EFFECTIVE AS OF JANUARY 2019
1. Introduction. Welcome to CalcuQuote! Sutaria Services LLC d/b/a CalcuQuote provides software services pursuant to these Standard Terms and Conditions (this “Agreement”). Capitalized terms used in this document have the meanings given to such terms in the “Definitions” section at the end of these Standard Terms and Conditions.
A. Services. Subject to and conditioned upon Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Subscription Term, CalcuQuote shall use commercially reasonable efforts to provide to Customer and its Authorized Users the services described in the Order and this Agreement, which may include, without limitation, CalcuQuote’s proprietary RFQ management system (collectively, the “Services”) in accordance with the terms and conditions and any applicable Service Level Agreement.
B. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties, Customer has sole responsibility for all access to and use of the Services by Customer or any Authorized User, including any: (i) information, instructions or materials provided by Customer or any Authorized User to the Services or CalcuQuote; (ii) results obtained from any use of the Services; and (iii) conclusions, decisions or actions based on such use.
C. Third Party Materials and Integration Features. CalcuQuote may provide integration features for Third Party Materials as part of the Services. Customer acknowledges that CalcuQuote’s integration features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts the CalcuQuote integration features. CalcuQuote will use commercially reasonable efforts to modify its integration features to maintain compatibility with service provider’s APIs and services, but may discontinue an integration feature without liability if there is a change in the service that creates an unreasonable cost or operational burden to CalcuQuote. Customer’s obligations under the Agreement, for fees and otherwise, are not conditioned on the continued availability of any integration features. CalcuQuote will not be liable for any Third Party Materials, including without limitation any integration features or third party vendor services.
D. API-Access. Customer may elect to grant CalcuQuote access to Customer Systems (defined below) including without limitation Customer’s ERP or MES system via API. Customer hereby grants to CalcuQuote a non-exclusive, sublicensable (as provided in this section), transferable license, during the Term to access Customer Systems to integrate, provide and support certain features and functionality via the Services. CalcuQuote may sublicense the API access to contractors and consultants, as reasonably necessary to assist CalcuQuote with exercising its rights set forth herein.
E. Changes to Our Services. The features and functions of our Services, including our APIs, and any service level agreement (SLA) we may offer (if any) based on your specific Services and subscription plan, may change over time. It is your responsibility to ensure that calls or requests you make to our Services are compatible with our then-current Services.
3. Authorizations and Customer Restrictions.
A. Customer Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, CalcuQuote hereby authorizes Customer to access and use, solely during the Subscription Term, the Services as CalcuQuote may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Documentation, and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.
B. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services and the Third Party Materials are and will remain with CalcuQuote and the respective rights holders in the Third Party Materials.
C. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
1. copy, modify or create derivative works or improvements of the Services;
2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
3. reverse engineer, disassemble, decompile, decode, mine, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
4. bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid Access Credentials;
5. input, upload, transmit or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, CalcuQuote Systems or CalcuQuote's provision of services to any third party, in whole or in part;
7. remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof;
8. access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
9. access or use the Services for purposes of competitive analysis or to conduct data mining of the Services, the development, provision or use of a competing software service or product or any other purpose that is to CalcuQuote's detriment or commercial disadvantage; or
10. otherwise access or use the Services beyond the scope or intent of the authorization granted under Section 3.A, and under this Agreement as a whole.
D. Revocation of Customer Authorization. CalcuQuote may, upon Customer’s violation of any of the terms of this Agreement or for any bad faith action by Customer, revoke Customer Authorization and Customer’s ability to use or access any of the Services. In such an event, Customer shall not be entitled to any Losses, nor reimbursement of Fees paid, and further may be liable to CalcuQuote for any Losses suffered by CalcuQuote as a result of Customer’s actions.
E. Service Use and Data Storage. Each Order includes the applicable levels of Services usage and data storage in effect as of the Effective Date (each a “Service Allocation”). Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other CalcuQuote customers and, absent mutually agreed modifications to the applicable Order (or a new Order) agrees that CalcuQuote has no obligation to permit Customer to exceed its then-current Service Allocation.
F. Limitations on Availability. The Services or some aspects thereof may not be available in all languages or in all countries. We make no representation that the Services will be available or permitted in any particular location. Use of the Services is void where prohibited.
4. Support and Professional Services.
A. Support Services. The Services include CalcuQuote’s standard customer support services (“Support Services”) in accordance with CalcuQuote’s service support schedule then in effect for the applicable subscription level (the “Support Schedule”), which may include, without limitation a service level agreement.
B. Professional Services. The standard Services do not include any customizations, Customer-specific features or development services. Any such services will be provided by CalcuQuote pursuant to a separate agreement for professional services.
5. Customer Obligations.
A. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Documentation all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as CalcuQuote may reasonably request to enable CalcuQuote to exercise its rights and perform its obligations under and in connection with this Agreement.
B. Data Backup. It is Customer’s sole responsibility to back up its Customer Data. During the Subscription Term and for 30 days thereafter, at Customer’s request, CalcuQuote will allow Customer to access its Customer Data that resides in the Services in the format in which it was originally presented. CalcuQuote will not, absent a separate written agreement and payment of additional professional services fees, provide any data migration or data re-formatting services. CUSTOMER ACKNOWLEDGES THAT AFTER SUCH 30 DAY PERIOD, IT MAY NOT HAVE ACCESS TO THE CUSTOMER DATA VIA THE SERVICES.
6. Security, Privacy.
A. CalcuQuote Systems and Security Obligations. CalcuQuote shall use reasonable and appropriate security measures to protect the Customer Data and Personal Data that is Processed by means of its Services from unauthorized use, disclosure, corruption and loss; provided, however, that only those Services designated by CalcuQuote as “ITAR Compliant” are designed for the Processing of any “Regulated Data” as defined below. On Customer’s request, CalcuQuote shall provide a description of its security measures (the “Security Documentation”). Customer acknowledges that CalcuQuote’s Security Documentation is CalcuQuote’s Confidential Information and may not be used or disclosed except as permitted by Section 9. Customer acknowledges that no Internet based services are completely secure, and that CalcuQuote is not responsible for any harm that Customer may suffer as a result of a security breach unless the breach results from CalcuQuote’s failure to maintain the security measures described in its Security Documentation. Further, Customer is responsible for determining if CalcuQuote’s security safeguards meet the regulatory requirements applicable to Customer and the Customer Data.
B. Regulated Data. Customer acknowledges that unless an ITAR Compliant Services option is selected in the applicable Order, the Services are not designed for Processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles or defense services; and (c) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Regulated Data”). Customer shall not, and shall not permit any Authorized User or other person to, provide any Regulated Data to, or Process any Regulated Data through, the Services or the CalcuQuote Systems. If ITAR Compliant hosting option is selected, the Bill Of Materials and other ITAR controlled data provided by Customer will be hosted by CalcuQuote at ITAR compliant, industry standard location.
C. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
D. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
E. Privacy; Personal Data. CalcuQuote is responsible for compliance with the Laws applicable to the collection of the Personal Data, including any notice and consent requirements necessary for CalcuQuote communication with individuals whose Personal Data is provided for Processing, and other use and disclosure of the Personal Data as permitted by this Agreement. CalcuQuote makes the following commitments with respect to Personal Data: (i) it will Process Personal Data only as necessary to provide the Services or as otherwise expressly permitted by this Agreement or Customer’s other written instructions; (ii) it will protect the Personal Data from unauthorized use and disclosure using those safeguards described in the Security Documentation; (iii) it will require its sub-contractors who have access to the Personal Data to contractually agree to terms at least as protective of the Personal Data as those stated in this Agreement; (iv) it will cooperate with Customer’s reasonable request in connection with any request by an individual whose data is part of the Personal Data to review, amend, erase or take other action with respect to their data; (v) it will cooperate with Customer’s reasonable requests for information needed by Customer to document its compliance with regulatory requirements applicable to Customer, such as information for a privacy impact assessment or regulatory review, and (vi) if CalcuQuote discovers a Personal Data breach, it will notify Customer without undue delay using those means established for routine account-related communications, and will provide reasonable information and cooperation in connection with the breach. CalcuQuote may use Customer’s account-level Personal Data as reasonably necessary for the administration of Customer’s account, including reasonable record keeping practices. CalcuQuote may use and disclose Personal Data as required by applicable law, such as a subpoena or other compulsory information request, provided that, unless prohibited by law, CalcuQuote will first give Customer notice of the requirement and cooperate with CalcuQuote’s reasonable requests to avoid or limit disclosure.
7. Fees; Payment Terms.
A. Fees. Customer shall pay CalcuQuote all applicable fees for the Services as set forth in the Order (“Fees”) in accordance with this Section 7.
B. Payment Terms & Process. Payment under this Agreement shall be governed by the terms of Customer’s Order. Unless some other payment method is specified in the Order, all payments shall be made, up front via credit card using CalcuQuote’s third-party payment processor. All Fees are non-cancellable and nonrefundable.
C. Fee Changes. CalcuQuote may adjust Fees prior to the start of any new Subscription Term.
D. Subscription Changes. Customer may upgrade its plan at any time by placing an upgrade Order and CalcuQuote will apply prepaid Fees for the remaining unused part of the existing subscription plan to the upgraded subscription plan. If Customer downgrades or cancels a month-to-month subscription plan, CalcuQuote may continue the existing plan features and fees until the next billing cycle, or may change Customer’s plan to the lower tier or terminate the Services (as applicable) prior to the end of the billing cycle, at its election.
E. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on CalcuQuote's income.
F. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
1. If such failure continues for 30 days following written notice thereof, Customer shall incur a penalty equal to 20% of the current payment due. Such penalty amount shall incur interest at a rate of 12% per month or the highest rate permitted under applicable law, whichever is lower, until the penalty is cured and Customer’s account becomes current.
2. if such failure continues for 30 days following written notice thereof, in addition to all other available rights and remedies CalcuQuote may suspend performance of the Services until all past due amounts, penalties, and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension.
8. Intellectual Property Rights.
A. Services. All right, title and interest in and to the Services, including all Intellectual Property Rights therein, are and will remain with CalcuQuote and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services (including Third-Party Materials) except as expressly set forth in Section 3.A or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services (including Third-Party Materials) are expressly reserved by CalcuQuote and the respective third-party licensors.
B. Data. As between Customer and CalcuQuote, Customer owns and retains ownership and all rights in the Customer Data. CalcuQuote may use the Customer Data only for the purpose of providing the Services, for monitoring and improving the Services, providing relevant information to Customers, engaging in industry research and exercising its legal rights and remedies in connection with the Agreement, and Customer hereby grants CalcuQuote a perpetual, worldwide, royalty-free right and license to use the Customer Data (including the Anonymous Data described below) for such purposes. For clarity, “Customer Data” does not include: (i) system generated data regarding Customer’s use of the Services (including search query success rate and data on part identification and acceptance or rejection of alternate parts); (ii) system logs related to Authorized User activities and Service performance; (iii) billing related metrics and notes; or (iv) support related metrics and notes including internal communications involving a Customer ((i) through (iv), collectively, “Resultant Data”). Further, Customer acknowledges and agrees that CalcuQuote may collect, store and maintain Customer Data in aggregate, anonymous form, such as resource utilization, aggregated quote and labor information, and total number of transactions managed via the Services (“Anonymous Data”). You acknowledge that CalcuQuote owns and retains ownership rights in the Resultant Data and may use, transfer, and commercially exploit the Resultant Data and Anonymous Data for any purpose whatsoever.
A. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 9.B, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party identifies as confidential or proprietary or that should reasonably be expected to be confidential or proprietary due to the nature of the information or the circumstances of the disclosure, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. For the avoidance of doubt, CalcuQuote’s privacy and data security obligations with respect to Personal Data and Customer Data are set forth in Section 6 and are not covered by this Section 9, and such categories of data are not deemed to be Confidential Information.
B. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information has been disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
C. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
2. except as may be permitted by and subject to its compliance with Section 9.D, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.C; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.C;
3. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
4. ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
D. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.C; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.D, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
10. Term and Termination.
A. Subscription Term. Customer will receive a subscription to the Services for the term specified in each Order (each, a “Subscription Term”). Unless otherwise provided in the Order, each Subscription Term shall automatically renew for the same period, unless Customer provides at least 30 days written notice of non-renewal prior to the conclusion of the applicable Subscription Term.
B. Agreement Term. This Agreement starts on the Effective Date and will continue until expiration or termination of all Subscription Terms (the “Term”) unless earlier terminated as provided herein.
C. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
1. CalcuQuote may terminate this Agreement, effective on written notice to Customer, if Customer breaches any of its obligations under Section 3.C (Use Limitations and Restrictions) or Section 9 (Confidentiality).
2. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
D. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
1. all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
2. Customer shall immediately cease all use of any Services and (i) 30 days return to CalcuQuote, or at CalcuQuote's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on CalcuQuote's Confidential Information; and (ii) permanently erase CalcuQuote's Confidential Information from all systems Customer directly or indirectly controls;
3. CalcuQuote may disable all Customer and Authorized User access to the Services;
4. if Customer terminates this Agreement pursuant to Section 10.C.2, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination;
5. if CalcuQuote terminates this Agreement pursuant to Section 10.C.1 or Section 10.C.2, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of CalcuQuote's invoice therefore.
E. Surviving Terms. The provisions set forth in the following sections will survive any expiration or termination of this Agreement: Section 3.C, Section 9, Section 10.D, this Section 10.E, Section 11, Section 12, Section 13 and Section 15.
11. Representations and Warranties.
A. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
1.. it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
2. the execution of this Agreement by its representative whose signature is set forth on the Order has been duly authorized by all necessary corporate or organizational action of such party; and
3. This Agreement constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
B. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WRITTEN WARRANTIES SET FORTH IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS IS” AND CALCUQUOTE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND CALCUQUOTE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CALCUQUOTE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. Customer expressly acknowledges and agrees that use of all the Services is at Customer’s own risk; CalcuQuote shall not be liable for any Losses that may result from Customer’s reliance on the Services when engaging in transactions with third parties.
A. CalcuQuote Indemnification. CalcuQuote shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of Customer) alleging that Customer's use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Documentation) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
1. access to or use of the Services in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by CalcuQuote;
2. modification of the Services other than: (i) by or on behalf of CalcuQuote; or (ii) with CalcuQuote's written approval in accordance with CalcuQuote's written specification;
3. failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of CalcuQuote; or
4. act, omission or other matter described in Section 12.B.1, Section 12.B.2, Section 12.B.3 or Section 12.B.4, whether or not the same results in any Action against or Losses by any CalcuQuote Indemnitee.
B. Customer Indemnification. Customer shall indemnify, defend and hold harmless CalcuQuote and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “CalcuQuote Indemnitee”) from and against any and all Losses incurred by such CalcuQuote Indemnitee in connection with any Action by a third party (other than an Affiliate of a CalcuQuote Indemnitee) that arises out of or relates to any:
1. Customer Data, including any Processing of Customer Data by or on behalf of CalcuQuote in accordance with this Agreement;
2. any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including CalcuQuote's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by CalcuQuote;
3. allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
4. negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
C. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.A or Section 12.B, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.C will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
D. THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND CALCUQUOTE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
13. Limitations of Liability.
A. EXCLUSION OF DAMAGES. EXCEPT FOR ANY BREACH OF SECTION 9, IN NO EVENT WILL CALCUQUOTE OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
B. CAP ON MONETARY LIABILITY. EXCEPT FOR ANY BREACH OF SECTION 9, IN NO EVENT WILL THE AGGREGATE LIABILITY OF CALCUQUOTE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE LESSER OF (a) $10,000, or (b) THE TOTAL AMOUNT OF FEES PAID OR PAYABLE HEREUNDER. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14. Force Majeure.
A. No Breach or Default. In no event will CalcuQuote be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond CalcuQuote's reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
B. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, CalcuQuote shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
A. Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
B. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
C. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that CalcuQuote may, without Customer's consent, include Customer's name in its lists of CalcuQuote's current or former customers of CalcuQuote in promotional and marketing materials.
D. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
E. Entire Agreement. These CalcuQuote Standard Terms and Conditions, together with any other documents incorporated herein by reference or any written agreement signed by the parties that incorporates these CalcuQuote Standard Terms and Conditions by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in these CalcuQuote Standard Terms and Conditions, the Order, Privacy and Security Policy and any other documents incorporated herein by reference, the following order of precedence governs: (a) the Order, (b) this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) any other exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
F. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without CalcuQuote's prior written consent. CalcuQuote may assign this Agreement in its discretion. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15.F is void. subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
G. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
H. Amendment and Modification; Waiver. Customer expressly acknowledges that CalcuQuote reserves the right to update, modify, and/or revise the Standard Terms and Conditions. The most current version of our Terms and Conditions will be located at https://calcuquote.com/terms. Such updates, modifications, and revisions will not be retroactive and will be effective, and shall apply to this Agreement, immediately upon Customer’s continued use of the Services after our notice to Customer and Customer’s electronic acceptance of such updated modified or revised terms by either expressly clicking to indicate consent or continuing to use the Services after such notification. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing, signed by the party so waiving, and accepted by CalcuQuote. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
I. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
J. Governing Law; Notice. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
K. Arbitration. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) Texas law shall apply, (b) the arbitration will be conducted by a single arbitrator; however, at the request of either party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators, (c) the fees of the arbitrator(s) shall be equally borne (50/50) by the parties, and (d) the proceedings shall be in the English language and shall take place in Dallas County, Texas or another location reasonably convenient to both parties. The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Each party may seek injunctive relief in any court of competent jurisdiction. CalcuQuote and Customer agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
L. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.C or Section 6.C, would cause the other party irreparable harm for which monetary damages may not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
M. Counterparts. The Order referencing these CalcuQuote Standard Terms and Conditions may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
A. “Access Credentials” means any method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services.
B. “Authorized User” means each of the individuals authorized to use the Services pursuant to Section 3.A and the other terms and conditions of this Agreement.
C. “CalcuQuote” means Sutaria Services, LLC d/b/a CalcuQuote.
D. “CalcuQuote Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of CalcuQuote or any Subcontractor.
E. “CalcuQuote Systems” means the information technology infrastructure used by or on behalf of CalcuQuote in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by CalcuQuote or through the use of third-party services.
F. “Customer” means the legal entity subscribing to the CalcuQuote Services pursuant to an Order.
G. “Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services. For the avoidance of doubt, “Customer Data” includes (i) documents uploaded to the Service (e.g., schematics, gerber files, assembly drawings); (iii) Customer's customer identifying information (e.g., company name, address, email, phone); (iv) personally identifiable information regarding Authorized Users; and (v) information regarding the Customer’s labor estimation and overhead allocation model.
H. “Documentation” means any manuals, instructions, specifications or other documents or materials that CalcuQuote provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
I. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or CalcuQuote Systems as intended by this Agreement. Harmful Code does not include any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by CalcuQuote or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of CalcuQuote or its designee.
J. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
K. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
L. “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
M. “Order” means any physical, electronic or online form issued by Customer and accepted by CalcuQuote pursuant to which Customer orders Services from CalcuQuote.
N. “Personal Data” means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, and that is Processed by CalcuQuote as part of or in connection with the Services. For clarity, “Personal Data” does not include “Anonymous Data” or “Resultant Data” as defined in Section 8.B. provided that such data cannot be used to identify an individual.
O. “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content. “Processing” and “Processed” have correlative meanings.
P. “Representatives” means, with respect to a party, that party's employees, officers, consultants, agents, independent contractors, service providers and legal advisors.
Q. “Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to CalcuQuote.