InSpire Holdings, Inc
TERMS, CONDITIONS AND ORDERING – MANAGED SERVICES
This Managed Services Agreement (“Agreement”) is entered into between InSpire Holdings Inc, a California corporation (“InSpire”) and the Customer identified on the Order Form. Customer and InSpire may also be referred to as “Party” or “Parties”.
This Agreement sets forth the terms and conditions under which Customer may obtain from InSpire the right for Customer to access and use the software, platforms and other technology hosted by InSpire and to engage InSpire to perform related services during the Term (defined below). As used in this Agreement, “Managed Services” means, collectively, the online services, computer applications, mobile platforms, remote support, preventative maintenance, and mechanical services that are specified on any Statement of Work made available by InSpire through the Internet and/or cellular networks or in person through preventative maintenance and/or mechanical services and together with all security devices, and any proprietary third party software that is provided as part of or that accompanies the Managed Services.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter, the Parties hereto agree as follows:
GENERAL TERMS AND CONDITIONS
1. MANAGED SERVICES
1.1. Ordering of the Managed Services. Customer may order the Managed Services under this Agreement by placing written, signed orders on an Order Form. Only the execution of an Order Form by Customer and by InSpire constitutes a binding contract between those parties. Customer agrees that its purchase of the Managed Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by InSpire with respect to future functionality or features.
1.2. Grant for Internal Use. InSpire grants to Customer a non-exclusive, worldwide, non-transferrable, non-sublicensable, revocable, limited right and license during the Term to access and use the software platform, together with any Documentation for its business purposes. If a Statement of Work sets forth a specified population of authorized employees or contractors, this license shall be limited to the population so specified within the applicable Statement of Work and may not be used, without InSpire’s written permission and additional payment to InSpire, beyond such population. “Documentation” means InSpire’s training materials, guides, product descriptions, product specifications, supporting materials and updates describing the Managed Services provided to Customer in printed and/or electronic form. Notwithstanding anything to the contrary herein, InSpire may, in its sole discretion, make any changes to any Managed Services that it deems necessary or useful to (i) maintain or enhance the Managed Services or (ii) to comply with applicable laws or regulations.
1.3. Restrictions. Except as explicitly set forth in this Agreement otherwise, Customer will not, and will not assist others, to: (i) copy any Managed Services or Documentation; (ii) use the Managed Services or Documentation for any purpose other than as set forth in Section 1.1 above, including creating any competing products; (iii) remove InSpire’s proprietary rights notices; or (iv) analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to InSpire’s Intellectual Property, including the Managed Services, to ascertain, derive, and/or appropriate the source code or any trade secret embodied therein or create any derivative works. No such item or Intellectual Property may be distributed, sublicensed, transferred, or otherwise disseminated without InSpire’s prior written consent, which may be withheld in its sole and absolute discretion.
1.4. Statement of Work. InSpire and Customer shall agree to the specifics of the Managed Services and Professional Services to be made available to Customer, and the corresponding fees to be paid to InSpire, in one or more statements of work (“Statements of Work”) referring to this Agreement. Each Statement of Work, when executed by authorized representatives designated to act on behalf of both Parties, shall also be subject to the terms and conditions of this Agreement.
1.5. Professional Services. From time to time, Customer may order preventative maintenance, mechanical service, development, training, consulting or other software-related services from InSpire (“Professional Services”). In each case, InSpire shall perform such Professional Services pursuant to the terms of this Agreement and the applicable Statement of Work. InSpire will own all right, title and interest in any software developed hereunder and such software will be deemed to be InSpire Intellectual Property and governed by the terms applicable to InSpire Intellectual Property hereunder. Professional Services may include implementation services, preventative maintenance, mechanical service, customization, integration, data export/import, training and technical support all as may be further specified in the applicable Statement of Work.
1.6. Service Levels. InSpire shall provide the Managed Services in accordance with the services set forth on Exhibit B (the “Service Levels”).
1.7. Third Party Materials and Services. Except as otherwise specified herein, InSpire shall, at its own expense, procure, or obtain licenses or rights for use by Customer of all third party materials embedded in or otherwise included as part of the Managed Services; provided, that in connection with third-party software that is embedded, incorporated in, or required for, the use of the Managed Services, such license shall be conditioned on compliance with the terms and conditions imposed by such third party.
1.8. Workmanship. InSpire agrees to perform all work in a careful and workman-like manner and to furnish only materials of good quality, equal or comparable to manufacturer’s specifications.
1.9. Physical Access to the Premises. InSpire and each of its authorized contractors, agents and representatives shall have the right to enter upon any and all parts of the Premises at any reasonable time without prior notice to inspect, repair and maintain the Equipment and as otherwise necessary to fulfill its obligations under this Agreement. Notwithstanding anything herein to the contrary, except for emergencies, InSpire shall use reasonable efforts to minimize disruption of Client’s business or occupancy during such entries.
1.10. Subcontractors. Customer acknowledges and agrees that InSpire may retain the services of independent contractors (“Subcontractors”) from time to time to provide, or to assist Inspire in providing, the Service. Any Subcontractors used by InSpire to provide the Service shall remain under the direction and control of InSpire, and InSpire shall be fully and personally liable for all acts or omissions of the Subcontractors.
2. PRICING AND PAYMENT.
2.1. Fees. Fees for the Managed Services, including maintenance and support, if any, will be as set forth on the applicable Statement of Work (“Fees”).
2.2. Payment. Customer shall pay all Fees in advance of the period during which the service is provided. InSpire reserves the right to assess a late charge at an annual rate not to exceed ten percent (10%), or the maximum amount permitted by law (whichever is less) on all fees due under this Agreement which remain unpaid thirty (30) days after the due date. All amounts paid by Customer shall be paid in U.S. dollars.
2.3. Taxes. Customer shall be responsible for all taxes and agrees to indemnify and hold InSpire harmless from any taxes including, but not limited to, sales tax, customs and excise taxes, use tax, withholding, value-added or similar tax, and property taxes that may be assessed or levied by any jurisdiction arising out of the performance of this Agreement, but excluding any taxes based upon or determined by reference to InSpire’s income or level of business activity. This will include but not be limited to 1) the recovery, recycling, reclamation, handling and/or disposal of all refrigerants and the additional costs incurred for refrigerant tax and/or increased costs due to shortages or regulations 2) any costs incurred for the testing, clean-up, removal, and disposal of any chemical and/or substance that is considered to be regulated, or hazardous waste, which require special handling and/or disposal (“Taxes”). It is understood and agreed that the prices and estimates set forth in this Agreement do not include provision for Taxes.
2.4. Cost of Living Adjustment. InSpire may adjust the price of this agreement and the cost of labor rates annually on the anniversary date to reflect prevailing labor and material costs, unless otherwise noted.
2.5. Utilities. Customer will be solely responsible for and directly pay the cost of all utilities (e.g., electricity, water) serving, provided to and/or used in or for the Premises, including all such costs related to the Services.
3. TERM; TERMINATION; EFFECT OF TERMINATION.
3.1. Term. This Agreement shall become effective upon the Effective Date and will continue for the Initial Term set forth above unless terminated earlier as provided herein. Thereafter, this Agreement shall automatically renew for additional one (1) year periods unless, at least ninety (90) days prior to the end of the then-current term, either Party gives written notice to the other Party of an election not to renew. The Initial Term and any renewal terms, if any, are referred to collectively herein as the “Term”.
3.2.1. Either Party may terminate this Agreement and all underlying SOWs, effective upon written notice to the other Party (the “Defaulting Party“), if the Defaulting Party:
220.127.116.11. materially breaches this Agreement or such Statement of Work or any Exhibit incorporated herein, and the notifying Party reasonably determines that the breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party fails to cure such breach within thirty (30) days after receipt of written notice detailing the alleged breach;
18.104.22.168. becomes insolvent or admits its inability to pay its debts generally as they become due or becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing and which completely prevents Customer’s access to the Managed Services or results in a complete stoppage of any Professional Services being provided; or
22.214.171.124. is dissolved or liquidated or takes any corporate action for such purpose or makes a general assignment for the benefit of creditors or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
3.3. Effect of Termination. Upon expiration or termination of this Agreement for any reason:
3.3.1. Unless this Agreement is terminated under Section 3.2 above, each Party shall provide reasonable cooperation and assistance for a period of no more than sixty (60) days in transitioning the services to an alternate service provider, and on a pro rata basis, pay all fees and expenses incurred but unpaid through such date (“Transition Period”). During the Transition Period no new individuals may be added or provided access to the Managed Services.
3.3.2. Each Party shall (i) return to the other Party or destroy at their option all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information (defined below), (ii) permanently erase, if reasonably feasible, all of the other Party’s Confidential Information (excluding any de-identified data, including historical customer results and data included in tokenized results) from its computer systems and (iii) certify in writing to the other Party that it has complied with the requirements of this clause; provided that copies may be maintained pursuant to receiving Party’s standard electronic backup and archival procedures if (a) access to such retained copies is restricted to information technology personnel as reasonably necessary for the performance of archival duties (such system recovery) and (b) receiving Party may (1) keep copies of any Confidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the Confidential Information, (2) keep such copies to the extent required to comply with requirements of applicable law or (3) keep such copies of any presentations provided to its board of directors or any committee thereof, investment committee or any minutes of any meetings of such persons that contain Confidential Information; and provided further that any information so retained by receiving Party shall be maintained confidentially and shall not be used for the benefit of receiving Party or any other Party or for any purpose except as set forth in this Section.
3.3.3. Subject to the Transition Period, as applicable, upon termination of this Agreement and any underlying SOW(s) under this Section 3, all licenses granted to Customer under this Agreement and the respective SOW(s) shall immediately terminate.
3.4. Survival. The rights and obligations of the Parties which, by their nature, should survive termination or expiration of this Agreement, including Sections 1.2, 2, 3.3, 4, 5, 6, 7, 8, 9, and 10 .
3.5. Continuity of Service. In the event of a sale, merger, acquisition or divestiture of substantially all of the assets of either InSpire or Customer, the Parties agree to provide written notice of such an event within a commercially reasonable period of time and agree to continue all service, obligations and responsibilities pursuant to this Agreement; provided that if Customer is purchased by a competitor of InSpire, InSpire may elect, in its discretion, to either approve such continuity or terminate this Agreement and all licenses hereunder on thirty (30) days’ prior written notice.
4.1. Duty Not to Use or Disclose. During the Term of this Agreement, from time to time, either Party may disclose (the “Disclosing Party”) or make available to the other Party (the “Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products or services in connection with this Agreement (together, “Confidential Information” as further defined below). The Parties agree and understand that the Confidential Information is confidential and proprietary to the Disclosing Party; that it constitutes trade secrets of the Disclosing Party, and the Parties understand that it is of great value to the success of the Disclosing Party’s business as well as the success of the partnership under this Agreement. Each Party’s Confidential Information and all tangible expressions of the same, in any form, are the sole property of that Party. Each Party agrees that the Receiving Party will use the Disclosing Party’s Confidential Information only for the approved obligations and responsibilities under this Agreement and will not download, copy, reproduce, or transfer Confidential Information from any access system for either the approved use or for any other purpose. The Parties agree not to disclose Confidential Information to third-parties and each Party shall safeguard Confidential Information with the same standard of care that is used with their respective Confidential Information, but in no event less than reasonable care. The obligations under this Section 4 shall survive termination of this Agreement until the earlier of such information becoming publicly available through no fault of the Receiving Party or three (3) years from termination of this Agreement.
4.2. Definition. “Confidential Information” includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to the Disclosing Party’s business in any manner, including any Intellectual Property (defined below). The Receiving Party understands that the above is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used. For purposes of clarification, Confidential Information of InSpire shall include InSpire Data and Confidential Information of Customer shall include Customer Data.
4.3. Exceptions. For purposes hereof, Confidential Information will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party without disclosure restrictions; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public through no fault of the Receiving Party.
5. INTELLECTUAL PROPERTY AND DATA.
5.1. Definitions. “Intellectual Property” means tangible and intangible discoveries, inventions, developments, improvements, works of authorship, mask works, identifying marks, trade dress, confidential or proprietary information, know-how, designs, processes, technologies and other items for which Intellectual Property Rights may be secured throughout the world. “Intellectual Property Rights” means all tangible and intangible rights throughout the world in patents, patent applications, utility models, design rights, copyrights, moral rights, trade secrets, mask work registrations, trademarks, service marks, and other intellectual and industrial property rights of every kind and nature whether arising by operation of law, contract, license or otherwise. InSpire’s Intellectual Property includes InSpire Data.
5.2. InSpire Intellectual Property. Nothing herein shall be deemed to convey ownership of any InSpire Intellectual Property, including any pre-existing Intellectual Property used by InSpire in connection with the Managed Services and any derivative works, modifications, alterations or other improvements, including any Intellectual Property created by InSpire pursuant to any Professional Services provided. All proprietary rights, title and ownership rights, including worldwide ownership, in and to such Intellectual Property, including the Managed Services, remain vested in InSpire and no rights other than explicitly set forth herein are transferred or conveyed to Customer.
5.3. Ownership and Use of InSpire Data. InSpire Data, defined below, and any derivative works thereof shall be and remain the property of InSpire and may be used by InSpire for any business purpose, including improving InSpire’s products and services. Any rights or license to the InSpire Data by Customer, if any, will be set forth on the applicable Statement of Work. Except as expressly permitted in this Agreement or Statement of Work, Customer shall not sell, assign, lease, disseminate, or otherwise dispose of the InSpire Data or any part thereof to any other person, and Customer shall not commercially exploit any part of the InSpire Data. Customer shall not allow its employees and/or subcontractors to do any of the foregoing and shall take reasonable measures to prevent such misuse. “InSpire Data” means data in de-identified form that is (a) collected or provided by Customer or its employees or contractors to InSpire or its affiliates in connection with the Managed Services, (b) generated from Customer’s participation and use of the Managed Services, including generic usage or generic transactional data (e.g. how often or how many times individuals contacted customer support, where on the screen individuals touched or clicked etc.) or (c) generated, stored or processed by InSpire from such input in connection with the Managed Services.
5.4. Ownership and Use of Customer Data. Customer Data is Confidential Information of Customer. “Customer Data” means any information that specifically identifies any individual, including any personally identifiable information, or any information that could be associated with such individual, such as drivers’ license numbers, account numbers and addresses provided by Customer to InSpire and intended for use with the Managed Services. Customer Data does not include de-identified data. Customer grants to InSpire a non-transferable, non-exclusive, limited license to use Customer Data solely for the provision of the Managed Services during the Term of this Agreement.
5.5. Non-Solicitation of InSpire Employees. InSpire’s employees, contractors, agents and representatives are considered valuable assts of InSpire. Accordingly, during the Term and for a period of one (1) year following the termination of this Agreement or the expiration of the last SOW, whichever is later, Customer will not solicit, induce, or otherwise encourage any InSpire employee, contractor, agent, or representative to leave InSpire unless Customer pays to InSpire a lump sum payment equal to one (1) year’s total compensation to be paid to such employee, contractor, agent or representative by Customer.
5.6. InSpire Trademarks. Customer shall not do business under any InSpire trademark or tradename (“Marks“) or any derivative or variation thereof and shall not directly or indirectly hold itself out as having any relationship to InSpire or its affiliates other than as set forth herein. Customer will not alter or remove any Mark or other markings applied to the Managed Services without the prior written approval of InSpire. Nothing in this Agreement creates in Customer, and Customer agrees not to assert, any rights in or to the Marks. If, in InSpire’s sole judgment, any use of Marks by Customer is detrimental to the Marks or InSpire’s reputation, or otherwise undesirable, InSpire may withdraw such permission without liability. Usage of the Marks shall be governed by the then-current InSpire guidelines.
5.7. Publicity. Subject to applicable law and any restrictions set forth above or in an SOW, each Party is permitted to use the name, logo, service marks, domain names, symbols or any other name or mark of the other Party solely with regard to advertising campaigns or public relation campaigns relating to providing their respective services under this Agreement, together with the right to list the other Party on its website or other marketing materials as a Customer. If set forth in an appliable SOW, the Parties will work together as soon as reasonably possible after the Effective Date, but not later than sixty (60) days after the Effective Date, to release a mutually agreeable press release and to take such other publicity actions as may be mutually agreed upon, including announcements on social media or otherwise.
6.1. Data Privacy. InSpire will comply with all applicable data privacy laws, including but not limited to all laws concerning data protection, and security laws applicable to Customer and/or InSpire with respect to InSpire’s activities hereunder and certifies that it has implemented and currently maintains a commercially reasonable information security program that includes appropriate technical, organizational, administrative, physical and other safeguards designed to (i) ensure the confidentiality and security of Confidential Information; (ii) prevent against unauthorized disclosure, destruction, modification, or use of Confidential Information, and (iii) protect against any threats or hazards to the security or integrity of Confidential Information.
6.2. CCPA. If use of the Managed Services is subject to the CCPA and involves retention, use or disclosure of personal data (as that term is defined under the California Consumer Privacy Act) (“Personal Data”), then InSpire will comply and will require that its personnel and subcontractors complete, with all applicable requirements of the California Consumer Privacy Act. For the purposes of this Agreement, the “California Consumer Privacy Act” or “CCPA” means the California Consumer Privacy Act of 2018 that became effective on January 1, 2020.
6.3. EU Data Protection. If use of the Managed Services is subject to the GDPR and involves the creation, processing, retention, deletion, use or disclosure of personal data (as that term is defined under the EU Data Protection Directive) (“Personal Data”), then InSpire will comply, and will require that its personnel and subcontractors comply, with all applicable requirements of the EU Data Protection Directive. For purposes of this Agreement, the “EU Data Protection Directive” means Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and any legislation implementing or revising such directive in applicable EU member states, including the GDPR. As used in this Agreement, “GDPR” means the General Data Protection Regulation (EU) 2016/679 that became effective on May 25, 2018.
6.4. Exclusions. The Parties agree that for purposes of Sections 6.2 (CCPA) and 6.3 (EU Data Protection) that (i) IP Addresses shall not be considered personally identifiable information unless traceable back to a specific individual and (ii) InSpire will comply with any “right to be forgotten” under the CCPA (1798.105(a)) and/or GDPR (Article 17(1)) so long as the individual making such request is not, or has not been, using the Managed Services in an illegal or fraudulent manner or engaging in any illegal or fraudulent activity through the Managed Services, as determined by InSpire in its sole and absolute discretion.
7.1. Limited Liability. Each Party will be responsible for its own acts and the results thereof and shall not be responsible for the acts of the other Party and the results thereof. Each Party therefore agrees that it will assume all risk and liability to itself, its agents or employees, for any injury to persons or property resulting in any manner from the conduct of its own operations and the operations of its agents or employees under this Agreement, and for any loss, cost, damage, or expense resulting at any time from any and all causes due to any act or acts, negligence, or the failure to exercise proper precautions, of or by itself or its agents or its own employees, while conducting activities under and pursuant to this Agreement.
7.2. Limitation of Liability. IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF DATA, LOSS OF USE OF THE MANAGED SERVICES OR FOR ANY SPECIAL, RELIANCE, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDIES HEREUNDER. IN NO EVENT SHALL THE TOTAL LIABILITY OF InSpire ARISING UNDER THIS AGREEMENT AND ALL EXECUTED SOWS EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID TO InSpire BY CUSTOMER WITHIN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO A CLAIM; PROVIDED, HOWEVER, WHERE THE LIABILITY ARISES FROM InSpire’S BREACH OF A BUSINESS ASSOCIATE AGREEMENT, THE CCPA OR UNDER THE GDPR THE LIMIT SHALL BE 3X THE AGGREGATE AMOUNT PAID TO InSpire BY CUSTOMER WITHIN THE PRECEDING TWELVE (12) MONTHS.
7.3. Allocation of Risk. Customer acknowledges and agrees that (i) the provisions of this Section 7 allocate risks under this Agreement between the Parties and (ii) InSpire’s pricing reflects this allocation of risks and limitation of liability.
8. LIMITED INDEMNITY OF CERTAIN CLAIMS.
8.1. InSpire. InSpire will, at its own expense, defend Customer from or settle any third party claim, suit or proceeding brought against Customer to the extent it is based upon a claim that the Managed Services used as contemplated by the Documentation: (i) infringes upon any patent, trademark or copyright alleged to be valid in the United States or (ii) misappropriates any trade secrets of any third party alleged to be valid in the United States (“IP Right”). InSpire will indemnify and hold Customer harmless from all amounts (i) awarded by a court of competent jurisdiction in such matter (including damages, costs and fees) but only to the extent attributable to an allegation that Customer’s use of the Managed Services, authorized hereunder, infringes an IP Right or (ii) agreed in a settlement to which InSpire has assented in writing. The foregoing is contingent on Customer providing InSpire prompt written notice of any such claim or action and giving InSpire full information and assistance in connection with defending and/or settling such claim, at InSpire’s sole expense. InSpire shall have the sole right to control the defense of any such claim or action and the sole right to settle or compromise any such claim or action. If the Managed Services are, or in InSpire’s opinion might be, held to infringe or misappropriate as set forth above, InSpire may, in addition to its aforementioned obligations and at its sole option and expense, replace or modify the Managed Services so as to avoid infringement or misappropriation, or procure the right for Customer to continue the use of the Managed Services as applicable. If neither of such alternatives is, in InSpire’s opinion, commercially reasonable, at InSpire’s request, the licenses granted hereunder shall terminate and InSpire’s sole and exclusive liability, in addition to its obligation to reimburse awarded damages, costs and expenses as set forth above, shall be to refund unused prepaid Fees.
8.2. Limitations. The foregoing obligations of InSpire will not apply to any claim arising out of: (i) the alteration of the Managed Services by Customer or a third party, (ii) the combination of the Managed Services with goods or services not provided by InSpire where such infringement arises from the combination and where the Managed Services could have been used, in the manner contemplated by its applicable Documentation, in a manner not giving rise to such infringement, or (iii) the failure to use the latest version of any software contained in the Managed Services, in each case to the extent that infringement or misappropriation otherwise would have been avoided.
8.3. Exclusive Remedies. TO THE FULL EXTENT PERMITTED BY LAW, InSpire’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS SECTION 8 SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INTELLECTUAL PROPERTY RIGHTS, THE ALLEGED INFRINGEMENT OR MISAPPROPRIATION THEREOF AND ANY IMPLIED OR STATUTORY TERMS, CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF NON-INFRINGEMENT.
8.4. Customer Indemnity. Customer will defend, indemnify and hold InSpire, its directors, officers, stockholders, employees and agents harmless against (a) all claims, liabilities, losses, damages, and expenses, including, without limitation, attorneys’ fees and insurance contributions (“Claims”) for which InSpire has responsibility, plus penalties and interest, InSpire may suffer and which arise directly or indirectly from any infringement or alleged infringement by Customer of any third party intellectual property rights, and (b) any Claims arising out of or related to any data breach involving Customer’s environment or system.
9.1. General Warranties. Each Party represents and warrants to the other that: (i) it is duly formed and validly existing under applicable laws and in good standing in applicable business locations as required; (ii) it has all necessary right, title, license and authority to enter into and perform its obligations under this Agreement; and (iii) the person signing this Agreement (including each attachment) has full authority to bind that Party to the terms and conditions hereof.
9.2. Service Warranty.
9.2.1. Warranty. InSpire warrants that InSpire’s Professional Services, if any, will be of a professional quality conforming to generally accepted industry standards and practices. InSpire warrants that the most current versions of the Managed Services substantially conform in all material respects to their published specifications (as corrected from time-to-time) when used in the hardware and software environment supported by InSpire. InSpire assumes no responsibility for the use of superseded, outdated, uncorrected, or modified versions of the Managed Services.
9.2.2. Conditions. This warranty is conditioned on Customer notifying InSpire in writing of any material non-conformity within ten (10) days of Customer becoming aware thereof, such notification to include (a) Customer’s estimation of the severity of such non-conformity and (b) such documentation and details of such non-conformity as InSpire shall reasonably request. InSpire shall, at its own expense, promptly use reasonable commercial measures to correct such non-conformity; provided that if such measures are not commercially practicable, as determined by InSpire in its reasonable judgment, Customer shall be entitled to a right to terminate. The foregoing remedies are sole and exclusive.
9.2.3. Exceptions. InSpire’s limited warranty under Section 9.2.1 shall not extend to problems affecting the Managed Services that result from: (i) third party software; (ii) the Internet or problems external to the Managed Services; (iii) any alterations of the Managed Services other than those performed or authorized in writing by InSpire under this Agreement; (iv) accident, negligence, or misuse of the Managed Services; or (v) operation outside of the Documentation.
9.2.4. Warranty of Title. InSpire warrants that it is the exclusive owner or licensor of all right, title and interest in the proprietary rights applicable to the Managed Services.
9.3. DISCLAIMER OF WARRANTY. EXCEPT AS SET FORTH ELSEWHERE IN THIS AGREEMENT OR ANY SOW, InSpire SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. InSpire DOES NOT WARRANT THAT THE MANAGED SERVICES WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECTS OR WILL BE ERROR FREE AND DOES NOT WARRANT THAT THE MANAGED SERVICES WILL ALWAYS BE ACCESSIBLE, UNINTERRUPTED OR AVAILABLE FROM THE CELLULAR NETWORK OR INTERNET, INCLUDING WIFI. InSpire DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OF CORRECTNESS, COMPLETENESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE WITH RESPECT TO THE USE OF THE RESULTS OR THE USE OF THE DATA OR ANY OTHER ELEMENT IN THE MANAGED SERVICES. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE MANAGED SERVICES.
10.1. Customer’s Insurance. At all times during the Term of the Managed Services, Customer shall maintain and pay for (a) commercial general liability insurance in an amount not less than $1,000,000 per occurrence and $2,000,000 in aggregate, (b) workers’ compensation insurance in an amount not less than that prescribed by applicable law, (c) employer’s liability insurance with a limit not less than $1,000,000 Bodily Injury Each Accident, $1,000,000 Bodily Injury By Disease – Each Person and $1,000,000 Bodily Injury By Disease – Policy Limit, (d) special peril property insurance coverage on all of Customer’s Property with full replacement cost coverage, (e) umbrella or excess liability insurance with a combined single limit of not less than $1,000,000 per occurrence and aggregate to apply over the above mentioned policies, and (f) business interruption insurance in an amount as will reimburse Customer for direct or indirect loss of earnings attributable to all perils insured against by the property insurance described in subsection (d), above, for a period of not less than twelve (12) months. The policies for such commercial general liability insurance and umbrella or excess liability coverage shall name InSpire and any lenders designated by InSpire as additional insureds and shall be written to apply to all bodily injury (including death) and property damage losses, and shall include blanket contractual liability, broad form property damage, independent contractor’s coverage, cross liability and severance of interest clauses. In addition, all insurance policies required under this Section 19.1 shall (i) contain a provision stating that the insurer shall endeavor to provide at least thirty (30) days’ written notice to InSpire and all others named as additional insureds prior to any cancellation or material modification of such policy, (ii) be issued by an insurer with a Best’s Financial Strength Rating of at least A-, and a Financial Size Category listing of no lower than VIII, both as provided by A. M. Best Company, Inc. and (iii) be primary in nature and non-contributory as it relates to any insurance coverage maintained by InSpire (i.e., any insurance maintained by InSpire shall only be deemed to be in excess of all of Customer’s coverage) If Customer fails to maintain the required coverages, InSpire may, but shall not be obligated to, purchase such coverage for Customer, at Customer’s cost plus an administrative surcharge of ten percent (10%). Customer shall ensure that all of its subcontractors and agents maintain insurance in the amounts required in this Section 10.1.
10.2. InSpire’s Insurance. At all times during the Term of the SSA, InSpire shall maintain and pay for (a) commercial general liability insurance in an amount not less than $1,000,000 per occurrence and $2,000,000 in aggregate, (b) workers’ compensation insurance in an amount not less than that prescribed by applicable law, (c) employer’s liability insurance with a limit not less than $1,000,000 Bodily Injury Each Accident, $1,000,000 Bodily Injury By Disease – Each Person and $1,000,000 Bodily Injury By Disease – Policy Limit, (d) umbrella or excess liability insurance with a combined single limit of not less than $1,000,000 per occurrence and aggregate to apply over the above mentioned policies. InSpire and Customer acknowledge and agree that, in no event, shall InSpire be obligated to carry any insurance covering any of Customer’s Property or the Premises or covering any Customer Party. InSpire’s commercial general liability policy shall be written to apply to all bodily injury (including death) and property damage losses, and shall include blanket contractual liability, broad form property damage, independent contractor’s coverage, cross liability and severance of interest clauses. In addition, all insurance policies required under this Section 19.2 shall be issued by an insurer with a Best’s Financial Strength Rating of at least A-, and a Financial Size Category listing of no lower than VIII, both as provided by A.M. Best Company, Inc.
11.1. Entire Agreement. This Agreement, together with its Exhibits, and any SOWs between the Parties contains the entire Agreement between the Parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the Parties related to the subject matter hereof. The Parties have made no representations, promises, warranties, covenants or undertakings other than those contained in this Agreement. The Parties are not relying on and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied except for the representations and warranties in this Agreement.
11.2. Order of Precedence. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions of any SOW, the terms and conditions of this Agreement will control, unless the SOW makes specific reference to the Section of this Agreement that is to be amended or modified.
11.3. Amendment. This Agreement may be modified solely as agreed in writing and signed by an officer of each Party.
11.4. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.5. Governing Law and Jurisdiction. This Agreement shall be construed and enforced pursuant to the laws of the State of California without regard to the conflicts of law principles thereof. The Parties hereby irrevocably consent to the exclusive jurisdiction of any state or federal court in San Francisco County, California and consent that all service of process be sent by nationally recognized overnight courier service directed to the Parties’ respective address set forth herein. The Parties agree that the venue provided above is the most convenient forum for both Parties, and each waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Agreement. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
11.6. Assignment. Neither Party may assign this Agreement or any SOW (except the right to receive payments hereunder) without the prior written of the other Party; provided that, subject to Section 3.5 above, either Party may freely assign all or any part of this Agreement, without the consent of the other incidental to a sale, transfer or other disposition by such Party of all or substantially all of the assets of the selling Party’s business having the benefit of the goods and/or services under this Agreement.
11.7. Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Customer and InSpire. This Agreement will not be deemed to create any rights in third parties or to create any obligations of a Party to any third parties.
11.8. Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any Party under this Agreement, upon any breach or default of any other Party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting Party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default previously or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing to be effective and then only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any Party, shall be cumulative and not alternative.
11.9. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except as expressly provided in this Agreement.
11.10. Headings. The Section headings contained herein are for convenience only and shall not in any way affect the interpretation or enforceability of any provision of this Agreement.
11.11. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
11.12. Digital Signatures. Signatures may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
11.13. Notice. Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either Party hereto by the other Party hereto shall be in writing and shall be deemed duly served and given when personally delivered to such Party to whom it is directed, or in lieu of such personal service, when deposited in the United States mail, first-class postage prepaid, return receipt requested or sent by overnight delivery.
11.14. Force Majeure. Neither Party shall be liable for delays or any failure to perform under this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed Party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use its best efforts to minimize the delays caused by any such event. The delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused, and the delayed Party shall promptly inform the other Party of its plans to resume performance.
11.15. Attorneys’ Fees. The prevailing Party in any action taken to enforce the terms or conditions of this Agreement will be entitled to recover its reasonable attorneys’ fees and costs, including expert witness fees, incurred therein and including those incurred in preparation for any hearing, motion, arbitration, mediation or trial.
11.16. Non-Exclusive. Except as otherwise provided in one or more SOWs, each Party retains the right to undertake research, marketing and development programs or to establish collaborations with third-parties in any area, including areas which are or become the subject of this Agreement, consistent with the rights expressly granted to the other Party under this Agreement and subject at all times, without limitation, to the confidentiality and intellectual property sections set forth in this Agreement.
11.17. Separate Entities. The Parties are independent business entities. Neither Party is permitted to make any claims, representations or warranties on behalf of the other Party or bind the other Party. Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, principal or agent relationship, co-ownership or joint venture relationship between the Parties.
11.18. Interpretation. The Parties agree that each of them has participated in the drafting of the Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of the Agreement.