THIS SOFTWARE AS A SERVICE LICENSE AGREEMENT (the "Agreement") is between The Sage Project Inc. (d/b/a Pinto) ("Pinto") and the entity named in the applicable SOW (as defined below) ("Licensee") as of the date of such SOW (the "Effective Date"). The parties agree as follows:
(a) "Authorized Users" means: (i) Licensee's employees; and (ii) contractors authorized by Licensee to access the Pinto Software who, prior to obtaining access to the Pinto Software, have executed a non-disclosure agreement that protects Pinto's Confidential Information to the same extent as this Agreement, in each case registered in the database with a unique UserID and a unique password.
(b) "Confidential Information" means proprietary or non-public information of Pinto, including all trade secrets, know-how, inventions, processes, formulas, recipes, ingredient and allergen lists, technical data or specifications, drawings, business or financial information, pricing information, product or marketing plans, consumer data, or customer or supplier information), together with all analyses, compilations, reports, memoranda, notes and other written or electronic materials which contain, reflect or are based, in whole or in part, upon such information, including the Documentation and the Pinto Software, including any software code and all algorithms, APIs, data materials, methods, techniques, and processes revealed or utilized therein. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach by Licensee; (ii) Pinto regularly discloses to third parties without restriction on disclosure; (iii) Licensee obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation; or (iv) is independently developed by Licensee without use of Confidential Information.
(c) "Customizations" means any components deployed in the hosted environment for the Pinto Software other than the generally available Pinto Software or components that Pinto may develop under an SOW for Licensee. Customizations include code, databases or third party extensions that are not included in the generally available Pinto Software.
(d) "Documentation" means the then-current Pinto-provided documentation relating to the features, functions, and use of the Pinto Software.
(e) "Documented Defect" means a reproducible material deviation between the then-current, general release version of the Pinto Software and its Documentation.
(f) "Effective Date" means the date identified on the signature page of this Agreement as the Effective Date.
(g) "Fees" means the fees set forth in the applicable Pricing Schedule.
(h) "Initial Term" means one (1) month or the initial period set forth on the applicable SOW.
(i) "Intellectual Property" means any and all intellectual property rights, including in patents, copyrights, trademarks, service marks, software, know-how, data and databases, business methods, models, formulas, algorithms, proprietary information, and trade secrets.
(j) "Licensee Data" means information provided, entered or uploaded for use by or with the Pinto Software by the Licensee or its Authorized Users.
(k) "Permitted Use" means the use(s) set forth in the applicable SOW.
(l) "Pricing Schedule" means, as applicable, (i) the then-current pricing schedule made available by Pinto, as may be revised from time to time by Pinto, or (ii) the pricing schedule set forth in the applicable SOW, if any.
(m) "Renewal Term" means any renewal or extension of Licensee's license to use the Pinto Software following the expiration of the Initial Term.
(n) "Representative" means a party's employees, agents, subcontractors, affiliates, parents and subsidiaries, in each case to the extent such person is providing services solely to, and for the benefit of, such party (and excluding, in all cases, the other party to this Agreement).
(o) "Pinto Data" means the Pinto data (including, as applicable, any derivatives of Licensee Data) set forth in the applicable SOW.
(p) "Pinto Software" means collectively or individually the computer software programs, APIs, computer code, apps, and other technology made available to Licensee, including any identified in an SOW, and any Customizations.
(q) "Services" means the Pinto Software-related application hosting services and Support (as defined in Section 3(b)) that Pinto provides Licensee under this Agreement.
(r) "SOW" means each statement of work, schedule, or similar document (however characterized) executed by both parties, detailing additional services and/or terms applicable to this Agreement.
(s) "Term" means the Initial Term or any Renewal Term, as applicable.
(t) "UserID" means a unique user identification credential used in combination with a unique password to access the Pinto Software.
2. License and Data.
(a) License to Pinto Software and Services. Subject to the terms and conditions of this Agreement and the applicable SOW, if any, Pinto hereby grants to Licensee a non-exclusive, non-transferable, revocable, personal, limited license (without the right to sublease or sublicense) to access and use, as applicable, the Pinto Software and the Services during the Term, in an operating environment hosted by Pinto (directly or through third parties engaged by Pinto), for the uses set forth in the applicable SOW (the "Permitted Use").
(b) Perpetual License to Pinto Data. Subject to the terms and conditions of this Agreement and the applicable SOW, if any, Pinto hereby grants to Licensee a perpetual, non-exclusive, non-transferable, revocable, personal, limited license (without the right to sublease or sublicense) to access and use, as applicable, the Pinto Data obtained during the Term for Permitted Use.
(c) Licensee Data. By entering the Licensee Data into the Pinto Software or otherwise making the Licensee Data available to Pinto (including under any SOW or otherwise permitting Pinto to enter such Licensee Data into the Pinto Software). Licensee grants to Pinto a non-exclusive, perpetual, transferrable, sublicensable (through multiple levels), irrevocable, royalty-free, fully paid-up, worldwide right and license to use, reproduce, display, sell, distribute, adapt, modify, create derivative works from, and otherwise exploit the Licensee Data.
(d) Updates to the Licensee Data. Licensee shall, at all times, ensure, and be responsible and liable for, the accuracy of all Licensee Data. Licensee shall, as applicable, (i) use the Pinto Software to update the Licensee Data to ensure such accuracy or (ii) provide such updates in accordance with the applicable SOW.
(e) Documentation. Licensee may make a reasonable number of copies of the Documentation for the Pinto Software for its internal use in accordance with the terms of this Agreement; upon expiration or termination of this Agreement, Licensee shall delete or destroy, as applicable all such copies.
(f) Restrictions on Use of the Pinto Software, Pinto Data and Services. In no event shall Licensee access the Pinto Software on any environment outside the hosted environment selected by Pinto as part of the Services. In no event shall Licensee or its Authorized Users possess or control the Pinto Software or any related software code. In no event shall Licensee or its Authorized Users, or permit any third party to, (a) make any Pinto Software, Pinto Data, or other Pinto Intellectual Property available to, or use any of the foregoing for the benefit of anyone other than Licensee for the Permitted Use, (b) sell, resell, license, sublicense, distribute, rent, lease or include any Pinto Software, Pinto Data, or other Pinto Intellectual Property in a service bureau or outsourcing offering, (c) interfere with or disrupt the integrity or performance of any Pinto services, systems or operations, (d) attempt to gain unauthorized access to any Pinto Software, Pinto Data, or other Pinto Intellectual Property, systems or services, (e) copy or duplicate the Pinto system, services, features, functionality or user interfaces, (f) use or access any Pinto Software, Pinto Data, Pinto Intellectual Property or any Pinto systems or services in order to build a competitive product or service, (g) use any Pinto Software, Pinto Data, or other Pinto Intellectual Property in violation of any law, rule or regulation, or (h) reverse engineer, disassemble or de-compile, or otherwise attempt to determine the methodologies or algorithms, of any Pinto Software, Pinto Data, Pinto Intellectual Property or any Pinto system or service. Licensee will not allow the Pinto Software to be used by, or disclose all or any part of the Pinto Software to, any person except Authorized Users. Licensee acknowledges and agrees that U.S. export control laws and other applicable export and import laws govern its use of the Pinto Software and Licensee will neither export or re-export, directly or indirectly, the Pinto Software, nor any direct product thereof in violation of such laws, or use the Pinto Software or Pinto Data for any purpose prohibited by such laws.
(g) Intellectual Property Notices. Licensee is prohibited from removing or altering any of the Intellectual Property notice(s) embedded in the Pinto Software or Pinto Data or that Pinto otherwise provides with the Services. Licensee must reproduce the unaltered Intellectual Property notice(s) in any full or partial copies that Licensee makes of the Documentation.
(h) Ownership. Use of the Pinto Software, Pinto Data and Services does not grant any ownership rights in or to the Pinto Software, Pinto Data, the Services, or the Documentation. Licensee retains ownership of all right, title and interest to the Licensee Data; provided, however, that Pinto may aggregate data, and may create derivatives or adaptations of or from the Licensee Data, which shall not be considered Licensee Data and which will be the sole property of Pinto.
(i) Feedback. All Licensee (i) suggestions for correction, change or modification to the Services, Pinto Software, or other Pinto Intellectual Property; (ii) evaluation data; (iii) evaluations; (iv) benchmark tests; and (v) other feedback, information and reports on the performance or functionality of the Services, Pinto Software or other Pinto Intellectual Property provided to Pinto hereunder (collectively, "Feedback"), will be the property of Pinto and Licensee shall and hereby does assign any rights in such Feedback to Pinto. Licensee agrees to assist Pinto, at Pinto's expense, in obtaining intellectual property protection for such Feedback, as Pinto may reasonably request.
(a) Hosted Environment and Connectivity. Pinto (directly or through third parties engaged by Pinto) will provide the application hosting environment, including the hardware, equipment, and systems software configuration on which Pinto supports use of the Pinto Software, Pinto Data and/or Services, on servers located at a facility selected by Pinto. Pinto will be responsible for maintaining connectivity from its network to the Internet which is capable of servicing the relevant Internet traffic to and from the hosted environment. Licensee is responsible for providing connectivity to the Internet for itself and its Authorized Users. Licensee shall also be responsible for ensuring that latency and available bandwidth from the user's desktop to Pinto's hosted routers is adequate to meet Licensee's desired level of performance. If Licensee requires a VPN or private network connection to the Services, Licensee is responsible for all costs associated with any specialized network connectivity required by Licensee.
(b) Support. Pinto shall (a) provide Licensee with support during the hours of 9am -- 5pm ET, via web form or other means determined by Pinto; and (b) use reasonable efforts to correct Documented Defects in the Pinto Software (the foregoing referred to collectively as "Support").
(c) User Accounts. Licensee is responsible for maintaining its own Authorized User UserIDs and passwords which can be managed through the Pinto Software interface. Licensee is responsible for maintaining the confidentiality of Licensee's UserIDs and passwords and shall cause its Authorized Users to maintain the confidentiality of their UserIDs and Passwords. Licensee is responsible for all uses of and activities undertaken with UserIDs registered on Licensee's account. Licensee agrees to immediately notify Pinto of any unauthorized use of Licensee's UserIDs of which Licensee becomes aware.
(d) Restrictions. Pinto shall have no obligation to correct a problem caused by Licensee's negligence, Licensee's equipment malfunction or other causes beyond the control of Pinto.
(e) Customizations. Customizations are not permitted absent Pinto's prior written consent. If permitted, Customizations may only be created and deployed by Pinto, and shall be documented in an SOW.
4. Payment and Taxes.
(a) Payment. Licensee shall pay Pinto (i) all recurring, monthly and usage Fees and Taxes (if applicable) in advance and (ii) all non-recurring and other Fees and Taxes within thirty (30) days after receipt of the applicable invoice. All Fees and Taxes are non-refundable. Late payments are subject to a late charge equal to the lesser of: (i) one and one-half percent (1½%) per month; and (ii) the highest rate permitted by applicable law. Notwithstanding anything to the contrary in this Agreement, Pinto reserves the right to suspend access to the Pinto Software, Pinto Data and/or Services in the event of any past-due Fees or Taxes.
(b) Taxes. Licensee is responsible for paying all taxes relating to this Agreement, the Pinto Software, Pinto Data or the Services ("Taxes"), except for Pinto's income and similar taxes. Taxes are not included in the Fees, and may be invoiced by Pinto if and as applicable; provided, however, that Licensee is ultimately responsible for all such Taxes, whether or not invoiced or paid by Pinto.
5. Limited Warranties, Disclaimer of Warranties, and Remedies.
(a) Pinto Warranties. Pinto warrants that the Pinto Software licensed to Licensee will operate without a Documented Defect for a period of ninety (90) days from the Effective Date. Pinto's sole obligation with respect to a breach of the foregoing warranty shall be to repair or replace the Pinto Software giving rise to the breach of warranty. If Pinto is unable to repair or replace such Pinto Software within a reasonable period of time, then Pinto shall refund the applicable Fees for such non-conforming Pinto Software. The remedies in this Section 5(a) are exclusive and in lieu of all other remedies, and represent Pinto's sole obligation and liability, for a breach of the foregoing warranty. Licensee must provide notice to Pinto of any warranty claim within the warranty period set forth above.
(b) Limited Services Warranty. Pinto warrants to Licensee that, Pinto will render the Services with commercially reasonable care and skill.
(c) Disclaimer of Warranties. The limited warranties in this Section are made to Licensee exclusively and are in lieu of all other representations and warranties. PINTO MAKES NO, AND EXPRESSLY DISCLAIMS ALL, OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE PINTO SOFTWARE, PINTO DATA OR SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR ANY SOW IN WHOLE OR IN PART. WITHOUT LIMITING THE FOREGOING, PINTO EXPRESSLY DISCLAIMS ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. PINTO DOES NOT REPRESENT OR WARRANT, AND EXPRESSLY DSICLAIMS ALL REPRESENTATIONS AND WARRANTIES, THAT THE PINTO SOFTWARE, PINTO DATA OR SERVICES, IN WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR MEET LICENSEE'S REQUIREMENTS.
(d) FAILURE OF ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEGE AND AGREE THAT THE LIMITATIONS SPECIFIED IN SECTIONS 5 AND 15 WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER LICENSEE HAS ACCEPTED ANY PINTO SOFTWARE, PINTO DATA OR SERVICE UNDER THIS AGREEMENT.
(e) HIGH RISK ACTIVITIES. THE PINTO SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATION SYSTEMS, MASS TRANSIT, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE PINTO SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). ACCORDINGLY, PINTO DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. LICENSEE AGREES THAT PINTO SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE OF THE PINTO SOFTWARE IN SUCH APPLICATIONS.
6. Confidential Information. The Confidential Information disclosed under this Agreement may be used, disclosed or reproduced only to the extent necessary to further and fulfill the purposes of this Agreement. Except as otherwise permitted under this Agreement, Licensee will not disclose to any third party, or make any use of the Confidential Information. Licensee will use at least the same standard of care to maintain the confidentiality of the Confidential Information that it uses to maintain the confidentiality of its own sensitive confidential and proprietary information, but in no event less than reasonable care. The non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after Licensee's receipt of that item; provided, however, that Licensee's obligations with respect to the Pinto Software and Documentation, as well as all Pinto trade secrets, will survive in perpetuity. Licensee shall be responsible for the breach of the confidentiality terms contained in this Section 6 by any of its directors, officers, employees, Authorized Users, agents, accountants and advisors. If Licensee receives any legal request or process in any form seeking disclosure of Confidential Information, or if Licensee should be advised by counsel of any obligation to disclose such Confidential Information, Licensee shall (if allowed by law) provide Pinto with prompt notice of such request or advice so that Pinto may seek a protective order or pursue other appropriate assurance of the confidential treatment of the Confidential Information. Regardless of whether or not a protective order or other assurance is obtained, Licensee shall furnish only that portion of the Confidential Information that is legally required to be furnished and to use reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnished.
(a) Indemnity by Pinto. Pinto will defend, indemnify and hold Licensee harmless from and against any loss, cost and expense to the extent arising from a third party claim against Licensee that the Pinto Software infringes any United States Intellectual Property of such third party. Pinto's obligations under this indemnification are expressly conditioned on the following: (i) Licensee must promptly notify Pinto of any such claim; (ii) Licensee must, in writing, grant Pinto sole control of the defense of any such claim and of all negotiations for its settlement or compromise so long as such settlement or compromise does not result in payment of money by Licensee or an admission of guilt by Licensee (if Licensee chooses to represent its own interests in any such action, Licensee may do so at its own expense, but such representation must not prejudice Pinto's right to control the defense of the claim and negotiate its settlement or compromise); (iii) Licensee must reasonably cooperate with Pinto to facilitate the settlement or defense of the claim. Pinto will not have any liability hereunder to the extent the claim arises from (a) any modification of the Pinto Software by, on behalf of, or at the request of Licensee; or (b) the use or combination of the Pinto Software with any computer, computer platform, operating system and/or data base management system other than provided by Pinto. If any Pinto Software is, or in Pinto's opinion is likely to become, the subject of an Intellectual Property infringement claim, then Pinto, at its sole option and expense, will either: (A) obtain for Licensee the right to continue using the Pinto Software under the terms of this Agreement; (B) replace the Pinto Software with products that are substantially equivalent in function, or modify the Pinto Software so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Licensee the un-used portion of the Services fee, if any, paid to Pinto for the Pinto Software giving rise to the infringement claim, and discontinue Licensee's use of such Pinto Software. THE FOREGOING SETS FORTH PINTO'S EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO INTELLECTUAL PROPERTY.
(b) Indemnity by Licensee. Licensee will defend, indemnify and hold Pinto harmless from and against, and hereby releases Pinto from, any damage, liability, loss, cost or expense arising from or related any use of the Pinto Data after the Term of the applicable SOW.
8. Term and Termination.
(a) Term. After the Initial Term, the Term shall automatically renew for successive one (1) month Renewal Terms, unless either party provides written notice of non-renewal to the other party at least thirty (30) days prior to expiration of the Initial Term or then current Renewal Term, as the case may be. Except as set forth in Section 8(b), the Term cannot be terminated prior to its expiration date.
(b) Right of Termination. If either party breaches any material term or condition of this Agreement or an SOW (including any obligation to pay Fees), and fails to remedy such breach within thirty (30) days after receipt of written notice of such breach, the other party may terminate this Agreement (including all SOWs hereunder) by written notice. Notwithstanding the foregoing, to the extent such material breach cannot be remedied through efforts of the breaching party, the other party has the right to terminate this Agreement (including all SOWs hereunder) by written notice; any repeated late payment shall be deemed a material breach incapable of remedy for purposes of the foregoing.
(c) Effect of Termination. Upon termination of this Agreement by either party, Licensee's license to access and use the Pinto Software, Pinto Data and Services shall immediately terminate as of the effective date of such termination. Termination of this Agreement will not release either party from making payments which may be owing to the other party under the terms of this Agreement through the effective date of such termination. Termination of this Agreement will be without prejudice to the terminating party's other rights and remedies pursuant to this Agreement, unless otherwise expressly stated herein.
(d) Copy of Licensee Data. After termination or expiration of this Agreement, Pinto shall reasonably promptly make a copy of the then-current Licensee Data available to Licensee as a native database export format provided as reasonably determined by Pinto (either CSV or JSON). In the event that Licensee requests the return of Licensee Data in an alternate format or requires any transition or other services, Pinto's provision of such services shall be subject to (i) the availability of Pinto resources to provide such information and services and (ii) mutual agreement by Pinto and Licensee as to the scope, fees and expenses with respect to such services, which may include payment in advance.
(e) Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information, all disclaimers and limitation of liability, and such other terms which by their nature survive termination (including without limitation Sections 2(b), 2(e), 2(g), 4, 5(c), 5(d), 5(e), 6, 8(d), 8(e), 9, 11, 13, 14, 15 & 17), will survive termination or expiration of this Agreement.
9. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by facsimile confirmed by first class mail; or sent by overnight courier. Notices must be sent (i) to Pinto at 335 Madison Avenue, Suite 6F4, New York, NY 10017, Attn: General Counsel and (ii) to Licensee at its address shown on the signature page of this Agreement, or in each case, to such other place as the party may subsequently designate for its receipt of notices in accordance with this Section.
10. Force Majeure. Except with respect to the payment of fees hereunder, neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including Acts of God, war, terrorist acts, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance, or the threat of any of the foregoing ("Force Majeure").
11. Assignment. Licensee may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Pinto, whether by operation of law or otherwise, including in connection with a change in control, merger, acquisition, consolidation, asset sale or other reorganization, and any attempt at such assignment or transfer will be void.
12. No Waiver. A party's failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach.
13. Choice of Law; Dispute Resolution; Severability.
(a) This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without application of any conflict of laws provisions thereof, and all claims relating to or arising out of this Agreement, or the breach thereof, the Pinto Software, Pinto Data or Services, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of New York, without application of any conflict of laws provisions thereof. This Agreement is originally written in the English language and the English language version shall control over any translations.
(b) Any controversy or claim arising out of or relating to the Pinto Software, Pinto Data, Services or this Agreement, or breach thereof, including disputes with respect to whether the subject matter of any controversy or claim is within the scope of this Agreement, will be settled by binding arbitration in New York, New York, USAunder the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and administered by the AAA. To begin an arbitration proceeding, the applicable party must send a letter requesting arbitration as provided in the Notices section above. The party requesting arbitration must also provide a copy of the request to the AAA in accordance with AAA's then-current process, which information can be found at www.adr.org. The parties explicitly disclaim any applicability of the U.N. Convention on Contracts for the International Sale of Goods to this Agreement. All arbitration proceedings will be conducted in English. Such arbitration will have one (1) neutral arbitrator, agreed by the parties ore selected by the AAA if the amount in controversy is less than one million dollars ($1,000,000) or otherwise before a panel of three (3) neutral arbitrators. Each of the arbitrators must be (i) a lawyer licensed to practice law in the United States with a minimum of fifteen (15) years of legal practice or senior level business experience or a retired judge with a minimum of five (5) years of service on the bench, (ii) an individual with at least five (5) years of experience as an arbitrator, and (iii) on the roster of neutrals of the AAA or similar nationally recognized ADR organization. If the arbitration proceedings shall be conducted before a panel of three neutral arbitrators, the panel shall be selected using the following process: Within fifteen (15) days after the commencement of arbitration, each party shall select one person meeting the specified qualifications to act as neutral arbitrator, and the two thus selected shall select a third neutral arbitrator meeting the specified qualifications within fifteen (15) days of their appointment. The third neutral arbitrator shall act as the chair of the arbitration panel. If the arbitrators selected by the parties are unable to or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the AAA. NEITHER PARTY WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS RELATED TO THE PINTO SOFTWARE, PINTO DATA, SERVICES OR THIS AGREEMENT. ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
IF FOR ANY REASON AN ACTION, SUIT, CLAIM OR PROCEEDING PROCEEDS IN COURT RATHER THAN IN AN ARBITRATION, (I) SUCH ACTION, SUIT, CLAIM OR PROCEEDING SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICATION OF THE FEDERAL OR STATE COURTS, AS APPLICABLE, SITTING IN NEW YORK COUNTY, NEW YORK AND EACH PARTY WAIVES ANY CLAIM OF INCONVENIENT FORUM, AND (II) EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, CLAIM OR PROCEEDING BROUGHT TO ENFORCE, DEFEND OR INTERPRET ANY RIGHTS OR REMEDIES ARISING HEREUNDER, RELATING TO OR IN CONNECTION WITH THE PINTO SOFTWARE, PINTO DATA, SERVICES OR THE AGREEMENT.
(c) If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the Agreement will remain in full force and effect.
14. Irreparable Harm; Injunctive Relief. Licensee agrees that Pinto would be irreparably harmed by any use, disclosure, reproduction, distribution or other exploitation of the Pinto Software, Pinto Data, Services or Confidential Information in any manner not in accordance with the terms of this Agreement, and would suffer injuries for which damages at law would be inadequate. Notwithstanding Section 13, Licensee agrees that Pinto shall have the right to assert any remedy available to it to prevent the foregoing, including the right to injunctive or other equitable relief, without obligation for Pinto to post a bond, from a court of competent jurisdiction to prevent such unauthorized use, disclosure, reproduction, distribution or other exploitation the Pinto Software, Pinto Data, Services or Confidential Information.
15. LIMITATIONS OF LIABILITY.
(a) LIMITED LIABILITY OF PINTO. THE TOTAL AGGREGATE LIABILITY OF PINTO AND ITS LICENSORS, VENDORS AND SERVICE PROVIDERS IN CONNECTION WITH OR RELATED TO THE PINTO SOFTWARE, THE PINTO DATA, THE SERVICES, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT (WHATEVER THE BASIS FOR THE CAUSE OF ACTION) WILL NOT EXCEED THE FEES PAID TO PINTO HEREUNDER FOR THE APPLICABLE PINTO SOFTWARE, PINTO DATA OR SERVICE DURING THE SIX-MONTH PERIOD PRIOR TO WHICH SUCH LIABILITY FIRST AROSE.
(b) EXCLUSION OF DAMAGES. IN NO EVENT WILL PINTO AND ITS LICENSORS, VENDORS AND SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER PINTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
16. Compliance with Laws. Licensee will comply with all laws, rules and regulations applicable to the use of the Pinto Software, Pinto Data and the Services including by not submitting any Licensee Data that is illegal, defamatory, or that infringes any third party proprietary rights.
17. Construction. Captions or headings, as used in this Agreement or SOW, are for the convenience of reference only and shall not be deemed or construed as in any way limiting or expanding the language of the provision to which such captions may refer. The words "include," "includes" and "including" shall be deemed to be followed by "without limitation." This Agreement has been negotiated at arms' length between parties of equal bargaining power with access to counsel of their choosing. Neither this Agreement nor any provision hereof shall be construed on the basis of its draftsperson.
18. General. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. In the event of a conflict between a provision of this Agreement and a provision of an SOW, the applicable SOW provisions shall control with respect to that SOW only, and only to the extent that such provision expressly supersedes this Agreement. Any purchase order or similar document, which may be issued by Licensee in connection with this Agreement, does not modify, supplement or add terms to this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. Each party shall be responsible and liable for the acts and omissions of its Representatives to the same extent as if those acts or omissions were those of such party directly. This Agreement and any signed agreement or instrument entered into in connection herewith or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of digital imaging, electronic mail or a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. This Agreement and all SOWs may be signed in counterparts.
19. Contact Us. If you have any questions about this Software as a Service License Agreement, please contact Pinto at 335 Madison Avenue, Suite 6F4, NY, NY, 10017, or via e-mail at firstname.lastname@example.org.
Last Updated: December 2021