TERMS AND CONDITIONS
In the event of any conflict between these terms and conditions (these “Terms”) and the terms of any contract entered into by the parties and governed by these Terms (the “Contract” and, together with these Terms, this “Agreement”), these Terms shall prevail.
2. Obligations And Responsibilities.
The parties shall perform their respective obligations as described in the Contract in accordance with these Terms.
3. Costs; Taxes.
Each party shall bear its own costs and expenses except to the extent otherwise set forth in the Contract. Each party shall be 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 entity on any amounts payable by it hereunder; provided, that, in no event shall either party pay or be responsible for any taxes imposed on, or with respect to, the other party’s income, revenues, gross receipts, personnel or real or personal property or other assets.
4. Intellectual Property.
4.1 License to Background Intellectual Property; Cross-License. Unless otherwise set forth in the Contract, each party and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to all trademarks, service marks, trade names, and similar designations of source or origin, websites and domain names, copyrights, designs and design registrations, and works of authorship, whether or not copyrightable, trade secrets, inventions and invention disclosures, whether or not patentable, and patents (“Intellectual Property”) made, invented, developed, created, conceived or reduced to practice by it prior to the effective date (the “Effective Date”) of the Contract (“Background Intellectual Property”). Each party hereby grants the other party a perpetual, limited, royalty-free, non-transferable, non-sublicenseable, non-exclusive, worldwide license to use its Background Intellectual Property solely to the extent necessary for the other party to fulfill its obligations under this Agreement and subject to each party’s standards, specifications and instruction with respect to its respective Background Intellectual Property.
4.2 License to Developed Intellectual Property. Unless otherwise set forth in the Contract, each party shall solely own all right, title and interest in and to all Intellectual Property made, invented, developed, created, conceived or reduced to practice by it after the Effective Date as a result of work conducted pursuant to fulfilling its obligations under this Agreement (“Developed Intellectual Property”).
4.3 Co-Developed Intellectual Property. Unless otherwise set forth in the Contract, each party shall jointly own all right, title and interest in and to all Intellectual Property made, invented, developed, created, conceived or reduced to practice after the Effective Date and as a result of work jointly created by the parties pursuant to fulfilling their obligations under this Agreement (“Co-Developed Intellectual Property”). Each party will and hereby does, assign, license and otherwise transfer to the other party and its permitted successors and assigns, without requirement of additional consideration, all such right, title and interest in and to the Co-Developed Intellectual Property as is necessary to fully effect the joint ownership thereof as provided in this Section 4.
4.4 No Further Rights. Notwithstanding any other provision in this Agreement, under no circumstances shall a party to this Agreement, as a result of this Agreement, have any right under or to the Intellectual Property of the other party except for the limited activities and purposes permitted by the licenses set forth in this Section 4.
All nonpublic, confidential or proprietary information of each party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the parties’ performance of their obligations under this Agreement is confidential, and shall not be disclosed or copied by the receiving party without the prior written consent of the disclosing party. Confidential Information does not include information that is: (i) in the public domain; (ii) known to the other party at the time of disclosure; or (iii) rightfully obtained by the other party on a non-confidential basis from a third party. Each party agrees to use the other party’s Confidential Information only in connection with fulfilling its obligations pursuant to this Agreement.
6. Mutual Representations And Warranties.
6.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6, EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE (III) WARRANTY OF TITLE OR (IV) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
7.1 Termination for Cause. Either party may terminate this Agreement, effective upon written notice to the other party, if the other party: (i) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the other party does not cure such breach within fifteen (15) days after receipt of written notice of such breach; or (ii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
7.2 Effect of Termination. On expiration or termination of this Agreement, (i) all licenses to each party’s Background Intellectual Property granted under this Agreement shall automatically terminate as of the effective date of such expiration or termination and (ii) each party shall return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information and permanently erase all of the other party’s Confidential Information from its systems.
7.3 Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement, including, but not limited to, the following provisions: Section 4 (Intellectual Property), Section 5 (Confidentiality),Section 8 (Indemnification), Section 9 (Limitations of Liability) and Section 10 (Miscellaneous).
8.1 Indemnification Obligations. Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party and its officers, directors, employees, agents, successors and assigns (collectively, the “Indemnified Party”) against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (“Losses”) arising out of or resulting from any claim, suit, action or proceeding related to or arising out of or resulting from its: (i) material breach of any representation, warranty, covenant or obligation under this Agreement; (ii) gross negligence, willful misconduct or fraud in connection with the performance of its obligations under this Agreement; and (iii) breach of its obligations under Section 4 (Intellectual Property) or Section 5(Confidentiality); provided, however, that neither party is obligated to indemnify or defend the other party against any Losses arising out of or resulting from the other party’s (a) willful, reckless or fraudulent acts or omissions; or (b) bad faith failure to materially comply with any of its obligations set forth in this Agreement.
8.2 Indemnification Procedure. The Indemnified Party will promptly notify the Indemnifying Party of the existence of any third party claim, demand or other action giving rise to a claim for indemnification under this Section 8 and will give the Indemnifying Party a reasonable opportunity to defend the same at its own expense and with its own counsel provided that the Indemnified Party will at all times have the right to participate in such defense at its own expense.
9. Limitation Of Liability.
9.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 EXCEPT WITH RESPECT TO LIABILITY RESULTING FROM EACH PARTY’S (I) INDEMNIFICATION OBLIGATIONS, (II) GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, (III) INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR (IV) BREACHES OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF (A) THE AGGREGATE AMOUNT PAID OR PAYABLE BY EACH PARTY TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT AND (B) $10,000.
10.1 Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, 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.
10.2 No Exclusivity. Except as otherwise set forth in the Contract, (i) nothing herein is intended nor shall be construed as creating any exclusive arrangement between the parties and (ii) this Agreement shall not restrict either party from entering into agreements for similar, equal or like goods and/or services from other entities or sources.
10.3 Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including, without limitation: (i) acts of God; (ii) flood, fire or explosion; (iii) war, invasion, riot or other civil unrest; (iv) actions, embargoes or blockades in effect on or after the date of this Agreement; (v) national or regional emergency; or (vi) other event which is beyond the reasonable control of such party.
10.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or e-mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
10.5 Assignment. Neither party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party; provided, however, that Acanela may assign any of its rights or delegate any of its duties under this Agreement without any prior written consent of the other party if such assignment or delegation is to (i) a successor of Acanela by consolidation, merger or operation of law or (ii) a purchaser of all or substantially all of Acanela's assets. Any purported assignment or delegation in violation of this Section is null and void.
10.6 No Third-party Beneficiaries. This Agreement 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 this Agreement.
10.7 Entire Agreement. This Agreement, together with all any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
10.8 Amendment; Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the waiving party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
10.9 No Public Statements or Use of Trademarks. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
10.10 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10.11 Governing Law; Submission of Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
10.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission (to which a PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Acanela LLC, 3538 Mentone Avenue, Los Angeles, CA, 90034 | firstname.lastname@example.org