This document represents the legal terms of Igeno Consulting Inc. DBA Watercooler Analytics hereafter referred to as SERVICE PROVIDER.
SERVICE PROVIDER agrees that the data and information uploaded by Client (or Authorized Users of Client) that is stored or processed via the Software Services (the “Client Data”) shall be treated as confidential by SERVICE PROVIDER and shall remain Client’s sole property. Client agrees that it is responsible for maintaining and protecting backups of all Client Data directly or indirectly processed using the Software Services and that SERVICE PROVIDER is not responsible for the failure to store, the loss, or the corruption of Client Data. SERVICE PROVIDER will never sell or release Client Data to third parties. In the event that SERVICE PROVIDER is required or ordered to disclose Client Data to a third party pursuant to judicial order or other compulsion of law, if legally permitted, SERVICE PROVIDER shall take all commercially reasonable steps to provide the Client with prompt notice of any relevant order or basis for disclosure so as to allow Client to take whatever steps it can to object to such compulsory disclosure if Client so chooses.
As used in this Agreement, "Confidential Information" means any information (other than Client Data) disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party or all technical and non-technical information being disclosed by one party to the other party other than Client Data, (including but not limited to product information, plans and pricing, financials, marketing plans, business strategies, customer information, data, research and development, software and hardware, APIs, specifications, designs, proprietary formulas and proprietary algorithms). The receiving party will: (a) hold the disclosing party’s Confidential Information in confidence; (b) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who are bound (e.g., as a condition to their employment or agency) by obligations respecting the protection of confidential information, which are substantially similar to those of this Agreement and which would extend to the disclosing party's Confidential Information; (c) use such Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein; and (d) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information, unless expressly permitted by applicable law without the possibility of contractual waiver or otherwise specified in writing by the disclosing party. The restrictions in Section 8.1 will not apply to Confidential Information to the extent it (a) was in the public domain at the time of disclosure; (b) became publicly available after disclosure to the receiving party without breach of this Agreement; (c) was lawfully received by the receiving party from a third party without such restrictions; (d) was known to the receiving party, its employees or agents without such restrictions prior to its receipt from the disclosing party; (e) was independently developed by the receiving party without breach of this Agreement; (f) was generally made available to third parties by the disclosing party without such restriction; or (g) is required to be disclosed by the receiving party pursuant to judicial order or other compulsion of law, provided that the receiving party will provide to the disclosing party prompt notice of such order and comply with any protective order imposed on such disclosure. The parties agree that any material breach of this Section or Section 2 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to the applicable party may be entitled.
The Software Services are licensed, not sold. Use herein of the word “purchase” in conjunction with licenses of the Software Services shall not imply a transfer of ownership. Client acknowledges and agrees that, as between Client and SERVICE PROVIDER, all right, title and interest, including all copyright, trademark, patent, trade secret, intellectual property (including but not limited to algorithms and business processes) and other proprietary rights, arising out of or relating to the provision of the Software Services belong exclusively to SERVICE PROVIDER, other than the Client Data. SERVICE PROVIDER is hereby granted a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into its products and services any information, data, suggestions, enhancement requests, recommendations or other feedback provided by Client or its Authorized Users relating to the Software Services. All rights not expressly granted under this Agreement are reserved by SERVICE PROVIDER.
SERVICE PROVIDER warrants to Client that for a period of thirty (30) days following the initial purchase of the Software Services to Client that the Software Services will perform substantially in conformance with published documentation. SERVICE PROVIDER does not warrant that the Software Services will meet all of Client’s requirements or that use of the Software Services will be uninterrupted, secure, or error-free. To the maximum extent permitted under applicable law, as SERVICE PROVIDER’s and its suppliers’ entire liability, and as Client’s sole and exclusive remedy for a breach of the foregoing warranty, SERVICE PROVIDER will, at its sole option and expense, promptly repair the Software Services. Each party warrants that: (i) it has the necessary corporate power and authority to enter into and perform this Agreement; (ii) this Agreement does not and will not conflict with any other agreement or understanding to which such party is a party or by which it is bound; and (iii) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
THE SOFTWARE SERVICES AND ALL OTHER PRODUCTS AND SERVICES, PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10, SERVICE PROVIDER HEREBY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, VALUE OR QUALITIES OF ANY SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED, NON-INFRINGING OR ERROR-FREE, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, INCLUDING ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. SERVICE PROVIDER ALSO SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD PARTY PRODUCTS AND SERVICES WITH WHICH CLIENT MAY UTILIZE THE SOFTWARE SERVICES, AND CLIENT SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS CLIENT MAY HAVE AGAINST SERVICE PROVIDER WITH RESPECT TO SUCH THIRD PARTY PRODUCTS AND SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL SERVICE PROVIDER OR ITS AFFILIATED ENTITIES HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE ENTIRE AGGREGATE LIABILITY OF SERVICE PROVIDER AND ITS AFFILIATED ENTITIES AND THE SOLE REMEDY AVAILABLE TO THE CLIENT IN ANY CASE IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND MONETARY DAMAGES THAT IN THE AGGREGATE MAY NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAYABLE OR PAID TO SERVICE PROVIDER BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO ITS TERMINATION.