THIS AGREEMENT GOVERNS CLIENT’S ACQUISITION AND USE OF INOVA SERVICES. BY ACCEPTING THIS AGREEMENT, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF CLIENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CLIENT REPRESENTS THAT HE HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "CLIENT" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CLIENT DOES NOT HAVE SUCH AUTHORITY, OR IF CLIENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Agreement consists of this document and the following Annexes, all of which shall form part of this Agreement.
- Annex A: Description of the Inova Platform
- Annex B: Service Levels Agreement
- Annex C: Order Form – Subscription Services
- Annex D: Order Form - Professional Services Statement of Work (SoW)
In this agreement, unless otherwise stated or unless the context otherwise requires, each capitalized term will have the following meanings:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
"Control" for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means this agreement.
"Content" means information obtained by Inova from content licensors or publicly available sources and provided to Client pursuant to an Order Form, as more fully described in the Documentation.
"Client" means the company or other legal entity for which Client is accepting this Agreement, and Affiliates of that company or entity.
"Data" means the company or other legal entity for which Client is accepting this Agreement, and Affiliates of that company or entity.
"Documentation" means any documentation on the Inova Platform, provided to Client by Inova in electronic format, including Annex A.
"Order form" means an ordering document specifying the Services to be provided hereunder that is entered into between Client and Inova, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
"Platform" means all the software and infrastructure constituting the "Inova Platform" as described in Annex A and allowing access to the Services subscribed.
"Services" means the products and services that are ordered by Client under an Order Form and made available online by Inova as described in the Documentation. “Services” exclude Content.
"Services period" means the period of time for which the Client has ordered Services as specified in each Order Form.
"Service description" means the description available in Annex A, or any URL/Web address specified by Inova, that are applicable to the Services ordered, including any documentation, hosting, support and security policies, and other descriptions referenced or incorporated in such descriptions or directly in the Order Form, and as updated from time to time.
"Subscription" means any act of subscription by Client to a free or purchased Service, using when appropriate an “Order Form – Subscription Services” of the Annex C or an “Order Form – Professional Services Statement of Work” of the Annex D and considered User by User.
"User" means an individual who is authorized by Client to use a Service, for whom Client has ordered the Service, and to whom Client, or Inova at Client request, have supplied a user identification and password. Users may include, for example, Client employees, consultants, contractors and agents, and third parties with which Client transact business.
2. Obligations of Parties
2.1. Provision of Services
Inova will (a) make the Services and Content available to Client pursuant to this Agreement and the applicable Order Forms, (b) provide Inova standard support and backup services as described in Annex A and B for the Services purchased to Client at no additional charge, and/or Upgraded Support if purchased, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Inova shall give at least 5 days electronic notice and which Inova shall schedule to the extent practicable during the weekend hours), and (ii) any unavailability caused by circumstances beyond Inova reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Inova employees), Internet service provider failure or delay, or denial of service attack.
2.2. Protection of Client Data
Inova will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by Inova personnel except (a) to provide the Services purchased by Client and prevent or address service or technical problems, (b) as compelled by law in accordance with the section “Compelled Disclosure” below, or (c) as Client expressly permits in writing. Inova Personnel. Inova will be responsible for the performance of Inova personnel (employees and contractors) and their compliance with Inova obligations under this Agreement, except as otherwise specified herein.
2.3. Client Responsibilities
Client will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Client Data and the means by which Client acquired Client Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Inova promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations.
3. Use of Services
Unless otherwise provided in the applicable Order Form, (a) Services are purchased as Subscriptions, (b) Subscriptions may be added during a Subscription term at the same pricing as the underlying Subscription pricing, prorated for the portion of that Subscription term remaining at the time the Subscriptions are added, and (c) any added Subscriptions will terminate on the same date as the underlying Subscriptions.
3.2. Usage Limits
Services are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If Client exceeds a contractual usage limit, Inova may work with Client to seek to reduce Client’s usage so that it conforms to that limit. If, notwithstanding Inova efforts, Client is unable or unwilling to abide by a contractual usage limit, Client will execute an Order Form for additional quantities of the applicable Services promptly upon Inova’s request.
3.3. Usage Restrictions
Client will not (a) make any Service available to, or use any Service for the benefit of, anyone other than Client or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service, other than framing on Client’s own intranets or otherwise for Client’s own internal business purposes or as permitted in the Documentation, (k) access any Service in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
3.4. Integration with Non-Inova applications
The Services may contain features designed to interoperate with Non-Inova applications. To use such features, Client may be required to obtain access to Non-Inova applications from their providers, and may be required to grant Inova access to Client account(s) on the Non-Inova applications. If the provider of a Non-Inova application ceases to make the Non-Inova application available for interoperation with the corresponding Service features on reasonable terms, Inova may cease providing those Service features without entitling Client to any refund, credit, or other compensation.
4. Finantial Terms
Client will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription term.
4.2. Invoicing and Payment
Client will provide Inova with a valid purchase order or alternative document reasonably acceptable to Inova. Inova will invoice Client in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Client is responsible for providing complete and accurate billing and contact information to Inova and notifying Inova of any changes to such information.
4.3 Credit Cards
Inova may allow in the future credit card payments. In such case Client will provide Inova with valid and updated credit card information. Client authorizes Inova to charge such credit card for all Services purchased as listed in the Order Form for the initial Subscription term and any renewal Subscription term(s) as set forth in the section “Term of Purchased Subscriptions”. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form.
4.4. Overdue Charges
If any invoiced amount is not received by Inova by the due date, then without limiting Inova rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Inova may condition future Subscription renewals and Order Forms on payment terms shorter than those specified in the section (Invoicing and Payment).
4.5. Suspension of Service and Acceleration
If any amount owing by Client under this or any other agreement for Inova services is 30 or more days overdue, Inova may, without limiting Inova’s other rights and remedies, accelerate Client unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Inova services to Client until such amounts are paid in full. Inova will give Client 10 days’ prior notice that Client account is overdue before suspending services to Client.
4.6. Payment Disputes
Inova will not exercise its rights under the sections “Overdue Charges” or “Suspension of Service and Acceleration’ if Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
CInova fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with Client purchases hereunder. If Inova has the legal obligation to pay or collect Taxes for which Client is responsible under this section, Inova will invoice Client and Client will pay that amount unless Client provides Inova with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.8. Future Functionality
Client agrees that Client purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Inova regarding future functionality or features.
5. Term & Termination
5.1. Term of Agreement
This Agreement commences on the date Client first accepts it and continues until all Subscriptions hereunder have expired or have been terminated.
5.2. Term of Purchased Subscriptions
The term of each Subscription shall be one year or as specified in the applicable Order Form. Except as otherwise specified in an Order Form, Subscriptions will automatically renew for additional periods equal to the expiring Subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant Subscription term. The per unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Inova has given Client written notice of a pricing increase at least 90 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed 5% of the pricing for the applicable Service in the immediately prior Subscription term, unless the pricing in the prior term was designated in the relevant Order Form as promotional or one-time.
A party may terminate this Agreement for cause (i) upon 60 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.4. Refund or Payment upon Termination
If this Agreement is terminated by Client in accordance with the section “Termination”, Inova will refund Client any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Inova in accordance with the section “Termination”, Client will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Client of its obligation to pay any fees payable to Inova for the period prior to the effective date of termination.
5.5. Data Portability and Deletion
Upon request by Client made within 30 days after the effective date of termination or expiration of any or all of the services offered by Inova, or this Agreement, Inova will make the relevant Client Data corresponding to the terminated or expired services, available to Client for export or download as provided in the Documentation. After that 30-day period, Inova will have no obligation to maintain or provide Client Data, and will thereafter delete or destroy all copies of Client Data in Inova systems or otherwise in Inova’s possession or control as provided in the Documentation, unless legally prohibited. Should Client request additional assistance from Inova than what is described, such assistance will be subject to Inova professional services terms and conditions, then in effect.
5.6. Surviving Provisions
The sections titled "Fees and Payment for Purchase Services," "Proprietary Rights and Licenses," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Portability and Deletion of Client Data," and "General" will survive any termination or expiration if this Agreement.
6. Proprietary Rights and Licenses
6.1. Reservation of Rights
Subject to the limited rights expressly granted hereunder, Inova and Inova licensors reserve all of Inova/their right, title and interest in and to the Services and Content, including all of Inova/their related intellectual property rights. For clarity this includes the Inova Platform and all the Services and Documentation offered on the Platform, Inova trademarks and copyrights, Inova licensors’ trademarks and copyrights, Inova licensors’ operating system licenses or other software used to run the Platform such as database management systems, storage systems, backup and safety devices and equipment. No rights are granted to Client hereunder other than as expressly set forth herein.
6.2. Client’s Data
The Client is and remains the sole owner of its data.
6.3. License by Inova to Use Content
Inova grants to Client a worldwide, limited-term license, under Inova applicable intellectual property rights and licenses, to use Content acquired by Client pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
6.4. License by Client to host Client Data
Client grant Inova a worldwide, limited- term license to host, copy, transmit and display Client Data, as necessary for Inova to provide the Services to Client in accordance with this Agreement. Subject to the limited licenses granted herein, Inova acquires no right, title or interest from Client or Client licensors under this Agreement in or to Client Data. As such, Inova assumes no responsibility, nor any liability whatsoever should the Client Data infringe or violate the intellectual proprietary rights of any third party.
6.5. License by Client to Use Feedback
Client grants to Inova a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the operation of the Services.
7.1. Definition of Confidential Information
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client Confidential Information includes Client Data; Inova Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this section. Obligations of the parties with regards to the Confidential Information will remain in force during the full term of the Agreement and for a period of 10 years after the term of the Agreement.
7.3. Compelled Disclosure
The section “Protection of Confidential Information” is not construed to prohibit any disclosure that is (a) necessary to establish the rights or obligations of a party under this Agreement in connection with a legal proceeding or (b) required by applicable law or a valid court order or subpoena, provided in the latter case that either party notifies the other party (whose Confidential Information is to be disclosed) thereof promptly and in writing and cooperates with the other party in all reasonable respects if the other party seeks to contest or limit the scope of such disclosure.
8. Personal Data
Processing of Personal Data
“Processing” means any operation or set of operations performed on personal data, by any means whatsoever (including by computer or manually), including the collection, recording, organization, structuring, storage, adaptation, modification, retrieval, consultation, deletion, use, making available, alignment, combination, restriction, erasure or destruction. “Personal Data” means any data relating to an identified or identifiable individual, within the meaning of EU Regulation 2016/679 on the protection of natural persons about the processing of personal data and on the free movement of such data (the “GDPR”). 1. The Parties agree to comply with all applicable data privacy laws and regulations as amended from time to time, such as the GDPR and any enacting laws. Inova agrees, if necessary, to comply with its obligations to complete formalities with respect to its Processing activities under this Agreement to the relevant supervisory authority and further, shall take any other steps requested by Client, in order to enable Client to comply with any notification or other obligations applicable to Client or its Subsidiary and/or Parent Companies under such laws. The Parties agree to maintain a record of processing activities under their respective responsibility, in accordance with the terms of the GDPR. The Parties acknowledge that Client is the Data Controller (as defined in the GDPR) and Inova is a Processor (as defined in the GDPR) with respect to the Processing of the Personal Data in the context of the services rendered under this Agreement. 2. Inova shall comply with all applicable laws, as amended from time to time, with respect to the Processing of Personal Data, including the following provisions: a) Ensure that the Personal Data collected by Inova are processed only in accordance with this Agreement, or as otherwise instructed in writing from time to time by Client. b) Inova shall use the Personal Data strictly as necessary to carry out its obligations as part of the Service and for no other purpose, thereby excluding any processing or use of the Personal Data for its own purposes as well as transfer of the Personal Data to any third party unless expressly authorized by Client. c) Where Inova subcontracts its obligations under the terms of this Agreement, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on Inova under this Agreement. d) Ensure that the Personal Data are not disclosed or transferred to any third party without the prior written consent of Client, except (i) as specifically stated or for the necessary performance of the Services in this Agreement, or (ii) where such disclosure or transfer is required by any applicable law, regulation or supervisory authority, in which case Inova shall, wherever possible, notify promptly in writing Client prior to complying with any such request for disclosure or transfer and shall comply with all reasonable directions of Client with respect to such disclosure or transfer. e) Implement and maintain commercially reasonable technical and organizational measures to protect the Personal Data against accidental or unlawful destruction or accidental loss, destruction, damage, corruption or alteration, or unauthorized disclosure or access and against all other unlawful forms of Processing. 3. Inova will procure that any sub-processor Inova hires will: a) At its own expense assist Client to comply with any obligations under applicable laws and regulations and not perform its obligations under this Agreement in such a way as to cause Client to breach any of its legal or regulatory obligations; b) Ensure that each of its employees, agents or subcontractors are made aware of, and comply with, Inova’s obligations under this Agreement and Client acknowledges that any failure by Inova’s employees, agents or subcontractors to comply with the terms of this Agreement shall be deemed a breach of this Agreement by Inova; c) Promptly notify Client about (i) any legally binding request for disclosure of the Personal Data by a law enforcement authority unless otherwise prohibited from doing so by law; (ii) any request received for the Personal Data directly from a data subject; and (iii) any complaint, communication or request relating to Client’s obligations under applicable laws (including requests from a competent supervisory authority). d) Implement appropriate mechanisms to ensure that Personal Data can be accessed, corrected, restricted, deleted and blocked, as well as ensure Personal Data portability, due to statutory requirements, upon demand of a supervisory authority, or upon the data subject’s instructions; e) Ensure that only such of its employees, agents or subcontractors who may be required by Inova to assist in performing any obligations imposed by Client will have access to the Personal Data and who are subject to written confidentiality and data security obligations; f) Take reasonable steps to ensure the reliability of any employees of Inova and sub-contractor personnel who have access to the Personal Data; g) Notify Client of any unauthorized or unlawful processing, including any processing in violation of the provisions of this Agreement, or any accidental loss, destruction, damage, alteration or disclosure of the Personal Data as soon as it becomes aware of it, but not later than 36 hours after the even occurred, and keep Client informed of any related developments; h) Take reasonable steps to return, store, destroy or permanently de-identify Personal Data when it no longer is necessary to retain it, in accordance with the terms of this Agreement and all reasonable, lawful instructions of Client. 4. Inova shall undertake that Personal Data will not be transferred out of the European Economic Area as stated in Section 12 of this Agreement. Client shall ensure that he is entitled to transfer the relevant personal data to Inova so that Inova may lawfully use, process and transfer Personal Data in accordance with the Agreement.) Unless Inova does not comply with the present section, Client shall hold Inova harmless from any claims, complaints or claims made by a natural person whose Personal Data are reproduced and hosted via the Platform. Inova represents and warrants that nothing in any applicable data protection legislation (or any other existing law) prevents Inova from fulfilling its obligations under this Agreement and undertakes and agrees that, in the event of a change in any such laws that is likely to have a material adverse effect on Inova’s compliance with this Agreement or in the event Inova otherwise cannot comply with this section for whatever reason(s), Inova shall notify Client without delay and within thirty(30) days whereupon Client may terminate this Agreement.
9. Representations, Warranties & Disclaimers
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Inova warrants that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, (b) Inova will not materially decrease the overall security of the Services during a Subscription term, (c) the Services will perform materially in accordance with the applicable Documentation, (d) the Services have been properly tested for viruses, Trojan horses, trap doors and similar devices that could disrupt or disable a computer system or any of its components and that, to the best of Inova knowledge the Services, as delivered, contains no such devices, and (e) Inova warrants that any maintenance, and support services provided hereunder shall be performed by qualified personnel in a professional manner, consistent with industry standards. For any breach of an above warranty, Client exclusive remedies are those described in the sections “Termination” and “Refund or Payment upon Termination”.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. Liability – Force Majeure
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (1) IN NO EVENT SHALL INOVA OR ITS AFILIATES BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, GOODWILL, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR OPERATION OF THE HOSTING SERVICES, IN WHOLE OR IN PART, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY; (2) IN NO EVENT SHALL THE ENTIRE LIABILITY OF INOVA OR ITS AFILIATES ARISING UNDER, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNT OF LICENSE FEES RECEIVED BY INOVA FROM LICENSEE FOR THE APPLICABLE LICENSED MATERIALS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY; (3) THESE LIMITATIONS AND EXCLUSIONS SHALL APPLY EVEN IF SUCH LOSS WAS REASONABLY FORESEEABLE OR IF INOVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (4) THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES HEREIN. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE SERVICES PROVIDED HEREUNDER OR TO ANY INOVA MATERIALS FURNISHED TO CLIENT HEREUNDER OR IN CONNECTION HEREWITH. INOVA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Neither party shall be liable to the other for any delay in performing, or failure to perform, any of its obligations under this Agreement if and to the extent that the failure or delay is caused as a result of any Force Majeure event, provided that such failure or delay could not have been prevented by reasonable precautions. The time for performance of an obligation which is affected by such an event shall be extended by a period which reflects the delay caused by the Force Majeure event. A party shall only be entitled to claim relief in respect of a Force Majeure event if it immediately informs the other party of the nature and severity of the Force Majeure event (including its estimated duration and impact on that party's ability to perform its obligations), and its wish to claim relief and takes commercially reasonable efforts to resume or maintain performance of its obligations under this Agreement as soon as reasonably possible.
Inova is not liable for any consequences of a security default (hardware or software) of the terminal (e.g. computer, laptop, tablet, cell phone, etc.) used by Client to access the Services.
11. Mutual Indemnification
Indemnification by Inova
Subject to the provisions of this Agreement, Inova shall (i) defend Client against any third party claim that the Services infringe a United States or European patent or copyright and (ii) pay the resulting cost and damages finally awarded against Client by a court of competent jurisdiction or the amount stated in a written settlement signed by Inova. The foregoing obligations are subject to the following: Client (a) notifies Inova promptly in writing of such claim, (b) grants Inova sole control over the defense and settlement thereof, (c) reasonably cooperates in response to Inova request for assistance, and (d) is not in material breach of this Agreement. Should any such Services become, or in Inova’s opinion be likely to become, the subject of such a claim, Inova may, at its option and expense, (1) procure for Client the right to make continued use thereof, (2) replace or modify such so that it becomes non-infringing, (3) terminate Client Subscriptions for that Service upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated Subscriptions. Inova shall have no liability under this section to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of the Services with third party products or services, (B) use for a purpose or in a manner for which the Services was not designed, (C) any use of other than the current, unaltered version of the Service, (D) Content, or (E) any unauthorized use of the Service.
Indemnification by Client
Client will defend Inova against any claim, demand, suit or proceeding made or brought against Inova by a third party alleging that Client Data, or Client use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law, and will indemnify Inova from any damages, attorney fees and costs finally awarded against Inova as a result of, or for any amounts paid by Inova under a court-approved settlement of such a claim against Inova, provided Inova (a) promptly gives Client written notice of such claim, (b) gives Client sole control of the defense and settlement thereof (except that Client may not settle any such claim unless Client unconditionally releases Inova of all liability), and (c) give Client all reasonable assistance, at Client expense.
This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
Contracting Parties and Notices
If Client is domiciled in The United States of America, Canada, Mexico or a Country in Central or South America or the Caribbean, then Client is contracting with: Inova Inc., a Delaware corporation located at:15 Maiden Lane, Suite 908 New York, NY 10038 If Client is domiciled in a country in Europe, the Middle East, Africa or Asia, then Client is contracting with: Inova SA, a French company located at:89 Rue Tronchet, 69006 Lyon Notices should be addressed to : President Americas Inova Inc. Fax: +1 212 608 0772 Notices should be addressed to : VP Sales Inova SA Fax: +33 (0)4 78 27 95 02 Version of this clause is applicable only if the signatory is Inova Inc., a Delaware corporation located at 15 Maiden Lane, Suite 908, New York, NY 10038 In the event of a conflict between an Attachment and this Agreement, the terms and conditions of this Agreement will govern. Client may not assign, delegate, sublicense or otherwise transfer its rights or obligations under this Agreement without Inova's prior written consent. A waiver of any breach(es) will not constitute a waiver of any future breach of a similar or different nature. If any provision of this Agreement is deemed illegal or unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. The headings used in this Agreement are for convenience only and will not create any rights or obligations or affect the meaning or interpretation of this Agreement. This Agreement and all matters arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the State of New York., excluding all choice of law provisions. Client acknowledges that the Inova Materials may be subject to export controls under applicable export control regulations, including without limitation, the U.S. Export Administration Regulations, and agrees to comply with any such regulations. This Agreement supersedes all other agreements, proposals, representations and other understandings regarding the services and/or Inova Materials to be provided hereunder, whether oral or written and Client acknowledges that there are no other understandings or agreements, oral or written, related to the services and/or Inova Materials purchased hereunder. All notices permitted or required under this Agreement will be sent to the recipient party's address stated in this Agreement (as may be modified in writing). Alterations or modifications of this Agreement will be valid only if made in writing signed by both parties. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Neither the failure nor any delay on the part of either party to exercise any right under this Agreement shall operate as a waiver thereof. Except as otherwise provided herein, if the performance of any obligation hereunder (other than the making of payments hereunder) is prevented, restricted or interfered with by reason of any event, act or condition beyond the reasonable control of the affected party, the party so affected, upon written notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference. Inova and Client hereby acknowledge and agree that any provisions of any state law adopting exactly or in modified form the Uniform Computer Information Transactions Act ("UCITA") will not be applicable to this Agreement. During the term of this Agreement and for a period of one (1) year thereafter, Client will not solicit or hire for employment any employee or contractor of Inova with whom Client has had contact in connection with the relationship arising under this Agreement. Version of this clause is applicable only if the signatory is Inova SA, a French company located at 89 Rue Tronchet, 69006 Lyon In the event of a conflict between an Attachment and this Agreement, the terms and conditions of this Agreement will govern. Client may not assign, delegate, sublicense or otherwise transfer its rights or obligations under this Agreement without Inova's prior written consent. A waiver of any breach(es) will not constitute a waiver of any future breach of a similar or different nature. If any provision of this Agreement is deemed illegal or unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. The headings used in this Agreement are for convenience only and will not create any rights or obligations or affect the meaning or interpretation of this Agreement. This Agreement and all matters arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of France, excluding all choice of law provisions. For all disputes arising out of or in connection with this Agreement the courts of Lyon, France, shall be competent. This Agreement supersedes all other agreements, proposals, representations and other understandings regarding the services and/or Inova Materials to be provided hereunder, whether oral or written and Client acknowledges that there are no other understandings or agreements, oral or written, related to the services and/or Inova Materials purchased hereunder. All notices permitted or required under this Agreement will be sent to the recipient party's address stated in this Agreement (as may be modified in writing). Alterations or modifications of this Agreement will be valid only if made in a writing signed by both parties. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Neither the failure nor any delay on the part of either party to exercise any right under this Agreement shall operate as a waiver thereof. Except as otherwise provided herein, if the performance of any obligation hereunder (other than the making of payments hereunder) is prevented, restricted or interfered with by reason of any event, act or condition beyond the reasonable control of the affected party, the party so affected, upon written notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference. During the term of this Agreement and for a period of one (1) year thereafter, Client will not solicit or hire for employment any employee or contractor of Inova with whom Client has had contact in connection with the relationship arising under this Agreement.
The Services, Content, other technology Inova makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. In this case, each party represents that it is not named on any U.S. government denied-party list. Client shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
Client has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Inova employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Client learns of any violation of the above restriction, Client will use reasonable efforts to promptly notify Inova.
Entire Agreement and Order of Precedence
This Agreement is the entire agreement between Client and Inova regarding Client use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in Client purchase order or in any other of Client order documentation (excluding Inova Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Inova Order Form, (2) this Agreement, and (3) the Documentation.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Inova will refund to Client any prepaid fees covering the remainder of the term of all Subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or a claim for indemnification). Billing-related notices to Client shall be addressed to the relevant billing contact designated by Client. All other notices to Client shall be addressed to the relevant Services system administrator designated by Client.
Agreement to Governing Law and Jurisdiction
Each party agrees to the applicable governing law as outlined in the “Contracting Parties and Notices” section without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
Each Party declares to be insured during the entire term of the Agreement with a reputable insurance company for all the financial consequences of its civil liability, or its professional operation, including: fire, tort due to personal injury, property damage and loss caused to the other party or any third by its employees in connection with the execution of this Agreement. To this end, each Party agrees to pay all premiums for the beneficiary to enforce its rights.
In case of difficulties in interpretation between any of the titles at the head of clauses, and any of the clauses, the titles will be declared nonexistent. EACH PARTY HAS CAUSED THIS AGREEMENT TO BE EXECUTED BY A DULY AUTHORIZED REPRESENTATIVE. CLIENT ACKNOWLEDGES BY SIGNING THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE DISCLAIMERS OF WARRANTY AND LIMITATION OF LIABILITY.