The following Fabric Genomics Service Terms and Conditions (the “Terms of Service”) govern the use of the online Fabric Enterprise software-as-a-service bioinformatics solutions and associated software services, software tools and databases (collectively the “Fabric Enterprise System”) along with any other professional, clinical support, consulting or other services (collectively, together with the Fabric Enterprise System, the “Services”) provided by FABRIC GENOMICS, INC., a Delaware corporation (“COMPANY”). By signing up or registering for, agreeing to order or purchase, or using any of the Services, the person or entity who (or on whose behalf its representative) does any of the foregoing (the “CUSTOMER”), agrees to be bound by these Terms of Service.
PLEASE READ THIS TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICES. If CUSTOMER does not want to agree to these Terms of Service, CUSTOMER and its representatives should not access or use the Services or sign up, register, purchase or order the Services, because such actions will constitute CUSTOMER’s acknowledgment and agreement to these Terms of Service.
The type and scope of the Services provided by COMPANY hereunder, together with pricing, fees, and other parameters and details regarding the Services will be set forth on one or more purchase agreements, orders, online sign-up or registration forms or similar documents or forms that are mutually executed by CUSTOMER and COMPANY or provided by COMPANY and accepted by CUSTOMER (each an “Order”), which Orders are incorporated herein by reference. Subject to CUSTOMER’s payment of the fees set forth in the Order and to the other terms and conditions of this Terms of Service, COMPANY will (a) permit CUSTOMER to access and use the portions of the Fabric Enterprise System specified in the Order via online access (and/or, if applicable, as otherwise specified in the Order) during the applicable Service Period (as defined below), and (b) provide to CUSTOMER during the applicable Service Period such other Services that are specified in the applicable Orders. Access to and use of the Fabric Enterprise System and any other Services shall be solely for CUSTOMER’s internal business purposes (including, if applicable, to provide CUSTOMER’s products or services to CUSTOMER’s own clients, patients, customers or users in the ordinary course of Customer’s business) and not for the benefit of any other person or entity, and such access and use shall otherwise be subject to all applicable laws and regulations. Any modifications, updates, fixes, additions, new features or tools which are added by COMPANY to the Fabric Enterprise System, or otherwise specified in Order as being part of the Services, shall be also subject to the Terms of Service and deemed part of the Fabric Enterprise System and/or Services hereunder. The “Effective Date” of this Terms of Service shall be the earlier to occur of the date CUSTOMER first accepts or agrees to the Order or this Terms of Service, or the date CUSTOMER first uses or accesses the Services.
- FABRIC ENTERPRISE SYSTEM ACCESS AND USE
The Fabric Enterprise System is made available by COMPANY to CUSTOMER via the internet or comparable online access (except to the extent the Order otherwise expressly specifies). If the Order specifies a limited number or type of authorized user, then only that number and/or type of employees and contractors of CUSTOMER or a CUSTOMER Affiliate (as defined below) expressly designated in the Order (each, an “Authorized User”) shall be permitted to access and use the Fabric Enterprise System hereunder. If Authorized Users are not so specified in the Order, then solely those employees and contractors under the direct supervision and control of CUSTOMER shall be Authorized Users hereunder. CUSTOMER shall not permit or facilitate any use of, or otherwise provide access to (including by service bureau access or otherwise), the Fabric Enterprise System by anyone other than the Authorized Users.
- USAGE RESTRICTIONS AND LIMITATIONS
CUSTOMER’s right to access and use the Fabric Enterprise System or other Services is limited by, and subject to, any specific usage limitations and parameters specified in the applicable Order (for example, and without limitation, limits on the number of genes or samples). CUSTOMER’s right to access and use the Fabric Enterprise System and other Services is nonexclusive, nontransferable, nonsublicenseable, and revocable. CUSTOMER shall have no right to, and shall not, directly or indirectly, reverse engineer, decompile, copy, modify, spider, crawl, create derivative works of or based on, sell, resell, display, distribute, disseminate, rent, lease or assign or transfer its right to use, the Fabric Enterprise System or any part thereof. Notwithstanding the foregoing, CUSTOMER may copy, print and use reports generated by the Fabric Enterprise System in the course of CUSTOMER’s proper use thereof hereunder, in accordance with the standard functionality of the Fabric Enterprise System. CUSTOMER shall not directly or indirectly: (a) enter, store or transmit any infringing, libelous or otherwise unlawful or tortious information or material or transmit information or material in violation of third party privacy or other rights, in all such cases within, through, to or using the Fabric Enterprise System; (b) enter, store or transmit viruses, worms or other malicious code within, through, to or using the Fabric Enterprise System; (c) remove, alter or conceal any copyright or trademark or other proprietary rights notices incorporated in or accompanying the Fabric Enterprise System; (d) interfere with or disrupt the integrity or performance of the Fabric Enterprise System; or (e) use any robot, spider, site search/retrieval application, or other device, software or technology to retrieve or index any portion of Fabric Enterprise System or collect information for any unauthorized purpose. CUSTOMER shall immediately notify COMPANY of any violation or attempt to violate any of the restrictions or limitations on use or access to the Fabric Enterprise System specified in this Terms of Service upon first becoming aware of such violation or attempted violation. COMPANY may from time to time audit CUSTOMER’s use of the Fabric Enterprise System (e.g., through use of software tools) to verify CUSTOMER’s compliance with the restrictions and limitations set forth herein.
- USER ACCOUNTS
When CUSTOMER signs up or registers with COMPANY for, or agrees to order or purchase from COMPANY, the Fabric Enterprise System or other Services, CUSTOMER agrees that all information provided to COMPANY relating to CUSTOMER will be true, accurate, current and complete. CUSTOMER agrees to promptly update all such information whenever any of it changes. CUSTOMER is entirely responsible for maintaining the confidentiality of CUSTOMER’s account information, credentials and password. CUSTOMER agrees not to (a) use the account, username, credentials or password of another person or entity when using the Fabric Enterprise System, or (b) disclose CUSTOMER’s password, username or credentials to, or share CUSTOMER’s account with, any third party or allow or authorize any individual or entity that is not an Authorized User to use CUSTOMER’s account, credentials or user ID for any Services. CUSTOMER agrees to notify COMPANY immediately if CUSTOMER suspects any unauthorized use of CUSTOMER’s account or access to CUSTOMER’s password or account for any Services. CUSTOMER is solely responsible for any and all access and use of the Fabric Enterprise System or other Services that occurs under CUSTOMER’s account.
- THIRD PARTY SOFTWARE AND DATA
The Fabric Enterprise System may contain third party databases, algorithms, tools, software and other third party technology and intellectual property. The license granted to CUSTOMER herein, and CUSTOMER’s access to and use of the Fabric Enterprise System, is subject to the applicable terms and conditions of any license agreements with any such third party and CUSTOMER agrees to comply with such terms, including those listed by reference at www.fabricgenomics.com/third-party-tools/; which listed terms and conditions CUSTOMER hereby agrees to.
- PROPRIETARY RIGHTS
COMPANY shall retain all of its rights, title and interest in and to the Fabric Enterprise System and other Services and to any other technology and intellectual property of COMPANY, including without limitation any improvements or developments thereto, subject only to the rights expressly granted in this Terms of Service. No rights or licenses are granted hereunder, by implication or otherwise, except as expressly provided for herein. For the avoidance of doubt, nothing herein restricts or limits COMPANY from using or providing Services or any other services to any third party or for its own purposes. No software, data, information, technology or other materials or intellectual property are sold or transferred hereunder; instead only the limited right to access and use the Fabric Enterprise System (and other Services, if applicable), as expressly provided for in this Terms of Service, is granted hereunder.
CUSTOMER is solely responsible for ensuring that its access to and use of the Services (including any use of the results or data therefrom) is in compliance with all applicable laws, rules, regulations and guidance and CUSTOMER shall otherwise comply with such laws, rules and regulations in connection with this Terms of Service. Without limiting the foregoing, CUSTOMER shall ensure that any use or application of the Services by or for CUSTOMER for clinical or diagnostic use complies with all applicable laws, rules and regulations and that CUSTOMER has obtained all approvals, permits and authorizations required for such use and application. CUSTOMER acknowledges that the Services are not designed or approved for use as a diagnostic or medical device and the Services and its output, data and reports do not constitute diagnoses or clinical recommendations. Any clinical or diagnostic interpretations, results, recommendations or analyses using data or reports from the Services must be done solely by CUSTOMER and not by the Services or COMPANY, and CUSTOMER shall independently approve, validate and confirm any such interpretations, results, recommendation or analyses, using appropriately licensed professionals, before using them for any clinical or diagnostic purposes. Subject to the foregoing, COMPANY affirms that the Fabric Enterprise System is designed to comply with the data privacy and security requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) and COMPANY employs privacy and security policies and practices designed to safeguard the accessibility, integrity, and confidentiality of User Data (defined in 9(a) below) entered into the Fabric Enterprise System consistent with the HIPAA requirements and industry standard practices. If required for compliance with HIPAA, the parties shall enter into a reasonable and customary business associate agreement in connection with this Terms of Service. The Order may specify certain limited exceptions to the foregoing with respect to certain Services provided by appropriately licensed COMPANY personnel, if and to the extent expressly specified in such Order solely with respect to such specified Services. For example, if the Order specifies that any clinical support Services are certified by the Clinical Laboratory Improvement Amendments of 1988 (“CLIA”) and/or accredited by the College of American Pathologists (“CAP”), then COMPANY will comply with the applicable requirements of CLIA and/or CAP in connection with providing such Services.
- SUPPORT AND SERVICE LEVELS
COMPANY shall provide CUSTOMER with e-mail and messaging support for the Services provided to CUSTOMER under an Order through designated COMPANY and CUSTOMER contact individuals during COMPANY’s regular business hours in accordance with COMPANY’s standard support policies and procedures and/or as set forth on the Order. Subject to the terms and conditions of this Terms of Service, COMPANY shall use commercially reasonable efforts to make the portions of the Fabric Enterprise System provided to CUSTOMER under an Order available for use by CUSTOMER on a regular basis, except for: (a) planned downtime, which COMPANY shall schedule to the extent practicable during the weekend hours; (b) unavailability caused by third party service or technology providers used by COMPANY to provide the Services; (c) unavailability caused by circumstances beyond COMPANY’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, internet service provider failures or delays, denial of service attacks, (d) unavailability caused by third party software, hardware or data, or (e) unavailability caused by CUSTOMER (such as problems with the User Data or CUSTOMER’s information technology infrastructure, computers or software or CUSTOMER’s failure to use the Fabric Enterprise System in accordance with this Terms of Service). If COMPANY makes generally available any updates, fixes or modifications to the portions of the Fabric Enterprise System provided to CUSTOMER under an Order, it shall also make them available to CUSTOMER as well (it being understood that COMPANY does not have any obligation to make generally available any such updates, fixes or modifications in the first place). Notwithstanding the foregoing, this Section 8 shall not apply to, and COMPANY shall have no support, service level or related obligations with respect to any Services provided for free, without charge or for evaluation purposes only or any beta or non-production versions of the Fabric Enterprise System.
- USER DATA
(a) User Data. All data, information, communications, text, files, photographs, graphics, video, messages or other materials or content, uploaded, submitted, posted or otherwise provided to the Fabric Enterprise System (and/or to COMPANY in connection with other Services) by or for CUSTOMER, including without limitation genomic sequences, exomes, variant files, specific DNA sequences, sample information, annotations, gene sets, variant sets and associated patient information including PHI (collectively, “User Data”), shall be subject to applicable terms of this Terms of Service. CUSTOMER hereby confirms, represents and warrants that CUSTOMER has and will comply with all applicable laws, rules, regulations, and guidance with respect to its collection, provision and use of User Data in connection with its use of the Services and this Terms of Service. CUSTOMER further confirms, represents and warrants that CUSTOMER has the full right and authority to, and has obtained all necessary authorizations, licenses and consents to: (i) collect the User Data and provide the User Data to the Fabric Enterprise System (and, if applicable, other Services); (ii) analyze, store and otherwise use such User Data in the Fabric Enterprise System; (iii) authorize COMPANY to provide the Services and otherwise perform its obligations hereunder with or using the User Data; and (iv) to grant COMPANY the rights in User Data expressly set forth herein, without violating the intellectual property, privacy or other rights of any individuals or entities and without violating any applicable laws, rules or regulations. Under no circumstance will COMPANY be liable for any User Data, including any errors or omissions in any User Data, or for any loss, liability or damage of any kind incurred as a result of the use of or reliance upon any User Data or the analysis thereof in accordance with this Terms of Service.
(a) Confidential Information. As used herein, “Confidential Information” means all non-public or proprietary information disclosed or made available by one party (the “Disclosing Party”) to the other party (the “Recipient”) under or in connection with this Terms of Service, whether orally, in writing or otherwise. Confidential Information of COMPANY shall include the Fabric Enterprise System (including details on how it functions and is structured or organized, details of the content and materials contained therein, and its underlying software code, systems, procedures, and processes) as well as COMPANY’s technical information, product plans and designs. Confidential Information of CUSTOMER shall include the User Data.
(b) Restrictions on Use and Disclosure. The Recipient shall use the same degree of care that Recipient uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) to preserve the confidentiality of the Confidential Information of Disclosing Party. The Recipient agrees (a) not to use any Confidential Information of Disclosing Party for any purpose other than to perform its obligations and exercise its rights under this Terms of Service, and (b) not to disclose or publish any Confidential Information of Disclosing Party (except as expressly authorized in this Terms of Service or by Disclosing Party in writing and) except to those employees, contractors and service providers of the Recipient who need access to such information for purposes consistent with this Terms of Service and who are bound by obligations of confidentiality and non-use with respect to such Confidential Information which are no less protective than the confidentiality provisions herein.
(c) Exclusions. Notwithstanding the foregoing, Recipient may disclose Confidential Information if compelled by law or judicial order to do so, provided Recipient gives Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and reasonably practicable) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure. Furthermore, the foregoing restrictions on use and disclosure shall not apply to any information that: (i) is or becomes generally known to the public without the fault of Recipient; (ii) was known to Recipient prior to its disclosure or availability by or from Disclosing Party as evidenced by contemporaneous documentation; (iii) is rightfully received by Recipient from a third party without breach of any obligation owed to Disclosing Party; or (iv) was independently developed by Recipient without use of or reference to the Confidential Information of Disclosing Party.
- USE OF NAMES
COMPANY shall not use CUSTOMER’s name and logo in any press release, advertising or publicity without CUSTOMER’s prior written consent, except that COMPANY may use CUSTOMER’s name and logo to identify CUSTOMER as a customer or user of the Fabric Enterprise System without prior consent. Upon COMPANY’s reasonable request, CUSTOMER may agree (at its discretion) to act as a reference for COMPANY from time to time for other prospects, industry analysts and the media. CUSTOMER, or CUSTOMER’s third party licensors, as applicable, retain any intellectual property rights in CUSTOMER’s name and logo, subject to the foregoing rights and licenses. CUSTOMER may use COMPANY’s name and logo to identify COMPANY as a supplier of the Fabric Enterprise System but otherwise all public use of COMPANY’s name and logo require COMPANY’s prior written consent. COMPANY, or COMPANY’s third party licensors, as applicable, retain any intellectual property rights in COMPANY’s name and logo, subject to the foregoing rights and licenses.
CUSTOMER shall include an appropriate, readily discernible and specific reference to the applicable portion of the Fabric Enterprise System within any methods section of any scientific articles and presentations, or any other articles, presentations, web postings or other publications resulting from CUSTOMER’s use of the Fabric Enterprise System. CUSTOMER shall also include any required notices and attributions specified in the third party terms and conditions referenced above for use of third party databases and software.
- FEES AND PAYMENT TERMS
(a) Fee Amounts and Payment Terms. CUSTOMER shall pay COMPANY the fees and other charges set forth on the Orders (“Fees”) in accordance with the pricing and other payment terms for the Services set forth therein. Except as otherwise provided in the Orders, all Fees and other payments due from CUSTOMER hereunder shall be payable within thirty (30) working days of COMPANY’s invoice therefor. All past due invoices and any Fees not paid when due shall bear interest at a rate of 1% per month or, if less, the maximum rate allowed under applicable law. All Fee payment obligations are non-cancelable and all Fees paid are non-refundable and non-creditable. CUSTOMER’s obligation to pay for Services rendered shall survive termination of this Terms of Service. All Fees are payable in United States dollars by check or wire transfer of immediately available funds to an account designated by COMPANY.
(c) Taxes. CUSTOMER is responsible for paying (and all Fees are exclusive of) any taxes, levies, duties or similar governmental assessments of any nature associated with CUSTOMER’s use of or access to the Fabric Enterprise System or other Services or the payment of Fees under this Terms of Service (other than taxes on COMPANY’s net income). If COMPANY has the legal obligation to pay or collect taxes, levies, duties or similar assessments for which CUSTOMER are responsible hereunder, COMPANY may add the appropriate amount to amounts charged to and paid by CUSTOMER hereunder.
- WARRANTIES AND DISCLAIMERS
(a) Limited Warranty, COMPANY hereby represents and warrants to CUSTOMER that the Fabric Enterprise System (excluding any User Data or other third party data or third party algorithms or other third party technology), when used in accordance with this Terms of Service, will not infringe a third party’s intellectual property rights. CUSTOMER’s sole and exclusive remedy and COMPANY’s sole and exclusive liability for breach of the foregoing warranty shall be the indemnification and related remedies set forth in Section 16 below.
(b) Information Provided on an “As Is” Basis; Assumption of Risk. CUSTOMER acknowledges that CUSTOMER is fully assuming the risks arising from the use of any reports, data, articles, publications, content, materials, reports, analyses, third party databases, third party tools and other information generated by, available on, or otherwise provided through the Fabric Enterprise System or the other Services, whether or not originating from third party sources (collectively, “Fabric Content”). Such risks shall include, but are not limited to, erroneous, inaccurate or invalid results or information, omissions, misrepresentations, and similar issues. CUSTOMER agrees that COMPANY shall not be liable or responsible for any damages, liabilities, costs, harms, business disruptions or expenditures of any kind that may arise from or in connection with CUSTOMER’s use or application of any Fabric Content. All Fabric Content is provided for CUSTOMER’s convenience only on an “as is” basis without warranty of any kind. COMPANY does not warrant, guarantee, endorse, support, represent, verify or otherwise have any responsibility for the completeness, truthfulness, accuracy or reliability of any Fabric Content. All use of and reliance upon any such information shall be solely CUSTOMER’s responsibility and at CUSTOMER’s sole risk. The Fabric Enterprise System may contain links to third party websites or resources. CUSTOMER acknowledges and agrees that COMPANY is not responsible or liable for the availability or accuracy of such websites or resources or the content, products or services on or available therefrom. Links to such websites and resources do not imply any endorsement by COMPANY thereof or the content, products or services thereon. CUSTOMER acknowledges and assumes sole responsibility for and assumes all risk arising from CUSTOMER’s use of any such websites or resources.
(c) Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS TERMS OF SERVICE, THE PARTIES DO MAKE ANY, AND EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE FABRIC ENTERPRISE SYSTEM, SERVICES AND OTHER SUBJECT MATTER OF THIS TERMS OF SERVICE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY WARRANTIES OF PRIOR COURSE OF DEALING, USAGE OF TRADE OR THAT THE FABRIC ENTERPRISE SYSTEM OR OTHER SERVICES WILL MEET CUSTOMER’S REQUIREMENTS.
- LIMITATION OF LIABILITY
THE PARTIES EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS TERMS OF SERVICE OR CUSTOMER’S USE OF THE FABRIC ENTERPRISE SYSTEM, FABRIC CONTENT, OTHER SERVICES AND USER DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL COMPANY’S (OR ITS AFFILIATES’, OFFICERS’, DIRECTORS’, EMPLOYEES’, AGENTS’ AND LICENSORS’) CUMULATIVE LIABILITY TO CUSTOMER FOR DIRECT DAMAGES EXCEED THE GREATER OF (A) TEN THOUSAND DOLLARS, AND (B) THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE WHEN THE CLAIM FOR SUCH DAMAGES FIRST AROSE, EXCEPT TO THE EXTENT SUCH LIMITATION IS NOT PERMITTED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to the extent applicable law so requires.
(a) CUSTOMER Indemnity. CUSTOMER agrees to defend, indemnify, and hold harmless COMPANY, its officers, directors, employees and agents, from and against any and all claims, actions, suits or proceedings (collectively “Claims”), brought by a third party against any such indemnified parties, and any liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, directly resulting from such Claims, which Claims are arising out of or in connection with (i) CUSTOMER’s use of any reports or results from the Fabric Enterprise System; (ii) CUSTOMER’s violation of the Terms of Service; (iii) CUSTOMER’s violation of any applicable laws, rules or regulations in connection with CUSTOMER’s use of the Fabric Enterprise System or other Services or any Fabric Content or User Data; (iv) any User Data submitted, posted, uploaded or provided by CUSTOMER; or (v) CUSTOMER’s provision of diagnostic, testing, clinical or medical information or services to CUSTOMER’s customers, patients or users that involved to any extent the use of or access to the Fabric Enterprise System, other Services or any Fabric Content. CUSTOMER’s obligations to indemnify, defend and hold harmless shall not apply to the extent the Claims are caused by COMPANY’s gross negligence, breach or willful misconduct.
(b) COMPANY Indemnity. COMPANY agrees to defend, indemnify, and hold harmless CUSTOMER, its officers, directors, employees and agents, from and against any and all Claims, brought by a third party against any such indemnified parties, and any liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, directly resulting from such Claims, which Claims are arising out of or in connection with (i) COMPANY’s violation of the Terms of Service; (ii) COMPANY’s violation of any applicable laws, rules or regulations in connection with this Terms of Service or the Services provided thereunder; or (iii) a claim by a third party that the Fabric Enterprise System (excluding any User Data or other third party data or third party algorithms or other third party technology), when used in accordance with this Terms of Service, infringes the third party’s intellectual property rights. COMPANY’s obligations to indemnify, defend and hold harmless shall not apply to the extent the Claims are caused by CUSTOMER’s gross negligence, breach or willful misconduct.
(c) Indemnification Procedures. With respect to any obligation to indemnify, defend or hold harmless above, the indemnified party shall (i) give the indemnifying party reasonably prompt written notice of any Claim of which the indemnified party becomes aware that is subject to an indemnification obligation above, (ii) provide the indemnifying party with the right to control the defense and settlement of such Claim; provided that any settlement thereof must be approved by both parties (not to be unreasonably withheld); and (iii) reasonably cooperate with the indemnifying party in the defense and settlement of any such Claim, at the indemnifying party’s expense. The indemnified party shall be entitled to participate in the defense of any Claim (at its own expense) and to employ counsel at its own expense to assist in the handling of any Claim.
(d) Certain Infringement Claims. If any Claim for infringement described in Section 16(b)(iii) has occurred, or in COMPANY’s reasonable determination is likely to occur, COMPANY may, in its sole discretion and at its option and expense (a) obtain for CUSTOMER the right to continue to use the Fabric Enterprise System, (b) substitute a functionally equivalent, non-infringing replacement for such the Fabric Enterprise System, (c) modify the Fabric Enterprise System to make it non-infringing and functionally equivalent, or (d) terminate this Terms of Service and refund to CUSTOMER any prepaid amounts attributable the period of time between the date CUSTOMER was unable to use the Fabric Enterprise System due to such Claim and the remaining days in the then-current term period of this Terms of Service.
- TERM AND TERMINATION
(a) Term and Termination. The term of this Terms of Service shall initially be for the period commencing on the Effective Date and ending on the first date when all Service Periods (as defined below) in any pending or outstanding Orders have terminated or expired, provided, however, that if this Terms of Service is in effect but there is no pending or outstanding Order and/or the only remaining Service Period lacks a definitive end date, either party may terminate this Terms of Service upon written notice to the other party. Without limiting any other remedies, either party may terminate this Terms of Service (and all then-existing Orders and Service Periods), in the event that the other party breaches this Terms of Service (including upon any failure to pay Fees when due) upon fifteen (15) days’ notice, unless the other party has cured such breach before the end of such fifteen day period. COMPANY reserves the right to immediately suspend CUSTOMER’s access to and use of the Fabric Enterprise System in the event of any breach of this Terms of Service which threatens immediate harm to the Fabric Enterprise System, COMPANY or third parties. The term for which CUSTOMER may access and use a particular portion or aspect of the Fabric Enterprise System and/or a particular other Service (each a “Service Period”) shall be set forth in the applicable Order, or, if not so stated, shall be a period of one (1) year from the date of the Order therefor, unless earlier terminated or extended as expressly provided for in the Order or this Terms of Service.
(b) Effect of Termination. Upon termination or expiration of this Terms of Service: (i) all licenses and other rights granted to CUSTOMER by this Terms of Service and any Order (and all obligations of COMPANY to provide any Services) will immediately cease and terminate; (ii) all Orders and Service Periods shall terminate to the extent not already terminated or expired; and (iii) CUSTOMER shall cease using and cease accessing the Fabric Enterprise System and other Services. Upon termination or expiration of any Service Period for particular Services, all licenses and other rights granted to CUSTOMER by this Terms of Service and the Order for with respect to such Services (and all obligations of COMPANY to provide any such Services) will immediately cease and terminate, and CUSTOMER shall cease using and cease accessing the applicable portions of the Fabric Enterprise System and/or such other Services for which such Service Period expired or terminated. COMPANY is not liable to CUSTOMER or any third party for termination of the Fabric Enterprise System or termination of CUSTOMER’s use of the Fabric Enterprise System or the other Services due to the expiration or termination of this Terms of Service or a given Service Period in accordance with the terms hereof and the applicable Order. CUSTOMER is encouraged to retain copies of all CUSTOMER’s User Data; however, for a period of thirty (30) days after the effective date of termination, COMPANY will make the User Data contained in the Fabric Enterprise System as of such termination date available to CUSTOMER upon written request prior to the end of such thirty day period.
(c) Survival. Upon any termination or expiration of this Terms of Service, Sections 3, 6, 7, 9, 10, 12, 14(b), 14(c), 15, 16, 18(b), 18(c) and 19 through 23 of this Terms of Service shall survive and remain in full force and effect. Furthermore, any obligations or liabilities of the parties which have accrued prior to such termination or expiration, including without limitation any outstanding obligation to pay Fees due or payable prior to termination or expiration, shall survive such termination or expiration of this Terms of Service and remain in full force and effect. All other provisions of this Terms of Service shall terminate upon such termination or expiration of this Terms of Service and shall thereupon be of no force or effect.
All notices, consents and approvals hereunder shall be in writing, personally delivered or sent by certified mail, nationally-recognized overnight courier service, or electronic mail, addressed to the other party at its respective address set forth in the Order or at such other address as such party shall from time to time designate, in writing, to the other party; and shall be effective from the date of receipt or refusal of delivery.
- GOVERNING LAW
This Terms of Service shall be governed by and construed in accordance with laws of the State of California, without reference to or application of its conflicts or law or choice of law rules or principles. In the event it becomes necessary for either party to commence an action to enforce the terms of this Terms of Service, to obtain moneys for its breach or to collect any monies owed hereunder, the prevailing party, as determined by the court, shall be entitled to recover its attorneys’ fees and costs in addition to whatever relief it may otherwise be entitled.
This Terms of Service may be executed in multiple counterparts and by way of an exchange of facsimile or other electronic copies (e.g., PDF), each of which counterparts shall be considered an original and which counterparts together shall constitute one and the same Terms of Service.
Each party shall be an independent contractor of the other and nothing contained herein shall be construed as appointing either party or any of its agents, employees or representatives or authorizing any of them to represent the other in any matter. Nothing in this Terms of Service shall be construed as creating a joint venture, partnership, employer-employee or agency relationship between the parties. Neither party may assign any of its rights or obligations under this Terms of Service to any third party without the express, written consent of the other party; provided, however, that COMPANY may assign this Terms of Service along with all Orders (or assign its rights or delegate its obligations under this Terms of Service and/or any Order) without such consent to (a) its affiliate, or (b) in connection with any merger, consolidation, reorganization, acquisition or sale of COMPANY or of all or substantially all of the assets of COMPANY to which this Terms of Service relates. These Terms of Service and the Orders shall bind and inure to the benefit of the parties and their respective successors and assigns (subject to the restrictions on assignment above). A failure to exercise or delay in exercising a right or remedy provided by this Terms of Service or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies, nor shall a waiver of any right hereunder at any given time, including rights to any payments, be deemed a waiver thereof for any other time. If any one or more provisions of this Terms of Service shall be found to be illegal or unenforceable in any respect, it is the intent of the parties that the remainder of the Terms of Service shall remain in full force and effect and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section headings contained in this Terms of Service are for reference purposes only and shall not affect in any way the meaning and interpretation of this Terms of Service. CUSTOMER agrees that: (a) by submitting suggestions, recommendations or other ideas regarding the Fabric Enterprise System or other Services to COMPANY or any of its employees or representatives, CUSTOMER automatically grants COMPANY a license to any of CUSTOMER’s intellectual property rights in these suggestions, recommendations and ideas; and (b) any such suggestions, recommendations or ideas regarding the Fabric Enterprise System or other Services submitted or provided to COMPANY or any of its employees or representatives automatically become licensed to COMPANY. Accordingly, CUSTOMER hereby grants to COMPANY a royalty-free, worldwide, irrevocable, perpetual, sublicenseable license to use and incorporate into the Fabric Enterprise System and any applicable Services any suggestions, enhancement requests, comments, recommendations, feedback or other ideas provided or submitted by or for CUSTOMER regarding the Fabric Enterprise System or other Services or the operation or functionality of any of the foregoing (which license shall survive any expiration or termination of this Terms of Service).
- ENTIRE AGREEMENT
This Terms of Service, along with the Order and any associated agreement expressly referenced herein as applying hereunder, contain the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements, understandings and arrangements between the parties relating to the subject matter hereof, including without limitation (and the parties hereby reject) any CUSTOMER purchase order or other CUSTOMER communication or document regarding the Fabric Enterprise System or other Services (and the terms and conditions of any such CUSTOMER purchaser order, communication or document will be null and void unless and until agreed to in writing by COMPANY). No amendment, change, waiver, modification or alteration of the terms and conditions hereof shall be binding unless in writing, signed by both parties. For the avoidance of doubt, and notwithstanding the foregoing, any modified or updated version of this Terms of Service posted, provided or published by COMPANY shall apply to any new Orders entered into after the date of such posting, provision or other publication (but shall not apply to any then-existing Orders unless the parties expressly agree otherwise in writing). The terms and conditions of this Terms of Service shall take precedence over the terms and conditions of any Order, except to the extent the Order expressly states otherwise.