Terms of Software Development
1.1 These software development terms and conditions for services (these "Terms") are the only terms that govern the provision of services by Elo Touch Solutions, Inc. ("Elo") to the customer ("Customer") named in the SOW. Elo and Customer shall be referred to collectively as the "parties" and each individually as a "party."
1.2 The accompanying statement of work or quote (collectively, the "SOW") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the SOW, these Terms shall govern, unless the SOW expressly states that the terms and conditions of the SOW shall control.
1.3 These Terms prevail over any of Customer's general terms and conditions regardless of whether or when Customer has submitted its request for proposal, purchase order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
2.1 "Acceptance Tests" has the meaning set forth in Section 5.15.
2.2 "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law, in equity, or otherwise.
2.3 "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
2.4 "Confidential Information" has the meaning set forth in Section 10.1.
2.5 "Customer Indemnitee" has the meaning set forth in Section 13.1.
2.6 "Customer Materials" means all materials and information, including documents, data, specifications, software, content, and technology that are provided to Elo by or on behalf of Customer in connection with this Terms.
2.7 "Deliverables" means the Software, Documentation, and other work product that Elo is required to deliver to Customer under these Terms and the applicable SOW as set forth in the Project Plan.
2.8 "Derivatives" has the meaning set forth in Section 8.1.
2.9 "Elo Personnel" means all individuals involved in the performance of Services as employees or independent contractors of Elo or any Subcontractor.
2.10 "Disclosing Party" has the meaning set forth in Section 10.1.
2.11 "Documentation" means any and all manuals, instructions, specifications, and other documents and materials listed in the Project Plan that Elo provides or makes available to Customer in any medium and which describe the functionality, components, features, or requirements of the Software, including the installation, configuration, integration, operation, use, support, or maintenance thereof.
2.12 "Fees" has the meaning set forth in Section 7.1.
2.13 "Force Majeure Event" has the meaning set forth in Section 16.5(a).
2.14 "Indemnitee" has the meaning set forth in Section 13.3.
2.15 "Indemnitor" has the meaning set forth in Section 13.3.
2.16 "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
2.17 "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
2.18 "Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, and the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.
2.19 "Milestone" means an event or task described in the Project Plan for which there is a corresponding date by which it must be completed in the Milestone Schedule as stated in the applicable SOW, if any.
2.20 "Milestone Schedule" means the schedule set forth in the Project Plan setting out the dates by which the parties are required to achieve the Milestones, if any.
2.21 "Nonconformity" has the meaning set forth in Section 5.15.
2.22 "Operating Environment" means Customer's computer systems on which the Software is intended to be installed and operate, as set forth in the Project Plan.
2.23 "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
2.24 "Reimbursable Expenses" has the meaning set forth in Section 7.2.
2.25 "Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, service providers, sublicensees, and legal advisors.
2.26 "Services" has the meaning set forth in Section 3.1.
2.27 "Software" means the software, including Android package kit ("APKs"), Elo is required to or otherwise does create or provide to Customer in connection with the Services.
2.28 "Project Plan" means the Software Specification and Project Plan as stated in the applicable SOW.
2.29 "Specifications" means the specifications for the Software set forth in the Project Plan.
2.30 "Subcontractor" has the meaning set forth in Section 3.4.
2.31 "Term" has the meaning set forth in Section 11.1.
2.32 "Testing Period" has the meaning set forth in Section 5.14.
2.33 "Third-Party Materials" means materials and information, in any form or medium, including any software (including open-source software), documents, data, content, specifications, products, equipment, or components of or relating to the Software that are not proprietary to the provider.
2.34 "Work Product" means the Software, Documentation, Specifications, Deliverables, and other documents, work product, and materials related thereto, that Elo creates or provides to Customer in connection with the Services. Except as otherwise expressly set forth in this Agreement, Work Product does not include any Derivatives.
3. Engagement of Elo; General Service Obligations.
3.1 Engagement of Elo. Customer hereby engages Elo, and Elo hereby accepts such engagement, to develop Software and provide related services as further described herein (collectively, the "Services") on the terms and conditions set forth in these Terms.
3.2 Project Management. Each party shall, throughout the Term, maintain within its organization a project manager to serve as such party's primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services. Each such project manager shall be responsible for providing all day- to-day consents and approvals on behalf of such party under these Terms. Each party shall ensure its project manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. The parties' initial project managers are named in the SOW.
3.3 Changes. Either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such changes in accordance with the change request procedure to be provided by Elo to Customer upon Customer’s request. No changes will be effective unless and until memorialized in a written change order signed by both parties.
3.4 Subcontractors. Elo may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
3.5 Elo's Proposal. Elo shall deliver to Customer in the SOW a proposal setting forth software specifications and a project plan for developing the Software and such other information as is needed as determined by Elo. On receipt of such proposal, Customer shall have the period set forth in the SOW to review and approve or raise objections thereto. If Customer raises any objections, the parties shall negotiate in good faith to amend the proposal.
3.6 Project Plan. Upon Customer's approval of Elo's proposal delivered pursuant to Section 3.5, each party shall cause the same to be signed by its duly authorized representative. Such mutually executed proposal will be the "Project Plan" and will be included in the SOW.
3.7 Effect of Termination during Consulting Phase. If these Terms are terminated by either party pursuant to Section 3.5, Customer shall pay Elo as set forth in the SOW.
4. Software Development.
4.1 Software Development. Promptly following the parties' execution of the SOW, Elo will perform the software development Services set forth therein in accordance with these Terms.
4.2 Third-Party Materials. The Software may include or operate in conjunction with Third-Party Materials. Elo will identify to Customer Third-Party Materials Elo includes in or that are required for use with any Deliverable on or prior to delivery of the relevant Deliverable and provide to Customer the website or other information specifying where Customer may access such documentation and third-party license agreements. All Third-Party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreement. Customer shall comply with all such third-party license agreements and any breach by Customer thereof will be deemed a breach of these Terms.
5. Customer Obligations.
5.1 Customer Resources and Cooperation. Customer shall:
5.2 perform all obligations identified as "Customer Responsibilities" in the Project Plan;
5.3 provide the Customer Materials and all such other resources as may be specified in the Project Plan in a timely manner;
5.4 ensure that such Customer materials or information are complete and accurate in all respects;
5.5 provide Elo Personnel with such access to Customer's premises and Operating Environment as is necessary for Elo to perform its obligations on a timely basis as set forth in the Project Plan;
5.6 ensure the Operating Environment is set up and in working order to allow Elo to perform the Services and deliver each Software Deliverable on or prior to the applicable due date set forth in the Milestone Schedule;
5.7 participate with suitably qualified and authorized personnel in all meetings scheduled in, or in accordance with, the Project Plan and such other meetings as may be reasonably requested by Elo;
5.8 respond promptly to any Elo request to provide direction, information, approvals, authorizations, or decisions that are necessary for Elo to perform the Services;
5.9 provide promptly all consents, approvals, exception notices, and other communications specified in the Project Plan or as otherwise may be required under these Terms; and
5.10 provide promptly all other cooperation and assistance Elo reasonably requests to enable Elo to exercise its rights or perform its obligations under these Terms.
5.11 Effect of Customer Failure or Delay. Elo is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under these Terms. In the event of any such delay or failure, Elo may, by written notice to Customer, extend all or any subsequent due dates for Milestones set forth in the Milestone Schedule as Elo deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Elo may have for any such failure or delay by Customer.
5.12 Delivery. Elo shall deliver or otherwise make available to Customer each Software Deliverable on or prior to the due date set forth in the Milestone Schedule in accordance with the delivery criteria set forth in the SOW. Elo will deliver Software in binary code only. Customer acknowledges and agrees that Customer has no right under these Terms to receive the source code for any Software.
5.13 Testing and Acceptance. All acceptance testing of Deliverables shall be conducted as follows:
5.14 Following delivery of each Software Deliverable, Customer will have thirty (30) days ( or such other period set forth in the Project Plan, the "Testing Period") to test the Software Deliverable (the "Acceptance Tests") to evaluate whether such Software Deliverable materially conforms to the Specifications and performs in accordance with the Documentation. Elo has the right to observe or participate in all or any part of such Acceptance Tests.
5.15 Promptly upon the completion of the Acceptance Tests, Customer shall notify Elo in writing of its acceptance or, solely if the Acceptance Tests identify any material failure of the Deliverable to conform to the Specifications and perform in accordance with the Documentation (each, a "Nonconformity"), rejection of the Software Deliverable. Customer shall not unreasonably withhold its acceptance and shall include in any rejection notice a detailed description of the Acceptance Tests conducted, the results thereof, and each identified Nonconformity. Each Software Deliverable will be deemed accepted by Customer upon the expiration of the Testing Period if Customer has not delivered a notice accepting or rejecting the Software Deliverable prior to such expiration.
5.16 Subject to the provision set forth in Section 5.16, following receipt of a rejection notice, Elo shall use commercially reasonable efforts to remedy all Nonconformities and re-deliver the Software Deliverable. Upon re-delivery, Customer shall have an additional Testing Period to conduct Acceptance Tests to determine whether each Nonconformity has been remedied.
5.17 The parties shall repeat the process set forth in Section 5.13 and Section 5.15 until Customer has accepted the Software Deliverable as set forth in Section 5.15, provided, however, if Elo fails more than twice to remedy a material Nonconformity: (i) Customer may accept the Deliverable as nonconforming, in which case Elo will reduce the Fees equitably to reflect the value of the Deliverable as received relative to the value of the Deliverable had it materially conformed to the Specifications and performed in accordance with the Documentation; and (ii) if Customer does not accept the Deliverable as non-conforming, either party may terminate these Terms by written notice to the other party.
5.18 Section 5.18 sets forth Elo's sole obligations and Customer's exclusive remedies for any failure of any Deliverable to conform to the Specifications or perform in accordance with the Documentation.
6.1 Support Services. Elo shall provide Customer with maintenance and support services as, and on the terms and conditions, set forth in the SOW.
7. Fees and Payment.
7.1 Fees. Customer shall pay Elo fees ("Fees") as set forth in the SOW.
7.2 Reimbursable Expenses. Customer shall reimburse Elo for out-of-pocket expenses incurred by Elo in connection with performing the Services ("Reimbursable Expenses").
7.3 Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Elo's income.
7.4 Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to the due date as set forth in the SOW within thirty (30) days after the date of the invoice. Customer shall make payments to the address or account specified in the SOW or such other address or account as is specified by Elo in writing from time to time.
7.5 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
- (a) Elo may charge interest on the past due amount at the rate of one percent (1%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
- (b) Customer shall reimburse Elo for all reasonable costs incurred by Elo in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
- (c) if such failure continues for ten (10) days following written notice thereof, Elo may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
7.6 No Deduction or Setoff. Customer shall pay all amounts due under these Terms without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by Elo, whether under these Terms, applicable Law, or otherwise and whether relating to Elo's breach, bankruptcy, or otherwise.
8. Intellectual Property Rights.
8.1 Work Product. All right, title and interest in and to (a) the Work Product and (b) all works, inventions, and other subject matter incorporating, based on, or derived from any Work Product, including all customizations, enhancements, improvements, and other modifications thereof (collectively, "Derivatives"), in each case by whomsoever made and including all Intellectual Property Rights therein, are and will remain with Elo and the respective rights holders in the Third-Party Materials.
8.2 Elo hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non- transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. Customer has no right or license with respect to any Work Product or Derivatives except as expressly stated in this section 8 or the applicable third-party software license as all other rights in and to the Work Product and Derivatives are expressly reserved by Elo and the respective third-party licensors.
8.3 Customer Materials. As between the parties, Customer is and will remain, the sole and exclusive owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted under Section
9.3. All other rights in and to the Customer Materials are expressly reserved by Customer.
9.1 License Grant to Customer. Subject to and conditioned upon Customer's payment of the Development Fees and compliance with and performance in accordance with all other terms and conditions of these Terms, Elo hereby grants to Customer a fully paid and royalty-free, non-transferable, non-sublicensable license:
- (a) to install, operate, and use the Software in object code only in the United States during the license Term, solely for Customer's business operations and in accordance with the Documentation; and
- (b) to use the Documentation and other Work Product solely in connection therewith.
9.2 License Restrictions. Customer shall not, and shall not permit any other Person to, access or use any Work Product except as expressly permitted by these Terms and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms expressly permits:
- (a) copy, modify, or create derivative works or improvements of the Work Product;
- (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Work Product to any other Person, including through or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service;
- (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
- (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Work Product, including any copy thereof;
- (e) use any Work Product in a manner or for any purpose that infringes, misappropriates, or otherwise violates any Law or Intellectual Property Right;
- (f) use the Work Product for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Elo's commercial disadvantage;
- (g) use any Work Product in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications; or
- (h) otherwise use the Work Product beyond the scope of the license granted under Section 9.1.
9.3 Customer Materials License. Customer hereby grants to Elo a fully paid and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Customer Materials solely to develop the Work Product and otherwise as necessary to perform the Services for the benefit of Customer and for Elo's general development and commercialization of software products. The term of such license will commence upon Customer's first delivery of Customer Materials to Elo and continue in effect in perpetuity.
10.1 Confidential Information. In connection with these Terms, each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 10.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know- how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential."
10.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with these Terms; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with these Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
10.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall never:
- (a) access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms;
- (b) except as may be permitted by and subject to its compliance with Section 10.5, disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with these Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 10.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.3.
- (c) not safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
- (d) not ensure its Representatives' compliance with and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 10.
10.4 The Receiving Party shall be responsible for any breach of or non-compliance with this Section 10 by any of its Representatives.
10.5 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 10.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's outside legal counsel, the Receiving Party is legally required to disclose, and shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
11. Term and Termination.
11.1 Term. The term of these Terms commences as of the date set forth in the SOW and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect until the parties have performed their obligations under the SOW ("Term").
11.2 Termination. In addition to any other express termination right set forth elsewhere in these Terms:
- (a) Elo may terminate these Terms, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Elo's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 9.2 or Section 10.
- (b) Elo may terminate these Terms, effective immediately, if the Customer: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- (c) Either party may terminate these Terms, effective on written notice to the other party, if the other party materially breaches these Terms, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
11.3 Effect of Expiration or Termination. Upon any expiration or termination of these Terms:
- (a) All licenses granted by either party to the other will also expire or terminate, except to the extent that any license has an express term that continues for a longer period or is perpetual.
- (b) Elo shall: (i) return to Customer all documents and tangible materials containing, reflecting, incorporating, or based on the Customer Materials or Customer's Confidential Information; and (ii) permanently erase the Customer Materials and Customer's Confidential Information from its computer systems in use, except, in each case, to the extent Elo requires or will require such Customer Materials or Confidential Information to exercise any surviving rights under Section 9.3 or its surviving obligations under these Terms.
- (c) Customer shall: (i) return to Elo all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Elo's Confidential Information; and (ii) permanently erase Elo's Confidential Information from its computer systems.
- (d) If either party terminates these Terms pursuant to Section 3.5 or Section 5.17, then upon Customer's payment of all Fees and Reimbursable Expenses due for Work Product created prior to the effective date of such termination, Customer is hereby granted a non-exclusive, non-transferable, and non-assignable right and license to use such Work Product on the terms and conditions set forth in Section 9.1 and Section 9.2, provided that such Work Product is provided "as is" without warranty of any kind and Elo has no continuing obligations or liability to Customer or any other Person with respect thereto.
- (e) If Elo terminates these Terms pursuant to Section 11.2(a) or Section 11.2(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Elo's invoice therefor.
- (f) If Elo terminates these Terms pursuant to Section 11.2(a) or Section 11.2(b), all licenses granted to Customer in the Work Product will also terminate and Customer shall immediately cease all use of the Work Product.
11.4 Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the parties in these Terms that, by its nature, should survive termination or expiration of these Terms, will survive any expiration or termination of these Terms: Section 2, Section 7-8, Section 9.2, Section 10.1, this Section 11.4, Section 13-14, and Section 16.
12. Representations and Warranties.
12.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
- (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
- (b) it has the full right, power, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, these Terms;
- (c) the execution of these Terms by its representative whose signature is set forth at the end of these Terms has been duly authorized by all necessary corporate or organizational action of such party; and
- (d) when executed and delivered by both parties, these Terms will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
12.2 Additional Elo Representations, Warranties, and Covenants; Limited Remedy.
- (a) Elo represents, warrants, and covenants to Customer that Elo will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
- (b) Elo warrants that after delivery and for ninety (90) days thereafter, all Software will, as installed in the Operating Environment and used in accordance with the Documentation, materially function in conformity with the Specifications; provided however, there have been no changes to the Operating Environment or any related Third-Party Materials. If Elo breaches the foregoing warranty, Elo will, as its sole obligation and Customer's sole remedy, remedy such breach in accordance with the Maintenance and Support Agreement, including the time periods set forth therein, provided that Customer gives Elo written notice of such breach within thirty (30) days following its discovery by Customer.
12.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Elo that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials so that, as received by Elo and used in accordance with these Terms, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law.
12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, Section 12.2, AND Section 12.3, ALL SOFTWARE, SERVICES, AND WORK PRODUCT ARE PROVIDED "AS IS" AND ELO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND ELO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ELO MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD- PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13.1 Elo Indemnification. Elo shall indemnify, defend, and hold harmless Customer and Customer's officers, directors, employees, and permitted assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) to the extent such action is alleging that Customer's use of the Software (excluding Customer Materials and Third-Party Materials) in compliance with these Terms infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
- (a) combination of the Software with any hardware, system, or other software or materials not provided or authorized in writing by Elo;
- (b) modification of the Software other than: (i) by Elo; or (ii) with Elo's written approval in accordance with Elo's written specification;
- (c) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer; or
- (d) act, omission, or other matter described in Section 13.2(a), Section 13.2(b), or Section 13.2(c), whether or not the same results in any Action against or Loss by any Elo Indemnitee.
13.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Elo and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, an "Elo Indemnitee") from and against any and all Losses incurred by any Elo Indemnitee in connection with any Action by a third party (other than an Affiliate of a Elo Indemnitee) arising out of or relating to:
- (a) Customer Materials or Elo's use thereof;
- (b) Elo's compliance with any specifications or directions provided by or on behalf of Customer; or
- (c) any allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under these Terms.
13.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13.3 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
13.4 Mitigation. If the Software, is or in Elo's opinion is likely to be claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's use of the Software, is enjoined or threatened to be enjoined, Elo may, at its option and sole cost and expense:
- (a) obtain the right for Customer to continue to use the Software materially as contemplated by these Terms;
- (b) modify or replace the Software, in whole or in part, to seek to make the Software (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Software under these Terms; or
- (c) by written notice to Customer, terminate the license granted to Customer under these Terms and require Customer to immediately cease any use of the Software.
13.5 THIS SECTION 13 SETS FORTH CUSTOMER'S SOLE REMEDIES AND ELO'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS, INCLUDING CLAIMS THAT THESE TERMS OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
14. Limitations of Liability.
14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL ELO OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE WHATSOEVER TO CUSTOMER OR ANY THIRD PARTY UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY:
- (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR
- (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER CUSTOMER OR ANY THIRD PARTY WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE WITH RESPECT TO ANY CLAIM IN CONNECTION WITH ELO SERVICES.
14.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF ELO AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ELO PURSUANT TO THE APPLICABLE SOW IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15. Audit Rights.
Customer hereby grants Elo, or a representative designated by Elo, the right to perform an audit of its use of the Work Product during normal business hours and will cooperate with such audit and provide Elo with all records reasonably related to Customer’s use of the Work Product.
16.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under these Terms have binding legal effect only if in writing and addressed to Elo at 1755 N. Collins Blvd, Suite 525, Richardson, TX 75080, Attn: General Counsel, and to Customer at the address set forth in the SOW. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid).
16.3 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Elo's prior written consent. No delegation or other transfer will relieve Customer of any of its obligations or performance under these Terms. Any purported assignment, delegation, or transfer in violation of this Section 16.3 is void. These Terms is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
16.4 Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer will not directly or indirectly export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction, or Person to which export, re-export, or release is prohibited by applicable Law. Customer will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
16.5 Force Majeure.
- (a) No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations to make payments), when and to the extent such performance is rendered impracticable or unreasonable and/or failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including (i) acts of God; (ii) flood, fire, earthquake, pandemic, epidemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of these Terms; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities. Either party may terminate these Terms if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
- (b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt notice to the other party, stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.6 No Third-Party Beneficiaries. These Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms.
16.7 Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the party so waiving.
16.8 Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.9 Governing Law; Submission to Jurisdiction. These Terms is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Dallas and County of Dallas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
16.10 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10 or, in the case of Customer, Section 9.2 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
16.11 Attorneys' Fees. If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of these Terms, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.