- During the term of this Agreement, A2Knowledge will provide Customer with, software applications, analytics and reporting on Customer’s media relations (the “Services”). A2Knowledge may use third-party providers to provide the Services, including Google Services, Amazon Web Services and various electronic platforms and data providers. Services may not be available during routine maintenance times. A2Knowledge may modify the Services from time to time, including by adding or deleting features and functions, provided that no such change shall materially reduce the functionality of the Services provided to Customer. No Services shall be rendered except under the terms and conditions of this Agreement.
- Invoicing and Late Payments. A2Knowledge shall invoice Customer in advance of delivery of Services, due on receipt. After thirty days of the due date, unpaid fees accrue interest at one percent (1%) per month, or the maximum rate allowed by law, until paid. Customer acknowledges that A2Knowledge may suspend Services until payment is made.
- Proprietary Rights.
- A2Knowledge Proprietary Rights. This Agreement provides for access to and use of the Services. The Services are based upon proprietary A2Knowledge technology. The Services, including any software used in providing the Services, are protected by all applicable intellectual property and other laws, including trade secret, trademark, and copyright laws. The Services, including all intellectual property rights therein and derivatives and modifications thereto, are the property of A2Knowledge or its licensors (if any). A2Knowledge owns and retains all copyrights in the information provided in connection with the Services. Customer agrees not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the Services in whole or in part, by any means, except as expressly authorized in writing by A2Knowledge or as expressly required for the delivery of the Services. “A2Knowledge,” and other marks used by A2Knowledge from time to time in connection with the Services are trademarks and the property of A2Knowledge. The appearance, layout, color scheme, and design of the A2Knowledge.com and all related domains and sub-domains are protected trade dress. Customer does not receive any right or license to use the foregoing.
- Customer grants A2Knowledge the right to add Customer’s name and company logo to its customer list and website.
- Prohibited Use. Customer covenants, represents, and warrants that it will not:
- Use the Services in violation of the terms of this Agreement;
- Copy, modify, create a derivative work from, reverse engineer or reverse assemble the Services or related software, or otherwise attempt to discover any of A2Knowledge’s source code, or allow any third party to do so. Notwithstanding the previous sentence, Customer may copy, modify, and distribute reports generated by A2Knowledge for Customer as part of the Services;
- Sell, assign, sublicense, distribute, commercially exploit, grant a security interest in or otherwise transfer any right in, or make available to a third party, the Services in any way. Notwithstanding the previous sentence, Customer may copy, transfer and share the reports generated by the Services.
- Use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Services in a manner beyond the capability of a reasonable human or not intended in the delivery of the Services;
- Use the Services in any manner that damages, disables, overburdens, or impairs any A2Knowledge website or server, or interferes with any other party’s use and enjoyment of the Services;
- Attempt to gain unauthorized access to the Services;
- Access the Services by any means other than through the interface designated by A2Knowledge;
- Submit material that infringes any third party’s intellectual property rights, trade secret rights, or rights of publicity; and
- Use the Services for any purpose or in any manner that is unlawful or prohibited by this Agreement, including by the laws of privacy of the United States, the State of California, or any other applicable jurisdiction.
- Each Party shall defend, indemnify and hold harmless the other Party, its shareholders, officers, directors, affiliated companies, licensors, agents, and employees (each, an “Indemnified Party”) from and against any and all third party claims, direct economic losses, harm, costs, liabilities, damages, and expenses (including court costs, reasonable attorneys’ fees and related expenses) related to any claim, action, suit or proceeding (each, a “Claim”) brought against any Indemnified Party that is based on or arises out of (a) use of the Services by a Party in violation of this Agreement; (b) any actual or alleged breach of any representation, warranty, covenant, or obligation set forth in this Agreement; or (c) the unauthorized use of the Services by any person using Customer’s user information. The Party seeking indemnification will promptly notify the other Party of any such Claim and allow it the opportunity to settle such claim, judgment or proceeding at the indemnifying Party’s sole expense.
- Disclaimer of Warranties. A2KNOWLEDGE AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICES FOR ANY PURPOSE AND DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICES AND RELATED CONTENT, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM A2KNOWLEDGE IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT. THE SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED WORKS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND.
- Limitations of Liability.
- EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY UNDER ANY CIRCUMSTANCES (INCLUDING CIRCUMSTANCES INVOLVING TERMINATION), WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING DAMAGES FOR LOSS OF PROFITS, ANY OVERHEAD EXPENSES, OR COMMITMENTS TO THIRD PARTIES.
- EXCEPT FOR LIABILITY FOR (1) PAYMENT OF FEES FOR SERVICES AND (2) INDEMNITY OBLIGATIONS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY SHALL IN ALL CASES BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS ($5,000) OR THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
- Force Majeure. Neither Party shall be liable for nonperformance or delay in performance (other than payment obligations) caused by any event reasonably beyond the control of such Party, including wars, acts of terrorism, civil commotion, national emergency, internet malfunction, electrical power failure, labor disputes, epidemics, fire, flood, earthquake, force of nature, or any law, proclamation, regulation, ordinance, or other act or order of any court, government, or governmental agency.
- Notice. Notice shall be in writing and delivered either personally, via email, or by recognized overnight express service with proof of receipt. To Customer: to the email address provided to A2Knowledge. Notice is effective upon receipt.
- Contract for Services. The Parties intend this Agreement to be a contract for the provision of services and not a contract for the sale of goods. To the fullest extent permitted by law, the provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If Customer is located outside of the territory of the United States, the Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the Parties under this Agreement.
- Customer will not assign or transfer this Agreement without A2Knowledge’s prior written consent, which will not be unreasonably withheld. Subject to the foregoing restrictions on assignment, this Agreement is binding upon, inures to the benefit of, and is enforceable by the Parties and their respective successors and assigns.
- Either party may terminate Services with a minimum of 30 days notice. Service fees are nonrefundable and nontransferable. Notwithstanding the foregoing, A2Knowledge may, under certain circumstances, and without prior notice, suspend or terminate Services.
- General Provisions. No joint venture, partnership, employment, or agency relationship exists between the Parties as a result of this Agreement or Customer’s use of the Services. This Agreement shall be exclusively interpreted, construed and enforced in all respects in accordance with the laws of the State of California (USA) without reference to its choice of law rules. The Parties agree that venue for any and all disputes hereunder, or action on any obligation hereunder, will be exclusively brought in an appropriate state or federal court in Alameda County, California, and the Parties irrevocably consent to the jurisdiction of such courts for any dispute hereunder or action on any obligation hereunder. No delay, omission, or failure to exercise any right or remedy provided for in this Agreement shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such remedy, but every such right or remedy may be exercised, from time to time, as may be deemed expedient by the Party exercising such right or remedy. If any provision of this Agreement is determined by competent authority to be prohibited or unenforceable in any jurisdiction, (i) such provision shall be excluded from this Agreement as to such jurisdiction, solely to the extent of such prohibition or unenforceability, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction, and (ii) the balance of the Agreement shall remain valid and be interpreted as if such provision were so excluded. This Agreement’s provisions pertaining to intellectual property rights, limited liability, indemnification obligations, and each other provision that may reasonably be interpreted as being intended to survive this Agreement’s termination shall survive such termination. This Agreement shall be construed within its fair meaning and in interpreting this Agreement no inference shall be drawn against the drafting party. As used in this Agreement, the term “including” shall be deemed to mean “including, but not limited to.”