SCIENCESHEET STANDALONE for AWS MSA (Updated 3-20-2019)
SCIENCESHEET STANDALONE FOR AWS SUBSCRIPTION AGREEMENT
IMPORTANT: IF CUSTOMER DOES NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, CUSTOMER MAY NOT ACCESS OR USE SCIENCESHEET STANDALONE for AWS.
BY CHECKING THE ACCEPTANCE BOX OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON Sciencesheet Inc.'s
WEBSITE AT www.sciencesheet.com/eula (AS MAY BE RELOCATED BY Sciencesheet Inc. FROM TIME TO TIME). IN THE EVENT CUSTOMER IS REDIRECTED TO Sciencesheet Inc.'S WEBSITE, YOU AGREE THAT CUSTOMER'S USE IS SUBJECT TO ANY TERMS OF SERVICE OR PRIVACY POLICIES POSTED THEREON.
This SCIENCESHEET STANDALONE for AWS Subscription Agreement ("Agreement") is between Sciencesheet Inc. and the customer (individual or entity) that has purchased a
subscription to SCIENCESHEET STANDALONE for AWS ("Customer" or "you" or "your"). "Sciencesheet Inc." means the Sciencesheet Inc. entity designated on the applicable Ordering Document (as defined below).
If you are an individual using SCIENCESHEET STANDALONE for AWS on behalf of a corporation, partnership or other entity, then that entity will be the Customer, and you represent and warrant that you are authorized to enter into this Agreement on behalf of such entity and bind such entity to the terms and conditions of this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to SCIENCESHEET STANDALONE for AWS through any online provisioning, registration or order process or (b) the effective date of the first Ordering Document referencing this Agreement.
This Agreement permits the parties to enter into order forms referencing this Agreement ("Ordering Document(s)"), which set forth the quantity of Permitted Users (defined below), specify the fees payable by Customer and may contain other terms and conditions.
This Agreement includes any and all attachments and referenced policies, including without limitation the Sciencesheet Inc. Support Policy and all Ordering Documents entered into between the parties.
Evaluation Users: If you receive free, trial or evaluation access to SCIENCESHEET STANDALONE for AWS, you are deemed a "Customer" under this Agreement except that
you are subject to the additional restrictions and limitations set forth in Section 1.2 (Evaluation Access) below.
This Agreement applies only to SCIENCESHEET STANDALONE for AWS and does not grant Customer rights to any other Sciencesheet Inc. services or software (such as Sciencesheet Inc. Desktop or Sciencesheet Inc. Server), which are made available under separate agreements.
From time to time, Sciencesheet Inc. may modify this Agreement. Unless otherwise specified by Sciencesheet Inc., changes become effective for existing subscription Customers
upon renewal of the then-current Subscription Term.
Sciencesheet Inc. will use reasonable efforts to notify Customer of the changes through communications through SCIENCESHEET STANDALONE for AWS, email, or other means.
Customer may be required to click to accept the modified Agreement before using SCIENCESHEET STANDALONE for AWS in a renewal Subscription Term, and in any event continued use of SCIENCESHEET STANDALONE for AWS during the renewal Subscription Term will constitute Customer's acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
Each party expressly agrees that this Agreement is legally binding upon it.
1. SCIENCESHEET STANDALONE for AWS
1.1. Provision of Products. SCIENCESHEET STANDALONE for AWS is a hosted service
permitting Customer to access Sciencesheet Inc.'s data analysis product
("SCIENCESHEET STANDALONE for AWS"). SCIENCESHEET STANDALONE for AWS is described more fully in the then-current version of any supporting technical documentation
provided to Customer by Sciencesheet Inc. with SCIENCESHEET STANDALONE for AWS
("Documentation"). SCIENCESHEET STANDALONE for AWS is provided on a subscription
basis for a set term designated herein or in the applicable Ordering
Document (each, a "Subscription Term").
1.2. Evaluation Access. If Sciencesheet Inc. has made available to you free, trial or
evaluation access to SCIENCESHEET STANDALONE for AWS ("Evaluation Access"), your
access is limited to evaluating SCIENCESHEET STANDALONE for AWS to determine
whether to purchase a subscription from Sciencesheet Inc.. You may not use
Evaluation Access for any other purposes, including but not limited to
competitive analysis, commercial, professional or for-profit purposes.
Evaluation Access is limited to sixty (60) days from the date you activate
Evaluation Access, unless otherwise specified by Sciencesheet Inc. in the Ordering
Document or a separate writing from Sciencesheet Inc.. Sciencesheet Inc. has the right to
terminate Evaluation Access at any time. Unless you purchase a
subscription for SCIENCESHEET STANDALONE for AWS, upon any such termination or
expiration your Evaluation Access will cease and you will no longer have
access to any Customer Data (as defined in Section 2.1 below) used in
connection with Evaluation Access. If Customer purchases a subscription
to SCIENCESHEET STANDALONE for AWS, all of the terms and conditions in this Agreement
will apply to such purchase and the use of SCIENCESHEET STANDALONE for AWS.
NOTWITHSTANDING ANYTHING IN THIS AGREMEENT TO THE CONTRARY,
Sciencesheet Inc. WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT OR
OBLIGATIONS WITH RESPECT TO EVALUATION ACCESS.
1.3. Access to Products. Subject to the terms and conditions of the
Agreement, Sciencesheet Inc. hereby grants to Customer a non-exclusive, nontransferable,
worldwide right during the applicable Subscription Term to access and use SCIENCESHEET STANDALONE for AWS solely for Customer's business purposes and pursuant to the Documentation and any restrictions designated in the applicable Ordering Document.
1.4. Permitted Users. Use of and access to SCIENCESHEET STANDALONE for AWS is
permitted only by the number of users specified in the applicable Ordering
Document ("Permitted Users"). The Permitted Users will receive user IDs
and passwords to access SCIENCESHEET STANDALONE for AWS. These credentials are
granted to individual, named persons and may not be shared. Customer
will ensure that all Permitted Users keep these credentials strictly
confidential. Customer may assign different access rights to Permitted
Users (e.g., admin users, read-only users, etc.), as explained in the
Documentation. Customer is responsible for any and all actions taken by
Permitted Users or by anyone using Customer's accounts and passwords.
Subject to the terms and conditions of this Agreement, in addition to
Customer's employees, Customer may permit (a) its independent
contractors and consultants who are not competitors of Sciencesheet Inc.
("Contractors") and (b) Customer's Affiliates to serve as Permitted Users.
Customer will remain responsible for compliance by each of its Permitted
Users with all of the terms and conditions of this Agreement, and (except
as permitted in Section 1.5 (End User Analysis Access)) any use of
SCIENCESHEET STANDALONE for AWS by Permitted Users must be for the sole benefit of
Customer. Use of SCIENCESHEET STANDALONE for AWS by all Permitted Users in the
aggregate must be within the restrictions in the applicable Ordering
Document. "Affiliate" means each legal entity that is directly or indirectly
controlled by Customer on or after the Effective Date, for so long as such
entity remains directly or indirectly controlled by Customer (where
"controlled" means the ownership of, or the power to vote, directly or
indirectly, a majority of any class of voting securities of a corporation or
limited liability company, or the ownership of any general partnership
interest in any general or limited partnership).
1.5. End User Analysis Access. Subject to the terms and conditions of
this Agreement, Customer may also permit its customers ("Client
Sublicensees") to be Permitted Users of Customer's account to Sciencesheet Inc.
Server for AWS, but only so the Client Sublicensees may (1) interact with
SCIENCESHEET STANDALONE for AWS MSA (September 2015) Page 2
Analysis generated by Customer based on Customer Data using
SCIENCESHEET STANDALONE for AWS or (2) themselves create Analysis based on
Customer Data using SCIENCESHEET STANDALONE for AWS, provided that in each case
such Customer Data is relevant to Customer's provision of services to that
particular End User ("Analysis Access"). Client Sublicensees may not
upload any of their own data to SCIENCESHEET STANDALONE for AWS or otherwise use
SCIENCESHEET STANDALONE for AWS with any other data (other than Customer Data) or
for any other purposes except as expressly permitted in this paragraph.
Customer shall ensure that all Client Sublicensees' use of Sciencesheet Inc. Server for
AWS is limited as described in this Section 1.5 by designating the
appropriate access levels for Client Sublicensees within Sciencesheet Inc. Server for
AWS. Customer shall be solely responsible for its relationships with Client
Sublicensees and must notify Client Sublicensees that Sciencesheet Inc. will have no
warranty, support or other obligation or liability to any Client Sublicensee.
Customer shall be liable for all acts and omissions of Client Sublicensees.
For avoidance of doubt, Customer may only make available Analysis
Access to its Client Sublicensees during Customer's Subscription Term to
SCIENCESHEET STANDALONE for AWS, and Analysis Access will automatically cease
upon any termination or expiration of Customer's applicable subscription.
For purposes of this Section 1.5, "Customer Data" as defined in Section 2.1
below excludes data generated by a Client Sublicensee unless such data is
combined with Customer's data or is relevant to Customer's provision of
services to such Client Sublicensee.
1.6. Third-Party Code. The Software may contain or be provided with
components which are licensed from third parties ("Third Party Code"),
including components subject to the terms and conditions of "open source"
software licenses ("Open Source Software"). Open Source Software may be
identified in the Documentation, or in a list of the Open Source Software
provided to Customer upon written request. To the extent required by the
license that accompanies the Open Source Software, the terms of such
license will apply in lieu of the terms of this Agreement with respect to such
Open Source Software, including, without limitation, any provisions
governing access to source code, modification or reverse engineering.
1.7. General Restrictions. Customer shall not: (a) rent, lease, copy, sell,
provide access to or sublicense SCIENCESHEET STANDALONE for AWS to a third party, (b)
reverse engineer, decompile, disassemble, or otherwise seek to obtain the
source code or APIs to SCIENCESHEET STANDALONE for AWS, except to the extent
expressly permitted by applicable law (and then only upon advance notice
to Sciencesheet Inc.), (c) modify SCIENCESHEET STANDALONE for AWS or any Documentation, or
create any derivative product from any of the foregoing, (d) remove or
obscure any product identification, proprietary, copyright or other notices
contained in SCIENCESHEET STANDALONE for AWS (including any reports or data printed
via the use of SCIENCESHEET STANDALONE for AWS), (e) incorporate Sciencesheet Inc. Server for
AWS into any other offering (whether software as a service or otherwise),
(f) use SCIENCESHEET STANDALONE for AWS to develop a product which is competitive
with any Sciencesheet Inc. product offering or (g) publicly disseminate information or
analysis regarding the performance of SCIENCESHEET STANDALONE for AWS.
2. CUSTOMER DATA AND CUSTOMER OBLIGATIONS
2.1 Customer Data. "Customer Data" means any business information or
other data which Customer inputs, or provides to Sciencesheet Inc. for inputting, into
SCIENCESHEET STANDALONE for AWS.
2.2 Customer Obligations
(a) General. Customer shall ensure that Customer's use of Sciencesheet Inc. Server
for AWS and all Customer Data is at all times compliant with Customer's
privacy policies and all applicable local, state, federal and international law,
regulations and conventions, including without limitation those related to
data privacy, international communications and the exportation of technical
or personal data. Customer is solely responsible for the accuracy, content
and legality of all Customer Data. Customer represents and warrants to
Sciencesheet Inc. that Customer has sufficient rights in the Customer Data to
authorize Sciencesheet Inc. to process, distribute and display the Customer Data as
contemplated by this Agreement, and that the Customer Data and its use
hereunder will not violate or infringe the rights of any third party.
(b) Health Information. Customer will not submit to SCIENCESHEET STANDALONE for AWS
any patient, medical or other protected health information regulated by
HIPAA or any similar federal or state laws, rules or regulations ("Health
Information") and acknowledges that Sciencesheet Inc. is not a Business Associate
and that SCIENCESHEET STANDALONE for AWS is not HIPAA compliant. "HIPAA" means
the Health Insurance Portability Act, as amended and supplemented.
Sciencesheet Inc. shall have no liability under this Agreement for Health Information,
notwithstanding anything to the contrary herein.
(c) Payment Card Data. Customer will not submit to Sciencesheet Inc. Hosted Services
any payment card information. Customer acknowledges that Sciencesheet Inc. is not
compliant with the Payment Card Industry Data Security Standards.
2.3 Rights in Customer Data. As between the parties, Customer shall
retain all right, title and interest (including any and all intellectual property
rights) in and to the Customer Data as provided to Sciencesheet Inc.. Subject to the
terms of this Agreement, Customer hereby grants to Sciencesheet Inc. a nonexclusive,
worldwide, royalty-free right to use, copy, store, transmit,
distribute, perform and display (including publicly), modify and create
derivative works of the Customer Data solely to the extent necessary to
provide SCIENCESHEET STANDALONE for AWS.
2.4 Customer Requirements. Customer will (a) designate a primary point
of contact with the appropriate functional knowledge and skills to work with
Sciencesheet Inc. during the activation of SCIENCESHEET STANDALONE for AWS and (b) be
responsible for creation, updating, deletion, control, and support of
Customer Data and calculations used to create same.
2.5 Storage of Customer Data. Sciencesheet Inc. does not provide an archiving
service. Sciencesheet Inc. agrees only that it shall not intentionally delete any
Customer Data from SCIENCESHEET STANDALONE for AWS prior to termination of
Customer's applicable subscription. Sciencesheet Inc. expressly disclaims all other
obligations with respect to storage.
2.6 Aggregated Anonymous Data. In addition to the license rights in
Section 2.3, Sciencesheet Inc. may incidentally aggregate Customer's metadata and usage data
so that the results are non-personally identifiable with respect to Customer
("Aggregated Anonymous Data"), but does not guarantee its confidentiality or compliance. The Aggregated Anonymous Data will be deemed Sciencesheet Inc. Technology, and Customer acknowledges that Sciencesheet Inc. may use the Aggregated Anonymous Data (i) for its own internal, statistical analysis, (ii) to develop and improve SCIENCESHEET STANDALONE for AWS and (iii) to create and distribute reports and other materials regarding use of Sciencesheet Inc.Server for AWS. For clarity, nothing in this Section 2.6 gives Sciencesheet Inc. the
right to publicly identify Customer as the source of any Aggregated
Anonymous Data without Customer's prior written consent.
3.1. Sciencesheet Inc. Technology. This is a subscription agreement for use of
SCIENCESHEET STANDALONE for AWS and not an agreement for sale. Customer
acknowledges that it is obtaining only a limited right to use Sciencesheet Inc. Server
for AWS on a hosted basis and that irrespective of any use of the words
"purchase", "sale" or like terms hereunder no ownership rights are being
conveyed to Customer. Customer agrees that Sciencesheet Inc. or its suppliers retain
all right, title and interest (including all patent, copyright, trade secret and
other intellectual property rights) in and to SCIENCESHEET STANDALONE for AWS, the
Documentation, any other Sciencesheet Inc. deliverables and any and all related and
underlying software (including interfaces), databases (including data
models, structures, Aggregated Anonymous Data and any other non-
Customer specific data and statistical data), technology, reports and
documentation and all copies, modifications and derivative works thereof
(including any changes which incorporate any Feedback) (collectively,
"Sciencesheet Inc. Technology"). Further, Customer acknowledges that Sciencesheet Inc.
Server for AWS is offered as an on-line, hosted solution, and that Customer
has no right to obtain a copy of the SCIENCESHEET STANDALONE for AWS code itself.
Nothing in this Section 3.1 shall be deemed as granting Sciencesheet Inc. ownership
of Customer Data or in any way impacting Customer's ownership of
3.2. Feedback. Customer, from time to time, may submit comments,
information, questions, data, ideas, descriptions of processes, or other
information to Sciencesheet Inc. ("Feedback"). Sciencesheet Inc. may in connection with any
of its products or services freely use, copy, disclose, license, distribute and
SCIENCESHEET STANDALONE for AWS MSA (September 2015) Page 3
exploit any Feedback in any manner without any obligation, royalty or
restriction based on intellectual property rights or otherwise.
4. SUBSCRIPTION TERM, FEES & PAYMENT
4.1. Subscription Term. Unless otherwise specified on the applicable
Ordering Document, each Subscription Term shall begin on the effective
date of the applicable Ordering Document and expire twelve (12) months
thereafter. Approximately thirty (30) days prior to the expiration of the
Subscription Term, Sciencesheet Inc. may notify Customer of its opportunity to
renew the Subscription Term. Any renewals require mutual agreement and
all applicable fees for such renewals will be at Sciencesheet Inc.'s then-current rates.
If Customer's subscription is not renewed, Customer's access to Sciencesheet Inc.
Server for AWS will terminate at the end of the then-current Subscription
4.2. Fees and Payment. All fees are as set forth in the Ordering Document
and shall be paid by Customer within thirty (30) days of the effective date
of the applicable Ordering Document, unless otherwise specified in such
Ordering Document. Except as expressly set forth in Section 6 (Limited
Warranty) and Section 9.1 (Sciencesheet Inc. Indemnification for Intellectual
Property Infringement), all fees are non-refundable. Unless timely provided
with a valid certificate of exemption or other evidence that items are not
taxable, Sciencesheet Inc. will invoice Customer for all applicable taxes including, but
not limited to, VAT, GST, sales tax, consumption tax and service tax.
Customer will make all payments free and clear of, and without reduction
for, any withholding or other taxes; any such taxes imposed on payments
by Customer hereunder will be Customer's sole responsibility. Any late
payments shall be subject to a service charge equal to 1.5% per month of
the amount due or the maximum amount allowed by law, whichever is less.
4.3. Adding Permitted Users.
(a) Customer may increase its number of Permitted Users during a
Subscription Term at rates consistent with those in the applicable Ordering
Document (unless the parties agree to other rates) for the then-current
Subscription Term. The increase will be documented in an Ordering
Document or amended Ordering Document, and invoices for additional
Permitted Users will be payable according to Section 4.2 (Fees and
Payment). Customer may not reduce Permitted Users during a Subscription
(b) Customer understands that Sciencesheet Inc. may monitor Customer's use of
SCIENCESHEET STANDALONE for AWS in order to verify that Customer has not exceeded
its permitted number of Permitted Users, or Unreasonable or Unusual Activity. If Sciencesheet Inc. becomes aware of any such excess usage, then ScienceSheet reserves the right to suspend the account for precautionary purposes. Customer will pay for the previous excess usage adhere to usage under the same licensed terms as in subsection (a) above, to re-activate subscription.
4.4. Suspension of Services. If Customer's account is thirty (30) days or
more overdue, in addition to any of its other rights or remedies (including
but not limited to any termination rights set forth herein), Sciencesheet Inc. reserves
the right to suspend Customer's access to SCIENCESHEET STANDALONE for AWS without
liability to Customer until such amounts are paid in full.
5. TERM AND TERMINATION
5.1. Term. This Agreement is effective as of the Effective Date and expires
on the date of expiration or termination of all Subscription Terms.
5.2. Termination for Cause. Either party may terminate this Agreement
(including all related Ordering Documents and Subscription Terms) if the
other party (a) fails to cure any material breach of this Agreement (including
a failure to pay fees, normal usage) within thirty (30) days after written notice; (b) ceases
operation without a successor; or (c) seeks protection under any
bankruptcy, receivership, trust deed, creditors' arrangement, composition,
or comparable proceeding, or if any such proceeding is instituted against
that party (and not dismissed within sixty (60) days thereafter).
5.3. Effect of Termination. Upon any termination or expiration of this
Agreement, Customer shall immediately cease any and all use of and access
to SCIENCESHEET STANDALONE for AWS and delete (or, at Sciencesheet Inc.'s request, return) any and all copies of the Documentation, any Sciencesheet Inc. passwords or access
codes and any other Sciencesheet Inc. Confidential Information in its possession.
Customer acknowledges that, except as exported or printed prior to
termination or expiration by Customer as may be permitted through the
functionality of SCIENCESHEET STANDALONE for AWS, following termination or expiration
it shall have no further access to any Customer Data input into Sciencesheet Inc.
Server for AWS, and that Sciencesheet Inc. may delete any such data at any time.
Except where an exclusive remedy is specified in this Agreement, the
exercise by either party of any remedy under this Agreement, including
termination, will be without prejudice to any other remedies it may have
under this Agreement, by law, or otherwise.
5.4. Survival. The following Sections shall survive any expiration or
termination of this Agreement: Sections 1.7 (General Restrictions), 2.6
(Aggregated Anonymous Data), 3 (Ownership), 4.2 (Fees and Payment), 5
(Term and Termination), 6.3 (Warranty Disclaimer), 8 (Limitation of
Remedies and Damages), 9.2 (Indemnification by Customer), 10
(Confidential Information) and 11 (General Terms).
6. LIMITED WARRANTY
6.1. Limited Warranty. Sciencesheet Inc. warrants, for Customer's benefit only,
that SCIENCESHEET STANDALONE for AWS will operate in substantial conformity with the
applicable Documentation. Sciencesheet Inc. does not warrant that Customer's use
of SCIENCESHEET STANDALONE for AWS will be uninterrupted or error-free, nor does
Sciencesheet Inc. warrant that it will review the Customer Data for accuracy or that
it will preserve or maintain the Customer Data without loss. Sciencesheet Inc.'s sole
liability (and Customer's sole and exclusive remedy) for any breach of this
warranty shall be, in Sciencesheet Inc.'s sole discretion and at no charge to Customer,
to use commercially reasonable efforts to correct the reported nonconformity,
or if Sciencesheet Inc. determines such remedy to be impracticable, to
allow Customer to terminate the applicable Subscription Term and receive
as its sole remedy a refund of: (a) the monthly subscription fees specified
in the applicable Ordering Document which are allocable to the thirty (30)
day period prior to the date the warranty claim was made and (b) any fees
Customer has pre-paid for use of SCIENCESHEET STANDALONE for AWS or related services
it has not received as of the date of the warranty claim. The limited
warranty set forth in this Section 6.1 shall not apply: (i) unless Customer
makes a claim within thirty (30) days of the date on which the condition
giving rise to the claim first appeared, (ii) if the error was caused by misuse,
unauthorized modifications or third-party hardware, software or services
or (iii) to use provided on a no-charge or evaluation basis.
6.2. Exclusions. The above warranty shall not apply: (i) if Sciencesheet Inc. Server
for AWS is used with hardware or software not authorized in the
Documentation; (ii) to any Evaluation Access or other use provided on a no
charge or evaluation basis; or (iii) to any maps created using the Software
("Maps"), such functionality is provided purely for reference purposes.
Sciencesheet Inc. makes every effort to ensure the Maps are free of errors but does
not warrant the Maps or Map features are accurate. The boundaries and
names shown and the designations used in the Maps do not imply
endorsement or acceptance by Sciencesheet Inc..
6.3. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN
SECTION 6.1, SCIENCESHEET STANDALONE for AWS AND ALL SERVICES, INCLUDING
WITHOUT LIMITATION THE MAPS AND THE THIRD-PARTY CODE ARE
PROVIDED "AS IS". NEITHER Sciencesheet Inc. NOR ANY OF ITS SUPPLIERS MAKES
ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS.
HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, ANY STATUTORILY
REQUIRED WARRANTIES SHALL BE LIMITED AS PROVIDED HEREIN.
Sciencesheet Inc. SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE
FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE
REASONABLE CONTROL OF Sciencesheet Inc..
7. SUPPORT AND SECURITY. During the Subscription Term, Sciencesheet Inc.
Server for AWS is subject to the support terms and security procedures set
forth in the Sciencesheet Inc. Support Policy. Note that Beta Software does not carry any guarantee of support, and Sciencesheet does not accept responsibility for advice, information of guidance supplied by any related development community forums.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1. Waiver of Consequential Damages. NEITHER PARTY SHALL BE LIABLE
FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY
MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY
INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES
OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
SCIENCESHEET STANDALONE for AWS MSA (September 2015) Page 4
LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES IN ADVANCE.
8.2. Liability Cap. EACH PARTY'S ENTIRE LIABILITY AND OBLIGATION TO
THE OTHER PARTY SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY
CUSTOMER TO Sciencesheet Inc. UNDER THIS AGREEMENT DURING THE TWELVE
(12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
8.3. Excluded Claims. Sections 8.1 and 8.2 do not apply with respect to
claims arising under Section 1.7 (General Restrictions), 4.2 (Fees and
Payment), 11.15 (Export Control) or to amounts payable to third parties
under Section 9 (Indemnification).
8.4. Failure of Essential Purpose. The parties agree that the limitations
specified in this Section 8 will survive and apply even if any limited remedy
specified in this Agreement is found to have failed of its essential purpose.
9.1. Sciencesheet Inc. Indemnification for Intellectual Property Infringement.
Subject to Section 9.3 (Procedures) and the remainder of this Section 9.1,
Sciencesheet Inc. shall (a) defend Customer from and against any claim by a third
party alleging that SCIENCESHEET STANDALONE for AWS, when used as authorized under
this Agreement, directly infringes such third party's U.S. patent, U.S.
copyright, or U.S. trademark and (b) in relation to such claim, indemnify and
hold harmless Customer from any damages and costs finally awarded or
agreed to in settlement by Sciencesheet Inc. (including reasonable attorneys' fees).
If Customer's use of SCIENCESHEET STANDALONE for AWS is, or in Sciencesheet Inc.'s opinion is likely to be, enjoined due to the type of infringement specified above, if
required by settlement, or if Sciencesheet Inc. determines such actions are
reasonably necessary to avoid material liability, Sciencesheet Inc. may, in its sole
discretion: (i) substitute substantially functionally similar products or
services; (ii) procure for Customer the right to continue using Sciencesheet Inc.
Server for AWS; or if (i) and (ii) are not commercially reasonable, (iii)
terminate the Agreement and refund to Customer the fees paid by
Customer for the portion of the Subscription Term which was paid by
Customer but not rendered by Sciencesheet Inc.. The foregoing indemnification
obligation of Sciencesheet Inc. shall not apply: (1) if SCIENCESHEET STANDALONE for AWS is modified by any party other than Sciencesheet Inc., but solely to the extent the
alleged infringement is caused by such modification; (2) Sciencesheet Inc. Server for
AWS is combined with other non-SCIENCESHEET STANDALONE for AWS services or
processes not authorized by Sciencesheet Inc., but solely to the extent the alleged
infringement is caused by such combination; (3) to any unauthorized use of
SCIENCESHEET STANDALONE for AWS; (4) to any action arising as a result of Customer
Data or any third-party components contained within or uploaded to
SCIENCESHEET STANDALONE for AWS; or (5) if Customer settles or makes any admissions
with respect to a claim without Sciencesheet Inc.'s prior written consent. THIS
SECTION 9.1 SETS FORTH Sciencesheet Inc.'S SOLE LIABILITY AND CUSTOMER'S
SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF
INTELLECTUAL PROPERTY INFRINGEMENT.
9.2. Indemnification by Customer. Subject to Section 9.3 (Procedures),
Customer shall defend, indemnify and hold harmless Sciencesheet Inc. and its
employees, agents, successors and assigns from and against any and all
losses, damages, liabilities, costs and expenses arising from any claim based
on or arising from: (a) the Customer Data, including without limitation any
claim based on Customer's breach or alleged breach of Section 2.2
(Customer Obligations) or alleging that the Customer Data infringes upon
any valid patent, copyright, trademark, trade secret, or other proprietary
right of, or otherwise harms, such third party; (b) Customer's use of Sciencesheet Inc.
Server for AWS in violation of this Agreement; (c) any claims by or disputes
with Client Sublicensees; or (d) any claims, penalties, loss or damage arising
out of a breach of Customer's obligations under Section 11.15 (Export
9.3. Procedures. The obligations of each indemnifying party are
conditioned upon receiving from the party seeking indemnification: (i)
prompt written notice of the claim (but in any event notice in sufficient time
for the indemnifying party to respond without prejudice); (ii) the exclusive
right to control and direct the investigation, defense and settlement (if
applicable) of such claim; and (iii) all reasonable necessary cooperation of
the indemnified party.
10. CONFIDENTIAL INFORMATION.
Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing
Party") constitute the confidential property of the Disclosing Party
("Confidential Information"), provided that it is identified as confidential at
the time of disclosure or should be reasonably known by the Receiving Party
to be Confidential Information due to the nature of the information
disclosed and the circumstances surrounding the disclosure. Any Sciencesheet Inc.
Technology, performance information relating to SCIENCESHEET STANDALONE for AWS,
and the terms and conditions of this Agreement shall be deemed
Confidential Information of Sciencesheet Inc. without any marking or further
designation. Customer Data shall be deemed Customer's Confidential
Information without any marking or further designation. Except as
expressly authorized herein, the Receiving Party will hold in confidence and
not use or disclose any Confidential Information. The Receiving Party's
nondisclosure obligation shall not apply to information which the Receiving
Party can document: (i) was rightfully in its possession or known to it prior
to receipt of the Confidential Information; (ii) is or has become public
knowledge through no fault of the Receiving Party; (iii) is rightfully obtained
by the Receiving Party from a third party without breach of any
confidentiality obligation; or (iv) is independently developed by employees
of the Receiving Party who had no access to such information. The
Receiving Party may also disclose Confidential Information if so required
pursuant to a regulation, law or court order, but only to the minimum
extent required to comply with such regulation or order and with advance
notice to the Disclosing Party. The Receiving Party acknowledges that
disclosure of Confidential Information could cause substantial harm for
which damages alone would not be a sufficient remedy, and therefore upon
any such disclosure by the Receiving Party the Disclosing Party shall be
entitled to seek appropriate equitable relief in addition to whatever other
remedies it might have at law.
11. GENERAL TERMS
11.1. Assignment. This Agreement will bind and inure to the benefit of each
party's permitted successors and assigns. Neither party may assign this
Agreement except upon the advance written consent of the other party,
except that (a) either party may assign this Agreement in connection with a
merger, reorganization, acquisition or other transfer of all or substantially
all of such party's assets or voting securities and (b) Sciencesheet Inc. may assign this
Agreement to any direct or indirect parent, subsidiary or affiliate company.
For any assignment by Customer as permitted in the previous sentence: (i)
the assignee must not be a direct competitor of Sciencesheet Inc.; (ii) Customer must
provide prompt written notice of the assignment to Sciencesheet Inc.; and (iii) the
assignee must be capable of fully performing Customer's obligations under
this Agreement and must agree to be bound by the terms and conditions of
this Agreement. Any attempt to transfer or assign this Agreement except
as expressly authorized under this Section 11.1 will be null and void.
11.2. Severability. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited to the minimum extent necessary so that this
Agreement shall otherwise remain in effect.
11.3. Governing Law; Jurisdiction and Venue. Excluding conflict of laws
rules, this Agreement shall be governed by and construed under (a) the laws
of the State of Delaware, U.S. if Customer is located in North or South
America, (b) the laws of Singapore if Customer is located in Asia or Australia,
or (c) the laws of England and Wales if Customer is located outside of North
or South America, Asia and Australia. All disputes arising out of or in relation
to this Agreement shall be submitted to the exclusive jurisdiction of the
courts of (i) Wilmington, Delaware when the laws of Washington apply, (ii)
Singapore when the laws of Singapore apply, or (iii) London when the laws
of England and Wales apply. Nothing in this section shall restrict Sciencesheet Inc.'s
right to bring an action (including for example a motion for injunctive relief)
against Customer in the jurisdiction where Customer's place of business is
located. The United Nations Convention on Contracts for the International
Sale of Goods and the Uniform Computer Information Transactions Act, as
currently enacted by any jurisdiction or as may be codified or amended
from time to time by any jurisdiction, do not apply to this Agreement.
11.4. Attorneys' Fees and Costs. The prevailing party in any action to
enforce this Agreement will be entitled to recover its attorneys' fees and
costs in connection with such action.
SCIENCESHEET STANDALONE for AWS MSA (September 2015) Page 5
11.5. Sciencesheet Inc.'s Customer List. Customer agrees that Sciencesheet Inc. may disclose
Customer as a customer of Sciencesheet Inc. and use Customer's name and logo on
Sciencesheet Inc.'s web site and in Sciencesheet Inc.'s promotional materials.
11.6. Notice. Any notice or communication required or permitted under
this Agreement shall be in writing to the parties at the addresses set forth
on the Ordering Document or at such other address as may be given in
writing by either party to the other in accordance with this paragraph and
shall be deemed to have been received by the addressee: (i) if given by
hand, immediately upon receipt; (ii) if given by overnight courier service,
the first business day following dispatch or (iii) if given by registered or
certified mail, postage prepaid and return receipt requested, the second
business day after such notice is deposited in the mail.
11.7. Amendments; Waivers. No supplement, modification, or
amendment of this Agreement shall be binding, unless executed in writing
by a duly authorized representative of each party to this Agreement. No
waiver will be implied from conduct or failure to enforce or exercise rights
under this Agreement, nor will any waiver be effective unless in a writing
signed by a duly authorized representative on behalf of the party claimed
to have waived. No provision of any purchase order or other business form
employed by Customer, including any electronic invoicing portals and
vendor registration processes, will supersede the terms and conditions of
this Agreement, and any such document relating to this Agreement shall be
for administrative purposes only and shall have no legal effect.
Notwithstanding the foregoing, this paragraph does not limit Sciencesheet Inc.'s
rights to modify this Agreement as set forth in the preamble section above.
Further, Sciencesheet Inc. may modify the SCIENCESHEET STANDALONE for AWS Support policy discussed in Section 7 from time to time to reflect process improvements
or changing practices. However, the modifications will not materially
decrease Sciencesheet Inc.'s support or security obligations as compared to those in
effect as of the effective date of the then-current Subscription Term.
11.8. Entire Agreement. This Agreement (including each Ordering
Document, and any other mutually agreed exhibits or attachments) is the
complete and exclusive statement of the mutual understanding of the
parties and supersedes and cancels all previous written and oral
agreements and communications relating to the subject matter of this
Agreement. Customer acknowledges that SCIENCESHEET STANDALONE for AWS is an online, subscription-based product, and that in order to provide improved
customer experience Sciencesheet Inc. may make changes to SCIENCESHEET STANDALONE for AWS (which may include making available different or substitute Media Elements compared to those available as of the Effective Date), and Sciencesheet Inc. will update the Documentation accordingly.
11.9. Audit Rights. Upon Sciencesheet Inc.'s written request, Customer shall furnish
Sciencesheet Inc. with a signed certification certifying that SCIENCESHEET STANDALONE for AWS is
being used pursuant to the terms of this Agreement, including any access
and user limitations. With prior reasonable notice of at least 10 days,
Sciencesheet Inc. may audit the use of SCIENCESHEET STANDALONE for AWS by Customer provided such audit is during regular business hours. Customer is responsible for
such audit costs only in the event the audit reveals that Customer's use of
SCIENCESHEET STANDALONE for AWS is not in accordance with the permitted scope of
11.10. Force Majeure. Neither party shall be liable to the other for any
delay or failure to perform any obligation under this Agreement (except for
a failure to pay fees) if the delay or failure is due to unforeseen events which
occur after the signing of this Agreement and which are beyond the
reasonable control of such party, such as a strike, blockade, war, act of
terrorism, riot, natural disaster, failure or diminishment of power or
telecommunications or data networks or services, or refusal of a license by
a government agency.
11.11. Subcontractors. Sciencesheet Inc. may use the services of subcontractors
for performance of services under this Agreement, provided that Sciencesheet Inc.
remains responsible for (i) compliance of any such subcontractor with the
terms of this Agreement and (ii) the overall performance of Sciencesheet Inc. Server
for AWS as required under this Agreement.
11.12. Third Party Beneficiaries. Sciencesheet Inc. Software, Inc., its affiliates and
its licensors may be third party beneficiaries of this Agreement. No other
third party, including without limitation Client Sublicensees under Section
1.5, is intended to be a beneficiary of this Agreement entitled to enforce its
11.13. Independent Contractors. The parties to this Agreement are
independent contractors. There is no relationship of partnership, joint
venture, employment, franchise or agency created hereby between the
parties. Neither party will have the power to bind the other or incur
obligations on the other party's behalf without the other party's prior
11.14. Government End-Users. SCIENCESHEET STANDALONE for AWS is based upon
commercial computer software. If the user or licensee of Sciencesheet Inc. Server
for AWS is an agency, department or other entity of the United States
Government, the use, duplication, reproduction, release, modification,
disclosure or transfer of SCIENCESHEET STANDALONE for AWS, or any related
documentation of any kind, including technical data and manuals, is or may be
restricted by a license agreement or by this Agreement in accordance with
Federal Acquisition Regulation 12.212 for civilian purposes and Defense
Federal Acquisition Regulation Supplement 227.7202 for military purposes.
SCIENCESHEET STANDALONE for AWS was developed fully at private expense. All other
use is prohibited.
11.15. Export Control. In its use of SCIENCESHEET STANDALONE for AWS, Customer
agrees to comply with all export and import laws and regulations of the
United States and other applicable jurisdictions. Without limiting the
foregoing, (i) Customer represents and warrants that it is not listed on any
U.S. government list of prohibited or restricted parties or located in (or a
national of) a country that is subject to a U.S. government embargo or that
has been designated by the U.S. government as a "terrorist supporting"
country and (ii) Customer shall not (and shall not permit any of its Permitted
Users or others to) access or use the SCIENCESHEET STANDALONE for AWS in violation of
any U.S. export embargo, prohibition or restriction.