Subject to the terms and conditions of this Agreement, CoInspect will use commercially reasonable efforts to provide the Client access to CoInspect’s Internet-based software platform for inspection services (the “CoInspect System”) and to perform the services specified in the relevant Statement of Engagement (the “Services”), for the term set forth in the Statement of Engagement. The Client understands that CoInspect’s performance is dependent in part on the Client’s actions and cooperation. Accordingly, the Client will use commercially reasonable efforts to provide CoInspect with the necessary items and assistance specified in the relevant Statement of Engagement in a timely manner. Any dates or time periods relevant to performance by CoInspect hereunder shall be appropriately and equitably extended to account for any delays due solely to the Client.
The Client may use its administrative credentials to create standard user accounts for its authorized employees, contractors, and clients who are bound by obligations and restrictions consistent with this Agreement (“Authorized Users”) to access the CoInspect System solely in connection with the Services (“User Subscriptions”). The Client shall be responsible for any non-compliance by its employees, contractors, and clients. User Subscriptions are for designated users only and cannot be shared or used by more than one user.
|2.||Restrictions and Responsibilities|
The Client will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or CoInspect System; (b) modify, translate, or create derivative works based on the Services or CoInspect System; (c) use the CoInspect System for the benefit of a third party (except to the extent expressly permitted by CoInspect or authorized within the Services); (d) use the CoInspect System in any manner that interferes with or disrupts the integrity or performance of the CoInspect System or any components thereof; or (e) modify, adapt or hack the CoInspect System, or otherwise attempt to gain unauthorized access to the CoInspect System or the related systems or networks thereof.
The Client represents, covenants, and warrants that it will use the Services and CoInspect System only in compliance with this Agreement and all applicable laws and regulations. Although CoInspect has no obligation to monitor the use of the Services, CoInspect may do so and may prohibit any use of the Services or CoInspect System it believes may be in violation of the foregoing.
The Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the CoInspect System, including, without limitation, mobile and tablet devices, hardware, servers, software, operating systems, networking, web servers and internet service (collectively, “Equipment”). The Client shall also be responsible for maintaining the security of the Equipment, as well as the usernames and passwords for the administrative account for the Client and its Authorized Users.
|3.||Compensation; Billing Procedures. Subject to the terms of this Agreement, the Client will pay CoInspect in accordance with the relevant Statement of Engagement. Unless otherwise set forth in the applicable Statement of Engagement, all payments shall be due within 30 days of the Client’s receipt of the applicable invoice. Late payments will (i) bear interest at the rate of 1.5% per month, or, if lower, the maximum rate allowed by law, and (ii) entitle CoInspect to suspend performance of the Services immediately until any outstanding amounts are paid.|
Each party shall keep confidential and not disclose to any third party or use (except as contemplated by this Agreement), any non-public information obtained from the other party that is marked or otherwise designated confidential (“Confidential Information”); provided, however, that neither party shall be prohibited from disclosing or using Confidential Information that: (i) is publicly available or becomes publicly available through no act or omission of the receiving party, (ii) is or has been disclosed to such party by a third party who is not under an obligation of confidentiality with respect thereto, (iii) is or has been independently developed by such party, without use or reference to the other party’s confidential information, or (iv) must be used or disclosed under court order or applicable law, provided such use or disclosure is to the minimum extent required by such court order or applicable law. The Client also agrees not to disclose the terms of this Agreement to any third party.
This Agreement shall commence on the Effective Date and continue thereafter until the expiration of all outstanding Statements of Engagement, unless terminated earlier as described in this Section.
If either party materially breaches this Agreement, the other party may terminate this Agreement by giving the breaching party thirty (30) days’ written notice of such breach, unless the breach is cured within the notice period. Either party also may terminate this Agreement at any time, with or without cause, upon 60 days’ notice. Any such termination may be limited to one or more Statements of Engagement, in which case, the consequences of termination will be limited to the subject matter of those Statements of Engagement. Upon termination of this Agreement for any reason, each party shall return to the other party or destroy any Confidential Information obtained from the other party. Sections 2 through 8 shall survive any termination or expiration of this Agreement. Within thirty (30) days of the termination of this Agreement, Client agrees to pay CoInspect all amounts due or accrued as of the date of such termination in accordance with the applicable Statement of Engagement.
|6.||Warranty and Disclaimer|
CoInspect represents and warrants that: (a) it shall perform the Services in a professional and workmanlike manner using employees or contractors of CoInspect having a level of skill commensurate with the requirements of this Agreement and in accordance with all applicable laws; and (b) it has all rights necessary to perform it obligations under this Agreement and that this Agreement does not conflict with any obligation CoInspect has to any third party.
EXCEPT AS SET FORTH IN THIS SECTION, THE SERVICES AND COINSPECT SYSTEM ARE PROVIDED “AS IS” AND COINSPECT DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, COINSPECT DOES NOT WARRANT THAT THE SERVICES OR COINSPECT SYSTEM ARE ERROR-FREE OR THAT THEIR USE WILL BE UNINTERRUPTED.
|7.||License and Ownership Rights|
The Client shall retain ownership of all right, title and interest in and to any of its content, trademarks, software, information and other intellectual property (“Client IP”) provided by it to CoInspect in connection with the Services. Client hereby grants CoInspect a paid up license to use and exercise all Client IP solely in connection with CoInspect’s performance of the Services on a non-exclusive, royalty-free, perpetual, AS IS basis, in exchange for the consideration established in the applicable Statement of Engagement. To the extent the Client develops or provides any suggestions or feedback regarding the Services (“Feedback”), the Client grants to CoInspect a non-exclusive, royalty-free, perpetual, irrevocable, transferable, sublicensable license to copy, use, modify and exploit such Feedback.
CoInspect shall retain sole and exclusive ownership of all right, title and interest in and to its Services, CoInspect System, and software, technology and other intellectual property (“CoInspect IP”), as well as all other technology or intellectual property arising in connection with the Services.
Publicity. Neither party shall issue a press release or other public statement regarding the relationship of the parties or this Agreement without the prior written consent of the other party.
Relationship of Parties. For all purposes under this Agreement each party shall be and act as an independent entity and shall not bind nor attempt to bind the other to any contract. CoInspect will be solely responsible for its income taxes in connection with this Agreement and the Client will be responsible for sales, use and similar taxes, if any.
Excusable Delay. Neither party shall be liable to the other for any delay or failure to perform, which is directly due to causes beyond the reasonable control of such party, including, but not limited to, acts of God, acts of the public enemy, acts of any governmental authority in its sovereign capacity, fires, floods, power outages, hurricanes, and strikes or other labor disputes by other than its own employees; provided, however, that failure to make any payments provided for herein shall not be excused for any of the foregoing reasons.
Governing Law; Attorney’s Fees. This Agreement and any dispute arising hereunder shall be governed exclusively by the laws of the State of California, without regard to the conflicts of law provisions thereof.
Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN, IN NO EVENT WILL COINSPECT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (II) ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, (III) ANY AMOUNT IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO COINSPECT UNDER THIS AGREEMENT, OR (IV) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS OR SERVICES, IN EACH CASE, WHETHER OR NOT COINSPECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COINSPECT’S AGGREGATE MAXIMUM LIABILITY IN CONNECTION WITH THIS AGREEMENT, FOR ALL CLAIMS CUMULATIVELY, SHALL NOT EXCEED THE AMOUNTS PAID TO COINSPECT BY THE CLIENT IN THE THEN-PRIOR TWELVE (12) MONTH PERIOD.
Miscellaneous. Neither party shall have the right to assign this Agreement to another party, except that CoInspect may assign its rights and obligations without consent to a successor in connection with a merger or a sale of substantially all its relevant assets or business. The Terms and Conditions of this Agreement shall take precedence over and shall govern over any inconsistent or conflicting terms in the Statement of Engagement (even if signed), unless and solely to the extent that the parties expressly state in such Statement of Engagement that they intend to override the Terms and Conditions. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major overnight delivery courier service to the address specified on the cover sheet or such other address as may be properly specified by written notice hereunder. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable.
Insurance. Client is not responsible for any fringe benefits or insurance, including, but not limited to, social security, workers’ compensation, state unemployment, federal and state income tax withholdings, retirement, leave benefits, general liability, automobile, and professional liability, for CoInspect or employees of CoInspect. CoInspect assumes full responsibility for the provision of all such insurances and fringe benefits for itself and its employees.
Indemnification. The Client agrees to indemnify and hold harmless CoInspect against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Client’s use of the Services or CoInspect System.