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DELVE TECHNOLOGIES, INC. SERVICES LICENSE AGREEMENT
This SERVICES LICENSE AGREEMENT (“Agreement”) is entered into as of the date last signed by the parties (the “Effective Date”) between Delve Technologies, Inc. (“Delve” or the “Company”) and the customer identified on the signature page hereto (“Licensee”). All references in this Agreement to the “sale” or “purchase” of any Service shall mean the sale or purchase of a license to such Service. Terms not otherwise defined in the text of this Agreement shall have the meanings ascribed to them in Exhibit A.
General Terms and Conditions
1. Subscriptions; Delivery; Support.
1.1 Ordering Services. Licensee may purchase Subscriptions to Services by the parties agreeing to Orders that reference this Agreement. Subscriptions will be for the term agreed to in an applicable Order.
1.2 Delivery. All Services, Updates and Documentation will be delivered electronically to Licensee by giving Licensee access to such Services, Updates and Documentation. In the case of a renewal of a Subscription, there is no delivery requirement for such renewal. Renewals shall be deemed Delivered on the first day of the then-current renewal term.
1.3 Support. Delve will provide technical support (“Support”) to Licensee via telephone, electronic mail, and a dedicated Slack channel on weekdays during the hours of 10:00 am through 6:00 pm Pacific time, with the exclusion of U.S. federal holidays. Licensee may initiate a help desk ticket any time by emailing founders@getdelve.com or messaging in their dedicated Slack channel. During Support Hours, Licensee may alternatively initiate a help desk ticket by calling +1 (510) 972-3445. Company will use commercially reasonable efforts to respond to all help desk tickets within one (1) business day.
2. Ownership of Intellectual Property; License Grant; Restrictions; Feedback.
2.1 Delve owns its Service, Documentation, and website. Except to the extent licenses are expressly granted hereunder, Delve and its licensors retain all right, title and interest in and to all Intellectual Property Rights in and to the Service and Documentation, and to any additional system software, content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Delve’s website. Delve further owns all right, title and interest, including all intellectual property rights, in and to any intellectual property created by Delve pursuant to this Agreement or otherwise created by Delve in the course of providing the Service or Support under this Agreement.
2.2 License Grant by Delve: What Licensee Can Do with the Services. Subject to and in consideration of timely payment by the Licensee of the license fees hereunder, and of Licensee’s compliance with the other terms and conditions of this Agreement, Delve hereby grants to the Licensee and its Authorized Users, solely during the applicable term specified in an Order, a royalty free, limited, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement) license to: (i) access (via the Internet address provided to Licensee by Delve) and use the Service for the number of Authorized Users (if designated on an applicable Order) for which Licensee has a current Subscription; and (ii) use the Documentation supplied by Delve to enable such licensed rights.
2.3 Restrictions to License Grant by Delve: What Licensee Cannot Do with the Services. Licensee agrees that it (and its Authorized Users) will not without express written permission of Delve: (a) reverse compile, disassemble, decompile or engineer, reproduce, modify, adapt or create derivative works of or from the Services or any part thereof; (b) make the Services or Documentation available to, or use the Services or Documentation for the benefit of, anyone other than Licensee or Licensee’s customers; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Services or Documentation, or include any Services or Documentation in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Services or Documentation in a way that circumvents any contractual usage limit; (e) reproduce the Services or Documentation or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement); (f) use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated or manual means, to access, collect, copy or record our Services; or (g) access or use any Services or Documentation in order to build a competitive product or service. In addition, Licensee and its Authorized Users will not (a) access the Services for, or upload to the Cloud Infrastructure, anything unlawful, misleading, malicious or discriminatory; or (b) perform or attempt to perform any actions that would interfere with the proper working of the Cloud Infrastructure, or prevent access to (or use of) the Cloud Infrastructure by Delve’s other licensees or customers (including but not limited to any form of dedicated denial-of-service scheme or over-burdening a targeted server with ping requests, or any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Cloud Infrastructure).
2.4 Restrictions and Liability Related to Authorized Users: Licensee is Responsible for its Authorized Users and Each of Their Accounts. Licensee shall provide accurate, current and complete information required to enable its Authorized Users on the Cloud Infrastructure, and shall maintain the accuracy of such information during the Use of the Services. Licensee shall require Authorized Users to maintain proper password security, and to keep their accounts confidential. Licensee is responsible for the actions of its Authorized Users, of anybody accessing the Cloud Infrastructure using the credentials of any Authorized User (unless such access was due to Delve’s actions), and of any other individuals to Licensee has given access to the Services. In addition, any individual with administrator-level access to a user account can modify that account’s settings, access and billing information. Delve will not be liable for any losses caused by any unauthorized use of any account, or for any changes to an account, including any user’s inability to access their account or Licensee Data.
2.5 Licensee Owns its Intellectual Property and Licensee Data. Except to the extent licenses are expressly granted hereunder, Licensee retains Intellectual Property Rights in and to: (i) its products and services; and (ii) the Licensee Data.
2.6 License Grant by Licensee. Licensee hereby grants to Delve a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty free license to use, reproduce, modify and perform the Licensee Data solely as reasonably required to operate and provide the Services. In addition, Licensee understands that certain portions of the Services may allow other users to view, edit, share, and/or otherwise interact with Licensee Data. By providing or sharing Licensee Data on or through the Services (either publicly or to specific users), Licensee grants the right and license to each such user to view, edit, share, use and/or otherwise interact with such Licensee Data in accordance with the specific account settings and this Agreement.
2.7 Delve Can Use Data for Product Improvement. Delve may collect data with respect to the aggregate response rate and other aggregate measures of the Service’s performance, as well as information about Licensee’s activation, configuration, and use of the Service. Licensee hereby grants to Delve a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty free license to use, reproduce, modify and perform such data solely as reasonably required to operate and provide the Services. Delve shall have the right to (i) use such information and data for the purpose of analytics, to improve and enhance the Services, and for other development, diagnostic and corrective purposes in connection with the Delve offerings, and (ii) disclose such data to third party entities who may assist Delve with the activities listed in the foregoing clause “(i)” solely in aggregate or other de-identified form from which neither Licensee nor any Authorized User may be identified.
2.8 Feedback. Licensee agrees that submission of any ideas, suggestions, documents, and/or proposals to Delve (“Feedback”) is at Licensee’s own risk and that Delve has no obligations (including without limitation obligations of confidentiality or compensation to any person providing such Feedback) with respect to such Feedback. Licensee represents and warrants that Licensee has all rights necessary to submit the Feedback and will not, knowingly provide Feedback that is subject to any third-party intellectual property rights. Licensee hereby grants to Delve a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Delve’s business.
3. Licensee’s Infrastructure.
3.1 Licensee’s Infrastructure. Licensee has sole responsibility for Licensee’s information technology infrastructure and any licenses required for such infrastructure, including computers, software, databases, electronic systems (including database management systems and any conversion servers required to render PLC code in a browser) and networks, whether operated directly by Licensee or through the use of third-party services.
4. Fees; Payments; Audit.
4.1 Delve’s Right to be Paid Accrues on Delivery. Delve’s right to payment for the Services purchased by Licensee shall accrue on the date the Service is Delivered to Licensee. Except in the case of material breach of this Agreement by Delve, Delve shall have no obligation to refund any payments accrued or made under this Agreement.
4.2 Invoicing and Payment. Unless otherwise indicated in an applicable Order, payment of the License Fee is due within seven days of Licensee’s receipt of an undisputed invoice. Any amount which is unpaid when due may be subject to interest equal to the lower of 1.5% per month or the highest applicable legal rate. If Licensee’s account is referred to a collection agent due to non-payment, Delve shall be entitled to reimbursement for reasonable costs associated with the collection of any past-due balance.
4.3 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated. Any taxes related to the Services, Documentation, or Support purchased or licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Licensee, or Licensee will present an exemption certificate acceptable to the taxing authorities. Licensee will not be liable for taxes imposed on Delve based on Delve’s income.
4.4 Additional Use. If during any Subscription Term the actual number of Authorized Users exceeds the number on Licensee’s original Order, then the fees for the applicable Subscription Term will be adjusted accordingly, and Licensee shall pay Delve the adjusted balance based on Delve’s properly issued invoice. The additional per-Registered User fee will be pro-rated based on the number of months left in the applicable Subscription term. No downward adjustments will be made.
4.5 Audit. Upon Delve’s reasonable suspicion of Licensee’s material breach of this Agreement, Delve may audit any relevant records during Licensee’s normal business hours, in a manner that will not unreasonably interfere with normal business operations and subject to the same confidentiality terms as set forth in this Agreement. Delve will give Licensee at least 7 days prior written notice of inspection, and will not conduct audits more than once per year, except in follow-up to the discovery of material discrepancies, in which case the audits may be conducted as reasonably necessary under the circumstances and no later than 30 days after discovery of the material discrepancy. All audits will be at Delve’s expense, unless the audit finds a material error resulting in underpayment by Licensee, in which case Licensee will pay for the audit.
5. Warranties and Disclaimer.
5.1 Subject to each of the other provisions hereof, Delve shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Despite the foregoing, Licensee acknowledges that the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond Company’s reasonable control.
5.2 The warranty provided in Section 5.1 will not apply if: (i) Licensee fails to notify Delve in writing during the Warranty Period of any such breach; or (ii) Licensee fails to implement all Updates to the Service made available at no charge to Licensee during the Warranty Period.
5.3 If Delve breaches the warranty set forth in Section 5.1, Licensee’s sole and exclusive remedy, and Delve’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of Delve, Delve will, at its expense, either: (i) repair or replace the Service to enable it to perform substantially in accordance with the Documentation; or (ii) if the Service as a whole does not function substantially in accordance with the Documentation, terminate this Agreement and refund to Licensee the fees prepaid by Licensee to Delve for the defective Service for any period after the effective date of such termination.
5.4 Licensee Promises that the Licensee Data Doesn’t Violate Anyone’s Rights. Licensee represents and warrants that it has all rights that are necessary to grant Delve the rights granted under this Agreement, and that neither Licensee Data, nor the inclusion of Licensee Data in the Services, will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or Applicable Privacy Law. Licensee further agrees that, unless the parties separately agree in writing, Licensee will not upload to the Services any Licensee Data or other information, other than Authorized User log-in credentials, which would qualify as personal information or personally identifiable information under any Applicable Privacy Law.
5.5 ALL OTHER WARRANTIES ARE DISCLAIMED BY BOTH PARTIES. EXCEPT AS MAY OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DELVE DOES NOT WARRANT THAT THE SERVICES OR DOCUMENTATION PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT SUCH SERVICES OR DOCUMENTATION WILL SUCCEED IN RESOLVING ANY PROBLEM.
5.6 SPECIAL DISCLAIMER RELATED TO COMPLIANCE. LICENSEE UNDERSTANDS AND AGREES THAT THE SERVICES CONSTITUTE RECOMMENDATIONS ONLY, AND ARE INTENDED TO BE USED SOLELY AS A TOOL TO ASSIST LICENSEE IN ITS COMPLIANCE EFFORTS. THE SERVICES, INCLUDING WITHOUT LIMITATION ANY ORAL OR WRITTEN COMMUNICATIONS (INCLUDING BY EMAIL, MESSAGES APPLICATIONS OR OTHERWISE), ARE NOT LEGAL ADVICE OR A LEGAL OPINION, AND DELVE PROVIDES NO WARRANTY OR GUARANTY THAT BY USING THE SERVICES LICENSEE WILL BE FULLY COMPLIANT WITH ANY APPLICABLE LAWS, REGULATIONS OR STANDARDS (INCLUDING BY NOT LIMITED TO SOC2 AND HIPAA). LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE IS SOLELY RESPONSIBLE (AND THAT DELVE WILL HAVE NO LIABILITY OR RESPONSIBILITY OR LIABILITY WHATSOEVER) FOR ENSURING THAT LICENSEE COMPLIES WITH ANY APPLICABLE LAWS, REGULATIONS AND STANDARDS.
6. Indemnities.
6.1 Indemnification of Licensee by Delve. Subject to each of the other provisions hereof, Delve shall (i) defend or (at its option) settle, any claim brought against Licensee by a third party alleging that at the time of Delivery the Service infringes the copyright, trademark, or US patent of such third party (a “Claim”) and (ii) indemnify Licensee against damages and costs finally awarded against and payable by Licensee in any such Claim.
6.2 Exceptions. Delve shall have no liability to Licensee under this Section:
(a) to the extent any Claim is based on or arises from any Service or any portion or component thereof, that is: (A) not provided directly to Licensee by Delve; (B) modified by a party other than Delve and not at Delve’s direction, if the alleged infringement would not have occurred in the absence of such modification; or (C) combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;
(b) to the extent Licensee continues allegedly infringing activity after: (1) being notified thereof; and (2) being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or
(c) from any breach of the Licensee’s obligations under this Agreement.
6.3 Indemnification of Delve by Licensee. Licensee will (i) defend or (at its option) settle, any claim brought against Delve by a third party and (ii) indemnify Delve from and against any losses, liabilities, damages, costs or expenses (including court costs and reasonable attorneys' fees) arising out of or relating to a breach of Licensee’s warranty in Section 5.4.
6.4 Despite any of the foregoing, each party’s obligations under Section 6 shall be valid only if the party requesting indemnification:
(a) gives notice to the indemnifying party of any Claim promptly upon becoming aware of the same;
(b) gives the indemnifying party the sole control of the defense and settlement of any Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the indemnifying party; and
(c) acts in accordance with the reasonable instructions of the indemnifying party and gives to the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense.
6.5. In the event of any alleged Intellectual Property infringement, Delve shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Licensee to continue using the Service and Documentation; (b) make such alterations, modifications, or adjustments to the Service so that it becomes non-infringing without incurring a material diminution in performance or function; or (c) replace the Service with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
7. Limitation of Liability.
7.1 Indirect Damages Are Limited. EXCEPT WITH RESPECT TO CLAIMS BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, BUT IN ALL CASES SUBJECT TO SECTION 7.2, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Certain Damages Are Always Prohibited. IN NO EVENT WILL EITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR (i) ANY SPECIAL OR PUNITIVE DAMAGES, (ii) EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER (INCLUDING BUT NOT LIMITED TO A BREACH OF SECTION 2.3), ANY LOSS OF PROFITS, LOST BUSINESS, OR LOST REVENUE, OR (iii) THE USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, AND WHETHER OR NOT SUCH DAMAGES ARE CHARACTERIZED AS DIRECT, INDIRECT OR OTHER, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 Maximum Liability. EXCEPT IN THE CASES OF (i) BREACH OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO A BREACH OF SECTION 2.3), OR (ii) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE (OR IN THE CASE OF LICENSEE’S LIABILTY, PAID PLUS OWED BUT UNPAID) TO DELVE UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING ANY CLAIM MADE HEREUNDER. IN THE CASE OF DELVE’S BREACH OF ITS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL DELVE’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT TWO TIMES (2X) EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID BY LICENSEE TO DELVE UNDER THIS AGREEMENT.
8. Confidentiality.
8.1 Confidentiality Agreement. Each party shall not use any Confidential Information disclosed to it by the other party for any purpose other than to exercise its rights under this Agreement. Neither party shall disclose or permit disclosure of any Confidential Information of the other party to third parties.
8.2 Exceptions. Confidential Information will not include any information which: (a) is already lawfully in the receiving party’s possession without obligation of confidentiality; (b) is or becomes generally available to the public through no fault of the receiving party; or (c) is independently developed by the receiving party without any use of the other party’s Confidential Information.
8.3 Required Disclosures. If any Confidential Information of the other party is required to be disclosed by the receiving party as a matter of law, the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor.
8.4 Injunctive Relief. The parties agree that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief.
9. Term and Termination of Agreement and Orders.
9.1 Term of Agreement. This Agreement (under which Licensee may place Orders) shall begin on the Effective Date and shall continue in force for an initial term of one year unless validly terminated earlier. Thereafter, this Agreement shall automatically renew for additional one-year periods unless either party notifies the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term.
9.2 Term of Orders. Orders issued under this Agreement shall begin and end as specified in each such Order. Unless otherwise specified in an Order, Orders shall automatically renew at Delve’s then-current standard fees for additional one-year periods unless either party notifies the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term.
9.3 Termination. This Agreement and any Service Order may be terminated by either party upon notice if the other party breaches any material term or condition of this Agreement and (except as provided for in this paragraph) fails to remedy the breach within thirty days after being given notice thereof. Despite the foregoing, if Delve reasonably believes that Licensee has breached Section 2.3 of this Agreement, then Delve may terminate this Agreement immediately upon written notice to Licensee. In addition, this Agreement, and any license granted thereby, may be suspended or terminated by Delve upon its reasonable determination that Licensee’s use of the Services poses a threat to the secure or reliable provision of Services to other customers, or to the Cloud Infrastructure, or to the data contained therein.
9.4 Effect of Termination. Upon termination of this Agreement, Delve’s obligation to provide the Services will immediately cease, any and all licenses granted by Delve hereunder will immediately terminate, and all unpaid fees and other amounts due from Licensee for Services previously provided by Delve will immediately become due and payable. In addition, Licensee shall immediately uninstall or destroy (or at the sole option of Delve, return) all copies of the Service and Documentation in its possession or control, and a duly authorized officer of the Licensee shall certify in writing to Delve that the Licensee has complied with such obligation. Despite the foregoing, upon any termination or expiration of this Agreement, the terms of this Agreement will continue to apply to any Order with a term that extends beyond the date of expiration or termination of the Agreement. Any termination of this Agreement pursuant to this Section shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
9.5 Survival. Sections 2, 4-8, 9.4, 9.5, 10-12, all associated definitions, and all accrued rights to payment shall survive any termination or expiration of this Agreement.
10. Export Regulations.
The Services are subject to U.S. export controls, including the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee shall not transfer, export or re-export, directly or indirectly, the Service in violation of any export law or regulation, and Licensee affirms that it is not, and is not acting on behalf of, any person or entity on the Denied Persons List, Entity List, Unverified List or Military End User List as published by the U.S. Department of Commerce, Bureau of Industry and Security.
11. Compliance with Laws. Licensee agrees to abide by all applicable laws and regulations in connection with this Agreement, including, without limitation, all Applicable Privacy Laws.
12. Miscellaneous.
12.1 Waiver. All waivers of any part of this Agreement must be in a signed writing. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions.
12.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at its address indicated in the signature box to this Agreement (or such other address as to which the other party has been notified), or sent by email to the email address as may be provided by one party to the other from time to time (provided in the case of notice by email that the sender does not receive a notice of delivery failure).
12.3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
12.4 Assignment and Sublicensing. Either party may assign this Agreement without such consent to an entity that acquires all or substantially all of the shares of the assigning party, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Despite the foregoing, Licensee may not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder to any competitor of Delve as determined in Delve’s reasonable discretion. In all other cases, neither party shall assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party.
12.5 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in the courts of the city and county of San Francisco, California.
12.6 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.
12.7 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
12.8 Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.
13. Publicity. Either party to this Agreement may publicize the existence of the business relationship established by this Agreement in connection with its products, promotions, or publications. At the request of either party from time to time, the parties shall work together in good faith to issue at least one mutually agreed upon press release regarding the parties’ relationship. Licensee grants Delve permission to use Licensee’s name and logo(s) in connection with promotion of Delve’s products and services. All representations of Licensee’s logo shall be exact copies of those used by Licensee in design, color and other details. Except as expressly set forth in this Section, nothing in this Agreement gives either party any right, title or interest in the other party’s logos, trademarks, service marks or trade names. Despite anything to the contrary, neither party may disclose the specific terms of this Agreement, except as required by applicable law.
THIS AGREEMENT, INCLUDING ALL ATTACHMENTS, SCHEDULES, EXHIBITS AND ALL APPLICABLE LICENSE AGREEMENTS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED ON, REFERENCED BY OR INCORPORATED INTO LICENSEE’S ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
Exhibit A
Certain Definitions
“Applicable Privacy Laws” means, in relation to any personal information that is processed in the provision of the Services, any applicable law, regulation or legislation protecting individual privacy, including without limitation, where applicable, the California Consumer Privacy Act, and the EU Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”).
“Authorized User” means any individual (in each case to the extent that Licensee’s license includes, and Licensee pays for, such individual) who is authorized to access the Services and exercise the rights licensed by Licensee. Each Authorized User must use a unique identity to access and use the Services unless otherwise licensed, and may access the services only to the extent licensed by Licensee.
“Cloud Infrastructure” means the Service, and the computing, storage, networking, and other hardware and software infrastructure used in providing the Services.
“Confidential Information” means the Service and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information, plus any other information or data which a party discloses in tangible form and conspicuously marks as “confidential,” “proprietary” or with other words generally understood to communicate the confidential nature of the information or which otherwise would be generally understood to be confidential or proprietary.
“Delivery” means the availability of the Service and/or Documentation by Delve to the Licensee via electronic or other means, without regard to when Licensee actually installs or uses such Service.
“Documentation” means the instruction manuals, user guides, and other information to be made available from time to time by Delve in either printed or electronic form to the Licensee.
“Intellectual Property Rights” means all inventions, know-how, patents (including originals, divisionals, continuations, continuations-in-part, extensions, utility models and re-issues), patent applications, copyrights (including all related rights and registrations and applications therefor), trade secrets, trademarks, internet domain names, moral rights, and all other proprietary and intellectual property rights.
“Licensee Data” means non-public information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Licensee (or on Licensee’s behalf) on the Cloud Infrastructure by or through the Service.
“Order” means any document agreed to between the parties which sets forth the Service licensed by the Licensee and any relevant pricing. Multiple Orders may be agreed to under this Agreement.
“Service” or “Services” means the services accessed by Licensee and its Authorized Users in a manner consistent with Delve’s published Documentation and this Agreement.
“Subscription” means licenses to the Service, Documentation, and Support.
“Support” means technical support as provided for in Section 1.3.
“Update” means such enhancements, modifications, or additions to the Service or Documentation as may be made available from time to time by Delve to Licensee.