ESource Terms & Conditions
“AEGS” has the meaning set forth in the AEGS Cover Sheet.
“AEGS Cover Sheet” means the Cover Sheet signed by both parties that reference these Terms and Conditions, as it may be supplemented from time to time.
“Client” means the party or parties (who will be jointly and severally liable to AEGS) to whom AEGS is to provide services pursuant to this Agreement.
1. SERVICES, GRANT OF LICENSE
1.1 AEGS, directly or through an affiliate, agrees to provide to Client the services set forth in the AEGS Cover Sheet (the “Services”). The Services may include information (the “Licensed Materials”), access to and/or use of software or other technology (the “AEGS Technology”), or other services. Specific Services may be defined by and are subject to the terms and provisions in the AEGS Cover Sheet. AEGS will make the Services available to Client via password-protected online access accessible by Client with usernames and passwords. AEGS grants to Client a non-exclusive, non-transferrable license to access and use the Services in accordance with this Agreement and during the Term of this Agreement.
1.2 The Services will be provided as they exist and are updated and amended throughout the Term. Information provided as part of any Licensed Materials may be updated on an ongoing basis. Client understands and acknowledges that the contents of Licensed Materials may change over time, and that at any given time its right to access and use such data shall be limited to such contents as they may change over time. Certain portions of the Services may be provided by third party licensors, and AEGS’s ability to provide such information may be subject to the willingness of such licensors to continue to contract with AEGS. Features and functions of AEGS Technology are provided “as is” and as they may be modified, supplemented, or removed from time to time in AEGS’s sole discretion. AEGS shall have no liability to Client for any modification to any Service, provided that the product or service provided substantially conforms to the description in the AEGS Cover Sheet.
1.3 Ownership. Client acknowledges and agrees that, as between AEGS and Client, the Licensed Materials, AEGS Technology, and any related documentation are the property of AEGS, whether or not they are trademarked, copyrighted, or patented. Client acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or AEGS Technology, nor any part thereof, except the limited license provided hereunder, and Client expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. Subject to the limited rights expressly granted hereunder, AEGS, its affiliates and/or its licensors reserve all right, title, and interest in and to the Licensed Materials and AEGS Technology, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein. All other trademarks, registered trademarks, product names, and company names or logos mentioned in or on AEGS Technology are the property of their respective owners.
1.4 Third Party Applications. “Third Party Applications” means computer software programs and other technology that are provided or made available to Client or ESource Authorized Users by third parties, including those with which AEGS Technology may interoperate. AEGS is not responsible for and does not endorse any Third Party Applications. Client shall not integrate Licensed Materials into any Third Party Applications for the purpose of allowing persons who are not ESource Authorized Users (defined below) to access or use the Licensed Materials.
1.5 Support. AEGS will provide reasonable assistance and ongoing support to assist Client and ESource Authorized Users in accessing the Licensed Materials. AEGS will make its personnel available by email, online chat, or phone for feedback, problem solving, or general questions between the hours of 9:00 a.m. and 5:00 p.m. Mountain Time (Monday – Friday) and will make reasonable efforts to acknowledge support requests within 24 business hours.
2. AUTHORIZED USE OF LICENSED MATERIALS AND AEGS TECHNOLOGY, RESTRICTIONS
2.1 Administrators and ESource Authorized Users. Client shall be entitled to designate that number of persons as administrators (“ESource Administrators”) and as users (“ESource ESource Authorized Users”) appearing in the AEGS Cover Sheet, as it may be amended from time to time. If Client designates more than the number appearing in the AEGS Cover Sheet, AEGS may charge Client a corresponding additional Fee equal to the prevailing per-seat rate multiplied by the period from the date of such designation until the end of the then-current Term. Client shall be responsible for compliance with the terms of this Agreement by all ESource Administrators and ESource ESource Authorized Users, including, without limitation, the restrictions on use and transfer of Licensed Materials set forth herein. Client acknowledges and agrees that each ESource Administrator and ESource Authorized User must provide AEGS with certain identifying information, including their name and a business email address, and that each ESource Administrator and ESource Authorized User may be required to accept an end-user license agreement agreeing to AEGS’s privacy policy and terms of use and representing that they are authorized to access the Services on Client’s behalf.
2.2 Qualification of ESource Authorized Users. Client shall not designate any person as a ESource Administrator or ESource Authorized User unless such person is: (a) a natural person and (b) an employee of Client. Client may, however, designate a non-employee (e.g., an independent contractor) as an Authorized User but only with AEGS’s prior permission (which may be granted in the AEGS Cover Sheet) and provided Client takes reasonable steps to ensure such non-employee uses the Services only as permitted under this Agreement. If the employment of any ESource Administrator or ESource Authorized User that was in effect as of the date such person was designated as an ESource Administrator or ESource Authorized User terminates, such person’s authorization to access the Services shall be revoked automatically without any further action by AEGS. In the event of a termination as described in the previous sentence, Client shall promptly notify AEGS and take all reasonable steps to ensure that such person ceases accessing the Services. Client may reassign ESource Administrator and ESource Authorized User designations in good faith, subject to the foregoing qualification requirements.
2.3 Authorized Uses, Restrictions. Client shall not access or use the Services for any purpose except ESource Authorized User training. Client shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Client. Subject to Client’s compliance with all applicable laws, rules, and regulations, Client may use the Services to: view the Licensed Materials and otherwise analyze the Licensed Materials in a manner relating to ESource Authorized User training. Client shall not permit anyone who is not a ESource Authorized User to access or use the Services, including any Licensed Materials or any ESource Authorized User login credentials. Client shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Licensed Materials or any part of the Services to any third party. Except through services provided by AEGS or its affiliates or as expressly permitted by AEGS, Client shall not: use the Licensed Materials to create audience segmentation for or otherwise place digital ads or ads in digital media (also known as onboarding or digital activation). Client shall not incorporate any portion of the Services or Licensed Materials into Client’s own products or services. Upon expiration or termination of this Agreement for any reason, Client shall cease accessing the Services and shall cease using the Licensed Materials in any way. Client shall not use the Services to determine a consumer’s eligibility for (a) credit or insurance for personal, family or household purposes, (b) employment or (c) a government license or benefit or (d) any other purpose governed by the Fair Credit Reporting Act.
2.4 Permitted Use of AEGS Technology, Restrictions. Client is permitted to use AEGS Technology solely for the purpose of accessing and using the Licensed Materials as permitted by this Agreement. Client will not (a) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of AEGS Technology; (b) reproduce, modify, create, or prepare derivative works of any of AEGS Technology or related documentation; (c) distribute or display any of AEGS Technology or related documentation other than to ESource Administrators and ESource ESource Authorized Users; (d) share, sell, rent, or lease or otherwise distribute access to AEGS Technology, or use AEGS Technology to operate any timesharing, service bureau, or similar business; (e) create any security interest in AEGS Technology; (f) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on AEGS Technology or related documentation; (g) disclose the results of any AEGS Technology or program benchmark tests to any third parties without AEGS’s prior written consent; (h) employ any measure intended to circumvent limitations to purchased credits, ESource Administrators or ESource ESource Authorized Users; or (i) use automated means, such as bots or crawlers, to access any AEGS Technology or extract information therefrom (except such means as are included within AEGS Technology or such other means as are expressly approved in advance in writing by AEGS). Client may use AEGS Technology only in accordance with this Agreement and not for the benefit of any third party, except with AEGS’s express prior written permission.
2.5 Limitations on Use of the Services. Client shall use the Services in a responsible and professional manner consistent with the intended and permissible uses herein and consistent with standard industry practice. Client shall not override or circumvent, or attempt to override or circumvent, any security feature, control, or use limits of AEGS Technology. Client will not use the Licensed Materials or AEGS Technology for any purpose not permitted under this Agreement and shall not designate any person as a ESource Administrator or a ESource Authorized User if AEGS has reason to believe such person is likely to use the Services on behalf of a third party or otherwise in violation of this Agreement. AEGS may use technological means to place reasonable use limits to prohibit excessive use, including excessive downloads or screen views that indicate a violation of this Agreement, such as sharing with third parties or attempting to circumvent limitations to purchased credits (if applicable). If Client’s access to the Services is limited under this paragraph, it may request that the limit be removed, and AEGS may remove or modify a particular limitation if it determines in its sole and absolute discretion that the proposed use by Client is in good faith and otherwise consistent with this Agreement.
2.6 Identification of Licensed Materials. Any Licensed Materials that are downloaded and/or integrated into any Third Party Applications must be maintained with identifying information indicating that such materials originated with AEGS by, for example, maintaining a lead source of “Auguste Escoffier Global Solutions, LLC.”
2.7 Client Data. Client is solely responsible for all data, graphics, images, files, information, text, voice content, recordings, and other content and materials that are collected, uploaded, posted, delivered, provided, or otherwise transmitted or stored by Client in connection with Client’s use of the Services (collectively, “Client Data”), and Client represents and warrants that it has all rights and authority necessary to provide Client Data to AEGS without violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. Client shall be solely responsible for making any required notices (including without limitation any privacy notices required by applicable local, state, federal, and international laws and regulations) and for obtaining any required consents sufficient to authorize AEGS’s performance of its obligations and exercise of its rights as set forth in this Agreement.
2.8 Unauthorized Access and Use. In the event AEGS has a reasonable belief that Client, a ESource Administrator, or a ESource Authorized User is engaged in or facilitated any unauthorized access or use of the Licensed Materials or AEGS Technology in violation of this Agreement, AEGS, in its sole discretion, may immediately suspend Client’s access to the Licensed Materials and/or AEGS Technology until such violation is resolved to AEGS’s reasonable satisfaction. AEGS will have no liability to Client for such period of suspension and a suspension shall have no effect on the Term of this Agreement nor on Client’s obligation to pay the Fee.
3. TERM AND TERMINATION
3.1 Term. The Initial Term of the Agreement is one (1) year unless the AEGS Cover Sheet provides for another initial term (and together with any period of extension under Section 3.2 hereof, the “Term”). This Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its terms.
3.2 Extension of the then Term. On the date that is 30 days prior to the last day of the then Term (the “Extension Date”), the then Term will automatically extend for an additional year, unless either party, on or before the Extension Date, notifies the other in writing that the then Term shall not so extend, or unless the parties agree in writing to extend for an agreed period prior to the end of the then Term, in which case the Term shall extend for such agreed period. In the event that the Term is extended under this paragraph: (a) Client shall continue to have access to the Services to which it has access as of the Extension Date, and (b) the Fees to be paid to AEGS for such Services during such period of extension shall be equal to the annualized amount of the Fee applicable to all Services to which Client had access as of the Extension Date, plus the stated costs of any Services for which the Fees were waived for an initial period only, unless the parties have agreed to extend for an agreed period, in which case the Fee shall be as provided in the agreement to extend. Except as otherwise provided in the AEGS Cover Sheet, Fees for the period of extension hereunder shall be due upon extension of the Term and shall be payable as invoiced. Except as otherwise provided in an agreement to extend, AEGS will invoice Fees not less frequently annually and otherwise in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date, in AEGS’s discretion.
3.3 Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. The parties may terminate this Agreement at any time upon their mutual Agreement.
3.4 Effect of Termination.
3.4.1 Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason, Client acknowledges and agrees that its access to the Services may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into AEGS’s systems by Client destroyed. Upon expiration or termination of this Agreement for any reason, unless otherwise provided herein, Client agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.
3.4.2 Termination by AEGS. If this Agreement is terminated by AEGS due to an uncured material breach by Client, all Fees payable to be paid to AEGS for the remainder of the then-current Term shall be immediately due and payable to AEGS, and Client shall promptly remit all such fees to AEGS.
3.4.3. Termination by Client. If this Agreement is terminated by Client due to an uncured material breach by AEGS, AEGS shall promptly refund the pro-rata amount of any pre-paid Fees attributable to periods after the date of such termination to the extent that they are designated as recurring fees but shall not be required to refund any Fees to the extent that are not designated as recurring fees.
4. FEES AND TAXES
4.1 Client shall pay all fees stated in the AEGS Cover Sheet and any other fees applicable to the Services as provided hereunder (the “Fees”). All Fees are due upon execution of the AEGS Cover Sheet, or notice of a receipt of Services as provided herein, and payable on the terms set forth therein. If no payment schedule is specified for any Fees, the entire amount shall be payable within 30 days of AEGS’s transmission to Client of an appropriate invoice. All amounts payable by Client under this Agreement will be paid to AEGS without setoff or counterclaim, and without any deduction or withholding. AEGS’s acceptance of partial payment or any payment of less than the full amount payable at any given time shall not constitute a waiver or release of AEGS’s right to unpaid amounts.
4.2 If Client fails to timely make any payment of Fees, AEGS may, in its sole discretion, take any or all of the following actions: (a) restrict or suspend Client’s access to the Licensed Materials until all past-due payments are made, (b) terminate this Agreement, or (c) accelerate the payment of Fees such that all unpaid Fees shall be immediately payable. AEGS shall have the right to charge interest at the rate of 1.5% per month (or, if less, the highest rate permitted by law) on any late payments. Restriction or suspension of Client’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Client’s obligation to pay the Fee.
4.3 Client is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Client’s receipt of Services and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the AEGS Cover Sheet, all fees, rates, and estimates exclude sales taxes.
5. DATA PROTECTION AND CONFIDENTIALITY
5.1 Client acknowledges and agrees that AEGS will operate in accordance with its published Privacy Policy (or as AEGS may otherwise indicate), which is incorporated herein by reference.
5.2 “Confidential Information” of a party means such party’s (or its affiliate’s): confidential or proprietary information that is not generally available or known to the public. “Confidential Information” does not include the Licensed Materials (which are subject to other restrictions under this Agreement). All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of AEGS.
5.3 Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement and shall protect the confidentiality of such information in a manner consistent with the manner in which such party treats its own similar confidential material, but in no event with less than reasonable care. Without the prior written consent of the other party, a party shall not disclose or make available any portion of the other party’s Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement. The foregoing restrictions shall not apply to Confidential Information that: (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; (c) became generally available to the public, by publication or otherwise, through no fault of such party or (d) was developed independently by the receiving party without reference to the Confidential Information of the other party. The parties shall take all necessary and appropriate steps in order to ensure that its employees, subcontractors and affiliates adhere to the provisions of this section. All Confidential Information shall be returned to the disclosing party or destroyed upon receipt by the receiving party of a written request from the disclosing party. The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law or legal process, provided, however, the receiving party will (unless prohibited by law or legal process): (a) give the disclosing party prior written notice of such disclosure to afford the disclosing party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the disclosing party, at the disclosing party’s expense, in its efforts to obtain a protective order or other legally available means of protection.
5.4 Personal Information. To the extent that either party transmits or receives personal information under this Agreement, such party shall comply with all applicable laws, rules, and regulations regarding privacy and the lawful processing of personal information.
5.6 Related Information. AEGS and its affiliates may access, collect, and use any information from or relating to Client and Client’s use of the Services (“Related Information”) for customer and technical support, for regulatory and third party compliance purposes, to protect and enforce AEGS’s rights, to monitor compliance with and investigate potential breaches of the terms of this Agreement, and to recommend additional products or services to Client. AEGS may share this information with AEGS’s partners or affiliates for the same purposes. Client grants AEGS and AEGS affiliates the perpetual right to use Related Information for purposes such as to test, develop, improve, and enhance AEGS’s products and services, and to create and own derivative works based on Related Information, so long as neither Client, Authorized User nor any other individual is identifiable as the source of such information.
6. REPRESENTATIONS AND WARRANTIES
6.1 Each party represents and warrants that: (a) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (b) it has the requisite power and authority to enter this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
6.2 Client represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party.
6.3 AEGS represents and warrants that it possesses all necessary authority and permissions to provision Client with access to the Licensed Materials and AEGS Technology.
7. REMEDIES
7.1 Remedies not Exclusive. No remedy provided in this Agreement shall be deemed exclusive of any other remedy that a party may have at law or in equity unless it is expressly stated herein that such remedy is exclusive.
7.2 Provisional Remedies. Each party recognizes that the unauthorized disclosure of Confidential Information or, as to Client, Licensed Materials, may cause irreparable harm to the other party for which monetary damages may be insufficient, and in the event of such disclosure, such other party shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security.
7.3 Liquidated Damages. Client acknowledges that the Licensed Materials are for its own use only for the benefit of or on behalf of any third party, will cause damage to AEGS in an amount that is difficult to quantify. In order to avoid the time and expense of quantifying damages, if Client, negligently or intentionally.
8. ATTORNEY FEES, DISPUTE RESOLUTION, CLASS ACTION WAIVER
8.1 Attorney Fees. In the event of any dispute arising under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
8.2 Mandatory Arbitration. Except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation (a) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (b) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (c) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator. The arbitration award shall be final and binding, and such award may be entered in any court having jurisdiction. This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (a) punitive, exemplary, or multiple damages under any legal theory, except in the event of a party’s or its agent’s gross negligence or intentional misconduct; (b) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (c) any damages in excess of the limits set forth in this section or Section 10 (Limitation of Liability) of this Agreement.
8.3 Class Action Waiver. No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
8.4 Litigation Claims. The following claims (“Litigation Claims”) shall be litigated and not arbitrated: (a) claims against a party to this Agreement under the provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s Confidential Information; (c) claims by AEGS to collect Fees; and (d) claims for mandatory or prohibitory injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an arbitration award under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration unless otherwise agreed in writing.
9. INDEMNIFICATION
9.1 Client agrees to indemnify, defend, and hold harmless AEGS and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (a) Client’s access or use of the Licensed Materials in violation of any law, (b) Client’s violation of any provision of this Agreement, (c) Client’s sending of any information, messages, or materials (including, but not limited to, through e-mail, mail, or fax) in violation of any law or the rights of any third party, or (d) the use of any Licensed Materials or AEGS Technology by any third party to whom Client has granted access (including access obtained by such third party through use of the usernames and passwords assigned to Client and its personnel).
9.2 AEGS shall indemnify Client for any damages finally awarded by any court of competent jurisdiction against Client in, or for amounts paid by Client under a settlement approved by AEGS in writing of, any legal proceeding brought by a third party alleging that the Licensed Materials or AEGS Technology infringes upon or violates the intellectual property rights of any such third party. The foregoing indemnification obligations do not apply if (a) the allegation does not state with specificity that the Services are the basis of the claim against Client; (b) a claim against Client arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by AEGS, if the Services or use thereof would not infringe without such combination; or (c) a claim against Client arises from Client’s breach of this Agreement.
9.3 As a condition to any right to indemnification under this Agreement, the indemnified party must (a) promptly give the indemnifying party written notice of the claim or proceeding, (b) give the indemnifying party sole control of the defense and settlement of the claim or proceeding (except that the indemnifying party may not settle any claim or proceeding unless it unconditionally releases the indemnified party of all liability), and (c) give the indemnifying party all reasonable assistance, at the indemnifying party’s expense. This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any claim or proceeding subject to indemnification hereunder.
10. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF A PARTY’S, ITS AFFILIATES’ OR ITS AGENTS’ GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, CONSEQUENTIAL, SPECIAL, LOST BUSINESS, LOST OR CORRUPTED DATA, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY AEGS OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO AEGS, AND REFUND OF A PRORATED PORTION OF THE FEES THAT ARE DESIGNATED AS RECURRING FEES AND THAT CLIENT HAS PAID. AEGS’S MAXIMUM LIABILITY TO CLIENT SHALL BE THE AMOUNTS ACTUALLY PAID TO AEGS BY CLIENT UNDER THIS AGREEMENT (NET OF ANY PRORATIONS] IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO CLIENT’S CAUSE OF ACTION. EXCEPTING LIABILITY ARISING FROM CLIENT’S, ITS AFFILIATES’ OR ITS AGENT’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OR CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER,
11. DISCLAIMER OF WARRANTIES
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, THE LICENSED MATERIALS, AEGS TECHNOLOGY, AND ANY OTHER SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
AEGS DOES NOT REPRESENT, COVENANT, WARRANT, OR PROMISE THAT ANY OF THE SERVICES MAY BE USED OR RELIED UPON BY CLIENT OR ANY OTHER PARTY TO COMPLY WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, NOR THAT ANY OF THE SERVICES WILL RENDER CLIENT NOR ANY OTHER PARTY COMPLIANT WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, AND AEGS EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW ANY SUCH REPRESENTATION, COVENANT, WARRANTY, OR PROMISE. IF AND TO THE EXTENT THAT CLIENT USES ANY OF THE SERVICES WITH THE INTENTION OF OR FOR THE PURPOSE OF COMPLYING WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, CLIENT ACKNOWLEDGES AND AGREES THAT SUCH SERVICES ARE, IN THAT REGARD, PROVIDED “AS IS,” AND CLIENT ASSUMES FULL RESPONSIBILITY FOR ITS COMPLIANCE. CLIENT AGREES THAT AEGS SHALL HAVE NO LIABILITY TO CLIENT FOR CLIENT’S USE OF OR RELIANCE ON ANY SERVICES FOR SUCH PURPOSES. THIS PARAGRAPH IS NOT INTENDED TO DIMINISH, MODIFY, OR RELEASE ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN.
12. AUDIT
During the Term of this Agreement and for a period of two (2) years after its expiration or termination, Client shall maintain complete and accurate records of Client’s use of the Licensed Materials and AEGS Technology sufficient to verify compliance with this Agreement. Client shall permit AEGS and its auditors, upon reasonable advance notice and during normal business hours, to examine such records and any systems used by Client in connection with the Licensed Materials. The scope of any such audit will be limited to verification of Client’s compliance with the terms of this Agreement. Any audit performed under this paragraph shall be at AEGS’s expense, unless the audit uncovers material non-compliance with this Agreement, in which case, Client shall reimburse AEGS for its reasonable out-of-pocket expenses incurred in performing such audit.
13. MISCELLANEOUS PROVISIONS
13.1 Marketing. Client hereby authorizes AEGS to use Client’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.
13.2 Assignment. Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (a) Client’s assignment hereof shall be effective only after fourteen (14) days’ written notice to AEGS, and (b) Client may not assign this agreement to any competitor of AEGS without AEGS’s express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.
13.3 Notices. Client shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to AEGS shall be sent to compliance@escoffierglobal.com. If Client fails to provide an email address for notices, AEGS may provide notices hereunder by any means reasonably calculated to provide Client with actual notice thereof.
13.4 Currency. All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.
13.5 Suggestions and Feedback. AEGS shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Client, including ESource Authorized Users, relating to the operation of the Services provided such information does not include any Client Confidential Information.
13.6 Entire Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired portion of Services set forth in any AEGS Cover Sheet or agreement between the parties for access to AEGS Services shall be governed by the terms hereof.
13.7 Amendment. AEGS may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Client informs AEGS that it does not accept such amendments. In the event Client informs AEGS that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of AEGS and Client.
13.8 Force Majeure. Neither AEGS nor any of its affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.9 Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. AEGS and Client each represents that it is not on any U.S. government denied-party list. Client will not permit any Authorized User to access or use any Services in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
13.10 Unenforceability and Survival. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement is to remain in effect as written. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.
13.11 AEGS Contracting Entity, Governing Law, and Venue. All arbitration proceedings will be located in Chicago, Illinois. The parties hereby agree to exclude all rights to seek a determination by the court of a preliminary point of law under section 45 of the Arbitration Act 1996 and all rights of appeal on a point of law from any arbitration award under section 69 of the Arbitration Act 1996. A person who is not party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement. Each party irrevocably consents to the personal jurisdiction of the state and federal courts located in the State of Illinois for purposes of any lawsuit seeking to enforce this Agreement, and agrees that the exclusive venue for any litigation, action, suits, or proceeding arising out of or relating to this Agreement shall lie in the County Court in and for Cook County, Illinois, or, if federal jurisdiction exists, in the United States District Court for the Northern District of Illinois.
13.12 United States Government End-Users. The Services provided by AEGS are “commercial items” consisting in part of “commercial computer software” and “computer software documentation,” as such terms are used in the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”). In accordance with FAR 12.211 (Technical data) and FAR 12.212 (Computer software), and DFARS 227.7102 (Commercial items, components, or processes) and DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the rights of the United States government to use, modify, reproduce, release, perform, display, or disclose computer software, computer software documentation, and technical data furnished in connection with the Services will be pursuant to the terms of this Agreement. This United States government rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation, or technical data. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
Revision Publish Date: 11/30/2023