intellectual property rights, in the Ontic Data. Ontic reserves all rights not expressly granted under this Agreement.
b. Client Data. As between Client and Ontic, Client shall remain the sole and exclusive owner of all worldwide right, title, and interest in and to the Client Data, including all intellectual property rights related thereto. Except as expressly stated in this Agreement, Client does not grant Ontic any rights, including any related intellectual property rights, in the Client Data.
7. FEES.
a. Fees and Expenses. Client shall pay all agreed upon fees for the Ontic Services as set forth in the applicable Order Form (“Fees”) and in accordance with terms set forth in such Order Form. Unless otherwise set forth in such Order Form, all Fees shall be due and payable on the Effective Date and annually thereafter.
b. Payment Terms. Client shall provide Ontic with complete and accurate billing contact information including a valid email address. If applicable, Client shall issue a purchase order within fifteen (15) business days from execution of an Order Form. All payments to Ontic are non-refundable except as otherwise expressly provided in the applicable Order Form or this Agreement. All payments will be made in United States dollars via electric funds transfer, as per the instructions of Ontic, or as otherwise agreed to in an Order Form or SOW.
c. Late Payments. If Client fails to pay any undisputed past due invoice, Ontic may revoke or suspend the Ontic Services, after providing five (5) days’ written notice, until such amounts are paid in full. Ontic may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. Client will be responsible for all costs of collection associated with any such late payments.
d. Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Ontic Services, including any sales, use, or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Ontic’s net income, and Client shall be responsible for payment of all such taxes, duties, and charges, and any related penalties and interest arising from the payment of such amounts. If Client is tax-exempt, it shall provide Ontic with its tax-exemption number and certificate within five (5) days of the Effective Date.
8. FEEDBACK.
Client may provide Ontic with Feedback. Ontic, in its sole discretion, may or may not respond to Client’s Feedback or agree to address all of Client’s Feedback in the development of future features or functionalities of the Ontic Services or any related or subsequent versions of such Ontic Services. Client assigns, at no charge, all rights, titles, and interests in Feedback to Ontic, and agrees that Ontic is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Client. Feedback shall not include any Client Data.
9. DATA.
a. Data Processing. Ontic shall process and use any personal Data in accordance with the Ontic Privacy Policy located at https://ontic.co/legal/privacy-policy. Ontic will maintain a security program materially in accordance with industry standards that are designed to protect the security, confidentiality and integrity of the Data.
b. Data Warranty and Obligations. Client represents, warrants, and agrees that Client has all rights to provide the Client Data and other materials that Client provides or makes available to Ontic. Client acknowledges and agrees that it is solely responsible for reviewing and approving all Data stored in the SaaS Platform and for its conduct while using the Ontic Services, including but not limited to, ensuring that Client implements proper security or encryption functionality on its systems that access the Ontic Services. Client acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its use and distribution of all Data; (ii) it is responsible for the confidentiality of and for protecting the Data on its own systems and will maintain appropriate administrative, technical and physical safeguards; (iii) under no circumstances will Ontic be liable in any way for the content of any Client Data, including, but not limited to, any errors or omissions in any Client Data, or any loss or damages of any kind incurred as a result of Client’s use, deletion, modification, or correction of any Client Data; and (iv) Client will restrict access to the Ontic Services to those Users who have a need to know as part of their official duties. Client controls how to store, protect, remove or delete any Data on the Ontic Services and Ontic shall have no liability for any damages caused by such deletion or removal of or Client’s failure to store or protect Data. Each party shall promptly, but no later than twenty-four (24) hours, notify the other party in writing (for Ontic, notice must be sent to security@ontic.co) if it becomes aware of any Security Incident. Not more than once per calendar year, Ontic may request Client to verify that a random sample of searches were conducted in compliance with applicable laws and this Agreement. Client agrees to reasonably cooperate with Ontic in conjunction with such request including, but not limited to, requests to correct any deficiencies discovered and/or to suspend any further provision of the Ontic Services, Support Services, or Ancillary Services until such deficiencies are corrected to Ontic’s reasonable satisfaction.
c. Prohibited Data Client agrees that Data will not: (i) contain any patient medical records or Protected Health Information (as such term is defined by the Health Insurance Portability and Accountability Act of 1996); (ii) credit card or other payment information; or (iii) personal information of a minor (collectively, “Prohibited Information”). Ontic reserves the right to remove Prohibited Information from, or refuse to process, any Prohibited Information as part of the Ontic Services. Ontic reserves the right to suspend or terminate any User that created, entered, or processed Prohibited Data and Client affirmatively consents to said suspension or termination of any User by Ontic for violation of this Section upon Ontic’s notice to Client of the suspension or termination (notice by email to the contact herein shall be sufficient).
d. Data Vendors Client acknowledges and agrees that the Ontic Services include and provide access to third-party products, services, content, and offerings, including without limitation Data Feeds (“Third Party Services”). Client agrees that Ontic does not endorse and is not responsible or liable for any issues related to Third Party Services. Furthermore, Client acknowledges and agrees that any Data Feeds or information provided to or accessed by Client with respect to such Third Party Services are and shall remain the sole and exclusive property of the provider of such Third Party Services or the applicable licensor and no intellectual property rights in or to any such Third Party Services are being transferred to Client pursuant to this Agreement. ONTIC DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY, TIMELINESS OR COMPLETENESS OF ANY DATA FEEDS OR ANY OTHER INFORMATION, CONTENT, OR OTHER MATERIALS PROVIDED BY ANY THIRD PARTY PROVIDER OR PURSUANT TO ANY THIRD PARTY SERVICES. THE THIRD PARTY SERVICES ARE PROVIDED TO CLIENT ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES (i) AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, (ii) WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH MATERIALS, NOR (iii) REGARDING CLIENT’S USE OF THE ONTIC SERVICES, ANCILLARY SERVICES OR SUPPORT SERVICES IN AN EFFORT TO COMPLY WITH ANY APPLICABLE LAWS. THE ONTIC SERVICES ARE NOT THE SOURCE OF ANY DATA AVAILABLE THROUGH THE ONTIC SERVICES, NOR ARE THE ONTIC SERVICES A COMPREHENSIVE COMPILATION OF ANY DATA. DATA ACCESSED THROUGH THE ONTIC SERVICES SHOULD BE INDEPENDENTLY VERIFIED BY CLIENT AND IN NO EVENT SHALL ONTIC BE LIABLE FOR ANY DECISIONS MADE, ACTIONS TAKEN, OR OMISSIONS MADE IN RELIANCE UPON THE AVAILABILITY OF, OR INFORMATION MADE AVAILABLE, THROUGH THE ONTIC SERVICES.
10. WARRANTY.
a. Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.
b. Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, ONTIC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, WITH RESPECT TO THE ONTIC SERVICES, SUPPORT SERVICES AND THE ANCILLARY SERVICES), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW. ONTIC SPECIFICALLY DOES NOT WARRANT THAT THE ONTIC SERVICES WILL MEET CLIENT’S REQUIREMENTS, THE OPERATION OR OUTPUT OF THE ONTIC SERVICES WILL BE ERROR-FREE, VIRUS-FREE, SECURE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CLIENT PROVIDES THE CLIENT DATA ON AN “AS IS” BASIS AND PROVIDES NO GUARANTEE OF THE ACCURACY OF THE CLIENT DATA PROVIDED TO ONTIC. ONTIC IS NOT OBLIGATED TO SUPPORT, UPDATE OR UPGRADE THE ONTIC SERVICES EXCEPT AS PROVIDED IN THE SLA.
c. No Consumer Reports. The Ontic Services are not provided by a “Consumer Reporting Agency,” as defined in the FCRA, as amended, and do not constitute “Consumer Reports” as defined in the FCRA. Accordingly, the Ontic Services may not be used in whole or in part as a factor in determining eligibility for credit, insurance, employment, or another purpose in connection with which a Consumer Report may be used under FCRA.
d. Use for Investigative Purposes. The Data Feeds are not the original source of data and should not be used for criminal investigations or other governmental investigative purposes. Ontic shall not be responsible for Client’s use of the Ontic Services in connection with any such purposes
11. INDEMNIFICATION.
a. Claims Against Client. Subject to the terms of this Agreement, Ontic will defend, at its own expense, and hold Client harmless against any claim, suit or action brought against Client by a third party to the extent that such claim, suit or action arises from (i) an allegation that the Ontic Services, when used as expressly permitted by this Agreement, infringes, misappropriates or violates the intellectual property rights of such third party (an “Infringement Claim”), (ii) Ontic’s failure to comply with any applicable laws or regulations in connection with its delivery of the Ontic Services or (iii) Ontic’s gross negligence or willful misconduct (each, a “Client Claim”), and Ontic will indemnify Client from liability incurred by Client to the extent arising from such Client Claim. If Ontic receives prompt notice of an Infringement Claim that, in Ontic’s reasonable opinion, is likely to result in an adverse ruling, then Ontic may at its sole discretion and expense: (v) obtain a right or license for Client to continue using the Ontic Services at issue; (vi) modify such Ontic Services to make it non-infringing; (vii) replace such Ontic Services with a non-infringing version; or (viii) provide a reasonable depreciated or pro-rata refund of amounts pre-paid for the allegedly infringing Ontic Services.
b. Ontic Indemnity Limits. Notwithstanding the foregoing, Ontic will have no obligation under Section 11.a. or otherwise with respect to any Infringement Claim based upon: (i) any use of the Ontic Services not expressly permitted under this Agreement; (ii) any use of the Ontic Services in combination with products, equipment, software, or data not made available by Ontic if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (iii) any modification of the Ontic Services by any person other than Ontic or its authorized agents or subcontractors (collectively, “Excluded Claims”). Ontic will have no obligation under Section 11.a. or otherwise with respect to any claim based upon the use by Client of any Data uploaded or accessed through the Ontic Services to the extent such claim is not based on the Ontic Services itself. Section 11.a. states Ontic’s sole liability and Client’s exclusive remedy for all third-party claims.
c. Claims Against Ontic. Subject to the terms of this Agreement, Client will defend, at its own expense, and hold Ontic harmless against any claim, suit, or action against Ontic brought by a third party to the extent that such claim, suit, or action arises from (i) Client’s violation of any applicable laws or regulations in connection with its use of the Ontic Services, (ii) Client’s use of the Ontic Services in breach or violation of this Agreement, (iii) Client Data, if processed and used by Ontic in accordance with this Agreement, or (iv) Excluded Claims (each, an “Ontic Claim”), and Client will indemnify and hold Ontic harmless from liability incurred by Ontic that is specifically attributable to such Ontic Claim or those costs and damages agreed to in a monetary settlement of such Ontic Claim.
d. Procedure. The foregoing obligations are conditioned on the party seeking indemnification: (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at other party’s request and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense, or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise, or resolve a claim without the consent of the indemnified party, if such settlement, compromise. or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim. The indemnifying party’s obligations under this Section 11 will be limited to the extent to which a court of final jurisdiction finds that the indemnified party contributed to the third party claim, suit or action.
12. LIMITATION OF LIABILITY.
a. TO THE EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, DATA, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, OR, IN THE CASE OF ONTIC, COSTS OF PROCURING SUBSTITUTE SOFTWARE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE ONTIC SERVICES. WITHOUT LIMITING THE FOREGOING, ONTIC WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE RIGHTS GRANTED IN SECTION 2 HEREIN AND ANY ASSOCIATED CESSATION OF THE ONTIC SERVICES, ITS FUNCTIONS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE ONTIC SERVICES.
b. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11, PAYMENT OF FEES, BREACH OF CONFIDENTIALITY, LIABILITY FOR BREACH OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS AND CLIENT’S BREACH OF SECTION 3A, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL ORDER FORMS, WILL BE LIMITED TO ACTUAL AND PROVEN DAMAGES FINALLY AWARDED BY A COURT AND WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CLIENT TO ONTIC DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
c. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. COMPLIANCE WITH LAWS.
Each party will comply fully with all applicable laws, including, without limitation: (i) all applicable laws relating to bribery or corruption, and export laws and regulations of the United States and any other country (“Export Laws”); (ii) International Traffic in Arms Regulations; (iii) rules and regulations promulgated by the Office of Foreign Assets Control; (iv) Foreign Corrupt Practices Act; (v) the U.S. Government’s List of Specially Designated Nationals and Blocked Persons; (vi) U.S. economic embargoes and sanctions; and (vii) any applicable laws and regulations relating to privacy and data protection. Each party represents and warrants, to the extent applicable, that it is not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Client further represents and warrants that it shall not export, re-export, ship, or transfer the Ontic Services to any restricted countries or restricted end users or use the Ontic Services in any restricted countries or for any purposes prohibited by the Export Laws. Client understands that the requirements and restrictions of the Export Laws may vary depending on the specific Ontic Services and may change over time, and that, to determine the precise controls applicable to the Ontic Services, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations. In the event an applicable law or regulation prohibits, limits or restricts the delivery or use of the Ontic Services, the parties agree to meet and determine a mutually agreed upon solution in a timely manner to carry out the terms of this Agreement.
14. CHOICE OF LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction. The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.
15. BINDING ARBITRATION AND CLASS ACTION WAIVER.
a. ALL CLAIMS (AS DEFINED ABOVE) SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CLIENT MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS AGREEMENT AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CLIENT’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
b. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration. and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Client agrees that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction. The prevailing party shall recover its reasonable attorneys’ fees, expert fees, and costs, including arbitration costs and fees.
c. WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. CLIENT HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
d. Notwithstanding anything to the contrary, each party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Confidential Information or intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 15.
16. GENERAL.
All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by email to the address designated in the applicable Order Form, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. Neither party may assign this Agreement or any of its rights or obligations, by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld). However, either party may assign this Agreement, in whole or in part, in connection with a sale of all or substantially all of its assets or in the event of a merger or consolidation with another entity. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. Any attempt to assign this Agreement other than as permitted herein shall be null and void. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the Ontic Services, including Confidential Information, and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. Any prevention of or delay in performance by Ontic hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay. Notices under this Agreement must be in writing (including email) and sent by postage prepaid first-class mail or receipted courier services to the address below (including email) and will be effective upon receipt:
To Client: to the contact information provided herein or as subsequently provided in writing.
To Ontic: Ontic Technologies, Inc., 4009 Marathon Blvd., Austin, TX 78756 ATTN: Legal (email: Legal@ontic.co.