1. DEFINITIONS.
1.1 “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the SaaS Services, including, without limitation, any usage data or trends with respect to the SaaS Services.
1.2 “Agreement” means, collectively, these SaaS Terms and Conditions, all applicable Order Form(s) (defined below), and all exhibits, addenda, and other attachments to these SaaS Terms and Conditions.
1.3 “Authorized User” means an employee or contractor whom Customer has authorized to use the SaaS Services.
1.4 “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the SaaS Services or made available to Flywheel in connection with Customer’s use of the SaaS Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Flywheel and made available by or on behalf of Flywheel through or in connection with the SaaS Services.
1.5 “Documentation” means the standard user documentation for the SaaS Services that Flywheel makes generally available to its customers, which may be updated from time to time upon notice to Customer.
1.6 “Custom Gear(s)” mean the custom code developed by Flywheel, if any, specifically for Customer as expressly set forth under the Professional Services section of the Order Form, which is licensed to Customer pursuant to Section 5.2 and which is a part of the Professional Services, subject to a Professional Services Fee as set forth in the Order Form.
1.7 “Go-Live Date” means the subscription date on which the Core software is made available to the Customer in a live, operational state, with the required infrastructure fully deployed and configured, such that the Customer can access and use the software for its intended purpose.
1.8 “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.9 “Licensed Volume” means the limits, volume or other measurement or conditions of permitted use for the applicable SaaS Services as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to access and use the SaaS Services.
1.10 “Order Form” means a duly-executed ordering document which references and is incorporated into this Agreement, by which Customer orders licenses to SaaS Services, and may order Professional Services, and related services, if any, as set forth in such Order Form.
1.11 “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
1.12 “Professional Services” means the implementation, integration, development of Custom Gears, and/or other professional services, if any, to be provided by Flywheel to Customer as set forth in the relevant accepted Order Form, and/or as more fully described in a Statement of Work, and in each case as governed by this Agreement, including Section 5.
1.13 “Flywheel IP” means the SaaS Services, Custom Gears, the underlying software provided in conjunction with the SaaS Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the SaaS Services, any Professional Services, Documentation, Aggregate Data, and any data information, or materials provided by or on behalf of Flywheel to Customer or any third party, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
1.14 “SaaS Services” means Flywheel’s software-as-a-service technology platform(s) as described in the Order Form.
1.15 “Statement of Work” means a statement of work that describes specific Professional Services to be performed by Flywheel, is duly-executed between the parties, and which references and is incorporated into and governed by this Agreement.
2. LICENSE.
2.1 SaaS Services Licenses. Subject to Customer’s compliance with the terms and conditions of this Agreement (including, without limitation, payment of the applicable fees in accordance with Section 7.1), Flywheel grants to Customer a limited, non-exclusive, non-transferable (except in compliance with Section 14.1) right to use the SaaS Services, during the Term, solely for Customer’s internal clinical and research use, subject to the Licensed Volume.
2.2 SaaS Services License Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the SaaS Services for any clinical or patient care operations or purposes; (ii) use the SaaS Services in any manner beyond the scope of rights expressly granted in this Agreement; (iii) reverse engineer, disassemble, decompile, decode, or attempt to bypass any security measures to any software component of the SaaS Services; (iv) frame, mirror, sell, resell, rent or lease use of the SaaS Services to any other Person, or otherwise allow any Person to use the SaaS Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the SaaS Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any Person; (vi) interfere with, or disrupt the integrity or performance of, the SaaS Services, or any data or content contained therein or transmitted thereby; (vii) access or search the SaaS Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than SaaS Services features provided by Flywheel for use expressly for such purposes; or (viii) use the SaaS Services, Documentation, or any other Flywheel Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the SaaS Services. For clarity, Customer will only use the SaaS Services for its internal clinical and/or research purposes as expressly authorized by this Agreement.
2.3 Authorized Users. Customer will not allow any Person other than Authorized Users to access or use the SaaS Services. Customer may permit Authorized Users to use the SaaS Services, provided that (i) the use, including the number of Authorized Users, of such SaaS Services does not exceed the Licensed Volume, as applicable, (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement, and (iii) Customer is responsible for acts or omissions by Authorized Users in connection with their use of the SaaS Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the SaaS Services in accordance with customary security protocols, and will promptly notify Flywheel if Customer knows or reasonably suspects that any user name and/or password has been compromised.
2.4 Limited Rights; Ownership. Customer’s rights in the SaaS Services will be limited to those expressly granted in this Agreement. Customer expressly acknowledges that, as between Flywheel and Customer, Flywheel reserves and will own all worldwide right, title and interest in and to the Flywheel IP, including all worldwide Intellectual Property Rights therein. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on any Flywheel IP (including any SaaS Services) as made available to Customer. Customer will not attempt to alter any such notices within the SaaS Services.
2.5 Product-Specific Addenda. Customer will comply with all addenda, exhibits, and other attachments to this Agreement, as applicable.
2.6 Government Rights. The SaaS Services and Documentation are “commercial computer software” and “commercial computer software documentation”, respectively, as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. Any use, duplication or disclosure of the SaaS Services or the Documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement.
2.7 Feedback. From time to time Customer or its employees, contractors, or representatives may provide Flywheel with suggestions, comments, feedback or the like with regard to the SaaS Services (collectively, “Feedback”). Customer hereby grants Flywheel a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Flywheel’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the SaaS Services.
3. MAINTENANCE AND SUPPORT.
3.1 Maintenance and Support, and Service Levels. Flywheel will use commercially reasonable efforts to, from time to time, provide Customer with its then-current maintenance, support, and/or service levels for the SaaS Services as described in the Order Form.
4. ORDERING.
4.1 Ordering. The parties may, from time to time, execute Order Form(s) for Customer’s subscription licenses to the SaaS Services or for Professional Services. No Order Form will be effective until signed and duly-executed by both Customer and Flywheel. Any terms and conditions contained in any Order Form that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken from such Order Form, unless expressly agreed to in writing by Flywheel.
5. PROFESSIONAL SERVICES.
5.1 Professional Services. Flywheel may, from time to time, perform certain Professional Services as set forth under the “Professional Services” section of an applicable Order Form, and/or as more fully described in a Statement of Work, and in each case in accordance with this Section 5 and the Agreement.
5.2 Custom Gears Exclusive License. The Professional Services may include Flywheel’s development of Custom Gears for Customer. In the event Flywheel develops or provides Customer with one or more Custom Gears, subject to Customer’s compliance with this Agreement, Flywheel grants Customer a perpetual, irrevocable, and exclusive license to use such Custom Gears, solely in whole in the manner provided to you, for your internal business purposes. Notwithstanding the foregoing, Flywheel may use parts or portions of the Custom Gears in any manner, including incorporating such portions of Custom Gears into other code (i.e., other Custom Gears for other customers), but for clarity, Flywheel may not use a Custom Gear in whole for other customers.
5.3 Performance. Flywheel will use commercially reasonable efforts to perform the Professional Services in accordance with this Agreement.
5.4 Limited Warranty. Flywheel warrants that, for a period of thirty (30) days after performance, any Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. As Customer’s sole and exclusive remedy and Flywheel’s entire liability for any breach of the foregoing warranty, Flywheel will re-perform any Professional Services that fail to meet this limited warranty.
6. CUSTOMER RESPONSIBILITIES.
6.1 Customer Responsibilities. In connection with this Agreement, Customer will: (i) ensure each Authorized User has individual (non-shared) login credentials (including username and password) to the SaaS Services and that each Authorized User agrees to take all reasonable measures to maintain the confidentiality and security of such login credentials; (ii) cause each Authorized User to fully comply with this Agreement and remain responsible for such compliance; (iii) ensure the security of any hosted (e.g., cloud) services and environments owned or operated by Customer (or licensed to Customer directly from a third-party hosting services provider); (iv) ensure all Customer Materials are backed-up (i.e., a copy is stored directly with Customer) at least annually]; (v) provide qualified personnel who are capable of performing Customer’s duties and tasks set forth in each applicable Order Form; (vi) provide Flywheel with access to Customer’s sites and facilities during Customer’s normal business hours and as otherwise reasonably required by Flywheel to perform its obligations (including, as applicable, providing the SaaS Services and any Professional Services); (vii) provide Flywheel with access to Customer’s systems, networks, cloud environments, and other technology required or reasonably requested by Flywheel in connection with Flywheel’s performance of its obligations under this Agreement; and (viii) perform Customer’s duties and tasks under each Order Form, and such other duties and tasks as may be reasonably required to permit Flywheel to perform its obligations under the Agreement. Customer will also make available to Flywheel any data, information and any other materials required by Flywheel to perform its obligations or exercise its rights under this Agreement, including, but not limited to, any data, information or materials specifically identified in each Order Form, all such data, information, and materials of which will be deemed Customer Materials for purposes of the Agreement. Customer will be responsible for ensuring that all such Customer Materials are and remain true, accurate, and complete.
6.2 Responsibilities of the Parties. Customer acknowledges and agrees that the SaaS Services may be implemented and/or maintained by Flywheel in a manner that deploys the SaaS Services in a divided manner between Customer’s own (or licensed) hosted environment and Flywheel’s own (or licensed) hosted environment, and that, in such cases, without limiting each party’s obligations elsewhere in this Agreement, each party will use commercially reasonable efforts to implement, maintain, and enforce technical and organizational measures designed to protect the SaaS Services and data stored in its respective hosted
7. PAYMENT.
7.1 Fees and Expenses. Customer will pay Flywheel the fees for all SaaS Services, Professional Services, and other products or services as specified in each Order Form and any Statement of Work. Customer will also reimburse Flywheel for any pre-approved, out-of-pocket travel and lodging expenses incurred by Flywheel, in connection with performing any Professional Services. All such fees and expenses will be due and payable in accordance with the Fees and Billing Information set forth in the applicable Order Form.
7.2 Payment Terms. Customer will pay all amounts due under this Agreement in U.S. currency. All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for all taxes and duties associated with this Agreement or Customer’s receipt or use of the SaaS Services and Professional Services, , as more fully described in the Order Form.
8. DATA
8.1 Ownership of Customer Materials. Flywheel acknowledges that, as between Customer and Flywheel and except as set forth in Section 8.2, Customer owns and retains all right, title, and interest in and to all Customer Materials.
8.2 License to Customer Materials. Customer hereby grants Flywheel a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials for the purpose of hosting, operating, improving, and providing the SaaS Services, Professional Services and Flywheel’s other related products, services, and technologies during the Term.
8.3 Representations and Warranties Regarding Customer Materials. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, permissions, consents, authority, and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement and (ii) Flywheel’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
9. WARRANTY DISCLAIMER.
9.1 Disclaimer. Flywheel does not warrant that the any Flywheel IP or any data, information, or materials provided in connection with the Flywheel IP (or any resulting data, data sets, data set descriptions, or otherwise) (collectively, “Flywheel IP and Data”) will meet Customer’s requirements, that any Flywheel IP and Data will operate in the combinations that Customer may select for use, that the operation of any Flywheel IP and Data will be error-free or uninterrupted or that all errors or defects within any Flywheel IP and Data will be corrected. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY PROVIDED UNDER THIS AGREEMENT, FLYWHEEL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE, OR THAT USE OF THE FLYWHEEL IP AND DATA WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLYWHEEL OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE FLYWHEEL IP AND DATA IS PROVIDED ON AN “AS IS” BASIS, AND FLYWHEEL MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE FLYWHEEL IP AND DATA OR ANY OTHER SERVICES, DATA, DATA SETS, INFORMATION, OR MATERIALS PROVIDED HEREUNDER.
10. INDEMNIFICATION.
10.1 Infringement Indemnity. Flywheel will defend Customer against any third-party claim to the extent it is based upon, arising from, or related to allegations that the SaaS Services, as provided by Flywheel to Customer under this Agreement and used within the scope of this Agreement, infringe the intellectual property right of such third party, and Flywheel will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Flywheel (including reasonable attorneys’ fees) resulting from such claim.
10.2 IP Remedies. If Flywheel reasonably believes the SaaS Services could infringe any third party’s intellectual property rights, Flywheel may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the SaaS Services or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If Flywheel determines that neither alternative is commercially practicable, Flywheel may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Flywheel will refund to Customer a pro-rata portion of the fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 1.2 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the SaaS Services.
10.3. Exclusions. Notwithstanding the terms of Section 10.1, Flywheel will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (a) modifications to any SaaS Services made by a party other than Flywheel; (b) the combination, operation, or use of SaaS Services with equipment, devices, software or data not supplied by Flywheel; (c) Customer’s failure to use updated or modified SaaS Services made available by Flywheel to avoid a claim; (d) Flywheel’s compliance with any designs, specifications or plans provided by Customer; or (e) Customer’s use of SaaS Services other than in accordance with this Agreement or the Documentation.
10.4. Sole Remedy. THE PROVISIONS OF SECTIONS 10.1 AND 10.2 SET FORTH FLYWHEEL’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
10.5 Customer Indemnity. Customer will defend Flywheel against any third-party claim that is based upon, arising from, or related to (i) any Customer Materials, including, without limitation, (A) any claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation, including those applicable to data privacy, data security, confidentiality, consumer protection, advertising, electronic mail, data destruction, and other similar laws, rules, and regulations relating to the privacy and security of personal information; (ii) any of Customer’s products or services; and (iii) use of the SaaS Services or any Professional Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of license restrictions in Sections 2.2 or 2.3, and in each case, Customer will indemnify and hold harmless Flywheel against any damages and costs awarded against Flywheel or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
10.6. Indemnification Procedures. The party seeking defense and indemnity (the “Indemnified Party”) will promptly after becoming aware of facts or circumstances that could reasonably give rise to any claim against it under this Section 10) notify the other party (the “Indemnifying Party”) of the claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any such claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party
11. CONFIDENTIALITY.
11.1. Confidential Information. As used herein, “Confidential Information” means any information that one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the SaaS Services and Documentation will be deemed Confidential Information of Flywheel. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
11.2 Restrictions. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Flywheel may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
11.3 Order Form Terms. The terms and conditions of the Order Form(s) will constitute Confidential Information of each party but may be disclosed on a confidential basis to a party’s advisors, attorneys, actual or bona fide potential acquirers, investors, or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
12. LIMITATION OF LIABILITY.
12.1 Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FLYWHEEL IP, OR THE PROVISION OF SAAS SERVICES OR PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
12.2 Total Liability. IN NO EVENT WILL FLYWHEEL’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE FLYWHEEL IP OR THE PROVISION OF SAAS SERVICS OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO FLYWHEEL IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT FLYWHEEL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
12.3 Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 12.3 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN FLYWHEEL AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
13. TERM AND TERMINATION.
13.1 Term. The initial term of this Agreement begins on the Contract Start Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, this Agreement will renew for additional periods as set forth in the Order Form, or, if no such renewal period is set forth in the Order Form, this Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides the other with at least ninety (90) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term
13.2 Termination for Breach. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
13.3 Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2.1 will terminate; (ii) Customer will return or destroy, at Flywheel’s sole option, all Flywheel Confidential Information in its possession or control, including permanent removal of such Flywheel Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Flywheel’s request, certify in writing to Flywheel that the Flywheel Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted; and (iii) Flywheel will, within a reasonable time after thirty (30) days following expiration/termination, destroy all Customer Materials, unless Customer notifies Flywheel in writing within such thirty (30) day period following expiration/termination of its election to have such Customer Materials made available to it (including a requested reasonable format and medium of transfer), whereby Flywheel will make Customer Materials available to Customer for thirty (30) days following receipt of such notice by Flywheel, and will use reasonable efforts to adhere to Customer’s reasonable instructions in such notice. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
13.4 Survival. The following Sections will survive termination or expiration of this Agreement for any reason: Sections 2.4, 2.6, 2.7, 7, 9.1, 10, 11, 12, 13.3, 13.4, and 14.
14. GENERAL.
14.1 DPA. The parties will enter into a separate agreement (e.g., a Data Processing Addendum or similar) (“DPA”) which will govern the access, use, processing, and handling of Company Personal Data (as defined in the DPA) as required to comply with applicable privacy law.
14.2 Assignment. Customer will have no right to assign this Agreement, in whole or in part, by operation of law or otherwise, without Flywheel’s express prior written consent. Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
14.3 Publicity. Flywheel shall have the right to publicly announce the existence of the business relationship between the parties, and Flywheel may use Customer’s name, trademarks, and logos (collectively, “Customer Marks”) on Flywheel’s website and in its customer lists and marketing materials to identify Customer as Flywheel’s customer, provided that Flywheel will use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer in advance in writing with respect to Customer Marks. Further, upon Flywheel’s request from time to time, Customer will work and cooperate with Flywheel in engaging in marketing and press releases regarding the SaaS Services, and Customer’s use thereof, and to provide Feedback in a documented or video presentation or outline regarding Customer’s experience using the SaaS Services, which Flywheel may use pursuant to Section 2.7, including in its marketing and promotional materials.
14.4 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Wilmington, Delaware and the parties irrevocably consent to the personal jurisdiction and venue therein.
14.5 Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise
14.6 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
14.7 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
14.8 Notices. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed.
14.9 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, epidemics, pandemics, public health crises, material changes in law, government action (including government-imposed quarantines and travel restrictions), acts of God or governmental action. For purposes of this Section, the “Coronavirus” (also referred to as COVID-19) does not constitute a force majeure event, as this Agreement is being entered into after the onset of the Coronavirus outbreak and event and each party has nonetheless entered into its commitments with knowledge of the impacts of this event and has agreed to perform as set forth herein.
14.10 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
14.11 Export Control. Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the SaaS Services, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.
14.12 Entire Agreement. This Agreement, including all Order Forms, exhibits, addenda, and attachments hereto, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its 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.
14.13 Order of Precedence. In the event of any conflict or inconsistency between the body of this Agreement, the Order Form, or any other exhibits or attachments hereto, the terms shall prevail in the order listed as follows, with the first terms listed having the highest precedence: (1) the body of this Agreement, (2) any other attachments or exhibits hereto, and (3) the Order Form.
14.14 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.