Last Updated: March 6, 2023
THESE TERMS AND CONDITIONS set forth the terms and conditions pursuant to which Cyvl provides the Customer with access to and the use of Cyvl’s proprietary Cyvl Data Collection Sensor (the “Sensor”) and web-based software-as-a-service website and platform (the “Platform”, the Sensor and the Platform and any services provided by Cyvl to Customer in connection therewith, collectively, the “Services”). These Terms and Conditions are incorporated into and govern all Services purchased from Cyvl by Customer via Orders (as defined herein). Customer’s purchase of Services or use of or access to the Services shall constitute Customer’s unconditional acceptance of any Orders(as defined herein) placed by Customer , these Terms and Conditions and any additional applicable pricing or other schedules (collectively, the “Agreement”). This Agreement shall be effective upon the earlier of the date these Terms and Conditions are accepted by Customer or the date of Customer’s first use of or access to the Services (the “Effective Date”). By indicating acceptance of this Agreement or by otherwise using the Services, Customer is entering into a legally binding agreement with Cyvl. The individual user accepting these Terms and Conditions on behalf of an organization represents that such user has the right to bind such organization to this Agreement. Any Customer who does not agree to these Terms and Conditions must not use the Services.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN CUSTOMER AND CYVL, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
Customer will order Services by submitting one or more separate orders in writing or via a Project Creation page on the Platform (“Orders”) which include the quantity of Service(s) ordered, Fees (as defined below), and delivery date(s). Customer may use its standard ordering documentation as an Order; provided that, except as expressly permitted in Section 15.6, nothing contained in such standard documentation will modify or add to this Agreement. A properly submitted Order shall be deemed accepted unless Cyvl provides notice of rejection within ten (10) business days of its receipt of the proposed Order. Once accepted, Orders may not be modified or canceled unless agreed in writing by both parties.
Customer will purchase the Services at the Service Prices set by Cyvl, on a written Order or on the pricing pages of the Platform, which are subject to adjustment by Cyvl as further described on the written Order or on the applicable pricing pages of the Platform.
In order to access and use the Platform, Customer is responsible at its own expense for obtaining its own internet access and software required therefor. Customer is also responsible for any hardware required to use the Services, including the requisite Sensor(s), and the proper installation thereof, pursuant to the specifications (the “Service Specifications”) and instructions provided by Cyvl on the Platform or on the applicable Order.
Subject to the terms and conditions of this Agreement, Cyvl hereby grants to Customer a limited, non-exclusive, non-sublicenseable, non-transferable right to access and use the Services, solely for Customer’s internal business purposes, during the Term. All rights not expressly granted to Customer are reserved by Cyvl and its licensors. There are no implied rights.
Customer may provide a forecast with binding commitments and non-binding indications of quantities of Services that Customer intends to purchase over the timeframe covered by the forecast (the “Customer Forecast”). Customer will update the Customer Forecast in accordance with the provisions of the cover page and Schedule A (Customer Forecast Change Requests); provided that, in no event will Customer be able to reduce any previously communicated binding commitment or modify the timeframes for purchasing the binding commitment without a written amendment to this Agreement executed by an authorized signatory of each of the Parties in accordance with Section 15.6 of these Terms and Conditions.
If Customer’s Order includes the lease of one or more Sensors, the provisions in this Article 3 shall apply.
Cyvl will ship each Sensor ordered by Customer to the address set forth in the applicable Order. Risk of loss for the Sensor will pass to the Customer when the Sensor is made available to the carrier, except that title to the Sensor will remain with Cyvl and its suppliers. Unless a carrier is specified in the applicable Order, Cyvl will select the carrier; however, shipping and transportation will take place at the account of Customer. Cyvl will pack all Sensors in commercially suitable containers. Customer shall pay all shipping, handling, customs, duties, taxes, freight, insurance, and other charges associated with shipment of the Sensor to Customer. Customer shall be responsible for such costs when returning Sensors to Cyvl.
Cyvl will use commercially reasonable efforts to ship the Sensor in accordance with the delivery schedule in the Order; however, neither Cyvl nor any of its affiliates shall be liable for damages, losses, liabilities, costs and/or expenses incurred as a result of untimely or partial deliveries.
Customer will perform a visual inspection of the delivered Sensor within three (3) business days following its delivery to Customer (the “Inspection Period”) to confirm it conforms to the Service Specifications. Customer’s failure to provide written notice of non-conformity during the Inspection Period will be deemed acceptance of the Sensor. Notwithstanding the foregoing, if a shipment includes the wrong Sensor or incorrect quantities of Sensors, Customer will notify Cyvl in writing within fifteen (15) days of delivery and, as Customer’s sole and exclusive remedy in the event of any such error, Cyvl will correct the shipment.
During the Term, Cyvl grants a lease to Customer, and Customer agrees to lease from Cyvl, the Sensor delivered to Customer pursuant to the applicable Order, solely for Customer’s own use in connection with the Services. Customer will not make any modifications, additions or alterations to any Sensor. Customer will be responsible for any loss of or damage to the Sensor (including but not limited due to theft, fire, vandalism and damage during use), other than normal wear and tear, that is not directly attributable to any particular Sensor malfunctioning.
Customer will return the Sensor to Cyvl within thirty (30) days of expiration or termination of the Term in the same condition and working order as when delivered to Customer, reasonable wear and tear excepted. The return of such Sensor to Cyvl shall constitute Customer’s full release of any leasehold rights or possessory interest in the returned Sensor. Customer assumes any and all risk of loss or damage to any leased Sensor until such Sensor is returned to and received by Cyvl in accordance with the terms and conditions of this Agreement, reasonable wear and tear excepted. To the extent any Sensor is lost or damaged by Customer prior to Customer’s return to Cyvl, Customer shall pay Cyvl the cost to repair and replace such Sensor or, if lost or damaged such that not practical to repair, the full purchase price of such Sensor (the “Hardware Price”). If Customer does not return a Sensor to Cyvl within thirty (30) days of expiration of termination of the applicable Term, then Customer shall be deemed to have elected to purchase the Sensor, and Cyvl shall invoice, and Customer shall pay, the Hardware Price for each Sensor not returned. Customer understands and acknowledges that Cyvl shall have no obligation to provide any Services following the termination or expiration of the Term and that without such Services the Sensor will not be able to perform its intended function and will have little to no value to Customer.
For Orders placed online through the Platform, Cyvl may charge Customer’s credit card or invoice Customer, [at Customer’s option]. For Customers paying by credit card, Customer agrees to provide to Cyvl accurate, complete and current credit card information, and to notify Cyvl of any changes to Customer’s credit card information associated with, including changes in billing address and expiration dates. For Customers paying by invoice, Cyvl will issue Customer invoices for the fees for the Services (the “Fees”) no earlier than when Cyvl makes the Results (as defined in Section 8) from the Services available for download. In addition to the Fees, Customer will be responsible for: (a) any sales tax, value-added tax, excise taxes, consumption taxes, tariffs, duties, and other governmental charges, however designated, except for taxes on Cyvl’s net income; (b) packaging, delivery, transport, and/or shipping charges; and (c) shipping insurance costs, all of which Cyvl will either (i) state separately on the invoice for the Fees or (ii) cover with a separate invoice.
Customer will pay invoices within thirty (30) days after Cyvl’s delivery of the applicable invoice. All payments under this Agreement will be payable in United States Dollars.
Customer will notify Cyvl in writing of any reasonable, good-faith dispute with any invoice within thirty (30) days from Customer’s receipt of such invoice or credit card charge. Any such dispute will be resolved in accordance with Section 13. All amounts not subject to a reasonable, good-faith dispute that are not paid when due will incur interest until paid in full at the lesser of one and one-half percent (1.5%) per month or the maximum legal rate allowed by applicable law.
Each Party represents and warrants that: (a) it has the full right, power and authority to enter into this Agreement and to perform all of its obligations hereunder; (b) the execution, delivery and performance of this Agreement by it does not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by it, this Agreement will constitute the legal, valid and binding obligation of such Party; and (d) it is in compliance with all applicable laws and regulations relating to this Agreement (including applicable anti-bribery and anti-corruption laws, environmental, social and governance laws and regulations and applicable Export Control and Sanctions Laws (as defined below)).
Cyvl represents and warrants that (a) it will provide the Services in a competent and workmanlike manner; and (b) for [sixty (60)] days after delivery (the “Warranty Period”), the Sensors and the Platform will substantially conform with the Service Specifications. Cyvl does not warrant that it will be able to correct all reported defects or that use of the Services will be uninterrupted or error free. Cyvl makes no warranty regarding features or services provided by any third parties. Cyvl retains the right to modify the Services in its sole discretion. If a Sensor does not conform with the Service Specifications during the Warranty Period (a “Non-Conforming Sensor”), Cyvl will, at its option, repair or replace the Non-Conforming Sensor within a reasonable amount of time following its receipt of the Non-Conforming Sensor from Customer; provided that: (i) Cyvl is promptly notified in writing with a detailed explanation of the non-conformity upon Customer’s discovery of such deficiencies; (ii) Customer places the Non-Conforming Sensor in transit to return to Cyvl during the Warranty Period; and (iii) Cyvl’s examination of the Sensor confirms the non-conformity. In the event of replacement, Cyvl will provide the replacement Sensor free-of-charge and will be responsible for transportation charges for returning the Non-Conforming Sensor and providing the replacement Sensor (with transportation charges prepaid by Customer, to be credited or refunded after verification of the non-conformity); provided that, if there are any costs recoverable by Customer associated with these remedies (including any value added tax arising out of a replacement) (“Recoverable Costs”), then the Recoverable Costs will be (a) excluded from Cyvl’s covered costs and (b) Customer will be responsible for recovering such Recoverable Costs. The warranty period for the replacement sensor will be the greater of the remainder of the original Warranty Period or sixty (60) days. Customer’s remedies for breach of the warranties provided in this Section will be limited solely and exclusively to those remedies provided in this Section 5.2.1.
If Cyvl provides to Customer any third-party accessories or free-issue materials alongside the Sensor (including, by way of example, any cables, connectors, or perception hardware or software) (collectively, “Accessories”), then the warranties set forth in Section 5.2.1, will not apply to such Accessories. Instead, all Accessories will be provided on an “As- Is” an “As-Available” basis without warranty of any kind, will be used by Customer at its own risk and liability, and will be able to be discontinued by Cyvl without prior notice to or consent of Customer.
Cyvl will not be liable for a breach of Section 5.1 and a Sensor will not be deemed a Non-Conforming Sensor to the extent the non-conformity arises out of any one or more of the following: (a) installation, maintenance or (mis)use of the Sensor inconsistent with the Service Specifications; (b) the Sensor being disassembled, altered, modified or otherwise tampered, other than as expressly permitted by Cyvl in documentation issued by Cyvl for the Sensor; (c ) labels or tamper-resistant mechanisms having been removed from the Sensor; (d) the Sensor having been subjected to neglect, accident, repair not authorized by Cyvl, or combination with items not supplied by Cyvl which adversely affect the condition of the Sensor, or (e) use of the Sensor or other products provided by Cyvl in conjunction with accessories not provided by Cyvl.
THE EXPRESS LIMITED WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF, AND THE PARTIES AND THEIR SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANT ABILITY , NON-INFRINGEMENT , SATISFACTORY QUALITY, AND THEIR ANALOGS UNDER THE APPLICABLE LAWS OF ANY JURISDICTION. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CYVL MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES. THE PLATFORM IS HOSTED BY A THIRD PARTY HOSTING PROVIDER (THE “HOSTING CONTRACTOR”) AND CYVL USES THIRD PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, WEB SERVER PROGRAMS FOR DELIVERY OF THE PLATFORM AND RESULTS. CYVL MAY CHANGE ITS HOSTING CONTRACTOR AT ANY TIME. CUSTOMER’S USE OF THE SERVICES IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY THE HOSTING CONTRACTOR AND CYVL SHALL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS OR ERRORS WITH THE SERVICES TO THE EXTENT CAUSED BY THE HOSTING CONTRACTOR.
Customer will use the Services solely and exclusively in accordance with the terms and conditions of this Agreement and the applicable Service Specifications. Without limiting the foregoing, Customer will not, directly or indirectly: (a) use the Services in violation of any applicable law, including Export Control and Sanctions Laws; (b) use, sell, dispose of, or otherwise operate or transfer the Services for any military operations; (c ) sell, provide, rent, lease, or otherwise dispose of any Sensor on a standalone basis , or permit any third party to access or use the Platform, without Cyvl’s prior written approval; (d) reverse engineer, decompile, disassemble, or otherwise attempt to access the internal functionality and/or architecture of the Services; (e) use the Services for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Services, or for any other purpose not expressly permitted herein, (f) use any unauthorized robot, spider, scraper or other automated means to access the Services, or engage in any scraping, data-mining, harvesting, data aggregating or indexing of the Services; (g) upload or otherwise make available to Cyvl any material that Customer does not have the right to transmit due to any law or other obligations, or that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of the Platform or any computer software or hardware or telecommunications equipment; (h) interfere with or disrupt the Services or servers or networks connected to the Services; or (i) permit or assist any third party to do any of the foregoing. Customer shall keep all passwords and access codes provided to it safe and secure, and shall be responsible for all use of the Services using passwords or access codes issued to Customer. Customer shall notify Cyvl immediately of any actual or suspected unauthorized use of its passwords for the Services. Without limiting any of its other rights or remedies, Cyvl reserves the right to suspend access to the Services if Cyvl reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement or other agreements with the Customer related to the Services (in which case, it shall provide Customer prompt written notice of such suspension).
The foregoing restrictions are intended to protect the legitimate interests of Cyvl and will apply only to the extent permitted by applicable law. For the purposes of this Agreement, the following are “Approved Countries”: Canada and the United States. Upon request from Cyvl, Customer will provide written certification of its compliance with this Section 6.1. Notwithstanding Section 15.6, Cyvl may update the Approved Countries list (including by removing any previously Approved Country or adding additional countries) by providing written notice to Customer.
Customer shall: (a) reasonably cooperate with Cyvl in all matters relating to the Services; (b) respond promptly to any Cyvl request to provide information, approvals, authorizations or decisions that are reasonably necessary for Cyvl to provide the Services in accordance with this Agreement; and (c ) provide such Customer materials or information as Cyvl may reasonably request to provide the Services and ensure that such materials or information are complete and accurate in all material respects.
“Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, intellectual property, source code, software, hardware configurations, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c ) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; and (ii) the Services and Results shall be deemed Confidential Information of Cyvl, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential.
Each Party agrees that it will during the Term and thereafter (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c ) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 7; and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirers; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 7 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable). Cyvl shall operate the Services in a manner that provides reasonable information security for the Results, using commercially reasonable data backup, security, and recovery protections.
Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination or expiration of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and (c ) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Cyvl with any feedback or suggestions regarding the Services, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and Cyvl may use, disclose and exploit the Feedback in any manner it chooses.
As between the Parties, Cyvl and its licensors will own and retain any and all worldwide patent rights, registered designs, copyrights, mask work rights, database rights, unregistered design rights, trademarks, trade secrets, rights in software, and other proprietary information rights, know- how and all other intellectual property or industrial property rights (whether statutory, common law or otherwise), including all improvements and derivatives of the foregoing, and all registrations, applications,renewals and extensions thereof and all rights to sue for infringement or misappropriation thereof, whether now existing or acquired in the future (collectively, “Intellectual Property Rights”) embodied in the: (a) Services; (b) Service Specifications; and (c the Results. “Results” means all data and information which is generated from Customer’s use of the Services, and may include imagery, 3D maps of the built environment, 3D models, and analysis of pavement, building and natural conditions. The parties do not anticipate that Results will include personal information, including vehicle-related personal information. Cyvl grants to Customer a limited, non-exclusive, non-transferable, royalty-free right to use and display the Results during the Term of this Agreement solely in connection with receipt of the Services. Cyvl may use the Results for its internal statistical and analytical purposes, and may disclose the Results to third parties, provided that any disclosure shall be in aggregated and anonymized form such that neither Customer nor any individual could be identified. No right or license is granted hereunder to Customer or Cyvl under any trademarks, service marks, trade names or logos. Customer shall not remove any Cyvl trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Services.
Cyvl shall have the right to use Customer’s name and logo on client lists published on Cyvl’s website and in marketing materials. The Parties agree to engage in joint marketing efforts, such as case studies, webinars, and lead generation campaigns. The Customer agrees to cooperate with Cyvl in these efforts and to make reasonable efforts to participate in and support these marketing initiatives.
Cyvl will defend, indemnify, and hold harmless Customer and its affiliates, and each of their officers, employees, successors and assigns (each a “Customer Indemnified Party”) from and against any and all damages, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively “Losses”) based upon a claim, suit, action or proceeding (each a “Claim”) brought against a Customer Indemnified Party by a third party that arises out of the actual or alleged infringement of a third party’s Intellectual Property Rights by the Services and Customer’s use thereof in accordance with the Service Specifications. Cyvl will not be required to indemnify, defend, and hold harmless the Customer Indemnified Parties for any Claims or Losses to the extent arising out of: (a) use of the Services in a manner inconsistent with this Agreement, the Service Specifications, and/or any other written instructions for the Services made available by Cyvl to Customer; (b) modifications of the Services by an individual or entity other than Cyvl; (c ) any combination of the Services with any materials (including, but not limited to, any hardware or software) not supplied or approved by Cyvl; and (d) any failure by the Customer Indemnified Party to incorporate updates or upgrades to the Services that would have avoided the alleged infringement, provided the Cyvl offered such updates or upgrades without charge to the Customer Indemnified Party prior to the date of such third party claim or action ((a) through (d) collectively, any “Excluded Claims”).
If the sale or use of the Services is enjoined or, in Cyvl’s sole and absolute judgment, is likely to be enjoined, based upon a claim of infringement of a third party’s Intellectual Property Rights, Cyvl shall, at Cyvl’s election in its sole and absolute discretion and expense, procure for Customer the right to continue using the Services, replace the same with equivalent non-infringing products, or modify such Services so they become non-infringing.
Customer will defend, indemnify, and hold harmless Cyvl and its affiliates, and each of their officers, employees, successors and assigns (each a “Cyvl Indemnified Party”) from and against any and all Losses based upon a Claim brought against a Cyvl Indemnified Party by a third party that: (a) is an Excluded Claim and/or (b) that arises out of (i) breach by Customer of this Agreement or of applicable law (including Export Control and Sanctions Laws (as defined below)).
The indemnified Party will promptly notify the indemnifying Party of any Claim requiring indemnification; provided that if the indemnified Party fails to promptly notify the indemnifying Party, this will only affect the indemnifying Party’s obligations to the extent the indemnified Party’s failure materially prejudices the indemnifying Party’s ability to defend the Claim. The indemnifying Party will undertake the sole and complete defense of any such Claim, but the indemnified Party will have the right to participate in the defense of such Claim with counsel of its own choosing and at its own expense. The indemnifying Party will have the right to settle the Claim; provided however, it will not, without the prior written consent of the indemnified Party, agree to a settlement of any Claim which could lead to liability or create any obligation or admission of wrongdoing on the part of or on behalf of the indemnified Party (other than to cease using any infringing materials). The indemnified Party will reasonably cooperate with the indemnifying Party, at the indemnifying Party’s cost, in the defense and settlement of the Claim.
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR: (A) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY; OR (B) CUMULATIVE LIABILITY UNDER THIS AGREEMENT IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO CYVL FOR SERVICES UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS APPLY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. The limitations of liability set forth in this Section 11 will not apply to: (i) Customer’s payment obligations; (ii) a Party’s liability related to (a) its breach of its confidentiality obligations under Section 7, (b) its breach of Section 8, and/or (c ) gross negligence or intentional misconduct; and (d) any liability where applicable law does not allow the limitation(s) thereof (including death or personal injury caused by a Party’s negligence).
This Agreement will commence upon the Effective Date and remain in effect for an initial term of one (1) year and will automatically renew for successive one (1) year terms (collectively, the “Term”), unless and until (a) this Agreement is terminated in accordance with the terms of this Agreement or (b) a Party provides the other Party written notice of non-renewal at least ninety (90) days prior to the end of the then-current term.
A Party may terminate this Agreement with immediate effect by giving written notice to the other Party and without incurring any liability towards the other Party, if: (a) the other Party materially breaches this Agreement and the breach remains uncured for thirty (30) days following the receipt of notice of such breach; (b) the other Party becomes or is likely to become insolvent, is adjudicated bankrupt, voluntarily or involuntarily files a petition for bankruptcy or a (preliminary) suspension of payments, makes an assignment for the benefit of creditors or takes any other step with a view to general readjustment or rescheduling of its indebtedness, seeks any other similar relief under any bankruptcy law or related statutes or otherwise becomes financially incapable of performing its obligations in accordance with the terms of this Agreement, and such judgment, assignment or incapacity is not revoked within sixty (60) days; (c ) the other Party is dissolved, liquidated, wound up, discontinued, or relocated abroad, or a decision is taken in this respect; or (d) termination is required to comply with applicable Export Control and Sanctions Laws.
Any termination of the Agreement will automatically terminate all Orders; however, the termination of a Order will not terminate the Agreement or other Orders. Upon the expiration or termination of the Agreement for any reason: (a) Customer will pay to Cyvl any and all invoiced amounts outstanding,along with any additional amounts not covered by an outstanding invoice for Services that have been completed pursuant to a Order (b) each Party will return (or at the discloser’s option and expense, destroy) any and all Confidential Information of the other Party relevant to the applicable Order that it may have in its possession or control; (c) Customer shall return the Sensor(s) to Cyvl in accordance with Section 3.5; and (d) this Section 12.3 and the rights and obligations of the Parties under Sections 3.5, 4, 6, 7, 8, 10, 11, and 13 through 15 and any rights and obligations under any Order which, by their terms, are intended to survive expiration or termination, will remain in effect. Additionally, for any expiration or termination of the Agreement other than for Customer’s termination of the Agreement for Cyvl’s material breach in accordance with Section 12.2, all outstanding binding commitments will be accelerated and become due and payable within thirty (30) days following the effective date of termination.
This Agreement will be governed by and construed under the laws of the Commonwealth of Massachusetts, and the United States of America, without reference to conflict of laws principles.
All disputes arising under this Agreement shall be resolved as follows: the Parties’ respective senior executives (which will be any employee of Vice President level or above) will diligently work in good faith to resolve the dispute. In the event the senior executives are unable to resolve the dispute, any Party may begin arbitration proceedings in accordance to Section 13.3.
Any and all disputes or causes of action between Customer and Cyvl or its employees, agents, successors, or assigns will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules. Any claims brought by a party must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The arbitrator may not consolidate more than one person’s or entity’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief. The arbitration will be confidential, and neither Cyvl nor Customer may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; and each side will pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law. Notwithstanding the foregoing either Party may seek emergency equitable relief before the state or federal courts located in the Commonwealth of Massachusetts in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within the Commonwealth of Massachusetts for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
Customer agrees to comply fully with all laws and regulations of the United States and other countries and/or supra-national organizations such as the European Union, governing the import or export of products or technology to any individual or entity who is the subject of or target of any law or order related to (a) export controls, including the U.S. Export Administration Regulations and the International Traffic in Arms Regulations, or (b) economic sanctions, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control and the U.S. Department of State (“Export Control and Sanctions Laws”). Notwithstanding anything to the contrary contained herein, all obligations of Cyvl and Customer are subject to obtaining all necessary approvals required by the applicable agencies of the governments of the United States and foreign jurisdictions. The Parties will cooperate with each other and will provide reasonable assistance to the other to obtain any required approvals.
The Section headings in this Agreement are for convenience only and will not affect the contents of which they reference. As used herein: (a) the terms “include” and “including” will be deemed to mean “include without limitation” or “including without limitation,” and (b) references to “dollars” or “$” will be to United States dollars.
The relationship of the Parties under this Agreement is that of independent contractors. Neither Party is authorized, nor may either Party represent to any third party that it is authorized, to make any commitment or otherwise act on behalf of the other Party.
Neither Party may assign or transfer any rights or delegate any duties under this Agreement without the other Party’s prior written consent; provided that, such consent is not required for any assignment by a Party to (a) its affiliates and/or (b) any successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
If the performance of this Agreement, or any obligation hereunder, except the making of payments, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident, strikes or labor disputes, inability to procure or obtain delivery of parts, supplies or power, war or other violence, any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental agency, epidemic, pandemic, quarantine, or any other act or condition whatsoever beyond the reasonable control of a Party, the affected Party upon giving prompt notice to the other Party, shall be excused from performance to the extent of such prevention, restriction or interference: provided that, the affected Party shall take all reasonable steps to avoid or remove such cause of nonperformance and shall resume performance whenever such causes are removed. The performance period shall be extended by a period equal to the time lost because of any such delay; provided that, if such delay lasts more than thirty (30) calendar days, then either Party may terminate any outstanding Orders at no cost.
Failure or delay by either Party in exercising any rights or remedies provided herein will not release the other Party from any of the obligations and will not be deemed a waiver of any rights, in each case under this Agreement. If any one or more of the provisions contained in this Agreement (or portion thereof) is held to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability will not affect any other provision and this Agreement will be construed as if such provision had never been included.
No modification or amendment to the Agreement will be binding unless by an agreement in a writing signed by both Parties. In the event of any conflict between this Agreement and an Order, this Agreement will control. Customer may not use an Order to modify or add to these Terms and Conditions, and all such attempted modifications or additions to this Agreement in any Order shall be void and of no effect, even if accepted or signed by both Parties; provided however, the Parties may expressly modify the terms and conditions of this Agreement through an Order as follows: (a) the Parties must explicitly reference the section of this Agreement to be modified; (b) both Parties must initialize each such modification; and (c) the applicable Order must be signed in writing by an authorized representative of each of the Parties. Any such permitted modification in accordance with this Section 15.6 will be effective only with respect to the applicable Order and will not apply to any other Orders. Except as expressly set forth in this Section 15.6, all Orders that are accepted by Cyvl are accepted expressly subject to the terms and conditions of this Agreement without regards to any additional or conflicting terms therein. This Agreement (including all Orders) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous understandings, communications, statements, agreements, and arrangements with respect to the subject matter hereof, whether written or oral.