Client acknowledges and agrees that the SaaS Service (and any data or software that is provided as part of the SaaS Service) is confidential and may be used only for Client’s internal use and use with Client’s internet web site, and only while this Agreement continues in force.
Client agrees not to use the SaaS Service (including, without limitation, any data or software that is provided as part of the SaaS Service) in any manner except as expressly permitted hereunder and further agrees not to reverse engineer, decompile, disassemble or otherwise seek to duplicate the performance characteristics of the SaaS Service software or any part thereof, nor to sell, assign, disclose, furnish or redistribute the SaaS Service or any data or software provided therewith to any other person or entity, and shall confine knowledge of and access to the SaaS Service software and data only to its employees who require such knowledge and access in the ordinary course and scope of their employment by Client.
Client acknowledges that installation and ongoing operation of the SaaS Service may, from time-to-time, require changes to Datavault software resident on Client’s hardware; and that software for such changes shall be made available by Datavault to Client, at Datavault’s expense, provided that Client agrees to install such software on its hardware and renders reasonable cooperation to Datavault (such cooperation to include without limitation, commercially reasonable modification or upgrade to Client’s equipment and software). Should Client elect not to modify or upgrade its equipment and software as may be reasonable required, Datavault may, in its sole and absolute discretion, cease supporting the SaaS Service.
Client acknowledges and agrees that all proprietary rights in the SaaS Service (including, without limitation, any data or software that is provided as part of the SaaS Service) are and shall remain the property of Datavault and its third-party licensors. Client acknowledges that the SaaS Service was compiled, prepared, selected and arranged by Data Vault and its licensors through the expenditure of substantial time, effort and money, and that it constitutes valuable property of Datavault and its licensors.
ALTHOUGH DATAVAULT ENDEAVORS TO USE CARE WITH RESPECT TO PROVIDING THE SAAS SERVICE, DATAVAULT MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, WITH RESPECT TO ANY ASPECT OF THE SAAS SERVICE (INCLUDING ANY SOFTWARE, DATA OR EQUIPMENT PROVIDED AS PART THEREOF). NEITHER DATAVAULT NOR ANY THIRD-PARTY DATA, SOFTWARE OR EQUIPMENT PROVIDERS WARRANT THAT THE SAAS SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO THEY MAKE ANY WARRANTIES AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SAAS SERVICE. CLIENT EXPRESSLY AGREES THAT USE OF THE SAAS SERVICE IS AT CLIENT’S SOLE RISK. ACCORDINGLY, NEITHER DATAVAULT NOR ANY THIRD-PARTY DATA, SOFTWARE OR EQUIPMENT PROVIDERS WILL IN ANY WAY BE LIABLE TO CLIENT OR TO ANY OTHER ENTITY FOR ANY INACCURACIES, ERRORS, OMISSIONS OR DELAYS, REGARDLESS OF CAUSE, IN THE SAAS SERVICE OR IN ANY DATA, INFORMATION OR SOFTWARE CONTAINED THEREIN, OR CAUSED BY ANY DATAVAULT OR THIRD-PARTY EQUIPMENT OR SOFTWARE USED IN CONNECTION THEREWITH, OR FOR ANY DAMAGES (WHETHER DIRECT OR INDIRECT, OR CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS) RESULTING THEREFROM, REGARDLESS OF CAUSE AND REGARDLESS OF WHETHER OR NOT DATAVAULT OR ANY SUCH THIRD PARTIES ARE DEEMED LIABLE IN ANY MANNER. IN ANY EVENT, THE PARTIES AGREE THAT DATAVAULT’S LIABILITY, WHETHER ARISING FROM CONTRACT, WARRANTY, NEGLIGENCE OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNT CLIENT HAS PAID FOR THE SAAS SERVICE DURING THE PRECEDING 12-MONTH PERIOD. DATAVAULT SHALL NOT BE LIABLE TO ANY CLIENT FOR ANY DELAY IN PERFORMANCE OR FAILURE TO PERFORM ANY TERM OR CONDITION CAUSED DIRECTLY OR INDIRECTLY BY FIRE, EXPLOSION, ACCIDENT, FLOOD, LABOR TROUBLE, WEATHER CONDITION, ANY REGULATION, RULE OR ACT OF ANY GOVERNMENT OR GOVERNMENT AGENCY, OR THE INABILITY TO OBTAIN OR SHORTAGE OF SUITABLE MATERIAL, COMPONENTS, PARTS, EQUIPMENT, MACHINERY, FUEL, POWER, COMMUNICATION FACILITIES OR TRANSPORTATION, ACT OF GOD, ARMED CONFLICTS, CIVIL COMMOTION OR ANY OTHER CAUSE OF LIKE CHARACTER BEYOND THE REASONABLE CONTROL OF DATAVAULT.
Client shall be responsible for and shall indemnify and hold Datavault, its employees, agents, licensors and licensees harmless at all times against and in respect of:
All claims, liabilities, obligations or damages resulting from any misrepresentation, breach of warranty, or non-performance of any covenant or agreement on the part of Client under this Agreement, or from any misrepresentation in or omission from any certificate or other instrument furnished or to be furnished to Datavault under this Agreement;
All claims, liabilities, obligations, or damages claimed or demanded by third parties against Datavault or by Client’s employees, agents or licensees, and arising out of, directly or indirectly, Client’s use of the SaaS Service;
All claims, liabilities, obligations or damages incident to any claim by any municipal, state or federal agency or subdivision resulting from any violation of municipal, state or federal ordinances, regulations or laws based on Client’s use of the SaaS Service; and
All actions, suits, proceedings, demands, assessments, judgments, costs and expenses (including reasonable attorney’s fees) incident to any of the foregoing.
Datavault shall indemnify Client and hold it harmless against all claims and damages, including without limitation, reasonable attorney’s fees, which Client incurs as a result of any claim against Client that the SaaS Service infringes any copyright or proprietary right of any third party, provided that: (i) Client notifies Datavault promptly in writing of the assertion of such claims; (ii) Datavault has sole control over the defense or settlement of such claim; and (iii) Client’s use of the SaaS Service has been in accordance with the terms and restrictions of this Agreement.
In the event of a claim for infringement, Datavault reserves the right to terminate this Agreement with respect to the allegedly infringing portion of the SaaS Service and either to substitute another or substantially similar SaaS Service therefore, or to refund to Client the pro rata share of any prepaid fees relating to such terminated SaaS Service.
All web site content provided by Client for handling, editing and inclusion in the SaaS Service shall be provided with the full authority of Client for duplication or broadcast without infringement on any copyright or third-party ownership rights.
Client hereby grants Datavault during the term of this Agreement a non-exclusive, worldwide, royalty-free right and license to: (i) use, reproduce, encode, transmit, publicly perform, publicly display and distribute content as necessary or desirable for Datavault’s provision of the SaaS Service; and (ii) use the trademarks, logos and trade names of Client and any third parties contained in Client-provided content solely in connection with Datavault’s provision of the SaaS Service.
Except for the SaaS Service provided by Datavault, Client shall be solely responsible for all matters relating to content, including, without limitation, all offers, promotions, discounts, promises and updates of content. Client shall have the right to alter, modify and delete content at any time.
Client shall provide Datavault with reasonable support and assistance in connection with Datavault’s provision of the SaaS Service throughout the term of this Agreement.