MAIN SERVICES AGREEMENT
This MAIN SERVICES AGREEMENT (the “Agreement”) is entered into by and between Customer and Instrumental, Inc., a Delaware corporation (“Instrumental”). For the purposes of this Agreement, “Customer” means the party identified as the customer in the applicable Order Form (as defined in Section 1.1 below). By executing an Order Form that references this Agreement, each party signifies that it has read, understands, and agrees to be bound by its terms. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Service.
1.1. Service Description. Instrumental is the owner and provider of a solution that provides manufacturing information relating to customer’s manufactured products (the “Service”) as identified and described in one or more ordering documents executed by the parties (or Customer and a Reseller) that reference this Agreement and describe the business terms related to Customer’s subscription (“Order Form(s)”). As part of its use of the Service, Customer may install and maintain certain equipment (e.g., a computer, camera, etc.) licensed by Instrumental to Customer, as will be further described on an Order Form (“Hardware”). Hardware will be considered part of the Service. Hardware will be installed onsite at Customer’s manufacturing facilities. Hardware also includes software and any updates, upgrades, or enhancements to such software that are provided by Instrumental to all of its customers. This Agreement governs all Order Forms, and any conflicting or additional terms and conditions are of no force or effect unless agreed to in a writing signed by both parties.
1.2. Customer’s Subscription. Subject to the terms of this Agreement, Customer may purchase a subscription to, and has the right to access and use, the Service and license the Hardware as specified in an Order Form. Instrumental also grants Customer (including Authorized Users) a limited, non-sublicensable, non-transferable right and license to access, download, and use, solely for Customer’s internal business purposes, the technical documentation regarding the Service and the Hardware that Instrumental publishes to all its customers (“Documentation”). All subscriptions will be for the period described on the applicable Order Form (“Service Term”). Customer’s use of and access to the Service is permitted only by individuals authorized by Customer and for Customer’s own internal business purposes and not for the benefit of any third party (“Authorized Users” or “Users”). Customer may also permit its affiliates and their employees and contractors working for the benefit of Customer or such affiliates to serve as Authorized Users, provided Customer remains responsible for compliance by such individuals with all the terms and conditions of this Agreement. An “affiliate” of a party is any entity controlling, controlled by or under common control with such party; where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
1.3. Support. Instrumental will provide Customer technical support with respect to the Service as described at www.instrumental.com/instrumental-inc-support and the applicable Order Form (“Support”). If fees apply to Customer’s receipt of Support, such fees will be stated on the applicable Order Form.
1.4. Provisioning of the Service. As part of the registration process for the Service and following execution of the applicable Order Form, Instrumental will assist with registration and/or an administrative User designated by Customer will receive login credentials from Instrumental; such User will have the capability to invite any other Users to create accounts on the Service.
1.5. Use Restrictions and Responsibilities. Customer is responsible for all activity on its Authorized Users’ accounts unless such activity is caused by a third-party bad actor able to access Customer’s account by exploiting vulnerabilities in the Service itself. The Order Form may include limitations on Customer’s use of the Service (e.g. number of images that Customer can upload to the Service, etc.); Customer will ensure that it does not exceed the limitations stated on the Order Form except as provided for under Section 6.5. Customer will be responsible for breach of any such obligation and/or restriction of this Agreement by a User. Customer also agrees that it will not, and will not allow Users or third parties to, directly or indirectly (a) modify, translate, copy or create derivative works based on the Service, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or Instrumental branding contained in or on the Service, (e) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, including, without limitation, by introducing viruses and other harmful code or by using flood pings, denial-of-service attacks, or similar methods or technology, (f) use or access the Service to build or support and/or assist a third party in building or supporting products or services competitive to the Service, or (g) attempt to probe, scan, or test the vulnerability of the Service or any Instrumental system or networks. If Customer (including Users) is using the Service in a manner that, in Instrumental’s reasonable judgment, causes or is likely to cause significant harm to Instrumental or the Service or otherwise threatens the security, integrity or availability of the Service then Instrumental may suspend Customer’s access to the Service. Instrumental will use commercially reasonable efforts under the circumstances of such suspension to (x) provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension, (y) limit the suspension to only accounts involved in the activities in question, and (z) remove the suspension as quickly as practicable after the circumstances leading to the suspension have been resolved.
1.6. Instrumental’s Ownership. Instrumental owns the Service, the Hardware, and the Documentation (collectively the “Instrumental Materials”). Instrumental retains all Intellectual Property Rights in and to the Instrumental Materials, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under this Agreement and any rights not expressly granted to Customer in this Agreement are expressly reserved by Instrumental. Customer’s ownership of the Raw Data is stated below in Section 4.2. Use of and access to the Service are licensed, not sold. Customer acknowledges and agrees that it has no right to obtain a copy of the Service itself or any software or code that underlies the Service. “Intellectual Property Rights” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
1.7. Third Party Applications. The Service may work together with third party products, services or applications that are not owned or controlled by Instrumental, (e.g., Slack) (“Third-Party Applications”) and Customer, at its sole option, may choose to use such Third-Party Applications. Instrumental is authorized to share Customer’s information and/or data with providers of the Third-Party Applications as required for the interoperation of the Services with the Third-Party Applications, but Instrumental is not responsible for any transmission, collection, disclosure, security, modification, use or deletion of such information or data by or through Third-Party Applications or their providers. Instrumental does not endorse such Third-Party Applications. Customer acknowledges and agrees that this Agreement does not apply to Customer’s use of such Third-Party Applications, which are governed solely by Customer’s agreement with the relevant providers of such Third-Party Applications. INSTRUMENTAL EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES RELATING TO ANY THIRD-PARTY APPLICATIONS. CUSTOMER WILL LOOK SOLELY TO THE PROVIDERS OF THE THIRD-PARTY APPLICATIONS FOR ANY WARRANTY RELATED ISSUES OR OTHER CLAIMS RELATED THERETO. CUSTOMER’S USE OF THIRD-PARTY APPLICATIONS IS AT CUSTOMER’S OWN RISK. INSTRUMENTAL WILL HAVE NO LIABILITY OR OTHER OBLIGATION OF ANY KIND ARISING OUT OF OR RELATED TO ANY THIRD-PARTY APPLICATIONS, INCLUDING ARISING FROM CUSTOMER’S USE OR INABILITY TO USE THIRD-PARTY APPLICATIONS.
2. Professional Services. From time to time, upon the mutual, written agreement of the parties, Instrumental may provide certain implementation and other consulting services to Customer as described on an Order Form or other ordering document executed by the parties (“Professional Services”). Any information, software, code, integrations, products, or anything else delivered by Instrumental to Customer as part of its provision of the Professional Services are considered part of the Service. Customer acknowledges that the cooperation of Customer, including the timely, complete, and accurate provision of the information and data reasonably requested by Instrumental is essential to the performance of the Professional Services, and that Instrumental’s ability to timely complete the Professional Services is dependent upon such cooperation.
3. Hardware and Customer Equipment.
3.1. Hardware Maintenance. Customer will maintain all Hardware in good operating condition (which will include such maintenance as general cleaning of the Hardware) in accordance with the Documentation. Instrumental is not responsible for any degradation of the Service or failure to properly provide the Service caused by Customer’s failure to maintain the Hardware. All Hardware furnished by Instrumental to Customer is and will always remain the property of Instrumental. Customer will promptly (upon request) reimburse Instrumental for any loss, theft, or damage to the Hardware that occurs when the Hardware is in Customer’s possession; ordinary wear and tear is not considered loss, theft, or damage. Upon written notice (email will suffice), Customer will make commercially reasonable efforts to give Instrumental access to the Hardware during Customer’s business hours and at a mutually agreed upon time. If Customer is unable to give Instrumental access to the Hardware as described herein, Instrumental will not be responsible for any resulting degradation to the Hardware or the Service.
3.2. Customer Equipment and Facilities. Unless otherwise stated in an Order Form, Customer will obtain and maintain, (a) any equipment (other than the Hardware) and ancillary services needed to connect to, access or otherwise use the Service, including the resources outlined below including but not limited to any modems, hardware, servers, software, operating systems, networks and the like (collectively, “Other Equipment”), and (b) any consents or other permissions required (from the owners, occupants, or users of any manufacturing facilities or other facilities at which Hardware will be located) to install and use the Hardware at such facilities, to have Instrumental personnel enter and work at such facilities in connection with providing the Service, and to collect data and other information from the Other Equipment located at such facilities in connection with the Service. If Customer does not license Hardware from Instrumental and instead uses owned or licensed computers, cameras, and other hardware to send data to and process data for the Service, such hardware will be considered Other Equipment. Instrumental will have no obligations or liability with respect to the Other Equipment or any failures or other events caused by any Other Equipment. Customer must provide the resources stated at https://www.instrumental.com/documentation?pwd=20150522, as may be updated by Instrumental from time to time. Instrumental does not provide Support for Other Equipment.
4. Data.
4.1. User Information. Personally identifiable information may be required to be provided or may be collected during the login process to access and use the Service, including without limitation username, password, and IP address (“User Information“). Customer grants Instrumental and its subcontractors the right to store, process and retrieve the User Information in connection with Customer’s use of the Service. Customer represents and warrants that it has obtained all necessary rights and consents to permit (a) transfer of User Information to Instrumental, and (b) processing of the User Information as contemplated by this Agreement. Customer is solely responsible for all User Information and for all resulting liability if usernames, passwords, tokens, or keys in Customer’s possession are used by any party not authorized to do so. Customer (on behalf of its Users) grants Instrumental the right to access, use, process, copy, distribute (to Users), perform (for Users), export (to Users) and display (for Users) User Information, only as reasonably necessary (v) to provide the Service to Customer (including the transfer of User Information to Instrumental), (w) to prevent or address service, security, support, or technical issues (x) as required by law, (y) to improve the Service and offer additional services to Customer, and (z) as expressly permitted in writing by Customer.
4.2. Raw Data. As part of its use of the Service, Customer may provide certain data to Instrumental through the Service, for example through the Hardware (including data and information collected by the Hardware), Instrumental’s website application, or APIs, including raw photographic and video data, and any other information collected by the Hardware or Other Equipment (“Raw Data”). Customer hereby grants Instrumental a non-exclusive, royalty-free, perpetual, worldwide license to reproduce, distribute, and otherwise use and display the Raw Data and perform all acts with respect to the Raw Data for Instrumental to: (a) provide the Service and Professional Services, (b) aggregate information regarding the Raw Data and create Delivered Data and Correlations as further described below, (c) improve and modify the Service (including for training or retraining artificial intelligence models to provide the Services to Customer), and (d) conduct research for developing new products and services.
4.3. Correlations. The Service processes the Raw Data using highly proprietary algorithms to create certain correlations, derivations, manipulations, and measurements (“Correlations”). To the extent Raw Data is used to create Correlations, Customer hereby grants to Instrumental a non-exclusive, irrevocable, perpetual, royalty-free, worldwide license to reproduce, distribute, create derivative works of, modify, and otherwise use and display Raw Data as necessary or useful to create the Correlations. The Correlations are proprietary and confidential to Instrumental, Instrumental will own all right, title, and interest in and to the Correlations.
4.4. Delivered Data. As Customer uses the Service, it will be able to see certain output within the Service. Such output includes data and information that results from the Service processing Raw Data (using artificial intelligence and other proprietary algorithms) for the purpose of enhancing, revising, or augmenting Raw Data as part of the normal operation of the Services (“Delivered Data”). Customer and Instrumental understand and agree that Instrumental’s provision of the Service may include the creation of Delivered Data. To the extent the Service provided to Customer includes the creation of Delivered Data, Customer hereby grants to Instrumental a non-exclusive, irrevocable, perpetual, royalty-free, worldwide license to reproduce, distribute, create derivative works of, modify, and otherwise use and display Raw Data as necessary or useful to create such Delivered Data and Instrumental hereby grants to Customer a non-exclusive, perpetual, irrevocable, fully paid-up, worldwide license to reproduce, distribute, modify, and otherwise use a static, downloaded form of the Delivered Data as provided by the Services. Customer acknowledges that, as between Customer and Instrumental, Instrumental owns all right, title, and interest, including all intellectual property rights, in and to the Delivered Data.
4.5. Likeness Data. For the avoidance of doubt, any information included in the Raw Data, Correlations, or Delivered Data that could identify Customer or its products will not be disclosed to any third parties other than to Instrumental’s subcontractors for the sole purposes of such subcontractors assisting Instrumental with (a) providing the Service or Professional Services to Customer, (b) improving Instrumental’s products and services, or (c) creating new products or services.
4.6. Service Data. As Customer (including its Users) interacts with the Service and the Hardware, the Service collects data pertaining to the performance of the Service and the Hardware and measures of the operation of the Service and the Hardware (“Service Data”). Notwithstanding anything else to the contrary herein, Service Data that is not anonymized may only be used by Instrumental to improve its products and services and to create new products and services. However, if Service Data is anonymized and no information identifying the Customer, its products, or its Users is revealed, Instrumental is free to use such anonymized Service Data in any manner. Instrumental will retain all right in and to the anonymized Service Data.
4.7. Data Processing. Instrumental will process any User Information and Raw Data that contains personally identifiable information in accordance with all applicable laws of the United States. Unless otherwise stated in an Order Form, Instrumental’s data retention policy for Raw Data processed hereunder is three (3) years.
5. Confidentiality.
5.1. Definition. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (hereinafter referred to as the “Confidential Information” of the Disclosing Party). Instrumental’s Confidential Information includes non-public information regarding features, functionality, and performance of the Service. Customer’s Confidential Information includes the User Information and Raw Data. This Agreement and the information in all Order Forms will be deemed the Confidential Information of both parties. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of this Agreement, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any confidentiality obligation, (c) is received from a third party without breach of any confidentiality obligation; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
5.2. Protection and Use of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, Subprocessors (as described in the Data Processing Addendum referenced below), agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement, (c) except as expressly set forth herein, make all commercially reasonable efforts not to disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent, and (d) not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Nothing above will prevent either party from sharing the terms of this Agreement or the name of the other party with prospective investors or acquirors; provided, however, that the foregoing persons or entities are bound to standard confidentiality obligations. Instrumental may identify Customer as a customer of Instrumental in private meetings to investors for the purposes of seeking investment. As between the parties, each party retains all ownership rights in and to its Confidential Information.
5.3. Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law, provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. In any event, the Receiving Party will disclose no more than that portion of the Confidential Information that is required.
5.4. Feedback. Customer, including its Users, may, in its discretion, provide suggestions, ideas, enhancement or correction requests, comments, or other feedback with respect to the Service (“Feedback”). For the avoidance of doubt, Feedback will only refer to suggestions, comments or other feedback provided to Instrumental specifically regarding the Service and will not include User Information or Raw Data. Instrumental may want to incorporate Feedback into its Service and this clause provides Instrumental with the necessary license to do so. Customer hereby grants to Instrumental and Instrumental’s assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license, if any, to use, disclose, reproduce, modify, create derivative works from, distribute, display, and otherwise distribute and exploit any Feedback as Instrumental sees fit, entirely without obligation or restriction of any kind, except that Instrumental will not identify Customer as the provider of such Feedback.
6. Payment Obligations.
6.1. Fees. Customer will pay for access to and use of the Service, additional or premium Support (if applicable), Hardware, Professional Services, and any other applicable products or services as stated on the applicable Order Form (“Fees”). All Fees will be paid in U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, non-refundable. Unless otherwise agreed-upon in an Order Form, Instrumental may modify its fees or introduce new fees upon thirty (30) days prior, written notice to Customer, however, any new or revised fees will not take effect during Customer’s then-current Service Term(s) and will only be effective if the parties choose to enter into an Order Form for a new Service Term(s). Customer always has the right to choose not to renew its subscription or any Order Form or enter into an Order Form for a new Service Term(s) if it does not agree with any new or revised fees.
6.2. Payment. Instrumental will invoice Customer for the Fees in accordance with the Order Form and any other charges specifically due under this Agreement. Any fees charged by third parties on Customer’s payment (e.g. currency exchange fees (if any), processing fees, and bank transfer fees that are charged by Customer’s bank). Customer agrees to pay all invoices submitted in accordance with this Agreement within thirty (30) days after receipt of Instrumental’s invoice, unless another time period is stated on the Order Form. All information that Customer provides in connection with a purchase or transaction or other monetary transaction with the Service must be accurate, complete, and current. If Customer has executed an Order Form with a Reseller, Customer will pay such Reseller (and not Instrumental) in accordance with the terms of such Order Form. Customer understands and agrees that if Customer does not pay the Reseller in accordance with the applicable Order Form, Instrumental will have the right to suspend Customer’s right to use and access the Service and to terminate this Agreement upon notice to Customer. For the purposes of this Agreement, a “Reseller” means a resale partner that is authorized by Instrumental to resell the Service.
6.3. Taxes. Fees stated on the Order Form are exclusive of 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 (collectively, “Taxes”). Unless Customer timely provides Instrumental with a valid tax exemption certificate, Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on Instrumental’s net income, payroll, and assets.
6.4. Failure to Pay. If Customer fails to pay any undisputed invoices in accordance with this Section 6 after Instrumental gives Customer written notice of such non-payment and ten (10) days from the date of such notice to remit the overdue, undisputed amounts in full, then Instrumental may: (a) suspend Customer’s access to the Service pending payment of such overdue invoices, and (b) charge a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. Instrumental will not exercise such rights if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If Customer believes that Instrumental has billed Customer incorrectly, Customer must contact Instrumental no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Once Instrumental receives notice of a disputed invoice, Instrumental will review such notice and provide Customer with a written decision regarding the dispute, including documentary support for such decision. If Instrumental reasonably determines that the amounts charged on a disputed invoice are, in fact, due, Customer will pay such amounts within fifteen (15) days of Instrumental notifying Customer in writing of such decision.
6.5. Subscription Expansion. Customer may increase Customer’s subscription to exceed the amounts purchased under an Order Form at any time through the Service. Instrumental will invoice Customer and Customer will pay, according to Section 6, for such increased use at (a) if relevant, the price stated on the applicable, then-current Order Form, (b) if offered, the price stated on a new Order Form or Amendment, or (c) if Customer does not agree to (a) or (b), Instrumental’s then-current list prices. As Instrumental is a subscription services provider, Customer cannot decrease its subscription to the Service during the Service Term.
7. Term and Termination.
7.1. Agreement Term. Access and use the Service and licenses to the Hardware commence on the start date stated on the applicable Order Form (“Service Start Date”) and continue for the duration of the Service Term, as further described on the Order Form. Order Forms and/or or Service Terms will renew as stated on the applicable Order Form. If the Order Form contains no terms regarding renewal, such Order Form will only renew upon the parties’ mutual, written agreement. This Agreement will become effective on the effective date of the first Order Form between the parties and remain effective until terminated by either party in accordance with its terms.
7.2. Termination. Either party may terminate this Agreement by written notice to the other party at any time during which there is no Order Form in effect. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice.
7.3. Effect of Termination. If Customer terminates this Agreement because of Instrumental’s uncured breach, Instrumental will refund any unused, prepaid Fees for the remainder of the then-current Service Term. If Instrumental terminates this Agreement because of Customer’s uncured breach, Customer will pay any unpaid Fees covering the remainder of the then-current Service Term after the effective date of termination, if any, which is to prevent Customer from avoiding future but committed payment amounts for a fixed term subscription by intentionally breaching this Agreement. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Instrumental for the period prior to the effective date of termination. Upon any termination of this Agreement, and except for Customer’s perpetual rights in the Raw Data and Delivered Data, all rights and licenses granted by Instrumental hereunder will immediately terminate; Customer will no longer have the right to access or use the Service, except as otherwise specifically stated in this Section 7.3. Provided that there are no outstanding or overdue invoices and subject to Instrumental’s data retention policy stated in Section 4.7, upon any termination or expiration of this Agreement Customer may (within fifteen (15) days of such termination or expiration) request that Instrumental provide a method for Customer to retrieve Customer’s photographic and video Raw Data or provide such Raw Data to Customer. If Customer will retrieve such photographic Raw Data, Customer will have fifteen (15) days to do so following the date on which Instrumental provides access to the Service to Customer for such purpose. Customer’s access and use will continue to be subject to the terms of this Agreement, provided that Customer will not access or use the Service other than to download such Raw Data. If, following termination, Customer uses the Service other than as authorized in this Section Instrumental may suspend Customer’s access.
7.4. Hardware Return. Upon any termination or expiration of this Agreement or any applicable Order Form, any reduction in Hardware usage that results in Customer not requiring certain Hardware to receive the Service, or any termination or expiration of Customer’s license to Hardware (as stated under an Order Form) (“Hardware Return Event”) Customer will, at its sole cost and expense (including any export duties and insurance) ship the applicable Hardware to a location designated by Instrumental within thirty (30) days after the effective date of the Hardware Return Event. If Customer does not provide proof of shipment of the applicable Hardware within forty-five (45) days after the Hardware Return Event, Instrumental may invoice Customer for, and Customer will pay in accordance with the payment terms of this Agreement, a fee in an amount equal to two times (2x) Instrumental’s list price to license the Hardware on a monthly basis, which will be pro-rated and charged from the Hardware Return Event to the date Customer ships the Hardware (in accordance with these terms).
7.5. Survival. Sections 1.6 (Instrumental’s Ownership), 1.7 (Third-Party Applications), 4 (Data), 5 (Confidentiality), 6 (Payment Obligations), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), and 11 (General Terms) will survive any termination or expiration of this Agreement.
8. Warranties and Disclaimers.
8.1. Instrumental Warranties. Instrumental represents and warrants that (a) the Service will substantially comply in all material respects with the Documentation, (b) it will provide the Support and Professional Services in a professional and workmanlike manner, and (c) it has used commercially reasonable efforts to ensure that the software underlying the Service and the environment used for the Service contain no Malicious Code, and (e) it uses commercially reasonable efforts to prevent the introduction of Malicious Code into the software underlying the Service and the environment used for the Service. For purposes of the Agreement, “Malicious Code” means any virus, worm, logic bomb or any other code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data in a manner not intended by the computer, system, or network, or in some other fashion disrupt the normal operation of a computer, system or network. If the Service is not provided in accordance with the above warranty, Customer will promptly notify Instrumental and Instrumental will make commercially reasonable efforts to rectify such non-compliance; if Instrumental is not able to so modify or otherwise fix the Service, Instrumental will terminate this Agreement and refund any unused pre-paid Fees to Customer. The foregoing remedy is Customer’s sole remedy and Instrumental’s sole liability if Instrumental breaches the terms of subsection (a) and (b) above.
8.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND INSTRUMENTAL EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT INSTRUMENTAL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. FOR THE AVOIDANCE OF DOUBT, INSTRUMENTAL MAKES NO WARRANTY, GUARANTY, COMMITMENT OR OTHER OBLIGATION RELATED TO THE ACCURACY OR COMPLETENESS OF ANY RESULTS OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY PREDICTIONS OR PREDICTIVE ANALYTICS INCLUDED IN SUCH RESULTS) AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE AND RELIANCE ON ANY SUCH RESULTS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. Indemnification.
9.1. Instrumental’s Indemnification. Instrumental will defend Customer and its Users, officers, directors, and employees against any third-party claim or action brought against Customer to the extent based on the allegation that the Service infringes such third party’s Intellectual Property Rights (and Instrumental agrees to pay any settlements with respect to the foregoing indemnification obligations that Instrumental agrees to in a writing signed by Instrumental’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Service or portions or components of the Services that are (a) modified pursuant to Customer specifications, (b) that are modified by any party other than Instrumental, (c) that are combined with other products, processes or materials not provided by Instrumental or reasonably contemplated by the Documentation where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Customer’s use of the Service is not in accordance with this Agreement, including the Order Form.
9.2. Procedures. Instrumental’s obligations under this Section 9 (Indemnification) are conditioned on Customer (a) providing Instrumental with prompt written notice of any claim (provided that Customer’s failure to provide reasonable written notice will only relieve Instrumental of its indemnification obligations hereunder to the extent such failure materially limits or prejudices Instrumental’s ability to defend or settle such claim), (b) granting Instrumental the sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to Instrumental in the defense or settlement of the claim at Instrumental’s expense. Customer may participate in a claim with its own counsel at its own expense. Instrumental may not settle any claim that requires Customer to admit fault or liability or pay any amounts without written consent signed by an authorized officer of Customer, not to be unreasonably withheld or delayed. Notwithstanding anything else to the contrary in this Agreement, any obligation of Instrumental to defend, indemnify and hold Customer harmless hereunder is limited to Instrumental’s payment for the cost of defense of the third-party claim incurred by Instrumental and the payment of (y) any settlements agreed to by Instrumental in a writing signed by an officer of Instrumental, or (ii) final judgments awarded to the third-party claimant by a court of competent jurisdiction.
9.3. Options. If Customer’s use of the Service has become, or in Instrumental’s opinion is likely to become, the subject of any claim of infringement, Instrumental may at its option and expense, (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder, (b) modify the Service to make it non-infringing (but containing substantially equivalent functionality), (c) substitute an equivalent for the Service or (d) if Instrumental, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused Fees for the remainder of the then-current Service Term.
9.4. Sole Remedy. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION 9 (Indemnification) STATES INSTRUMENTAL’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
10. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (I) CUSTOMER’S OBLIGATIONS UNDER OR BREACH SECTION 1.5 (USE RESTRICTIONS AND RESPONSIBILITIES), (II) INSTRUMENTAL’S OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), OR (III) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT IN THE AGGREGATE EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICE THAT IS OR THE PROFESSIONAL SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. General Terms.
11.1. Publicity. Instrumental may identify Customer as a customer of Instrumental on its website and in its other marketing material provided to potential investors, partners and customers. Customer grants Instrumental a license to use Customer’s trademarks and logos solely for the purposes set forth in this Section 11.1. Any such usage will be in compliance with any trademark usage guidelines provided by Customer to Instrumental. Customer also agrees to serve a reference customer for Instrumental, including by providing testimonials, talking to prospective customers at Instrumental’s request (no more than 2 times per quarter), and working with Instrumental to prepare a mutually approved case study within 6 months after the applicable Order Form start date. Any written testimonial provided by Customer in accordance with the Order Form will identify Customer by name.
11.2. Force Majeure. Neither Instrumental nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party that make it impossible or commercially impracticable for such party to perform its obligations hereunder, which may include failure by a third-party hosting provider or utility provider, strikes (provided that such strike does not involve the employees of the party failing to perform), shortages, epidemics, riots, fires, acts of God, war, terrorism, and governmental action.
11.3. Changes. Customer acknowledges that the Service is an on-line, subscription-based product, and that to provide improved customer experience Instrumental may make changes to the Service provided, however Instrumental will not materially decrease the core functionality of the Service during the Service Term. Any policies of Instrumental referenced herein may be modified from time to time upon reasonable notice to Customer to reflect process improvements or changing practices; however, Instrumental agrees that except as required by law, any such modifications will not materially decrease Instrumental’s obligations or materially reduce Customer’s rights as compared to those reflected in such terms as of the Service Start Date of the first Order Form entered into by the parties.
11.4. 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.
11.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
11.6. Email Communications. Notices under this Agreement will be provided as follows: (a) all notices regarding the Service will be sent by email, (b) notices to Instrumental must be sent to support@instrumental.com, and (c) all notices to Customer will be sent to the email(s) provided through the Service, listed on the Order Form, or otherwise provided to Instrumental for the purposes of notifying Customer hereunder. Notices will be deemed to have been duly given the business day after it is sent, in the case of notices through email, provided that no undeliverable message is received by the sender.
11.7. Amendment and Waivers. Except as otherwise specifically provided for herein, no modification or amendment to this Agreement will be effective unless made in writing and signed or accepted by an authorized representative of both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
11.8. Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
11.9. Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all the assigning party’s assets unless (a) the assignment by Customer results in an increased scope of the license or access rights, or (b) the assignment is to a direct competitor of the non-assigning party. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10. Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The state and federal courts located in the county of Santa Clara, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation, or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
11.11. Entire Agreement. This Agreement, including all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Instrumental (i.e. NDA’s accepted onsite at Customer’s premises), Customer or any Users. To the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) this Agreement and (3) except as expressly stated herein, any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order(s), vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
Last updated: August 18, 2023