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Any personally identifiable information, except as necessary for the establishment of your Sourcesense account;
Any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or
Any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) (through collectively, "Sensitive Data"). You also acknowledge that Sourcesense is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Hosted Services are not HIPAA compliant. "HIPAA" means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Sourcesense has no liability under this Agreement for Sensitive Data.
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You will defend, indemnify and hold harmless Sourcesense from and against any loss, cost, liability or damage, including attorneys' fees, for which Sourcesense becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving ℹ prompt
Prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice);
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The exclusive right to control and direct the investigation, defense, or settlement of such claim; and
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All reasonable necessary cooperation of Sourcesense at your expense.
7.4 Removals and Suspension
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Except as otherwise expressly permitted in this Agreement, you will not: (a) rent
Rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party
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Use the Products for the benefit of any third party without prior written authorisation from Sourcesense
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Incorporate any Products into a product or service you provide to a third party
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Interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use
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reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law
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Remove or obscure any proprietary or other notices contained in any Product
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Publicly disseminate information regarding the performance of the Products. At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use.
12 OWNERSHIP AND FEEDBACK
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Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party ("Receiving Party") by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any Sourcesense Technology and any performance information relating to the Products shall be deemed Confidential Information of Sourcesense without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: ℹ was
Was rightfully in its possession or known to it prior to receipt of the Confidential Information;
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Is or has become public knowledge through no fault of the Receiving Party;
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Is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
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Is independently developed by employees of the Receiving Party who had no access to such information.
The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
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Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
15.2 Warranty Disclaimer
ALL PRODUCTS ARE PROVIDED "AS IS," AND SOURCESENSE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. SOURCESENSE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SOURCESENSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SOURCESENSE NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY AND ALL LIABILITIES AND WARRANTIES COVERED UNDER SECTION 15 AND 16 OF THIS AGREEMENT SHALL EXTEND TO AFFILIATES, EMPLOYEES, CONSULTANTS AND OTHER THIRD PARTY AUTHORISED USERS.
16 LIMITATION OF LIABILITY
NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION 19 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY'S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 12 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVERAll products are provided "as is," and Sourcesense and its suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law. Sourcesense shall not be liable for delays, interruptions, service failures, and other problems inherent in the use of the internet and electronic communications or other systems outside the reasonable control of Sourcesense. To the maximum extent permitted by law, neither Sourcesense nor any of its third-party suppliers makes any representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy, or completeness of any products or any content therein or generated therewith, or that:
The use of any products will be secure, timely, uninterrupted, or error-free;
The products will operate in combination with any other hardware, software, system, or data;
The products (or any products, services, information, or other material purchased or obtained by you through the products) will meet your requirements or expectations;
Any stored data will be accurate or reliable or that any stored data will not be lost or corrupted;
Errors or defects will be corrected; or
The products (or any server(s) that make a hosted service available) are free of viruses or other harmful components. Any and all liabilities and warranties covered under section 15 and 16 of this agreement shall extend to affiliates, employees, consultants, and other third-party authorized users.
16 LIMITATION OF LIABILITY
Neither party (nor its suppliers) shall be liable for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, even if informed of the possibility of such damages in advance. Neither party's aggregate liability to the other shall exceed the amount actually paid by you to us for products and support and maintenance in the 12 months immediately preceding the claim. Notwithstanding anything else in this agreement, our aggregate liability to you in respect of no-charge products shall be US$20. This section 19 (limitation of liability) shall not apply to (1) amounts owed by you under any orders, (2) either party's express indemnification obligations in this agreement, or (3) your breach of section 12 (restrictions). To the maximum extent permitted by law, no suppliers of any third-party components included in the products will be liable to you for any damages whatsoever. The parties agree that the limitations specified in this Section section 16 (Limitation limitation of Liabilityliability) will survive and apply even if any limited remedy specified in this Agreement agreement is found to have failed of its essential purpose.
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Sourcesense's liability for infringement of third-party intellectual property rights shall be limited to breaches subsisting in the UK (up to an aggregate amount of £1,000,000) and in the USA (up to an aggregate amount of $1,000,000). This indemnification obligation shall not apply if (1) the total aggregate fees received by Sourcesense with respect to your license to Software in the 12 month period immediately preceding the claim is less than US$50,000; (2) if the Product is modified by any party other than Sourcesense, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-Sourcesense product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of Your Data or any third-party deliverables or components contained with the Products; to any unsupported release of the Software; or if you settle or make any admissions with respect to a claim without Sourcesense's prior written consent. THIS SECTION This section 17 (IP INDEMNIFICATION BY SOURCESENSE) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY SOURCESENSE UNDER THIS AGREEMENTindemnification by Sourcesense) states our sole liability and your exclusive remedy for any infringement of intellectual property rights in connection with any product or other items provided by Sourcesense under this agreement.
18 PUBLICITY RIGHTS
We may identify you as an Sourcesense customer in our promotional materials. You may request that we stop doing so by submitting an email to sales@sourcesense.com at any time. Please note that it may take us up to 30 days to process your request.
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The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof:
Into (
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or to a national or resident of) any embargoed or terrorist-supporting country;
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To anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals;
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To any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval;
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Otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and
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that none of Your Data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
22 CHANGES TO THIS AGREEMENT
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You may assign this Agreement to: ℹ succeeding
Succeeding parties in the case of a merger, acquisition or change of control;
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If You are a supplier to a government agency
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.
Provided, however, that in each case, (a) :
Sourcesense is notified in writing within ninety (90) days of such assignment,
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The assignee agrees to be bound by the terms and conditions contained in this Agreement and
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Upon such assignment the assignee makes no further use of the Software licensed under this Agreement.
Sourcesense may assign its rights and obligation under this Agreement without consent of Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.
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