These Service Terms (these “Terms”) govern any Orders between Cairn Insights Technology, LLC, a Delaware limited liability company (“Cairn”) and the Client party named therein (each, a “Party” and collectively the “Parties”), and, together with the BAA (as defined below) and any Exhibits attached to or incorporated by Client’s Orders, collectively form the “Agreement” between the Parties.
The following definitions supplement other capitalized terms defined in the Agreement:
Provision. Cairn will provide the Professional Services in a timely, workmanlike and professional manner in accordance with industry practice, and in accordance with each Order’s descriptions, phases, timeline and responsibilities therein, subject to Client’s cooperation and timely provision of its obligations.
Additional Professional Services. Client may elect from time-to-time to obtain from Cairn additional Professional Services or custom Professional Services. The parties will agree on a Statement of Work in a supplemental Order to describe the fees, costs and expenses payable by Client to Cairn and any assumptions or dependencies relating to such Professional Services.
Provision. Subject to the provisions of the Agreement, Cairn will make available to Client and its Authorized Users on a non-exclusive and non-transferable basis the Platform Services and Documentation.
Access and Use Rights. Client will be responsible for providing its own Internet access to the Platform Services. Cairn may specify reasonable procedures in the Documentation according to which Client and Authorized Users may establish and obtain such access to and use of the features and functions of the Platform Services through the Internet, including, without limitation, provision of any access codes, passwords, web-sites, connectivity standards or protocols, or any other relevant procedures.
In general.
Use of Client Data. Subject to the provisions of this Agreement, Cairn shall have the non-exclusive, royalty-free, limited right and license to use the Client Data to provide and improve the Services and to perform its obligations under the Agreement. Cairn shall comply with the BAA in processing any Client Data that is subject to the BAA.
Changes to Services. A Party may request a modification to the Platform Services, Professional Services, or any applicable Order by written request to the other Party. Changes to an Order or SOW will become effective only when executed by authorized representatives of both Parties.
Limitations on Use. Except as otherwise provided in the Agreement, Client will not: (i) sell, rent, lease, sublicense or otherwise transfer or distribute the Platform Services or Documentation or any copies of the Platform Services or Documentation; (ii) modify, translate, reverse engineer, decompile or disassemble the Platform Services; (iii) create or prepare derivative works based upon the documentation delivered by or with the Services; (v) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Platform Services or Documentation; (vi) use any Documentation in violation of the Agreement.
Except for the license and other rights granted to Client in the Agreement, Cairn retains all right, title and interest in and to the Services, Documentation and Cairn’s Confidential Information, including all Intellectual Property Rights therein. Further, Client acknowledges and agrees that the Services, the delivery and methodology and derivatives thereof, ideas, methods of operation, modifications, changes, enhancements, conversions, upgrades, additions, sub-systems and modules included in the Platform Services are proprietary material which contain valuable trade secrets of Cairn.
Cairn acknowledges and agrees that, as between the Parties, Client exclusively owns all right, title, and interest in and to Client’s Confidential Information and Client Data.
Upon termination, Cairn will promptly destroy or, upon Client’s request, return Client’s Confidential Information and, subject to the BAA, any PHI (as defined therein).
Subject to Sections 3 (Ownership) and 5 (CONFIDENTIALITY), each Party will be free to use any general concepts, techniques, feedback, and know-how provided to it, used by it, or developed in the course of this relationship.
Client will pay Cairn the fees and charges set forth in the applicable Order (“Fees”).
All Fees and other amounts payable by Client under the Agreement are due and payable, and subject to dispute, as provided in the Order. In the event Client disputes any Fees, the Parties agree to use good faith efforts to promptly resolve any such dispute within thirty (30) days.
Except for taxes based upon Cairn’s income or for goods or services used or consumed by Cairn in connection with providing the Services under the Agreement, Client will be responsible for all sales, use, excise, duties, tariffs, or any other form of taxes (excluding withholding taxes related to Cairn, its personnel or subcontractors) resulting from Client’s use or receipt of the Services or imposed, levied or assessed in connection with Client’s use or receipt of the Services, unless Client provides Cairn with a valid tax exemption certificate authorized by the appropriate taxing authority. Notwithstanding the foregoing, Cairn will use reasonable, permissible efforts to minimize the tax burden to Client.
The term of the Agreement will commence as specified by the initial Order. If any subsequent Orders are executed by the Parties referencing the Agreement, the Agreement will continue in effect with respect to the term of such subsequent Orders. The “Term” means the term of such initial Orders and any subsequent Orders, including renewals and extensions.
A Party will have the right to terminate the Agreement or any Order in whole or in part, for cause if the other Party commits a material breach which is incapable of cure or remains uncured thirty (30) days after the nonbreaching Party’s written notice.
Either Party will have the right to terminate the Agreement by providing written notice to the other Party upon the occurrence of any of the following events, but only to the extent such events are not dismissed within 60 days from the date such events first occurred: (i) a receiver is appointed for the other Party; (ii) the other Party makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (iii) the other Party commences or has commenced against it, proceedings under any bankruptcy law; or (iv) the other Party ceases to do business.
If Client fails to pay or dispute any Fees when due, Cairn will provide written notice to Client. If Client has not made payment within thirty (30) days of the original due date, Cairn may elect to suspend the provision of Services until payment is received. If payment remains outstanding for sixty (60) days from the due date, Cairn may, upon written notice, terminate the Agreement in its entirety.
Except as otherwise specified in the Agreement, upon termination of the Agreement: (i) the licenses and rights granted hereunder will be terminated and Client will immediately cease using the Platform Services and any Cairn Confidential Information, (ii) the Receiving Party will promptly destroy all Disclosing Party Confidential Information. Client’s obligation to pay Fees incurred pursuant to an Order will survive any termination.
During the Term and thereafter, each Party will treat as confidential all Confidential Information of the other Party, will not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, will implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the other Party’s Confidential Information and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such Party under the Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the Parties will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under the Agreement, but in no event less than reasonable care.
Except as otherwise provided below, Confidential Information will not include, or will cease to include, as applicable, Confidential Information that the Receiving Party can document and prove: (a) is or becomes generally available to the public through no improper action or inaction by the Receiving Party; (b) was known by the Receiving Party or in the Receiving Party’s possession prior to receipt of the Disclosing Party’s Confidential Information as shown by the Receiving Party’s business records kept in the ordinary course; (c) is disclosed with the prior written approval of the Disclosing Party; (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information and provided that the Receiving Party can demonstrate such independent development by documented evidence prepared contemporaneously with such independent development; or (e) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of the Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights. The exclusions in this section will not apply with respect to Authorized User Data or any other personal or private data that requires protection under applicable laws or regulations.
The Receiving Party may disclose Confidential Information of the other Party only pursuant to the order or requirement of a court, administrative agency, or other governmental body and only provided that the Receiving Party provides prompt, advance written notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. In the event such a protective order is not obtained by the Disclosing Party, the Receiving Party will disclose only that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose. Confidential Information so disclosed will continue to be deemed Confidential Information as between the Parties hereto.
If either Party breaches any of its obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, the other Party is entitled to seek equitable and injunctive relief in addition to all other remedies that may be available to protect its interest.
Upon the Disclosing Party’s written request and upon termination or expiration of the Agreement, the Receiving Party will promptly return or destroy, at the Disclosing Party’s option, all tangible copies of the Disclosing Party’s Confidential Information.
Cairn represents and warrants to Client that:
Client represents and warrants to Cairn that:
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION AND AS PERMITTED BY LAW, WARRANTIES AS TO SATISFACTORY QUALITY, MERCHANTABILITY, ACCURACY OF RESULTS, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CAIRN DOES NOT WARRANT THAT THE Platform Services WILL BE COMPLETELY ERROR FREE OR THAT THE USE OF THEREOF WILL BE UNINTERRUPTED OR PROBLEM OR ERROR-FREE.
Neither Party will be liable to the other for any loss, damage, delay or breach in performing any obligations hereunder to the extent resulting from any cause or event beyond the control of the Party being released hereby, including acts of God, telecommunication or power suppliers, and acts or omissions of civil or military authorities, but only to the extent such Party being released did not contribute to and could not have reasonably prevented or mitigated the impact thereof.
Cairn will defend, indemnify and hold Client and its successors, parents, subsidiaries, affiliates, officers, directors, employees, users, and attorneys harmless from and against any and all losses, damages, costs, judgments, liabilities, and expenses (including reasonable outside attorneys’ fees and court costs) (collectively, “Losses”) resulting from any third party claims, demands, or proceedings (a “Claim”) arising out of: (i) any breach by Cairn of the BAA, (ii) any breach by Cairn of Section 7(a) (REPRESENTATIONS AND WARRANTIES.) or Section 5 (CONFIDENTIALITY); or (iii) asserting that the Platform Services, or the use thereof (as permitted under the Agreement) infringes or misappropriates any third party’s Intellectual Property Rights.
Client shall indemnify, defend, and hold Cairn, its officers, directors, employees, agents, representatives, affiliates and licensors harmless against any liabilities, damages, and costs (including reasonable outside attorneys’ fees and expenses) related to any Claims arising from (i) any breach by Client or an Authorized User of Section 7(b) (REPRESENTATIONS AND WARRANTIES.); or (ii) the use of the Platform Services by Client or an Authorized User, except to the extent caused by Cairn’s violation of the Agreement.
An indemnified Party will give the indemnifying Party prompt written notice of any Claim, any related documentation in its possession or control and provide reasonable assistance to the indemnifying Party in the defense of such Claims. The indemnifying Party will control, at its sole cost and expense, the defense or settlement of all such Claims and will keep the indemnified Party apprised of the status of all such Claims. The indemnified Party may participate in the defense of all such Claims with counsel of its choice at its sole cost and expense. If any settlement requires any action or admission by the indemnified Party, then the settlement will require the indemnified Party’s prior written consent. Failure to provide prompt notice of a Claim, information or assistance will not relieve the indemnifying Party of its obligations under this section, except to the extent that the indemnifying Party is materially prejudiced by such failure.
Cairn will have no indemnification obligation under Section 9(a)(iii) to the extent a Loss is attributable to: (a) use of the Platform Services in combination with equipment, materials, products or software not authorized by Cairn where the Platform Services alone would not be infringing; or (b) compliance with Client’s instructions.
If the Platform Services becomes the subject of a Claim as set forth in Section 8(a)(iii) above or if Cairn believes that the Platform Services is likely to become the subject of a Claim, Cairn may, at its sole discretion and expense: (i) obtain a license from such third party for the benefit of Client; (ii) replace or modify the Platform Services (“Replacement”) so it is no longer the subject of a Claim so long as such Replacement performs substantially the same functions as the Platform Services at issue; or (iii) if neither of the foregoing is commercially feasible, terminate the Agreement and refund any pre-paid fees in respect of the Platform Services or Professional Services (as applicable).
EXCEPT AS OTHERWISE PROVIDED IN SECTION 9(c), IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) EXCEED THE TOTAL FEES PAID BY CLIENT TO CAIRN DURING THE TWELVE (12) MONTHS PRIOR TO THE LAST EVENT GIVING RISE TO LIABILITY.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 9(c), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.
THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 9(a) WILL NOT APPLY TO ANY LOSSES AS THE RESULT OF:
This Agreement is governed by and construed in all respects in accordance with the laws of the State of California, U.S.A. (without regard to its conflicts of laws principles). The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Subject to Section 10(c) below, any claim or controversy, whether based on contract, tort or other legal theory arising out or relating to the Agreement or any Order or SOW, including its interpretation, performance, breach or termination (any, a “Dispute”), not resolved by as specified at 10(c) below, will be brought only in the state or federal courts in Los Angeles County, California, and each of the Parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action.
Any Dispute shall be filed with and settled by final and binding arbitration in accordance with the then-current streamlined commercial arbitration procedures of JAMS. The arbitration shall be filed and heard on an expedited basis in Los Angeles, California. The arbitrator’s remedial authority shall be no greater than that which is available under the statutory or common law theory asserted. Judgment upon any award rendered by the arbitrator may be entered in any court with appropriate jurisdiction. Neither this agreement to arbitrate nor any demand for arbitration shall waive or otherwise affect a Party’s right to obtain any provisional remedy, including, without limitation, injunctive relief. The Parties understand and acknowledge that by signing this Agreement, the Parties waive the right to a jury trial and to a trial in a court of law.
Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
This Agreement will be binding on the Parties hereto and their respective successors and assigns. Neither Party may, or will have the power to, assign the Agreement without the prior written consent of the other Party, except in the event of any merger, sale of all or substantially all of Client’s assets, or other similar transaction; provided that in no event will such assignment relieve Client of its obligations under the Agreement.
Cairn will be fully responsible for the performance, acts, and omissions of any subcontractor it engages to provide Services. Cairn’s personnel, whether employees, independent contractors or subcontractors, performing Services will at all times be under Cairn’s exclusive direction and control and will not be deemed employees of Client. Each Party will be responsible for payment of its independent contractors, subcontractors and its employees’ entire compensation and benefits, as applicable, including employment taxes, worker’s compensation, unemployment compensation and any similar taxes associated with employment or their relationship. Client and Cairn agree that neither Party will be an employee, agent, partner or joint venturer of or with the other.
If any provision of the Agreement is found to be unenforceable, such provision will be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable, and the Agreement will otherwise remain in full force and effect.
In the event of any conflict among the constituent parts of the Agreement, the provision in the document higher in this list will control:
This Agreement may be executed in counterparts, including electronically, which, when taken together, will be deemed to constitute one and the same Agreement.
The Agreement constitutes the entire agreement between Cairn and Client with respect to the subject matter of the Agreement, and may only be modified by a written amendment or addendum signed by both Cairn and Client. No employee, agent, or other representative of either Cairn or Client has authority to bind the other with regard to any statement, representation, warranty, or other expression unless it is specifically included within the express terms of the Agreement or a written addendum signed by both Cairn and Client. All purchase orders, prior agreements, representations, statements, proposals, negotiations, understandings, and undertakings with respect to the subject matter of the Agreement are superseded by the Agreement.
