The following terms and conditions (as amended and modified by Nemedio from time to time, the “Agreement”) (i) govern all use of and access to the Nemedio website (the “Website”), all content, software, services and products available at or through the Website, including, but not limited to, the Nemedio cTools software (the “Compliance Tools”), and the Software Services (as defined below) and (ii) form part of the Agreement.
As used in the Terms, use of and access to the Software Services (as defined below) shall be deemed to encompass the use of and access to the Website and/or the Software. A person, entity or organization that executes a written proposal (the “Proposal”) to use and access the Software Services, as approved by Nemedio, is the “Customer”. In consideration of the mutual promises and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Definitions. The following definitions (and additional definitions provided below) will apply to this Agreement:
1.1. “Account” means a user account created by Nemedio upon Customer’s request and assigned to the applicable Customer User.
1.2. “Applicable Law” means any and all applicable laws, rules, guidance and regulations, including without limitation those related to medical devices and quality systems and/or any other regulatory or administrative activities relevant to the subject matter of this Agreement.
1.3. “Compliance Tools” means Nemedio’s proprietary SaaS platform.
1.4. “Customer Materials” means any and all information and materials
provided or submitted by or on behalf of Customer to Nemedio or the Services.
1.5. “Customer User” means an employee, contractor or agent of Customer that has been assigned an Account to access and use the Compliance Tools.
1.6. “Deliverable” means any and all deliverables and other work product developed, reduced to practice, provided or otherwise created by Nemedio specifically for Customer during the course of performing Professional Services hereunder, including without limitation all Intellectual Property Rights associated with any of the foregoing; provided however that Deliverables shall not include any Nemedio Material or Third Party Materials.
1.7. “Fees” means the fees for the Services as set forth in the applicable Order.
1.8. “Intellectual Property Rights” means any and all patents, copyrights, trade secrets, trademarks and other proprietary or intellectual property rights recognized in any jurisdiction worldwide (including without limitation moral rights).
1.9. “Order” means the order forms, purchase orders, statement of work or similar purchasing documents entered into by the parties under this Agreement that sets forth, among other things, the elements of the Services to which Customer is subscribing or the Services which are to be rendered to Customer, the Fees associated therewith, and certain additional terms applicable to the Services being ordered thereunder.
1.10. “Professional Services” means the professional services to be performed for Customer, as set forth in the applicable Order.
1.11. “Services” means, collectively, Compliance Tools and Professional Services.
1.12. “Third Party Materials” means any and all information and materials of a third party, including without limitation ISO standards.
2. Compliance Tools.
2.1. Generally. Subject to Customer’s payment in full of the Fees due to Nemedio and compliance with this Agreement, in the event Customer orders Compliance Tools under an Order, Nemedio will provide such Compliance Tools to Customer, as more fully described in such Order. Nemedio hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Order Term to access and use the Compliance Tools solely for Customer’s internal business purposes.
2.2. Users. Customer acknowledges and agrees, and shall ensure that, each Customer User shall access and use the Compliance Tools only through such Customer User’s dedicated Account. Customer shall not permit any Account access credentials (i.e., username and password) to be shared between two (2) or more individuals, and Customer is responsible for maintaining the security and confidentiality of Customer Accounts. Customer agrees to notify Nemedio immediately of any unauthorized use of any Customer Accounts or any other known or suspected breach of security. Customer shall be fully responsible for all actions and omissions of all Customer Users and for an activity on any Account, and a breach of this Agreement by any Customer User shall be deemed a breach by Customer.
2.3. Suspension; Updates. Nemedio may suspend or interrupt all or any aspect of the Services if
(i) Customer uses any Services in violation of this Agreement and/or any Applicable Law;
(ii) any Customer Account has been compromised or unlawfully accessed;
(iii) suspension of the Services is necessary to protect the infrastructure of Nemedio and/or its suppliers;
(iv) required under Applicable Law; or
(v) Customer fails to pay the Fees applicable under this Agreement within ten (10) days of when due, provided that Customer has been notified in writing of its failure to pay and given ten (10) days to remedy this failure. Customer shall cooperate with Nemedio to promptly implement any upgrades or other updates to the Services, including without limitation those that are released by Nemedio to comply with Applicable Law, and Customer shall be solely liable for any failure to do so.
3. Professional Services.
3.1. Generally. If indicated on an applicable Order, Nemedio will provide Customer with Professional Services. Except as expressly set forth in an applicable Order, any estimates of time provided in connection with Deliverables or Professional Services are good faith projections, and are not guarantees.
3.2. Rates. In the event that Nemedio provides Professional Services on a “time and materials” basis under a particular Order, Nemedio shall charge Customer at Nemedio’s standard rates then in effect.
In the event that Nemedio provides Professional Services on a “fixed fee” rate basis under a particular Order (a “Fixed Fee Order”), Customer acknowledges and agrees that such fixed fee will cover only the specific tasks, expenses, and deliverables that the Order expressly defines as included within the fixed fee.
In the event Customer desires to engage Nemedio for any Professional Services and/or Deliverables outside of the scope of a Fixed Fee Order, the parties shall mutually agree upon a written amendment to such Order or a new Order covering such Professional Services and Deliverables, which shall be provided on a time and materials basis at Nemedio’s standard rates then in effect unless otherwise expressly agreed in writing by Nemedio.
3.3. Deliverables. Upon final payment for the applicable Deliverable, and subject to Sections 3.4, 3.5 and 3.6 below, Nemedio hereby irrevocably assigns, transfers and conveys to Customer without further consideration all of its right, title and interest in such Deliverable (including all Intellectual Property Rights therein). Nemedio shall assist Customer, at Customer’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned.
Nemedio hereby irrevocably designates and appoints Customer as its agent and attorney-in-fact, coupled with an interest, to act for and on Nemedio’s behalf to execute and fine any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Nemedio.
3.4. Nemedio Materials. To the extent Nemedio includes or otherwise uses any Nemedio Materials in the Professional Services or any Deliverable, then subject to all terms and conditions of this Agreement (including with respect to payment), Nemedio hereby grants to Customer a perpetual, irrevocable, non-exclusive, non-transferable (except as permitted under Section 12.10 below), royalty-free right and license (without right to sublicense) to use such Nemedio Material solely as embodied in the Professional Services or Deliverables. Customer acknowledges that Nemedio provides services similar to those provided under this Agreement to third parties and Nemedio may provide deliverables or other work product to third parties that are similar to the Services and/or Deliverables being provided to Customer hereunder.
3.5. Customer Materials. Customer hereby grants to Nemedio and its Subcontractors (as defined below) a non-exclusive, royalty-free, worldwide right and license during the Term to use, reproduce, perform, display, transmit, operate, maintain, modify and prepare derivative works of Customer Material for the sole purpose of providing the Services and Deliverables to Customer in accordance with this Agreement.
3.6. Third Party Materials. It is understood that Nemedio may use Third Party Materials during its performance of the Services and Third Party Materials may be necessary for Customer to use the Deliverables. Unless otherwise expressly agreed by the parties in writing on a case-by-case basis, Customer will be solely responsible for obtaining all necessary licenses to the Third Party Materials at its own expense.
3.7. Subcontractors. Nemedio may use subcontractors to perform the Services, in whole or in part. Each subcontractor will have entered into a binding written agreement that contains ownership of work product, non-solicitation, and confidentiality provisions no less stringent than those contained in this Agreement.
4. Limitations and Restrictions.
4.1. Content Restrictions. Customer shall not (and, for clarity, shall ensure that Customer Users do not), and shall not permit any third party to provide any Customer Material that:
(i) is unlawful or encourages another to engage in any unlawful actions or omissions;
(ii) is untrue, inaccurate, falsified, intentionally misleading or outdated,
(iii) contains a virus or any other similar programs or software which may damage the operation of Nemedio’s or another’s computer; or
(iv) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party. Customer understands and agrees that Nemedio reserves the right to edit, modify or remove content being hosted by Nemedio (including without limitation Customer Materials), including for violations of the above standards.
4.2. Use Restrictions. Customer shall not (and, for clarity, shall ensure that Customer Users do not), and shall not permit any third party to
(i) use the Services for any conduct or activity that violates Applicable Law or for any illegal or unlawful purpose;
(ii) resell, distribute, or sublicense the Services or use any of the foregoing for the benefit of anyone than Customer;
(iii) use the Services to build or research a competing product or service;
(iv) interfere with, impair or disrupt the Services and related Nemedio systems;
(v) introduce any virus or programming routine which is intended to or does disrupt or interrupt the use of the Services or Nemedio’s systems;
(vi) modify, translate, adapt, arrange, or create derivative works based on the Services;
(vii) decompile, disassemble, reverse engineer or use any other means to discover the source code (or the underlying ideas, algorithms, trade secrets, structure or organization) of the Services or any Nemedio Materials or Third Party Materials (except and only to the extent these restrictions are expressly prohibited by Applicable Law); or
(viii) use the Compliance Tools in any manner that circumvents the features or functionality of the current subscription level.
5. Ownership.
5.1. By Nemedio. Nemedio retains all right, title and interest in and to the Services, Nemedio Materials, and Nemedio’s Confidential Information. In the event Customer provides any error reports, corrections, suggestions or other feedback (collectively, “Feedback”) to Nemedio, Customer shall and hereby does assign to Nemedio all right, title and interest in and to such Feedback, including all associated Intellectual Property Rights. Nemedio may monitor the availability, performance, responsiveness and use of the Services and collect and generate data and statistics in connection therewith (“Usage Data”). Nemedio owns and shall own any and all right, title and interest in and to such Usage Data and Anonymous Data, including all associated Intellectual Property rights. In addition, Nemedio may use and make available Anonymous Data for any business purpose; provided however that Nemedio shall not distribute Anonymous Data in a manner that is identifiable as coming from Customer. “Anonymous Data” means Usage Data and other data that has been generated or collected by Nemedio in connection with Customer’s use of the Services that has been anonymized and does not identify Customer as the source thereof. “Nemedio Materials” means, collectively,
(i) any and all information and materials that are owned or developed by or for Nemedio or otherwise acquired by Nemedio from a third party prior to the Effective Date or outside of this Agreement, including any changes or extensions; and
(ii) any and all information and materials created, adapted or used by Nemedio in its business generally or applicable to a wide variety of projects, in each case together with all associated Intellectual Property Rights therein.
5.2. By Customer. As between the parties, Customer or its suppliers shall own all right, title and interest in and to the Deliverables and Customer Materials (including all associated Intellectual Property Rights), subject to the rights and licenses granted herein. Customer shall ensure that all Customer Materials is true and accurate at all times, and shall promptly update any such Customer Materials accordingly. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and rights to use all Customer Materials.
6. Fees.
6.1. Fees; Taxes. The applicable Fees for the Services are as set forth in an applicable Order. Customer shall be responsible for all taxes associated with the Services other than taxes based on Nemedio’s net income.
6.2. Payments. Except as expressly set forth otherwise in an applicable Order, Nemedio will invoice Customer and Customer shall pay the Fees for the Services in accordance with the following:
(i) Fees for Compliance Tools will be invoiced monthly in advance with payment due within five (5) business days;
(ii) any Fee deposit for Professional Services shall be invoiced in advance and are due prior to commencement of the Professional Services, and
(iii) any other Fees for Professional Services shall be invoiced monthly and are due within fifteen (15) days. Nemedio shall have the right to assess a late payment charge on any overdue amounts equal to the lesser of one and one half percent (1.5%) per month or the highest rate allowed by law, as well as all Nemedio’s out-of-pocket costs incurred in collection of any such amounts.
6.3. Discounted Rates. To the extent Customer is offered discounted Fees (a “Discount”), such Discount will be in the amount of, and subject to terms and conditions applicable to, the Discount indicated in an Order or otherwise associated with the Discount. If the Customer violates the terms and conditions of the Discount, or if such conditions are no longer applicable, then the Discount shall no longer apply, and Customer shall pay the pro-rated standard rate for the Services for the balance of the Order Term, commencing on the first of the following month on a going forward basis.
6.4. Non-Cancelable and Non-Refundable; Effect of Termination. Unless otherwise expressly set forth in an applicable Order, all Fees for Compliance Tools due for the duration of the Order Term and seventy percent (70%) of the Fees estimated for Professional Services as specified in an Order are non-cancellable, and all payments made under this Agreement are non-refundable.
Upon any termination of this Agreement and/or any Order by Customer other than due to Nemedio’s material uncured breach or any termination by Nemedio other than pursuant to Section 7.2.3 below, Nemedio shall issue a final invoice to Customer for (i) the total Fees due for Compliance Tools based on the length of the applicable Order Term less any amounts already paid to Nemedio therefor, and (ii) seventy percent (70%) of the Fees estimated or as otherwise set forth for Professional Services under the applicable Order less any amounts already paid to Nemedio therefor up to such seventy percent (70%), and Customer shall pay such invoice in full within fifteen (15) days.
If Nemedio terminates pursuant to Section 7.2.3 below, no additional Fees for Compliance Tools shall be due under the terminated Order and Nemedio shall issue a pro-rata refund within thirty (30) days of the effective date of termination for any Fees already paid by Customer for Compliance Tools covering a period that post-dates such date.
7. Term and Termination.
7.1. Term. This Agreement shall commence on the Effective Date and, unless earlier terminated as set forth below, shall continue in effect thereafter until the expiration or termination of the last Order then in effect (the “Term”). Each Order shall commence on the start date set forth therein and shall continue in effect thereafter for the period provided in the Order (the “Order Initial Term”). In the event an Order is for Compliance Tools, upon expiration of the Order Initial Term such Order shall be automatically renewed for additional periods of the same duration as the Order Initial Term (the “Order Renewal Term”) (Order Initial Term and Order Renewal Terms together, the “Order Term”) unless otherwise specified therein. Pricing shall be adjusted for each Order Renewal Term to match Nemedio’s standard terms then-in effect.
7.2. Termination.
7.2.1. Either party may terminate this Agreement and/or any Order:
(i) upon thirty (30) days’ notice to the other party if the other party breaches a material term of this Agreement or an Order, and the breach remains uncured at the expiration of such thirty (30) day period; or
(ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
7.2.2. Customer may terminate this Agreement and/or any Order at any time and for any reason or no reason upon sixty (60) days’ prior notice to Nemedio.
7.2.3. Nemedio may terminate this Agreement and/or any Order at any time and for any reason or no reason on sixty (60) days’ prior written notice to Customer.
7.2.4. Termination of this Agreement shall terminate all open Orders. Termination of an Order shall not automatically terminate this Agreement or any other open Orders.
7.3. Survival. Sections 1, 3.3, 3.4, 3.6, 5, 6, this 7.3, 8, 9, 10, 11 and 12 shall survive any termination or expiration of this Agreement.
8. Representations and Disclaimers.
8.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement.
8.2. Customer Representations and Warranties. Customer represents and warrants that
(i) it shall comply with all Applicable Laws and
(ii) it has all necessary rights and licenses in and to the Customer Materials.
8.3. Disclaimer.
ANY AND ALL DELIVERABLES, NEMEDIO MATERIALS AND SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FUNCTIONALITY, SUITABILITY, AVAILABILITY, FREEDOM FROM ERRORS, CORRECTNESS, ACCURACY, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. NEMEDIO DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEMEDIO DOES NOT WARRANT AS TO THE OUTCOME OF ANY REGULATORY OR ADMINISTRATIVE ACTIVITIES RELEVANT TO THE DELIVERABLES, NEMEDIO MATERIALS OR SERVICES, INCLUDING ANY APPLICATIONS OR ADMINISTRATIVE PROCEEDINGS OR ACTIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY MATERIALS OR STATEMENTS PROVIDED TO OR MADE BY OR ON BEHALF OF NEMEDIO, ANY SUBCONTRACTOR OR ANY THIRD PARTY, WHETHER IN WRITING OR ORALLY, CUSTOMER IS SOLELY RESPONSIBLE FOR ITS OWN REVIEW AND INDEPENDENT EVALUATION OF THE SERVICES, NEMEDIO MATERIALS, THIRD PARTY MATERIALS AND DELIVERABLES, INCLUDING WITHOUT LIMITATION TO DETERMINE IF THE SERVICES, NEMEDIO MATERIALS, THIRD PARTY MATERIALS AND DELIVERABLES MEET CUSTOMER’S OWN NEEDS. CUSTOMER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT COMPLIANCE WITH APPLICABLE LAW, INCLUDING WITHOUT LIMITATION US FEDERAL LAWS, REGULATIONS AND GUIDANCE RELATED TO MEDICAL DEVICE QUALITY SYSTEMS OR OTHER REGULATORY OR ADMINISTRATIVE ACTIVITIES RELEVANT TO THE SERVICES, NEMEDIO MATERIALS, THIRD PARTY MATERIALS OR DELIVERABLES, IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF THE CUSTOMER. CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE SERVICES, NEMEDIO MATERIALS, THIRD PARTY MATERIALS AND DELIVERABLES AND/OR CUSTOMER’S USE THEREOF COMPLIES WITH APPLICABLE LAW, INCLUDING WITHOUT LIMITATION US FEDERAL LAWS, REGULATIONS AND GUIDANCE RELATED TO MEDICAL DEVICE QUALITY SYSTEMS (INCLUDING FOR EXAMPLE 21 CFR §820.70(I) AND 21 CFR §11.10(A)).
9. Indemnification.
9.1. By Nemedio. Nemedio will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of such third party’s copyright, patent or trademark, or misappropriation of a trade secret, by the Compliance Tools as made available to Customer by Nemedio hereunder; provided however that, notwithstanding the foregoing, Nemedio shall have no liability or obligation to Customer hereunder with respect to any claim arising from or otherwise related to
(a) any Customer Materials;
(b) any use of the Compliance Tools not strictly in accordance with this Agreement and/or Nemedio’s instructions;
(c) any modifications or combinations of the Compliance Tools performed by a party other than Nemedio;
(d) Nemedio’s implementation of or compliance with Customer’s requirements or instructions;
(e) Customer’s continuing allegedly infringing activity after being notified thereof; or
(f) Customer’s continuing use of any version of the Compliance Tools after being provided modifications that would have avoided the alleged infringement. In case of such a claim, Nemedio may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Compliance Tools with non-infringing Compliance Tools, or if it deems such remedies not practicable, Nemedio may terminate this Agreement or the applicable Order (in whole or in part) without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of any Fees prepaid for use of the Compliance Tools calculated as of the effective date of termination. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT (ACTUAL OR ALLEGED).
9.2. By Customer. Customer will defend, indemnify, and hold Nemedio (and its officers, directors, employees and agents) harmless from and against all Losses arising from any third party claim, suit, action or proceeding alleging
(i) that any Customer Materials infringe, violate or misappropriate such third party’s intellectual property rights, privacy or other rights of a third party or has caused harm to a third party;
(ii) any use of the Services, Deliverables, Nemedio Materials or Third Party Materials in violation of Applicable Law;
(iii) any bodily injury (including death) and/or property damage; or
(iv) any breach or alleged breach of this Agreement by Customer (including for clarity any Customer User).
9.3. Procedure. In case of any claim that is subject to indemnification under this Agreement, the party to be indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) prompt written notice of such claim provided that the applicable Indemnitee’s failure to promptly notify the Indemnitor will affect the Indemnitor’s obligations solely to the extent that the applicable Indemnitee’s failure prejudices the Indemnitor’s ability to defend the applicable claim. The Indemnitee will cooperate in good faith with the Indemnitor to facilitate the defense of any such claim provided that the Indemnitor will reimburse the applicable Indemnitee’s reasonable out-of-pocket expenses incurred in providing such assistance. The applicable Indemnitee shall have the opportunity to participate in the defense and settlement of the claim at any time at Indemnitee’s own expense with counsel of its own choosing. Subject to the applicable Indemnitee’s prior written consent, the Indemnitor shall have no authority to settle any claim that gives rise to such Indemnitee’s liability or fault.
10. LIMITATION OF LIABILITY.
10.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL NEMEDIO (OR ITS AFFILIATES, SUPPLIERS OR LICENSORS) BE LIABLE TO THE CUSTOMER OR ANY OTHER PARTY FOR:
(I) ANY NONCOMPLIANCE WITH APPLICABLE LAW BY CUSTOMER (INCLUDING FOR CLARITY CUSTOMER USERS);
(II) WITH RESPECT TO ANY OUTCOME OF ANY REGULATORY OR ADMINISTRATIVE ACTIVITIES RELATED TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY APPLICATIONS OR ADMINISTRATIVE PROCEEDINGS OR ACTIONS; OR
(III) ANY LIABILITY ARISING FROM ANY GOOD OR SERVICE DESIGNED OR MANUFACTURED BY THE CUSTOMER.
10.2. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 11 (CONFIDENTIALITY) OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL
(I) EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, RELIANCE, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION, LOST REVENUES OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES), REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND
(II) EITHER PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING UNDER THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
11. Confidentiality.
11.1. Definition; Exclusions. “Confidential Information” means any and all information and materials provided by a part (the “Discloser”) to the other party (the “Recipient”) or to which the Recipient has access, including all copies, abstracts, summaries, analyses and other derivatives thereof, that
(i) is confidential or proprietary to Discloser, which derives economic value from not being generally known or the subject of reasonable efforts by Discloser to maintain its secrecy;
(ii) would, given the nature of the information or circumstances of disclosure, be considered by a reasonable person to be confidential or proprietary; or
(iii) Discloser obtains from any third party which Discloser treats as proprietary, whether or not owned by Discloser. For purposes of this Agreement, Confidential Information does not include information which is:
(a) already in the rightful possession of the Recipient and not subject to a confidentiality obligation to the Discloser;
(b) independently developed by the Recipient with any access or use of any Confidential Information;
(c) or becomes generally publicly available through no fault of the Recipient;
(d) rightfully received by the Recipient from a third party that is not under any obligation to keep such information confidential; or
(e) expressly approved for release in writing by Discloser.
11.2. Limitations. As to the Discloser’s Confidential Information, Recipient agrees to
(i) use the confidential Information only in connection with its performance under this Agreement and exercise of its rights under this Agreement, but not for any other purpose;
(ii) treat and maintain the Confidential Information as strictly confidential and take all reasonably necessary precautions to prevent any unauthorized access, use or disclosure thereof, exercising a degree of care not less than the care used by such party to protect its own Confidential Information that it does not wish to disclose, but in no event less than a reasonable degree of care; and
(iii) not disclose the Confidential Information to any third party other than Recipient’s directors, officers, employees, contracts, agents, advisors or counsel (collectively, “Representatives”) who have a need to know the Confidential Information for Recipient’s performance of its obligations or exercise of its rights under this Agreement, are apprised of the confidential and/or proprietary nature of the Confidential Information and have agreed in writing to be bound by confidentiality provisions at least as restrictive as those set forth herein.
11.3. Required Disclosures. In the event that a party is required by subpoena, court process or other Applicable Law to disclose the other party’s Confidential Information, the party required to make such disclosure may do so to the extent required by law, but only, where permitted by law, after notifying the other party and giving said other party a reasonable opportunity to contest such disclosure.
11.4. Actions Upon Termination. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement or as required by Applicable Law, each party will, upon the request of the Discloser, either:
(i) return all of such Confidential Information of Discloser provided during the Term and all copies thereof in Recipient’s possession or control to Discloser; or
(ii) destroy all Confidential Information provided during the Term and all copies thereof in the Recipient’s possession or control. Notwithstanding the foregoing, nothing herein shall require Recipient to remove or delete Discloser’s Confidential Information from its long term backup storage, provided that any such retained information shall remain subject to the confidentiality obligations of this Agreement.
12. Miscellaneous.
12.1. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
12.2. Non-exclusive. Nothing in this Agreement shall be deemed to create an exclusive relationship between the parties.
12.3. Publicity. Customer hereby grants to Nemedio the right to use Customer’s name and logo on Nemedio’s website and in Nemedio’s marketing materials, and to identify Customer as a Nemedio customer; provided that Customer may request Nemedio to cease or modify such use at any time and Nemedio shall promptly comply with such request. Customer agrees that it shall not use Nemedio’s name or logo without Nemedio’s prior express written consent in each instance.
12.4. Choice of Law; Arbitration. This Agreement will be in accordance with the laws of the State of New York, without giving effect to its conflicts of law principles or the United Nations Convention on the International Sale of Goods. The parties shall try to settle amicably any dispute, claim or controversy arising out of or relating to this Agreement (including without limitation any question regarding its existence, validity or termination) (“Dispute”) within thirty (30) days after a party notifies the other party of any such Dispute. If the parties cannot settle such Dispute amicably within such time period (or such other time period as the parties may mutually agree), such Dispute shall be referred to and finally resolved by binding confidential arbitration in New York City, New York before a single arbitrator, under the JAMS Comprehensive Arbitration Rules & Procedures (or their functional successor). Judgment on the resulting award may be entered by any state or federal court having jurisdiction. Each party to this Agreement hereby consents to the jurisdiction and venue of the state and federal courts located in New York City, New York for such purpose. The prevailing party shall be entitled to recover from the other party all reasonable attorneys’ fees, costs and expenses incurred by such prevailing part in connection with such Dispute. Notwithstanding the foregoing or anything else herein to the contrary, this provision does not preclude the parties from seeking injunctive, provisional or temporary relief from any state or federal court having jurisdiction.
12.5. Notice. Nemedio may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of thirty six (36) hours after mailing (if sent by first class mail) or sending by courier or twelve (12) hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to Nemedio by e-mail to legal@nemedio.com. Such notice will be deemed to have been given twelve (12) hours after sending, or, if earlier, when received. A party may, by giving notice to the other party, change its applicable address, email, or other contact information.
12.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable.
12.7. No Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights unless acknowledged and agreed to by such party in writing.
12.8. Compliance with Export Laws. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, Customer warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Customer shall not use, export or re-export the Services in violation of any U.S. export embargo, prohibition or restriction. Customer shall promptly provide notice to Nemedio if this warranty and representation is no longer accurate, in which case Nemedio may terminate this Agreement or the applicable Order (in whole or in part) immediately upon notice.
12.9. Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
12.10. Assignment. This Agreement may not be assigned by either party without the other party’s prior written consent; provided however that Nemedio may assign this Agreement to (i) any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, reorganization, consolidation or otherwise). Any purported assignment in violation of this Section will be null and void. This Agreement and applicable or any Orders may be enforced by and are binding on permitted successors and assigns.
12.11. Nonsolicitation. Nemedio agrees that during the Term and for two (2) years thereafter, it will not, without Customer’s express written consent, directly or indirectly, solicit or attempt to solicit any employee, independent contractor, or consultant of Customer to terminate its relationship with Customer in order to become an employee, consultant, or independent contractor for Nemedio. Customer agrees that during the Term and for two (2) years thereafter, it will not, without Nemedio’s express prior written consent, directly or indirectly, solicit or attempt to solicit any employee, independent contract or consultant of Customer.
12.12. Entire Agreement. This Agreement comprises the entire agreement between Customer and Nemedio and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.