Master Services Agreement
Last Updated: May 9, 2022
This Master Services Agreement (this “Agreement”) is entered into by and between Argyle Systems Inc., a Delaware corporation (“Argyle,” “we,” “us,” or “our”) and you (“Client,” “you,” or “your”). You and Argyle may sometimes be referred to in this Agreement as a “Party” or collectively as the “Parties.”
If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “you” or “your” refers to such entity.
BY CLICKING THE “ACCEPT” BUTTON, EXECUTING A SERVICE ORDER, USING OR MAKING PAYMENT FOR THE ARGYLE PLATFORM OR ANY OF THE SERVICES, OR OTHERWISE INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU OR YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE ARGYLE PLATFORM OR THE SERVICES DESCRIBED HEREIN. WE MAY UPDATE THIS AGREEMENT AT ANY TIME AND WILL NOTIFY YOU VIA EMAIL OR UPON YOUR NEXT LOGIN IF ANY MATERIAL CHANGES HAVE BEEN MADE; YOU WILL HAVE THIRTY (30) DAYS FROM SUCH NOTICE TO REVIEW THE UPDATED AGREEMENT, AFTER WHICH IF YOU CONTINUE TO ACCESS OR USE THE ARGYLE PLATFORM OR ANY SERVICES, YOU WILL BE DEEMED TO HAVE AGREED TO THE UPDATED AGREEMENT.
The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.2. “API” means Argyle’s proprietary application programming interface
1.3. “API Key” means a unique key for the API made available by Argyle to Client. An API Key may be a production API Key or a sandbox API Key.
1.4. “Applicable Laws” means all international, federal, state, provincial, and local laws, rules, regulations, binding regulatory guidance, directives, and governmental requirements, including, without limitation, all U.S. and foreign privacy laws, applicable to each Party’s performance under this Agreement.
1.5 “Argyle End User Terms” means Argyle’s standard End User terms and conditions, which may be updated by Argyle from time to time, the current version of which can be found at https://argyle.com/consumers/end-user-terms/.
1.5. “Argyle Link” means the front end UI widget that End Users interact with through a Client Application.
1.6 “Argyle Platform” means Argyle’s proprietary software-as-a-service platform that enables Client to retrieve and use End User Data from Data Location’s on behalf of and at the express authorization of an End User.
1.7. “Client Application” means a software and/or software-as-a-service application developed by or on behalf of Client which integrates with the Argyle Platform.
1.8. “Client Data” means non-public account administrative data uploaded by Client to the Argyle Platform including, without limitation, billing information, account profile setup information, and similar administrative information, but expressly excluding End User Data and Usage Data.
1.9. “Confidential Information” means (i) with respect to Argyle, the Argyle Platform, the API Key, the Documentation, the Usage Data, and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; and (ii) with respect to Client, the Client Data and any other non-public information or material regarding your legal or business affairs, financing, properties, or data. For the avoidance of doubt, the term “Confidential Information” does not include End User Data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
1.10. “Data Location” means a third-party platform from which the End User authorizes Argyle to retrieve its End User Data through the Services, for the purpose of providing such End User Data to Client pursuant to the terms of this Agreement. The Parties acknowledge that the End User, not Argyle or the Client, has the applicable contractual relationship with Data Locations.
1.11. “Destructive Elements” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would (i) cause the Argyle Platform to cease functioning; (ii) in any way damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of the Argyle Platform, including, without limitation, Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
1.12. “Documentation” means Argyle-provided user documentation, in all forms, relating to the Argyle Platform and Services (e.g., user manuals and online help files), including the documentation available at https://docs.argyle.com.
1.13. “End User” means an end-user of the Client Application with whom the Client has a contractual relationship.
1.14. “End User Data” means any data or information relating to an End User that is obtained by Argyle from Data Locations and provided to Client through the Services.
1.15. “Fees” means the fees for the Services as set forth in the applicable Service Order.
1.16. “Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.
1.17. “Order Term” means the Service Order term length specified in the applicable Service Order.
1.18. “Prohibited Content” means content that: (i) is illegal under applicable law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains Destructive Elements; or (viii) is otherwise objectionable to us in our sole, but reasonable, discretion.
1.19. “Service Order” means an ordering document specifying the Client name and address, the Services to be provided under this Agreement, and the applicable Fees, that is entered into between Client and Argyle, including any addenda and supplements thereto.
1.20. “Services” means the Argyle Platform; the API Key; and any support or other services set forth in the applicable Service Orders.
2.1. Service Orders. All Services Orders shall be executed by an authorized representative of each Party.
Each Service Order is governed by, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and a Service Order, this Agreement will control unless the Service Order expressly states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order.
2.2. Argyle Platform. Subject to Client’s payment of all applicable Fees and compliance with this Agreement, Argyle grants to Client a worldwide, non-exclusive, non-transferable (except as set forth in Section 13.4), non-sublicenseable right and license during the applicable Order Term to access and use the Argyle Platform, subject to the terms of this Agreement, solely as necessary to provide services to End Users and for no other purpose.
2.3. API; API Key. Subject to Client’s payment of all applicable Fees and compliance with this Agreement, Argyle grants to Client a worldwide, non-exclusive, non-transferable (except as set forth in Section 13.4), non-sublicenseable right and license during the Order Term to (i) download one (1) copy of the sandbox API Key and production API Key, (ii) use the production API Key to access the API through the Client Application solely for the purpose of Client’s provision of services to End Users and for no other purpose, and (iii) make a reasonable number of copies of the API Keys solely for testing, backup, or archival purposes.
2.4. Documentation. Subject to Client’s payment of all applicable fees and compliance with this Agreement, Argyle grants to Client a worldwide, non-exclusive, non-transferable (except as set forth in Section 13.4), non-sublicenseable right and license during the Order Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Client’s authorized use of the Services.
2.5. Subcontractors. Argyle may use subcontractors or other third parties to perform its obligations under this Agreement, but Argyle will remain responsible for all such obligations and actions and inactions by such third parties as if such action or inaction were an action or inaction of Argyle.
2.6. Modifications. Argyle reserves the right to modify the Services from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that during the Order Term, such additions, deletions, or modifications to features: (i) will not materially decrease the overall functionality of the Services; and (ii) will be described through updates to the Documentation.
Argyle cannot guarantee the continued availability of Argyle Platform features, and may cease providing them, including, without limitation, if the provider of a Data Location ceases to make the Data Location available for interoperation with the corresponding Argyle Platform features in a manner acceptable to Argyle.
2.7 Service Levels. Subject to the terms of this Agreement, during the applicable Order Term, Argyle will provide the applicable Financial Credit(s) set forth below when the Argyle Platform does not meet the corresponding Service Level Commitment(s) set forth below. Financial Credits are confined to the month that the Service Level Commitment was not met, and calculation of Financial Credits are based on the invoice value for the month that Service Level Commitment was not met.
The Service Level Commitments below apply solely to the availability of the Argyle Platform, and they do not apply to the availability of any third party sites or services that are integrated into or accessible through the Argyle Platform including, but not limited to, Data Locations, or the ability to access or transmit data to or from any of the foregoing.
Service Level Commitment: Financial Credit:
≥95% but <99% 10% of invoice
≥50% but <95% 25% of invoice
<50% 100% of invoice
2.8. Beta Program. Argyle may from time to time offer new and experimental functionality and products (“Beta Tools”). Notwithstanding anything to the contrary in the Agreement, Beta Tools are provided “AS IS”. Beta Tools have no warranty, support, storage, documentation, or availability obligations, and disclaims all warranties of any kind, including merchantability, fitness for a particular purpose, title and non-infringement. Argyle makes no promises that it will offer any future version of Beta Tools or make Beta Tools generally available. Argyle has no liability for any direct, indirect, consequential, exemplary, punitive or other liability, whether in contract, tort or other legal theory. If these limitations of liability are not enforceable at law, Argyle’s entire liability will be limited to one hundred dollars ($100). These disclaimers and limitations are an essential element of the agreement between Customer and Argyle, without which Argyle could not offer Beta Tools under its Beta Program.
3. Customer Responsibilities and Restrictions on Use
3.1. Restrictions on Use of the Services. Client will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Client’s authorized personnel (in accordance with the terms of this Agreement) to access and use the Services; (ii) share its login credentials to the Argyle Platform or API Key with any third party, including subprocessors, without the prior written consent of Argyle in each instance; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services; (iv) modify, adapt, or translate the Services; (v) make any copies of the Services; (vi) resell, distribute, or sublicense the Services, or use the Services for the benefit of anyone other than Client or the End Users as specifically set forth herein, unless consented to in writing by us; (vii) save, store, or archive any portion of the Services (including, without limitation, any data contained therein) outside the Argyle Platform other than those outputs generated through the intended functionality of the Argyle Platform as set forth in the Documentation, without the prior, written permission of Argyle in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Services; (ix) use the Services in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (x) introduce, post, or upload to the Services any Prohibited Content; or (xi) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Services. Upon Argyle’s request, Client will use commercially reasonable efforts to assist Argyle in preventing and enforcing these restrictions.
3.2. Compliance. Argyle has the right to monitor Client’s compliance with this Agreement. If any such monitoring reveals that Client is not using the Services in compliance with this Agreement, then Client will promptly remedy any such non-compliance, including, if applicable, through the payment of additional Fees.
3.3. Authorized Users; Accounts. Client is responsible and liable for all actions and inactions by its employees or contractors that Client permits to access or use the Services, including third parties that are permitted access to the Argyle Platform and/or API key in accordance with Section 3.1, as if such action or inaction were an action or inaction of Client. Client is responsible for maintaining control over Client’s account on the Argyle Platform, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Client’s account and its authorized users’ accounts, whether authorized by Client or not.
3.5. Client Application and Equipment. Client is responsible for maintaining the Client Application and obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking equipment, and web servers. Client is responsible for maintaining the security of such equipment. Argyle is not responsible for any issues or delays in Services caused by the failure of the Client Application or any such equipment.
4. Data Locations
End Users may, through Argyle Link, direct Argyle to retrieve End User Data from certain Data Locations on the End User’s behalf. Argyle only obtains End User Data from Data Locations identified by the End User, with the End User’s express direction and consent. Neither Argyle nor Client has a direct relationship with any Data Location and nothing in this Agreement is intended to create any contractual relationship by and between Client and any Data Location or Argyle and any Data Location.
5.1. License. Subject the terms and conditions of this Agreement including Section 5.2 below, Client hereby grants to Argyle a worldwide, non-exclusive, royalty-free, fully-paid license (with the right to sublicense to Argyle’s third-party hosting provider and other service providers) during the Order Term to host, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Client Data solely for the purpose of providing the Services.
5.2. Usage Data. Client acknowledges and agrees that Argyle may aggregate Client Data and data relating to Client’s usage of the Services, , together with data relating to other Argyle clients and users of the Services, in an anonymous manner that removes all personal information and information about the source of such data (the “Usage Data”) and that Argyle may reproduce, execute, use, store, archive, modify, enhance, perform, display, distribute, sell, rent, vend, license, or otherwise exploit Usage Data for any lawful purpose both during and after the Order Term. For the avoidance of doubt, Usage Data will not identify Client.
5.3. End User Data. (a) Client will make Argyle Link available to End Users at all times through the Client Application. Through Argyle Link, End Users will be able to identify the parties that it authorizes Argyle to provide its End User Data to through the Services (each such party is referred to herein as a “Connection”). Client will only receive End User Data relating to a specific End User if that End User has added Client as a Connection through Argyle Link. If an End User removes Client as a Connection, Argyle will terminate Client’s access to such End User Data and Client shall immediately terminate access to and use of the Argyle Platform and/or API Keys by any third party authorized pursuant to Section 3.1(ii). If an End User deletes its account with Client or the Client Application, Client will promptly notify Argyle via the API and Argyle will terminate Client’s access to such End User Data.
6.1. Confidentiality. The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use commercially reasonable efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
6.2. Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 6.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in, any act which violates Section 6.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of Section 6.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
7. Intellectual Property; Feedback
7.1. Argyle IP. Argyle and its licensors own and shall retain all right, title, and interest in and to the Argyle Platform, API, API Keys, Documentation, and Usage Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all Intellectual Property Rights therein or associated therewith (collectively, the “Argyle IP”). The Argyle IP is protected by copyright law and other Applicable Law. No ownership rights in or to the Argyle IP are transferred to Client by this Agreement or otherwise. Client does not have any rights in or to the Argyle IP except for the limited express rights granted in this Agreement.
7.2. Client IP. Subject to Section 5.2, Client owns and shall retain all right, title, and interest in and to the Client Data and all Intellectual Property Rights therein or associated therewith (collectively, the “Client IP”). No ownership rights in or to the Client IP are transferred to Argyle by this Agreement or otherwise. Argyle does not have any rights to the Client IP except for the limited express rights granted in this Agreement.
7.3. Feedback. If Client elect to provide Argyle with feedback, comments, or suggestions with respect to the Services (collectively, “Feedback”), Client agrees that Argyle will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback for any and all purposes, and Client hereby grants Argyle a perpetual, irrevocable, royalty-free license to do so, without any form of compensation or attribution to Client or any third party.
8. Representations and Warranties; Disclaimer
8.1. Mutual Representations and Warranties. Each Party represents and warrants to the other that (i) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing Party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing Party; and (iii) the execution, delivery, and performance of this Agreement by the executing Party do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
8.2. Compliance with Applicable Law. Each Party represents and warrants to the other Party that it will comply with all Applicable Laws in connection with exercising its rights or performing its obligations under this Agreement. Each Party acknowledges and agrees that, in connection with Client’s use of the Argyle Platform, End User Data will be transmitted or made available in a mechanical manner, and that neither Argyle nor Client will alter the substance of the End User Data. Each Party will be acting only as a service provider and/or a conduit, and not as a consumer-reporting agency, in connection with the End User Data processed and transmitted under this Agreement. Argyle is providing the Services only as requested by the End Users and as requested and authorized by the owner of such information. Each Party acknowledges that neither Party is a reseller of data but simply provides the service of transferring data as requested and authorized by the owner thereof from one party to the party directed and authorized to receive the data by the owner thereof. During the Term, if Client is or becomes either a “consumer reporting agency” or a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”), or if Client has reason to believe Argyle’s provision of the Services would constitute a “consumer report” under the FCRA, (i) Client will immediately notify Argyle in writing; (ii) the Parties will discuss in good faith any additional requirements imposed by Applicable Laws; and (iii) if the Parties are unable to agree on whether or how to comply with Applicable Laws, either Party may immediately terminate this Agreement upon notice to the other Party.
8.3. Argyle Additional Representations and Warranties. Argyle further represents and warrants to Client that the Argyle Services will operate in all material respects in accordance with the applicable Documentation.
8.4. Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 8, ARGYLE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DOCUMENTATION, SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ARGYLE DOES NOT WARRANT THAT THE DOCUMENTATION OR SERVICES WILL SATISFY CLIENT’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED.
FURTHER, ARGYLE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY DATA LOCATION OR THE END USER DATA, ITS ACCURACY, COMPLETENESS, OR CURRENTNESS. ARGYLE DOES NOT CONTROL OR HAVE ANY CONTRACTUAL RELATIONSHIP WITH ANY DATA LOCATION. THE END USER DATA IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND ARGYLE DOES NOT, AND HAS NO OBLIGATION TO, VERIFY OR REVIEW THE END USER DATA. CLIENT’S RELIANCE ON ANY END USER DATA IS AT ITS OWN RISK. INFORMATION CONTAINED IN END USERS’ EMPLOYMENT ACCOUNTS WITH DATA LOCATION(S) MAY DIFFER FROM THE END USER DATA, DUE TO DIFFERENT REPORTING METHODS, DELAYS, INTERRUPTIONS, AND OTHER FACTORS OUTSIDE OF ARGYLE’S CONTROL. CLIENT SHOULD NOT TAKE ANY ACTION BASED ON THE END USER DATA WITHOUT FIRST CONFIRMING ITS ACCURACY AND COMPLETENESS WITH THE APPLICABLE END USERS. IF THERE ARE DISCREPENCIES BETWEEN END USERS’ ACTUAL EMPLOYMENT DATA AND THE END USER DATA, CLIENT SHOULD RELY ON END USERS’ ACTUAL EMPLOYMENT DATA. THE END USER DATA IS SUBJECT TO CHANGE AND ARGYLE IS NOT OBLIGATED TO NOTIFY CLIENT OF THESE CHANGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES SET FORTH HEREIN, IN WHICH CASE THOSE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CLIENT.
8.5. Client Additional Representations and Warranties. Client further represents and warrants to Argyle that (i) Client owns the Client Data, or has the necessary licenses, rights, consents, and permissions to authorize Argyle to use the Client Data in accordance with this Agreement; and (ii) Client will provide End Users all disclosures regarding the sharing and use of End User Data under Applicable Law and obtain and maintain all necessary licenses, rights, consents, and permissions from End Users as set forth in Section 3.4 and in accordance with all Applicable Laws.
9.1. Indemnification by Argyle. Subject to Section 9.2, Argyle will defend, indemnify, and hold Client harmless from and against any and all damages, losses, liabilities, fines, penalties, judgments, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by Client in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising in connection with (i) an allegation that your access and use of the Services in accordance with this Agreement infringes or misappropriates any United States patents, copyrights, or trade secrets (an “Infringement Claim”); or (ii) Argyle’s gross negligence or willful misconduct.
9.2. Infringement Claims. Agyle is not obligated to indemnify, defend, or hold Client harmless with respect to any Infringement Claim to the extent: (i) the Infringement Claim arises from or is based upon use by Client or any Client personnel of: (a) the Services other than in accordance with the Documentation, this Agreement, or Applicable Laws; or (b) any unauthorized modifications, alterations, or implementations of the Services made by Client or any third party; (ii) the Infringement Claim arises from use of the Services in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by Argyle; or (iii) the Infringement Claim arises from any use of the Services for which they were not designed. In the event that Argyle reasonably determines that the Services or any portion thereof are likely to be the subject of an Infringement Claim, Argyle shall: (x) procure for Client the right to continue to use the Services as provided in this Agreement; (y) replace the infringing components of the Services with other components with equivalent functionality; or (z) suitably modify the Services so that they are non-infringing and functionally equivalent. If none of the foregoing options is available to Argyle on commercially reasonable terms, Argyle may terminate this Agreement without further liability to Client and refund Client a pro-rated portion of any pre-paid Fees. This Section 9.2, together with the indemnity provided under Section 9.1, states Client’s sole and exclusive remedy, and Argyle’s sole and exclusive liability, regarding any Infringement Claim.
9.3. Indemnification by Client. Client will defend, indemnify, and hold Argyle, its Affiliates, licensors, hosting providers, and its and their respective officers, directors, managers, employees, contractors, and agents harmless from and against any and all Losses incurred by such parties in connection with any Claim arising in connection with (i) the operation of Client’s business; (ii) Client’s breach of this Agreement or violation of any Applicable Laws; (iii) Client’s use of or reliance on the End User Data; (v) the Client Application or Client Application End User Terms; or (vi) Client’s gross negligence or willful misconduct.
9.4. Procedure. The indemnification obligations set forth in Section 9.1 and Section 9.3 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim (provided that failure to provide prompt written notice of such Claim will not alleviate the indemnifying Party of its obligations under this Section 9 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s prior written consent.
10. Limitations of Liability
EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, BREACH OF CONFIDENTIALITY OBLIGATIONS, OR INDEMNIFICATION OBLIGATIONS, OR IN CONNECTION WITH CLIENT’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CLIENT HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT: (A) THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY; (B) THE FEES WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN; AND (C) WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CLIENT THE RIGHTS TO ACCESS AND USE THE SERVICES.
11.2. Taxes. Fees are in addition to and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which will be for Client’s account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to us prior to the execution of this Agreement. If we are required to collect and remit Taxes on your behalf, we will invoice you for such Taxes, and you will pay us for such Taxes in accordance with Section 11.1.
Client hereby agrees to defend, indemnify, and hold harmless us, our Affiliates, and our and their respective Representatives from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any Taxes and related costs, interest, and penalties paid or payable by us on your behalf.
For the avoidance of doubt, we will only be responsible for any taxes related to our income, property, franchise, or employees.
12. Term and Termination
12.1. Term. The term of this Agreement will commence on the effective date of the first Service Order between the Parties and will continue until terminated in accordance with this Agreement (the “Term”). Each Order Term will be set forth in the applicable Service Order, and will automatically renew for consecutive renewal terms of the same duration as the initial Order Term, unless either Party notifies the other Party in writing of its intention to not renew within thirty (30) days of expiration of the initial Order Term or renewal, as applicable.
12.2. Termination. Either Party may terminate this Agreement for any reason upon prior written notice to the other if no Service Orders are then in effect. In addition, either Party may terminate this Agreement or a Service Order, effective upon written notice to the other Party, if the other party materially breaches this Agreement or a Service Order and such breach is incapable of cure, or (if such breach capable of cure) the breaching Party does not cure such breach within thirty (30) days of receiving notice thereof. Notwithstanding the foregoing, Argyle may terminate or suspend this Agreement or any part of it immediately upon written notice to Client without a cure period if Client breaches any of the terms of this Agreement relating to End User Data, Argyle’s Intellectual Property Rights, or Confidential Information. Either Party may terminate this Agreement, effective immediately upon written notice, if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property. In addition, this Agreement may be terminated as set forth in Section 8.2 or Section 9.2 or as otherwise set forth herein.
12.3. Effect of Termination. Expiration or termination of this Agreement will automatically terminate all active Service Orders, but termination of a single Service Order will not result in termination of this Agreement or any other Service Orders. Upon the expiration or termination of this Agreement or a Service Order all rights and licenses granted under this Agreement or the applicable Service Order will terminate except as otherwise expressly described, and Client shall promptly pay all outstanding payments accrued up to and including the effective date of termination or expiration. Either Party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either Party of breaches occurring prior to the effective date of termination. Neither Party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms. Upon any expiration or termination of this Agreement, Argyle will make all Client Data then held by Argyle available to Client for electronic retrieval for a period of thirty (30) days. After such period, Argyle will delete or cause to be marked for deletion any Client Data in its systems or otherwise in its possession or under its control.
12.4. Survival. Section 1 (Definitions), Section 5 (Data), Section 6 (Confidentiality; Feedback), Section 7 (Intellectual Property), Section 8 (Representations and Warranties; Disclaimer), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 12.3 (Effect of Termination), this Section 12.4 (Survival), and Section 13 (Miscellaneous Provisions) shall survive the expiration or termination of this Agreement.
13. Miscellaneous Provisions
13.1. Non-Solicitation. During the Term and for a period of two (2) years thereafter, neither Party will directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of the other Party to terminate their engagement the other Party. This Section will not apply to current or former employees or contractors who respond to general advertisements or job postings.
13.2. Publicity. Argyle may publicly list Client as a customer of Argyle and use Client’s name, trademarks, service marks, trade names, and logos for marketing or promotional purposes and in other communications with existing or potential Argyle customers, resellers, or investors.
13.3. Governing Law. This Agreement is governed by the laws of the State of New York, without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All claims arising under this Agreement will be litigated exclusively in the federal or state courts of New York County, New York. The Parties submit to the jurisdiction in those courts.
13.4. Assignment. Neither Party may assign this Agreement or delegate its performance without the other Party’s prior written consent, and any attempt to do so is void; except that either Party may assign this Agreement without the other Party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the Parties’ permitted successors and assigns.
13.5. Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
13.6. No Waiver. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
13.7. Entire Agreement. This Agreement (including any Service Orders) constitutes the entire agreement and supersedes any other agreement of the Parties relating to its subject matter. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of the Agreement.
13.8. Amendments. Unless otherwise agreed by the Parties in writing, this Agreement may be updated from time to time by Argyle, by posting the amended Agreement to Argyle’s website. It is the Client’s responsibility to check the website for updates to this Agreement. Any use of the Services after an update has been made and posted to the website shall be deemed Client’s acceptance of the amended terms.
13.9. Relationship. The Parties are independent contractors of each other. Each Party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the Parties.
13.10. Notices. All notices under this Agreement must be in writing, and will be considered given (i) upon delivery, if delivered personally, by email, or by internationally-recognized courier service; or (ii) three (3) business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested). Either party may update its notice address by notice to the other party in accordance with this Section. Copies of all notices to Argyle will be sent to Argyle Systems Inc. [email protected].
13.11. Force Majeure. Neither Party will be liable for any delay or failure to perform as required by this Agreement (except for payment obligations) as a result of any cause or condition beyond its reasonable control, so long as it uses reasonable efforts to avoid or remove those causes of delay or non-performance.
13.12. Headings. Headings are for convenience only and shall not be used to limit or interpret the meaning of any of the provisions of this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.