HOSTED SERVICES AGREEMENT
This Hosted Services Agreement (together with the applicable Order Form, the “Agreement”) is made and entered into as of ________ __, 2016 (“Effective Date”) between DATTUS Inc. (“DATTUS”), a Delaware corporation, and the customer identified on the signature page of this Agreement (“Customer”). All capitalized terms are defined in Section 9 of this Agreement. In consideration of the mutual promises and covenants contained in this Agreement, the parties agree as follows:
1. HOSTED SERVICES
1.1 Subject to Customer’s payment of the applicable Fees, DATTUS grants to Customer, on the terms and conditions set forth herein, a non-transferable, non-sublicensable, non-exclusive, limited right to access and use the Hosted Services to monitor the performance, efficiency and reliability of Customer’s Authorized Machines, through Customer’s Internet browser member login provided by DATTUS and through any mobile application that DATTUS may make available to Customer from time to time. Except as set forth herein, Customer may not change or modify the Hosted Services in any way. Nothing herein grants any rights to Customer to rent, resell, or to remarket the Hosted Services or to provide access to the Hosted Services to any third party.
1.2 Customer shall ensure that its Users shall comply with the terms and conditions of this Agreement, and understands that each User will be required to accept the terms and conditions governing such User’s access to any mobile application, website or other method by which DATTUS provides access to the Hosted Services, as such terms and conditions may be required or updated by DATTUS from time to time. If there is a conflict between such terms and conditions and this Agreement, this Agreement controls. Customer shall not permit its Users to use the Hosted Services or to access the Hosted Services other than as expressly provided herein. A breach by any User of any provision of this Agreement shall constitute a breach by Customer. At DATTUS’s request, Customer will promptly terminate a User’s access to the Hosted Services if DATTUS reasonably believes that such individual is in breach of system security or is otherwise misusing or abusing the Hosted Services or access to the Hosted Services. DATTUS reserves the right to suspend or terminate any part or portion of the Hosted Services if it reasonably believes that Customer or any User is misusing or abusing such Hosted Services or is otherwise in breach of this Agreement. Nothing in this Section 1.2 imposes on DATTUS an obligation to supervise or monitor use of the Hosted Services.
1.3 Customer represents and warrants to DATTUS that it shall not use, or permit its Users to use, the Hosted Services in any way that violates any applicable law, infringes or violates the rights of others including, but not limited to, third party Intellectual Property Rights, privacy, and publicity rights, or interfere with other users of DATTUS’s services.
1.4 Customer shall be permitted concurrent access and use of the Hosted Services for an unlimited number of concurrent Users. DATTUS will assign an activation code to Customer and Customer must then assign and manage accounts for individual Users., Customer’s assigned username and associated credentials (including passwords and activation codes) shall be maintained as confidential by Customer and shall not be distributed or disclosed, except to employees of DATTUS with a need to know in accordance with this Agreement. It is Customer’s responsibility to immediately terminate a username and/or password upon its knowledge or belief that such username and/or password is or may be subject to a breach of this Agreement, including without limitation a breach of confidentiality.
1.5 Customer shall not, and shall not permit any person or entity to: (i) use the Hosted Services on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of the Hosted Services; (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Hosted Services or any software component of the Hosted Services; (iv) use, or allow the use of, the Hosted Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations; (v) introduce in or to the Hosted Services any virus or implement a denial of service attack or introduce or implement any other code or routine which results in disruption or damage to the Hosted Services, alter, damage or delete any data or retrieve or record information about the Hosted Services or its uses; or (vi) act in a fraudulent, tortious malicious, or negligent manner when using the Hosted Services. Customer will promptly notify DATTUS of any complaints or objections to Customer’s use of the Hosted Services made by a third party.
1.6 Customer shall, at its own cost and expense, provide all equipment, operating systems, and software (including Internet browser) needed to use and access the Hosted Services in accordance with the technical requirements in DATTUS’s documentation. To the extent not already provided by DATTUS, Customer shall also provide, at its own cost and expense, all connections from its computer systems to the Hosted Services, including all cellular and other network connections necessary to access the functionality of the Hosted Services or of any hardware or other product provided to Customer by DATTUS.
1.7 To the extent requested by Customer and set forth in the Order Form, DATTUS shall to implement the Hosted Services for Customer in exchange for the Implementation Fee. To the extent applicable, Customer may be required to install Hardware in accordance with DATTUS’s instructions regarding such installation in order to access the Hosted Services. Customer acknowledges and agrees that its use of the software embedded on such Hardware is governed by a Hardware-Embedded Software End User License Agreement that Customer will be required to accept at the time it installs such Hardware. DATTUS agrees to use commercially reasonable efforts to respond to any service related inquiries by Customer within 24 hours, during normal business hours.
1.8 Customer hereby grants to DATTUS an irrevocable, perpetual, royalty-free, paid up, transferable, sublicensable, non-exclusive license to copy, modify, make derivative works of, publicly perform, display and otherwise use all data generated by Customer through use of the Hosted Services, except that DATTUS may only use such data publicly in the form of Anonymized Data (and Customer understands and agrees that DATTUS may use Anonymized Data without restriction).
1.9 Customer covenants that it will only supply DATTUS or the Hosted Services with data that Customer has the right to supply for the purposes set forth in this Agreement.
1.10 To the extent the Hosted Services include software development kits (“SDKs”) or application programming interfaces (“APIs”) provided by DATTUS to Customer, Customer acknowledges and agrees that DATTUS shall have no liability or responsibility of any kind with respect to Customer’s use of such SDKs or APIs. Customer further agrees that such SDKs and APIs are the Confidential Information of DATTUS and that Customer may only use such SDKs or APIs to the extent necessary to ensure interoperability of the Hosted Services or Hardware with Customer’s existing information technology infrastructure. All Customer use of such SDKs and APIs shall be consistent with the terms and conditions of this Agreement.
2.1 Fees shall be payable in accordance with the Order Form.
2.2 In the event of late payment, DATTUS may add a monthly interest charge equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the highest lawful rate allowed, on the unpaid balance of an invoice. DATTUS may add the cost of reasonable attorney fees required to collect on the unpaid balance of an invoice. DATTUS may suspend Hosted Services if Customer does not pay Fees promptly.
2.3 Customer is responsible for paying all applicable fees and taxes it may incur in connection with access to the Hosted Services. Customer agrees to pay amounts equal to any Federal, state or local sales, use, excise, privilege or other taxes or assessments, however designated or levied, relating to any amounts payable by Customer to DATTUS hereunder, this Agreement or any Hosted Services provided by DATTUS to Customer pursuant hereto and any taxes or amounts in lieu thereof paid or payable by DATTUS, excluding taxes based on DATTUS’s net income.
3.1 Customer acknowledges that the structure, organization, and code used in conjunction with the Hosted Services are proprietary to DATTUS and/or DATTUS’s supplier(s), and that DATTUS and/or its suppliers retain exclusive ownership of the Hosted Services, documentation, and any other Intellectual Property Rights relating to the Hosted Services, including all modifications, enhancements, derivatives, and other software and materials relating to the Hosted Services, and all copies thereof. Customer shall not sell, transfer, publish, disclose, display or otherwise make available the Hosted Services including any modifications, enhancements, derivatives, and other software and materials provided hereunder by DATTUS or copies thereof to others in violation of this Agreement. Hosted Services shall be deemed to be Confidential Information hereunder and subject to the confidentiality restrictions set forth in Section 4. Except as otherwise expressly permitted hereunder, Customer agrees not to copy or otherwise reproduce the Hosted Services including any modifications, enhancements, derivatives, and other materials developed or provided hereunder by DATTUS, in whole or in part. Customer shall not remove any proprietary, copyright, trademark, or service mark legend from any Hosted Services including any modifications, enhancements, derivatives, and other materials provided by DATTUS. Customer agrees to make all necessary and reasonable efforts to comply with the above provisions in the same manner which Customer takes to secure and protect its own confidential information, but no less than reasonable care, in order to maintain DATTUS’s rights therein and to take appropriate action by instruction or agreement with its Users who are permitted access to the Hosted Services.
3.2 Customer acknowledges that “DATTUS” and any other trademarks, service marks or catchphrases adopted by DATTUS to identify the Hosted Services and other DATTUS services belong to DATTUS.
3.3 Customer hereby grants to DATTUS a perpetual, irrevocable, royalty-free, non-exclusive license to use any Feedback for any purpose.
4.1 Each party acknowledges that either party may receive Confidential Information from the other during the Term. The receiving party shall disclose the other party’s Confidential Information only to persons within the receiving party having the need to know the information for the purpose of this Agreement. The receiving party shall treat Confidential Information as it does its own valuable and sensitive information of a similar nature, and, in any event, with not less than reasonable care. Upon the disclosing party’s written request, the receiving party shall return or certify the destruction of all Confidential Information of the disclosing party.
4.2 The obligations of either party under Section 4.1 will not apply to information that the receiving party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) is or becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party, (iv) can be proven to have been independently developed by the receiving party without reference to the Confidential Information of the disclosing party. Further, the receiving party may disclose Confidential Information to the extent such disclosure is required by applicable law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s cost and expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information.
4.3 Failure on the part of the receiving party to abide by this Section 4 may cause the disclosing party irreparable harm for which damages, although available, may not be an adequate remedy at law. Accordingly, the disclosing party has the right to seek an injunction to prevent any violations or attempted violations of this Section 4 and seek to recover court costs and reasonable attorney fees incurred by the disclosing party in the enforcement of this Section.
4.4 Customer shall immediately inform DATTUS of (a) any claim or proceeding involving the Hosted Services that comes to its attention; and (b) any facts it becomes aware of indicating that any person is infringing any Intellectual Property Rights of DATTUS or is engaging in unauthorized distribution of any Hosted Services.
4.5 Customer agrees that DATTUS may disclose that Customer is a user of the Hosted Services and may use Customer’s name as part of DATTUS’s customer lists.
5.1 Subject to Section 5.4, Customer shall indemnify and hold DATTUS, its directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all liabilities, losses, costs, expenses, (including reasonable attorney fees), and damages relating to or arising from or in connection with (i) the use of the Hosted Services by Customer, or any of its Users, whether or not Customer has knowledge of or has authorized any unpermitted access or use; (ii) any information or results obtained through use of the Hosted Services or access to Hosted Services; (iii) Customer’s breach of applicable law; or (iv) Customer’s gross negligence or willful misconduct.
5.2 Subject to Section 5.4, DATTUS shall indemnify and hold Customer, its directors, officers, employees, suppliers, agents, successors, and assigns harmless from and against all liabilities, losses, costs, expenses, (including reasonable attorney fees), and damages relating to or arising from or in connection with a claim alleging that the Hosted Services directly infringe a copyright, a U.S. patent issued as of the Effective Date or a trademark of any party.
5.3 In connection with satisfying its obligations hereunder, DATTUS shall have the right, at any time and at its option and expense to (i) procure for Customer the right to continue using Hosted Services; (ii) replace or modify Hosted Services to be free of the direct infringement; or (iii) discontinue provision of Hosted Services and refund any prepaid unused Usage Fee on a pro rata basis for the remainder of the Term.
5.4 A party’s obligations to indemnify the other party with respect to any third party claim, action or proceeding shall be conditioned upon the indemnified party: (i) providing the indemnifying party with prompt written notice of such claim, action or proceeding, unless the indemnifying party would not be materially prejudiced thereby, (ii) permitting the indemnifying party to assume and solely control the defense of such claim, action or proceeding and all related settlement negotiations, with counsel chosen by the indemnifying party, and (iii) cooperating at the indemnifying party’s request and expense with the defense or settlement of such claim, action or proceeding which cooperation shall include providing reasonable assistance and information. No indemnified party shall enter into any settlement agreement for which it will seek indemnification under this Agreement from the indemnifying party without the prior written consent of the indemnifying party. Nothing herein shall restrict the right of a party to participate in a claim, action or proceeding through its own counsel and at its own expense.
6.1 DATTUS warrants to Customer that, during the Term of this Agreement, the Hosted Services will, under normal operation when used as authorized herein, perform substantially in accordance with the documentation provided to Customer. DATTUS’s sole obligation and Customer’s exclusive remedy for any breach of this warranty is limited to (i) reperformance or replacement of the Hosted Services by DATTUS, or (ii) in the event that DATTUS is unable to reperform or replace the specific non-conforming Hosted Services after using its commercially reasonable efforts, a payment by DATTUS of an amount equal to the Usage Fee paid by Customer for such non-conforming Hosted Services for the quarter in which the Hosted Services were non-conforming. DATTUS’s obligations hereunder for breach of the warranty are conditioned upon Customer notifying DATTUS of the breach in writing within forty-eight (48) hours after Customer first becomes aware of the breach, and providing DATTUS with sufficient documentation of such non-conformity to enable DATTUS to reproduce and verify the same.
6.2 Customer acknowledges that any reports, data or information generated, obtained or acquired through the use of the Hosted Services is at Customer’s sole risk and discretion. DATTUS and its suppliers are not liable or responsible for any results generated through the use of the Hosted Services.
6.3 NEITHER DATTUS NOR ITS SUPPLIERS WARRANT OR REPRESENT THAT THE HOSTED SERVICES OR ACCESS TO THE HOSTED SERVICES WILL BE ERROR-FREE, UNINTERRUPTED OR SECURE. OPERATION OF THE HOSTED SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF DATTUS’S OR ITS LICENSORS’ OR SUPPLIER’S CONTROL.
6.4 EXCEPT AS PROVIDED IN THIS SECTION 6, DATTUS AND ITS SUPPLIERS MAKE AND GIVE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND GUARANTIES, WHETHER ORAL OR WRITTEN, IMPLIED OR STATUTORY, WITH REGARD TO THE HOSTED SERVICES AND ANY COMPONENTS THEREOF, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
7. LIMITATION OF LIABILITY
7.1 NEITHER DATTUS NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY PROPERTY DAMAGE OR PERSONAL INJURIES OR DEATH CAUSED BY THE USE OF THE HOSTED SERVICES, REPORTS PRODUCED THROUGH USE OF THE HOSTED SERVICES, OR BY ANY ERRORS, DELAYS, OR FAILURES OF THE HOSTED SERVICES OR INTERRUPTIONS IN THE TRANSMISSION OF THE HOSTED SERVICES.
7.2 SUBJECT TO SECTION 7.4, DATTUS’ AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER HEREUNDER DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS FROM WHEN THE CLAIM FOR LIABILITY AROSE.
7.3 SUBJECT TO SECTION 7.4, NEITHER DATTUS OR ITS SUPPLIERS SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH, OR RELATING TO, THIS AGREEMENT, HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, OR OTHER LEGAL THEORY, AND EVEN IF DATTUS HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY DATTUS.
7.4 The parties agree that (i) the limitations of this Section 7 shall not limit the parties’ indemnification obligations pursuant to Section 5 and (ii) the limitations specified in Section 6 and Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. Customer acknowledges that DATTUS has set the Fees and entered into this Agreement in reliance on the disclaimers of warranty and the limitations of liability set forth in this Agreement and that the same forms an essential basis of the bargain between the parties.
8. TERM AND TERMINATION
8.1 This Agreement shall have a term (“Term”) that commences on the Effective Date and ends on the earlier of (i) the expiration of the Initial Period, if Renewal is not indicated on the Order Form, and (ii) termination of this Agreement pursuant to this Section 8.
8.2 If Renewal is indicated on the Order Form, this Agreement will automatically renew for successive terms equal in length to the Renewal period indicated on the Order Form (each, a “Renewal Period”), beginning at the end of the Initial Period and continuing until terminated in accordance with this Section 8 (“Renewal”). The Usage Fee for all Authorized Machines for a Renewal Period will be due on the first day of each such Renewal Period. DATTUS shall communicate the applicable Usage Fee to Customer at least sixty (60) days before the beginning of such Renewal Period. From one Renewal Period to the next Renewal Period, DATTUS shall not increase the Usage Fee (as measured on a per-Authorized Machine-per-unit-time basis) by more than 3% per year, except that DATTUS may increase the Usage Fee by more than such amount if additional services or features have been added to the Hosted Services. Either party may terminate this Agreement, effective as of the final day of the then-current Renewal Period, upon at least thirty (30) days prior written notice to the other party.
8.3 Each party may terminate this Agreement upon thirty (30) days prior written notice to the other party if the other party materially breaches this Agreement and fails to correct the breach within such thirty (30) day period, provided, however, that DATTUS may terminate this Agreement upon fifteen (15) days prior written notice in the event Customer fails to pay Fees when due and fails to correct such non-payment within such fifteen (15) day period. Furthermore, each party may terminate this Agreement upon written notice if the other party ceases to conduct business (except for Force Majeure), becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency which is not dismissed within sixty (60) days, or makes an assignment for the benefit or its creditors. Notwithstanding anything herein to the contrary, in the event of termination under this Section 8.3 all amounts due under this Agreement shall be paid within ten (10) days of such termination. DATTUS shall have no obligation to provide any refund to Customer in the event of a termination.
8.4 Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by circumstances beyond such party’s reasonable control, which may include strike, riot, fire, natural disaster, utilities and communications failures, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non performing party (“Force Majeure”), provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible.
8.5 Termination will be in addition to and not in lieu of any equitable remedies available to DATTUS. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other arising from or incident to any suspension or termination of this Agreement by such party or any expiration hereof which complies with the terms of the Agreement, whether or not such party is aware of any such damage, loss or expenses.
9.1 “Anonymized Data” shall mean any data generated by Customer through use of the Hosted Services that is reasonably de-identified, any aggregates thereof or any aggregates of Customer’s data generally.
9.2 “APIs” shall have the meaning set forth in Section 1.10 hereof.
9.3 “Authorized Machines” shall mean the number of Customer’s machines set forth on the Order Form.
9.4 “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known to the public and which has been or is hereafter disclosed or made available by either party (the “disclosing party”) to the other (the “receiving party”) in connection with the efforts contemplated hereunder, including (i) all trade secrets, (ii) the Hosted Services and any portion thereof (including features, dashboard, interface design, and similar features) and (iii) the Customer’s data (subject to Sections 1.8 and 1.9). However, each of Anonymized Data or Feedback is not Confidential Information.
9.5 “Customer” shall have the meaning set forth in the introductory paragraph of this Agreement.
9.6 “Effective Date” shall mean the date that Customer agrees to this Agreement.
9.7 “Feedback” means any suggestion or other feedback provided by Customer to DATTUS.
9.8 “Fees” means Usage Fee and Implementation Fee.
9.9 “Force Majeure” shall have the meaning set forth in Section 8.4 hereof.
9.10 “Hardware” means a DATTUS Connect™ device provided by DATTUS to Customer and any other hardware provided by DATTUS to Customer that includes embedded software.
9.11 “Hosted Services” means the DATTUS Portal and hosted services for which Customer has contracted under the Order Form, which may include, from time to time, software development kits and application programming interfaces provided by DATTUS.
9.12 “Implementation Fee” means the implementation fee set forth on the Order Form, if applicable.
9.13 “Initial Period” shall have the meaning set forth on the Order Form.
9.14 “Intellectual Property Rights” means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, copyright, and any applications or right to apply for registration therefore, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, in any media, whether registered or unregistered, and whether first made or created before or after the Effective Date.
9.15 “Renewal” shall have the meaning set forth in Section 8.2 hereof.
9.16 “Renewal Period” shall have the meaning set forth in Section 8.2 hereof.
9.17 “SDKs” shall have the meaning set forth in Section 1.10 hereof.
9.18 “Order Form” means the order form signed by DATTUS and Customer setting forth the details of Customer’s subscription to the Hosted Services, which subscription is governed by the terms and conditions in this Agreement.
9.19 “Term” shall have the meaning set forth in Section 8.1 hereof.
9.20 “Usage Fee” means, (i) with respect to the Initial Period, the usage fee set forth on the Order Form, and (ii) with respect to each Renewal Period, if applicable, the usage fee communicated from DATTUS to Customer in accordance with Section 8.2.
9.21 “User” means any employee, agent and/or representative acting on behalf of Customer that has been registered by Customer and authorized to access the Hosted Services by DATTUS and for whom Customer has issued a username and password supplied by DATTUS. Each User shall be issued a separate username and password which shall be used only by such User.
10.1 This Agreement shall be governed by the laws of the State of Indiana without regard to its principles of conflicts of law where such principles would permit the application of the law of any other jurisdiction. Each party expressly consents to the jurisdiction of the state and federal courts of the State of Indiana to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum. The parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any state having jurisdiction and shall not be governed by the United Nations Convention on the International Sale of Goods.
10.2 Customer may not assign or transfer this Agreement in whole or in part to any third party. This Agreement shall bind and inure to the benefit of the parties to this Agreement and their respective successors, permitted transferees, and permitted assigns. No provision of this Agreement shall be deemed to confer upon any person any remedy, claim, liability, reimbursement, cause of action, or other right whatsoever.
10.3 Neither party shall hire or directly or indirectly solicit for employment, or induce, or actively attempt to influence any employee, contractor, or agent of the other party to terminate employment or discontinue a contractor or other business association with the other party during the Term and for twenty four (24) months thereafter; provided, however, that either party may solicit or recruit generally in the media, and shall not be prohibited from hiring any individual or contractor who answers any advertisement.
10.4 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement shall remain in full force and effect. Accrued obligations and Sections 1.5, 1.8, 1.9, 2, 3, 4, 5, 6.2, 6.3, 6.4, 7, 8.3, 8.4, 8.5, 9 and 10 will survive termination or expiration of the Agreement for any reason.
10.5 Customer hereby warrants that Customer is not a Restricted Person. For purposes of this Agreement, Customer is a Restricted Person if Customer or any officer, director, or controlling shareholder of Customer is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If Customer becomes a Restricted Person during the term of this Agreement, Customer shall notify DATTUS within twenty-four (24) hours, and DATTUS shall have the right to terminate any further obligations to Customer, effective immediately and with no further liability to Customer, but without prejudice to Customer’s outstanding obligations to DATTUS. Customer agrees that Customer shall not utilize the Hosted Services to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. Customer may not remove or export from the United States or allow the export or re-export of the Hosted Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
10.6 DATTUS and Customer are not partners or in a joint venture; neither party is the agent, representative nor employee of the other party; and nothing in this Agreement will be construed to create any relationship between them other than an independent contractor relationship. Neither party will have any responsibility nor liability for the actions of the other party except as expressly provided herein. Neither party will have any right or authority to bind or obligate the other party in any manner or make any representation or warranty on behalf of the other party. Customer’s employees are not and shall not be deemed to be employees of DATTUS. Customer shall be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of Customer’s personnel.
10.7 All notices and other legal communications permitted or required to be given under this Agreement shall be deemed to have been duly given if such notice of communication shall be in writing and sent by personal delivery or by airmail, cable, telegram, telex, facsimile transmission or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid, to the parties at addresses specified herein until such time as either party hereto shall give the other party hereto written notice of a change of address in accordance with the provisions hereof.
10.8 Each party acknowledges and agrees that this Agreement, taken together with the Hardware-Embedded Software End User License Agreement governing the use of the DATTUS software embedded on DATTUS-provided hardware, is the complete statement of the agreement between the parties, and that the Hardware-Embedded Software End User License Agreement and this Agreement supersede all prior proposals, understandings and arrangements, oral or written, between the parties relating to this Agreement. In the event of a conflict between this Agreement and the Hardware-Embedded Software End User License Agreement, this Agreement controls.
10.9 The Hosted Services are specifically not developed or licensed for help in managing nuclear, aviation, mass transit, and medical applications or in any other inherently dangerous application. Customer agrees that DATTUS and its suppliers shall not be liable for any claims or damages arising from Customer’s use of the Hosted Services for managing such applications or facilities used in connection with such applications. Customer agrees to indemnify and hold DATTUS harmless from any claims for losses, costs, damages or liability arising out of in connection with its use of the Hosted Services in managing such applications.
10.10 The parties agree that DATTUS may issue a press release regarding the signing of this Agreement, and that Customer will provide a suitable quote. Any other or any additional news releases, public announcements, advertisements, or publicity proposed to be released by either party in connection with the Agreement will be subject to the written consent of the other party prior to release, such consent not to be unreasonably withheld (other than as set forth in Section 4.5). Full consideration and representation of the respective roles and contributions of both parties shall be given in any such statement.
10.11 The headings of the sections and paragraphs of this Agreement shall be for convenience only. Except where the context otherwise requires, the words “including”, “includes” or “include” shall be deemed to be followed by “without limitation” and the word “or” shall be construed in its inclusive sense (i.e., “and/or”).
10.12 Notwithstanding anything herein to the contrary, DATTUS may fulfill any of its obligations under this Agreement through third party service providers and suppliers.
By entering into an Order Form, the parties have duly executed this Hosted Services Agreement as of the execution date of such Order Form.