Services Agreement
1.Services and Contract Documents
1.1.During the Term of this Agreement, The Company will provide to the Client and Client will purchase from The Company the data analysis services, support services, consulting services, and other services, and cloud-based platform infrastructure (individually and collectively, the "Services") set forth in this Agreement in accordance with these terms and conditions and other Contract Documents of this Agreement.
1.2.This Agreement includes the following Contract Documents, as changed, or supplemented from time to time by mutual written agreement of the parties:
1.2.1.These Terms and Conditions
1.2.2.The Data Processing Agreement as shared by a SightX representative ("DPA").
1.2.3.Work Orders, Work Authorizations, or Purchase Orders ("Orders") as applicable.
1.3.Except as otherwise provided in this Agreement, in the event of a conflict between or among the Contract Documents, the following order of precedence shall control: (1) These Terms and Conditions, (2) Terms of Service Policies and (3) Work Orders or Purchase Orders. In the event of a conflict between or among any of the foregoing Contract Documents and the DPA with respect to Personal Data (as defined in the DPA), the DPA shall control.
2.Term
2.1.The term of this Agreement will commence on the Effective Date for when the Project was agreed upon in writing unless terminated in accordance with this Agreement or by mutual agreement of the parties. A minimum of 30 days’ notice by either party will be required for termination of the agreement.
3.Work Orders/Purchase Orders, Trial Services
3.1.If Services are ordered using a Client Order, no term and condition in such Order which is in addition to, or is different than, terms, conditions or provisions contained in the Contract Documents issued by The Company and set forth in Sections 1.2.1 through 1.2.3 shall be deemed included in this Agreement; and all such changes and additions are specifically rejected.
4.The Company General Obligations, Rights, Disclaimers
4.1.The Company will provide the Services in accordance with the service descriptions, service levels, and other specifications sent to Client contact or mutually agreed to Orders or amendments to the foregoing.
4.2.The Company does not promise that the Services will be uninterrupted, error-free, or completely secure. Client acknowledges that there are risks inherent in the provision of Internet, web-enabled, or cloud Services that could result in the compromise of Client’s Confidential Information and property.
4.3.During the Term of this Agreement, if The Company is notified of errors or defects in the provision of Services, The Company will endeavor to correct such errors or defects caused by The Company at no additional cost to Client.
4.4.EXCEPT AS SET FORTH IN THIS AGREEMENT, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NO INFRINGEMENT.
4.5.Client is solely responsible for the suitability of the Services chosen.
4.6.The Company maintains technical, administrative, and physical safeguards designed to protect Client Data. The Company is not responsible to Client or any third party for unauthorized access to Client’s data or the unauthorized use of the Services except to the extent the unauthorized access or use results from The Company’s failure to meet its security obligations as set forth in this Agreement, and subject to Section 9 below.
4.7.The Company may change the Terms of Service to add or modify restrictions on the Client’s use of the Services consistent with industry norms as reasonably interpreted by The Company. If The Company makes changes to the Terms of Service, The Company will publish a revised version of the Terms of Service at https://sightx.io/terms-of-service. The revised Terms of Service will become effective as to Client thirty (30) days after the revision is posted. If Client’s compliance with the revised Terms of Service will adversely affect Client’s use of the Services, then Client may, provide notice of the adverse effect to The Company. The Company may then elect not to apply the revision to the Client. If The Company chooses nevertheless to apply the changed Terms of Service to client, then Client, upon 60 days’ notice, may terminate this Agreement; and The Company will waive any termination fee applicable to such termination.
4.8.In connection with its provision of the Services, The Company may collect and process Usage Data (as defined in its Privacy Policy) and account-related data in accordance with The Company’s Privacy Policy set forth in https://sightx.io/privacy-statement and as such is updated and modified from time to time.
4.9.The Company may suspend Services without liability if: (i) The Company reasonably believes the Services are being used in material violation of this Agreement; (ii) Client does not cooperate with any reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on The Company systems providing the Services or the Services are manipulated by a third party without Client’s consent; (iv) The Company is required by law or regulation to suspend Services, or (v) there is an event regarding which The Company reasonably believes that the suspension of Services is necessary to protect The Company and its customers. The Company will endeavor to give at least 12-hour notice of a suspension.
4.10.Except as otherwise provided herein, The Company shall comply with all laws and codes applicable to the performance of the Services.
4.11.No representations of any kind have been made by The Company to the Client except as set forth in this Agreement.
5.Client General Obligations
5.1.Client will comply with laws applicable to its use of the Services and will cooperate with any The Company investigation of Service outages, security problems, and any suspected breach of this Agreement.
5.2.Client will provide timely and complete information, approvals, signoffs, and other items required by The Company to perform its Services.
5.3.Client may not copy any software, algorithms, or tools that The Company provides unless expressly permitted by this Agreement or written consent of The Company. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that appear on any software or products provided under this Agreement. Neither Client nor any of Client’s agents shall reverse engineer, decompile, or disassemble any software or systems that The Company provides.
5.4.Client warrants that it has the legal right to use any information or data Client provides in conjunction with the Services.
5.5.The Services may provide functionality that enables Client to transmit communications by email, text messaging, or other means. Client is solely responsible for complying with laws applicable to its transmission of such messages, including with respect to obtaining any legally required consents and honoring any opt-out requests.
5.6.Client is responsible for the use of the Services by any employees or agents of Client or any person who gains access to Client’s data or Services because of Client’s failure to use reasonable precautions, even if such use was not authorized by Client.
5.7.Client represents and warrants that Client is not on the US Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National or Blocked Persons and Client users are not otherwise persons to whom The Company is legally prohibited to provide data or Services. Client shall not use the Services in violation of the United States Export Administration Regulations or as otherwise prohibited by law, nor may Client provide the data or Services to any person or entity that is in or is a national of any country that is embargoed or restricted under the US export laws and regulations.
5.8.Client is solely responsible for compliance with applicable privacy laws and regulations, and shall defend, indemnify, and hold harmless The Company and its officers, directors, employees, agents, and representative from and against any claims, damages, expenses, or losses resulting from, or alleged to have resulted from, violations of privacy laws or regulations through Client’s use of the Services.
6.Prices, Taxes
6.1.The prices for Software or Services are set forth in a quote sent directly to Client contact or as mutually agreed to in an Order, both as changed from time to time with the mutual agreement of the parties. For the avoidance of doubt, and Order may consist of any written communication between the parties.
6.2.All prices are exclusive of taxes. The Company will add to the invoiced price and Client shall pay all applicable local, state, federal or other governmental taxes or governmental assessments, including but not limited to, sales, use, and value added taxes, unless Client provides The Company a current and valid tax exemption certificate. All invoices will reflect applicable taxes.
7.Payment
7.1.Client shall pay invoices on or before thirty (30) days from the date of The Company invoice. Client shall promptly pay all undisputed portions of invoices. Any payments made such invoices are non-refundable, except as provided in this Agreement or when required by law.
7.2.If it becomes necessary to file a lien, suit or to engage a collection agency or attorney as a result of Client not paying a valid invoice or undisputed portion of an invoice, the Client agrees to bear all expenses incurred to collect such payments due, including but not limited to attorney fees, court costs and other related expenses plus interest on the unpaid amount due at the rate of the greater of 1.5% per month or the highest interest amount allowed under the law of the jurisdiction of the site where the Services were performed.
7.3.Some Services may be billed on a subscription basis ("Subscriptions"). Client shall be billed in advance on a recurring, periodic basis (each period, a "Billing Cycle"). Billing Cycles are typically monthly or annual, depending on the Subscription’s plan and the Subscription shall automatically renew at the end of each billing cycle unless Client provides prior written notice to the Company of its intent to cancel such Subscription. Client may cancel auto-renewal on Subscriptions at any time, in which case such Subscription will continue until the end of that Billing Cycle before terminating.
8.Termination
8.1.SightX may terminate this Agreement at any time upon thirty (30) days’ written notice to the Client.
8.2.If either party commits a breach of any of the material terms or conditions of this Agreement, in addition to any other remedies, including suspension of Services, the non-breaching party may choose to notify the breaching party of the material breach and allow thirty (30) days to cure such breach. Upon receipt of such 30-day notice the breaching party shall attempt to cure the breach within the 30-day period. If the breaching party fails to cure the breach within this period, the non-breaching party may immediately terminate this Agreement.
8.3.Either party may, upon notice to the other party, immediately terminate this Agreement if the non-terminating party:
a)Makes an assignment for the benefit of creditors.
b)Has a trustee, receiver, or similar officer of any court appointed for itself or for a substantial portion of its property, whether with or without its consent.
c)Commences, or has commenced against it, bankruptcy, reorganization, insolvency, or liquidation proceedings without such proceeding being dismissed within thirty (30) days from the date of commencement.
The provisions of this Section 8.3 shall be in addition to and not in lieu of all other legal and equitable rights and remedies to which the terminating party may be entitled under applicable law.
9.Limitation of Liability
9.1.FOR ALL CLAIMS, LOSSES OR EXPENSES (INCLUDING PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, OR ANY OTHER DAMAGES) ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, EQUITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, GROSS NEGLIGENCE, INTENDED CONDUCT, STRICT LIABILITY AND BUSINESS TORTS), EACH PARTY’S ENTIRE OBLIGATION OR LIABILITY WILL BE LIMITED TO, AND WILL NOT EXCEED IN THE AGGREGATE FOR ALL CLAIMS, LOSSES, AND CAUSES OF ACTION, THE AMOUNT PAID OR TO BE PAID TO THE COMPANY FOR THE SPECIFIC SERVICE THAT CAUSED THE DAMAGE OR LOSS OR THAT IS THE SUBJECT MATTER OF, OR IS DIRECTLY RELATED TO THE CAUSE OF ACTION. IF THIS LIMITATION ON REMEDIES OR LIABILITY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DECLARED UNENFORCEABLE, VOID, OR VOIDABLE BY A FINAL JUDGMENT OF A FEDERAL OR STATE COURT OF COMPETENT JURISDICTION, THE MEASURE OF DAMAGES IN THE AGGREGATE FOR ALL CLAIMS, LOSSES, EXPENSES, AND CAUSES OF ACTION HEREUNDER WILL NOT EXCEED THE LESSER OF THE TOTAL AMOUNT PAID TO THE COMPANY UNDER THIS AGREEMENT AS OF THE DATE THE CAUSE OF ACTION ACCRUED OR $50,000.
9.2.IN NO EVENT WILL THE MEASURE OF DAMAGES PAYABLE BY EITHER PARTY INCLUDE, NOR WILL THE COMPANY BE LIABLE FOR, ANY AMOUNTS FOR LOSS OF INCOME, PROFIT, SAVINGS OR BUSINESS OR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES OF ANY PARTY OR PERSON, INCLUDING THIRD PARTIES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3.CLIENT SPECIFICALLY UNDERSTANDS AND AGREES THAT THE PRICE THAT IS CHARGED FOR THE SERVICES AND PRODUCTS PROVIDED HEREUNDER IS BASED ON THE CLIENT’S AGREEMENT TO THIS ARTICLE 9. CLIENT HAS SPECIFICALLY NEGOTIATED AND AGREED TO THIS ARTICLE 9 IN EXCHANGE FOR A MORE FAVORABLE PRICE. FINALLY, CLIENT UNDERSTANDS AND AGREES THAT IF CLIENT DESIRES TO PROTECT ITSELF AGAINST ANY LIABLITY EXPOSURE ASSUMED BY IT OR DISCLAIMED BY THE COMPANY UNDER THIS AGREEMENT, CLIENT MAY OBTAIN INSURANCE OR TAKE OTHER ACTIONS AT ITS OWN COST AGAINST SUCH RISKS.
10.Amendments and Changes
10.1.This Agreement and any Order agreed to under this Agreement shall not be amended or otherwise modified except by a written agreement signed on behalf of The Company and Client by their respective duly authorized representatives.
11.Confidentiality
11.1."Confidential Information" means this Agreement and any confidential or proprietary information, data, or knowledge of either party or its clients, regardless of form, that is delivered or disclosed during the Term of this Agreement in writing, orally, or through visual means or electronic means, or that is learned of obtained orally, through observation or through analysis, compilation, or other study of such information, data, or knowledge. Confidential Information does not include any information that (i) a party can prove was already known by that party before it was furnished by or on behalf of such party to the other, provided that the source of such information was not bound by a confidentiality agreement; (ii) is not or does not later become generally available to the public other than as a result of breach of the confidentiality provisions of this Agreement; (iii) is independently developed by a party; or (iv) is approved for release by written authorization of a party.
11.2.During the term of this Agreement and thereafter, neither party shall disclose Confidential Information to any third party or to any person who does not have a need to know such information for performance of this Agreement. Also, neither party will use the Confidential Information of the other party except in connection with the performance or use of the Services, as applicable, or the exercise of the respective rights of a party under this Agreement.
11.3.Client hereby grants The Company the right to use Client’s name and identifying marks in connection with publicizing The Company’s products, services and other business activities unless the parties agree otherwise.
11.4.Each party shall use the same degree of care to maintain the confidentiality of Confidential Information that it uses to protect its trade secrets and similar confidential information.
11.5.If disclosure of Confidential Information to a court or administrative/government agency is requested or required, the requested party will immediately notify the other party to allow the other party an opportunity to oppose such disclosure or to modify such disclosure.
12.Ownership and Use of Client Data and Service Deliverables; Acknowledgement of The Company Service
12.1.The Client owns all right, title and interest in the data uploaded by Client and its authorized users for processing within the Services ("Client Data"). Except as provided in Section 12.2 below, all such Client Data (a) are deemed Client’s Confidential Information as previously defined, and (b) will not be utilized by the Company for any purpose other than to perform the Services under these Terms. The Client represents, warrants, and covenants that they have and will obtain all consents necessary for using and processing the Client Data in accordance with the Terms.
12.2.The Client hereby grants to the Company a non-exclusive, worldwide, royalty-free, sub-licensable (directly and indirectly), transferrable, perpetual and irrevocable license to (a) generate aggregated data from Client Data, in the course of operating the Services ("Aggregated Data"), and use and disclose such Aggregated Data for the Company’s business purposes, including but not limited to improving the Services and developing and making available other products and services, and (b) combine or incorporate Aggregated Data with or into other data and information available, derived or obtained from other licensees, users, and/or any other sources (when so combined or incorporated, such data referred to as "Combined Data"), provided that in no event shall Aggregated Data or Combined Data contain or reveal Personal Data (as defined in the DPA) or Client’s Confidential Information, or reveal the Client’s identity to any third party. The Company shall own all right, title and interest in Aggregated Data and Combined Data. For the avoidance of doubt, Aggregated Data and Combined Data shall not be considered Client’s Confidential Information.
12.3.Unless otherwise provided in a separate document or a mutually agreed to Work Order, the Company hereby grants to Client a worldwide, perpetual, transferable, right to use in Client’s business all reports, or other deliverables created by the Company or Client during use of the Services. Client also will have the unlimited right to make, have made, use, reconstruct, modify, reproduce, publish, distribute, license, and sell such deliverables.
13.Assignment
13.1.Neither party hereto may assign this Agreement without the prior written consent of the other party signed by such other party's duly authorized representative, which consent may be given or withheld in the sole discretion of the applicable party whose consent is requested; provided that this Agreement may be assigned by either party to a successor in interest to all or a substantial amount of the business and assets of the assigning party in a business combination such as merger or acquisition and provided further that the assignee in such transaction agrees in writing to assume all of the past and present liabilities and obligations of assigning party.
14.Governing Law and Dispute Venue
14.1.The laws of the State of Delaware shall govern the validity, performance, and enforcement of this Agreement regardless of the place where Services are or may be rendered.
15.No Waiver
15.1.No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof; and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
16.Savings
16.1.If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect.
17.Further Assurances
17.1.Each party agrees to take such further action and execute, deliver and/or file such documents or instruments as are necessary to carry out the terms and purposes of this Agreement.
18.Section Headings
18.1.The section headings used in this Agreement are intended for convenience only and shall not be deemed to supersede or modify any provisions.
19.Relationship of Parties
19.1.This Agreement is intended solely as a services agreement, and no partnership, joint venture, employment, agency, franchise, or other form of agreement or relationship is intended. Each party agrees to be responsible for all its federal and state taxes, withholding, social security, insurance, and other benefits, and all salaries, benefits, and other costs of its employees, except as otherwise specifically contemplated by the provisions of this Agreement.
20.No Third-party Beneficiaries
20.1.This Agreement is not intended to create any rights in any person or entity who is not a party to this agreement, and no such rights are created hereunder.
21.Notices
21.1.All notices in connection with this Agreement shall be deemed given as of the day they are sent by electronic transmission, sent by facsimile, or deposited with a commercial courier for delivery to other party at the following addresses:
SightX by Rep Data: REP DATA, INC.
612 Andrew Higgins Drive
Suite 2000
New Orleans, LA 70130
Attn: Rep Data Legal
22.Counterparts
22.1.This Agreement may be executed in counterparts, or facsimile counterparts, each of which when executed by any of the parties shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement.
23.Capacity to Sign on Behalf of Client
23.1.Client warrants that the individual signing this Agreement has the authority and capacity to do so. The agreement shall be binding on the client and on its successors, assigns, partners, agents, representatives, parents, subsidiaries, and related entities.
24.Force Majeure
24.1.Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are caused by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon and makes all reasonable efforts to perform.
25.Dispute Resolution
25.1.If any claim, controversy or dispute arising out of or relating to any breach, enforcement, interpretation or default of this Agreement (including alleged misrepresentation concerning it), the transaction it memorializes or the business relationships between the parties that it creates, whether arising under contract, statute, tort or otherwise (a "Dispute"), cannot be resolved through negotiation, then the parties agree to first try, in good faith, to settle the Dispute by non-binding mediation. The parties intend that the term "Dispute" shall be construed broadly to include any kind of claim that they may have against each other. Unless the parties mutually agree otherwise with respect to a mediation format and rules, such mediation shall be administered by the American Arbitration Association ("AAA") at a mutually agreed upon location under the AAA Commercial Mediation Rules within thirty (30) days of a request by either party to mediate the dispute. The parties shall share the cost of the mediation equally. A good faith attempt at mediation is a condition to the holding of an arbitration proceeding or filing a lawsuit in a court of proper jurisdiction.
25.2.If any lawsuit, arbitration, or other action or proceeding (except for set forth in Section 25.1) is brought concerning any Dispute arising out of or relating to this Agreement, then the successful or prevailing party shall be entitled to recover the prevailing party’s reasonable attorneys’ fees, court costs and other expenses of litigation and/or arbitration incurred in that lawsuit, arbitration, action, or proceeding if the award of such attorneys’ fees and costs is authorized by law in a civil action involving the same claim(s).
26.Entire Agreement
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior agreements or contracts, oral or written, entered between the parties relating to the subject matter hereof. Each party acknowledges that there are no warranties, representations, covenants or understandings of any kind, manner, or description whatsoever by either party to the other except as expressly set forth herein.