OneSpace Inc. – Platform License Agreement
This Platform License Agreement (the “Agreement”) is entered into by and between OneSpace Inc. with offices at 33 Bronze Pointe Blvd, Swansea, IL 62226 (“Company” or “OneSpace”) and Subscriber named on an executed Service Order and is effective as of the Effective Date on the Service Order.
1.1 “Subscriber Data” means all documents, messages, graphics, process flows, charts, reports, tables, templates, images, content, files, data and other information uploaded or imported into the OneSpace Platform by or on behalf of Subscriber to OneSpace or any OneSpace Contributors or Subscriber Personnel via the OneSpace Platform. Subscriber Data shall be deemed to include any and all copies, analyses, excerpts, reports, abstracts, modifications, summaries, enhancements, aggregations, or other derivative works thereof whether created by or on behalf of Subscriber, its Affiliates or their respective customers, OneSpace or OneSpace Contributors or Subscriber Personnel. Subscriber shall have unrestricted access to such Subscriber Data at all times, and such Subscriber Data shall be kept in an industry-standard format as reasonably requested by Subscriber, in each case subject to availability and uptime restrictions and subject to the other terms and conditions of this Agreement.
1.2 “Subscriber Personnel” means any employees, agents, or independent contractors supplied by Subscriber through the OneSpace Platform, but excluding any OneSpace Contributors. For the avoidance of doubt, under no circumstances will Subscriber Personnel be deemed to be OneSpace Contributors.
1.3 “End Users” means Subscriber’s individual employees and independent contractors authorized to use the OneSpace Platform, as specified in the Service Order.
1.4 “Fees” means, individually and collectively, the fees and expenses set forth in each Service Order hereunder.
1.5 “Implementation” means the OneSpace Platform configuration and integration Services, if any, to be performed by Company pursuant to the Service Order.
1.6 “Intellectual Property Rights” means (i) copyrights and copyright applications, including any renewals, in any country; (ii) trademarks, service marks, trade names, trade dress, and applications or registrations for any of the foregoing in any country; (iii) trade secrets or any data or information which provides value or a competitive advantage to its holder by not being publicly known; (iv) patents, patent applications, continuations, divisionals, reexaminations, reissues, continuations-in-part, and foreign equivalents of the foregoing, in any country; and (v) any privacy, publicity or other personal right of any individual.
1.7 “OneSpace Contributor” means OneSpace employees, agents, independent contractors, and/or other entities or individuals accessible to Subscriber to perform services through the OneSpace Platform including employees and independent contractors of OneSpace’s third-party employment solution provider(s), but excluding any Subscriber Personnel.
1.8 “OneSpace Contributor Deliverables” means the work product, reports, data, milestones, and deliverables or other items required or requested by Subscriber to be developed, generated, created or otherwise delivered by any of OneSpace Contributors to Subscriber in connection with the Services, excluding any OneSpace Platform Materials.
1.9 “OneSpace Platform” means the global platform for finding, engaging, and working with Subscriber Personnel and OneSpace Contributors through the OneSpace Platform at www.onespace.com that is hosted and made available by Company as a software-as-a-service. References to the “OneSpace Platform” in this Agreement shall be deemed to refer to the specific version of the OneSpace Platform subscribed to by Subscriber pursuant to a Service Order.
1.10 “Service Order” means a document which is executed by authorized representatives of each party and which may set forth the OneSpace Platform version subscribed to by Subscriber, applicable Usage Limitations, the number and identities of the End Users authorized to use the OneSpace Platform and the Fees due for all of the foregoing. The initial Service Order is attached hereto.
1.11 “Services” means any services relating to the OneSpace Platform that Company may agree to perform for Subscriber hereunder, including (by way of example) configuration services, training services, development and provision of custom features or functionality, user interface customizations and new integrations with third party data providers. Services shall only be provided pursuant to a Service Order mutually executed by the parties.
1.12 “Usage Limitations” means the Subscriber Data storage limits, monthly bandwidth caps and other limits and restrictions applicable to Subscriber’s use of the OneSpace Platform, if any, as set forth in the Service Order attached hereto.
1.13 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
1.14 “Affiliate” means a Person controlled by, controlling, or under common control with, another Person. “Control” means the ownership of at least 50% of the voting interests of the controlled Person, or the actual ability to control the management decisions of the controlled Person.
2. THE ONESPACE PLATFORM
2.1 Provision of the OneSpace Platform. Subject to all terms and conditions of this Agreement, Subscriber shall have the right to access and use the OneSpace Platform during the Term solely for purposes of supporting Subscriber’s internal business operations and solely in the manner enabled by Company and in accordance with all applicable Usage Limitations and documentation. Company reserves the right to modify and update the features and functionality of the OneSpace Platform from time to time; provided, however, that any change which has a material and adverse effect on the usability or features and which thereby materially diminishes the value of the OneSpace Platform to Subscriber (an “MAE”) shall (a) not be deemed a breach by Company of this License, but (b) permit Subscriber, upon not less than sixty (60) days prior written notice to OneSpace (which shall contain a description of the MAE with reasonable specificity), to terminate this License and all outstanding Service Orders, without paying any early termination fees (no matter how characterized) as a result, and to receive a prorated refund of any amounts prepaid for services under any Service Order for services that will not be received as a result of such termination UNLESS Company rolls back the offending changes within thirty (30) days of receiving written notice from Subscriber thereof. Except as expressly set forth herein, Subscriber is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Subscriber’s use of the OneSpace Platform. Subscriber agrees to use the OneSpace Platform in compliance with all applicable laws, rules and regulations, and Subscriber agrees that it is solely responsible for its compliance with all such applicable laws, rules, and regulations.
2.2 Restrictions. Subscriber acknowledges that use of the OneSpace Platform is provided for Subscriber’s (including all Affiliates’ thereof) benefit only, and agrees not to use the OneSpace Platform for the benefit of any third party, except to the extent that a project Subscriber is completing via the OneSpace Platform is for the benefit of a customer of Subscriber (it being understood that this Agreement does not permit Subscriber’s customers to access the OneSpace Platform directly or complete their own projects using the OneSpace Platform). For clarity, the parties acknowledge that the fact that a OneSpace Contributor benefits (by getting paid) is not a violation of this paragraph. Subscriber agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the OneSpace Platform, make the OneSpace Platform available to any third party or use the OneSpace Platform on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the OneSpace Platform or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the OneSpace Platform, (iii) create derivative works based on the OneSpace Platform; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the OneSpace Platform or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the OneSpace Platform; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the OneSpace Platform; (vii) scrape, export, store, or otherwise retain any copies of raw data (except Subscriber Data) which Subscriber may access through OneSpace Platform; (viii) use the OneSpace Platform to develop a competitive product offering; or (ix) use the OneSpace Platform in a manner which violates or infringes any laws, rules, regulations, third party Intellectual Property Rights, or third party privacy rights. Subscriber may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the OneSpace Platform, except solely to the extent as may be specifically enabled and authorized by the Company. Subscriber shall not attempt to circumvent through technological means or otherwise any Usage Limitations, including such limitations as may be placed on hours or days that OneSpace Contributors are permitted to access the OneSpace Platform. Subscriber also shall not circumvent the payment methods offered by the OneSpace Platform, including (i) submitting proposals or soliciting OneSpace Contributors with which it does not have a pre-existing relationship to contact, hire, work with or pay outside the OneSpace Platform; (ii) accepting proposals from OneSpace Contributors identified through the OneSpace Platform to contact, deliver services, transfer materials, invoice or receive payment outside of the OneSpace Platform. You agree to use commercially reasonable efforts to notify Company immediately if a OneSpace Contributor whom the contacted individual within your organization is consciously aware is a OneSpace Contributor improperly contacts you or suggests making or receiving payments outside of the OneSpace Platform.
2.3 Suspension/Termination. Company may temporarily suspend Subscriber’s or any End User’s access to or use of the OneSpace Platform at any time if in the Company’s reasonable business judgment such action is necessary to prevent material errors or harm to any system or network. Company may suspend or terminate Subscriber’s or any End User’s access to or use of the OneSpace Platform or terminate this Agreement at any time if Subscriber attempts to access or use the OneSpace Platform in an unauthorized manner, including any attempt to gain access to data or information relating to other Company customers or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation. Provided, however, that Company commits to either contact Subscriber and work to resolve the problem before suspending, or to contact Subscriber as soon as practicable after suspension and permit the Subscriber a cure period reasonable under the circumstances (and at least 10 days) to attempt to resolve the issue to the reasonable satisfaction of Company, prior to exercising its termination rights hereunder, unless the violation was serious, willful and wanton.
2.4 Accounts. Subscriber is solely responsible for the activities of any and all persons accessing and using the OneSpace Platform using any End User’s user name and password, including Subscriber Personnel. Subscriber shall, and shall instruct its End Users to, use all reasonable means to secure user names and passwords, and shall promptly notify Company if it suspects that any user name and password has been compromised. Each OneSpace Platform account may only be accessed and used by the specific named End User for whom such account is created (as specified on the Service Order). Subscriber acknowledges that use of a OneSpace Platform account by any person other than the applicable named End User may constitute a material breach of this Agreement. Subscriber may de-activate End Users and activate new End Users at any time in its sole discretion upon written notice to Company, which may be given in any manner then permitted and enabled by the OneSpace Platform.
2.5 Third Party Services and Modifications. The OneSpace Platform may include features or functionality that interoperate with online services operated by third parties (such services, “Third Party Services”), pursuant to agreements between Company and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Company does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Any such modification, suspension or termination shall not affect any payment obligations under this Agreement and Company shall have no liability with respect thereto. Without limiting the foregoing, Subscriber is responsible for ensuring that Subscriber’s use of the OneSpace Platform in connection with Third Party Services complies with all policies, terms and rules applicable thereto. Additionally, Subscriber acknowledges that (a) Company may change, suspend, modify, or remove (collectively, “Changes”) certain functions and features within the OneSpace Platform without prior notice to Subscriber, (b) that such Changes are not regarded as a breach by Company of the terms of this Agreement, and (c) such Changes will be communicated by Company to Subscriber as soon as commercially practicable.
2.6 Availability. Company shall be responsible for operating the servers that make the OneSpace Platform available, and shall use commercially reasonable efforts to maintain availability of the OneSpace Platform. If the OneSpace Platform is functioning properly and available for use by Subscriber/End Users and OneSpace Contributors (“Uptime”) at least 99% of the time (excluding any downtime caused by: (A) Subscribers/Contributor’s equipment or internet connections; (B) scheduled maintenance that has been communicated at least 48 hours in advance to Subscriber; (C) events that are outside the reasonable control of OneSpace if OneSpace is maintaining adequate redundancy and emergency failover plans), OneSpace shall be deemed to be complying with its “Uptime Obligations” hereunder. Subscriber acknowledges and agrees that the OneSpace Platform may be unavailable (in whole or in part) from time to time due to: (i) equipment, software or service malfunctions outside the reasonable control of Company; (ii) scheduled maintenance, update or upgrade procedures or repairs; or (iii) causes beyond the reasonable control of Company, including interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that Company shall not be liable for any unavailability caused by any of the foregoing.
2.7 Support. Provided that Subscriber timely makes all payments due under this Agreement, Company shall provide technical support to Subscriber pursuant to the initial Service Order attached hereto and as described in more detail on OneSpace’s website at http://onespace.com/support (“Technical Support”). Such Technical Support shall consist of answering questions from End Users regarding use of the OneSpace Platform and any errors within the OneSpace Platform during Company’s normal business hours. Subscriber may submit requests for Technical Support through e-mail or by phone. Only the Subscriber’s designated administrative contact(s) (as named in the Service Order attached hereto) (each an “Administrative Contact”) may request technical support. For clarity and avoidance of doubt, Company will not accept support requests from an End User if that End User is not also an Administrative Contact, and in such instances, the End User should submit its requests to the Administrative Contact, who may then submit the request to Company. Company will use commercially reasonable efforts to respond to each case and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in Company’s reasonable determination.
2.8 Control. Subscriber acknowledges and agrees that Company will not, and has no obligation to, monitor or edit the Subscriber Data, and that as between the parties Subscriber is solely responsible for the Subscriber Data, including its format, integrity, accuracy, maintenance, and its compliance with all applicable laws, rules, and regulations. Company reserves the right to remove any Subscriber Data which Company becomes aware may violate the terms of this Agreement, any applicable law, rule, or regulation, or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right.
2.9 Subscriber Data. As between the parties, Subscriber shall own all right, title and interest in and to Subscriber Data. Subscriber hereby grants Company a non-exclusive, worldwide license which ends when this Agreement terminates, to use, reproduce, modify, create derivative works of, display, perform and transmit the Subscriber Data in connection with Company’s operation of the OneSpace Platform and to provide the services to Subscriber. Company will not share or transmit any raw Subscriber Data to any third party without the prior, written consent of Subscriber; provided, however, that any OneSpace Contributor who Subscriber retains via the OneSpace Platform shall not be considered a “third party” for purposes of this sentence. Subscriber acknowledges and agrees that Subscriber Data imported for use within the OneSpace Platform may reside on or be transmitted through Company’s systems. Company will use commercially reasonable security measures to prevent unauthorized access to the Subscriber Data, however, Subscriber acknowledges that: (i) no security measures are 100% effective and (ii) the OneSpace Platform uses the Internet for data transfer, and Internet communications have inherent insecurities. As between the parties, Company shall own all right, title and interest in and to all data collected by Company in connection with the operation of the OneSpace Platform and Subscriber’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, when and how often End Users use the OneSpace Platform and which OneSpace Platform features are used the most often. Company will not disclose Usage Data to any third party in a manner that identifies Subscriber or any End User without Subscriber’s consent other than (i) disclosure to the Company’s third party service providers who use such data for the benefit of Company and subject to reasonable confidentiality terms; or (ii) as may be required by law or legal process.
2.10 Changes. The parties may execute additional Service Orders to, for example, change the version of the OneSpace Platform applicable hereunder, add End Users, and change Usage Limitations. Such additional Service Orders shall be subject to applicable Fees based on Company’s then-current price sheet or as negotiated between the parties. Subscriber acknowledges that such modifications may require a lead time of fourteen (14) days for Company to implement. Either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and agree on factors that, at a minimum, include scope of the changes and additional deliverables, commensurate fee increases, time extensions, and pass-through of additional costs and expenses to Subscriber. If the parties agree on at least the minimum terms listed above, the parties will memorialize the agreement in a written change order (“Change Service Order”) signed by both parties and implement all such changes. No Service Order or Change Service Order shall be valid unless mutually executed by authorized representatives of the parties.
3.1 Fees & Payment Terms. Unless otherwise specified on the Service Order, the Subscription Fees and Service Fees for the Initial Subscription Term, as listed in the initial Service Order, are due upon execution of the Service Order. After the Initial Subscription Term, Subscription Fees will be invoiced at the then-current rate for the Service or as otherwise specified on the Service Order, 30 days in advance of the start of each renewal period. All recurring monthly Fees under a Service Order shall be due and payable within 30 days of receipt of a proper invoice from Company. Fees for additional Service quantities and Services will be invoiced at the time of order, unless otherwise agreed in writing by the parties. Subscriber will pay all undisputed amounts in full within 30 days after the invoice receipt date. Company shall invoice Subscriber for any additional Fees on a monthly basis. Company will send invoices to the “Subscriber Administrative Contact” noted in the Service Order. The charges in an invoice will be considered to be accepted by Subscriber unless OneSpace is notified of a dispute in writing within 30 days of the receipt date of the invoice, unless the error was not reasonably susceptible to determination, using ordinary reasonable care, until a later date, in which case the applicable timeline shall not start until the date on which the error was so determinable. Subscriber may withhold any reasonably disputed amount while the dispute is being resolved without being in violation of this Agreement. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by OneSpace to collect undisputed amounts that are not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. Subscriber shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
3.2 Taxes. The fees stated on the Service Order do not include local, state, federal or foreign taxes (e.g., value-added, sales or use taxes), fees, duties, or other governmental charges resulting from this Agreement (collectively, “taxes”). Subscriber shall be responsible for and pay all applicable sales, use, excise, value-added and goods and services taxes which are levied or imposed upon the provision of the Platform Services by OneSpace, OneSpace’s Employment Providers, or OneSpace Contributors to Subscriber under this Agreement (“Applicable Taxes”), whether such Applicable Taxes are imposed by applicable law on OneSpace, OneSpace’s Employment Providers, OneSpace Contributors, or Subscriber.
4.1 OneSpace Contributor Deliverables. All right, title and interest in and to all OneSpace Contributor Deliverables, and the conceptual content thereof, including without limitation all patent rights, copyrights, trade secrets and other Intellectual Property Rights therein, shall be owned exclusively by Subscriber, and, upon creation, and without any other charge, OneSpace assigns all right, title and interest in and to such OneSpace Contributor Deliverables to Subscriber; provided, however, that to the fullest extent permissible by applicable law, any and all copyrightable aspects of the OneSpace Contributor Deliverables shall be considered works-made-for-hire, and, at all stages of development, shall be and remain the sole and exclusive property of Subscriber. OneSpace shall be responsible for acquiring from the OneSpace Contributors who may perform work for the Subscriber via the OneSpace Platform all necessary rights for this purpose. OneSpace further agrees to take all actions and execute and deliver all documents reasonably requested by Subscriber at Subscriber’s cost and expense in order to evidence the foregoing.
4.2 OneSpace Platform Materials. Notwithstanding the foregoing, in no case shall Deliverables delivered to Subscriber pursuant to this Agreement include any Intellectual Property Rights in the OneSpace Platform. As between the parties, Company owns all right, title and interest (including all Intellectual Property Rights) in and to the OneSpace Platform (including all underlying source code, algorithms, models, features, or functionality) and any software, technology, materials and information (i) owned by Company prior to the Effective Date or (ii) created, authored, developed, made, conceived, or reduced to practice by Company (including in connection with any Subscriber requests, the Services, or with Subscriber’s assistance) after the Effective Date (collectively, the “OneSpace Platform Materials”). Subscriber hereby assigns to the Company all rights, title and interest that it may acquire in and to the OneSpace Platform Materials and Subscriber acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner the OneSpace Platform Materials without payment of any royalties or other consideration to Subscriber. Nothing herein shall be construed to transfer any rights, title or ownership of the OneSpace Platform, the OneSpace Platform Materials, or any Company software, technology, materials, information or Intellectual Property Rights to Subscriber. Subscriber may from time to time request OneSpace to build certain customizations or enhancements of the OneSpace Platform. The terms and conditions of such Services shall be mutually agreed by the Parties and documented in a Change Service Order. Unless otherwise specified in such Change Service Order, all such customizations and enhancements shall be considered OneSpace Platform Materials hereunder (and for the avoidance of doubt shall not be considered deliverables or Subscriber-Owned Intellectual Property hereunder.
4.3 Feedback. Subscriber is not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent Subscriber does provide any Feedback to Company, Subscriber agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Company and acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Subscriber.
4.4 Subscriber-Owned Intellectual Property. As between the parties, Subscriber owns all right, title and interest (including all Intellectual Property Rights) in and to the Subscriber Data and the following materials, information and technology, and all of the Intellectual Property Rights therein: (i) all materials, information and technology, and any Intellectual Property Rights owned or used by Subscriber before the Effective Date and/or acquired, created, or developed by Subscriber independent of this Agreement (for clarity, the parties acknowledge and agree that OneSpace Contributor Deliverables and anything otherwise unrelated to the OneSpace Platform even if developed by Subscriber while using the OneSpace Platform, are expressly considered to be developed independent of this Agreement) after the Effective Date (the “Subscriber Background Intellectual Property”); and (ii) the materials, information, technology and Intellectual Property Rights identified in any Service Order as Subscriber-Owned Intellectual Property (each of the foregoing (i) and (ii) shall be referred to collectively as the “Subscriber-Owned Intellectual Property”). Nothing herein shall be construed to transfer any rights, title or ownership of the Subscriber Data or any Subscriber-Owned Intellectual Property Rights therein to Company. For the avoidance of doubt, Subscriber-Owned Intellectual Property shall include, without limitation, all Subscriber Data processed, received, generated or supplied by Subscriber, its customers, and any reports, extracts, or summaries generated in connection with the Subscriber content.
4.5 Subscriber Data. Subscriber Data given to OneSpace by Subscriber or its agents under this Agreement or otherwise shall at all times remain the property of Subscriber. OneSpace shall have no rights in such Subscriber Data other than the limited license granted by Subscriber herein to Subscriber-Owned Intellectual Property.
4.6 License to OneSpace. To the extent any of the Subscriber-Owned Intellectual Property is required for OneSpace to perform any of the Services required hereunder, Subscriber hereby grants to OneSpace a non-exclusive, worldwide, fully paid- up and royalty-free license to use such Subscriber-Owned Intellectual Property internally as necessary to perform the Services and solely in connection with the performance of OneSpace’s obligations hereunder for the Term thereof. Such limited license shall terminate when this Agreement terminates.
5. TERM; TERMINATION
5.1 Term. This Agreement will commence upon the Effective Date specified on the Service Order and unless this Agreement is terminated earlier in accordance with the terms of this Agreement, shall continue in full force and effect until the later of: (i) for the initial period of time specified on the Service Order (the “Initial Subscription Term”) or (ii) until the termination of all Service Orders. This Agreement will automatically renew for additional successive terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
(a) Either party may terminate an individual Service Order in accordance with the termination provisions described in the applicable Service Order.
(b) Either party may terminate this Agreement or any applicable Service Order effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of a breach of payment obligations)) after receiving written notice of the breach from the non-breaching party. If Subscriber fails to timely pay any properly invoiced Subscription Fees or Services Fees, Company may, without limitation to any of its other rights or remedies, upon providing prior written notice and at least ten (10) days to cure, suspend performance of the Platform, Services and Technical Support Services until it receives all amounts due, or may terminate this Agreement pursuant to this Section 5.2 if the failure to pay is not rectified within thirty (30) days of receipt of written notice by Subscriber.
(c) Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
5.3 Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 3, 4, 5.3, 7, 8, 9, 10 and 11 shall survive expiration or termination of this Agreement. In addition, upon any termination, Subscriber will pay Company and any OneSpace Contributors for all conforming Services ordered by Subscriber and rendered by Company and OneSpace Contributor Deliverables accepted by Subscriber prior to the effective date of such termination, and will (unless the termination was made by Subscriber with cause or by Company without cause) reimburse Company for any reasonable and foreseeable and/or pre-approved out-of-pocket third party expenses incurred by Company in the performance of any Service Order which expenses cannot be mitigated by Company through commercially reasonable efforts.
6. REPRESENTATIONS AND WARRANTIES
6.1 Mutual. Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
6.2 Subscriber. Subscriber represents and warrants to Company that: (i) it has all right, title, and interest in and to the Subscriber Data necessary for its use in connection with the OneSpace Platform; (ii) it will not use the OneSpace Platform, any outputs or insights generated from use of the OneSpace Platform, or any deliverables resulting from the Services in a manner or in connection with any activity that would violate any law, rule or regulation, including those relating to privacy or data protection; (iii) it has obtained all necessary consents and permissions required for its collection of the Subscriber Data and its use of the Subscriber Data under this Agreement; and (iv) the Subscriber Data (including the storage, reproduction, transfer, and use thereof as contemplated hereunder) does not and will not (x) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party, (y) slander, defame, or libel any person, or (z) violate any applicable laws, rules, or regulations. Subscriber further represents, warrants and covenants that it will not knowingly upload into the OneSpace Platform, or otherwise provide for processing by the OneSpace Platform, any data or information that may be deemed personal information of any individual person under the laws of any applicable jurisdiction, including, without limitation, the Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, and Family Educational Rights and Privacy Act (all of the foregoing, “Personal Information”), without OneSpace’s prior written consent.
6.3 Company. Company represents and warrants to Subscriber that the OneSpace Platform (as opposed to any use made thereof by Subscriber in violation of this Agreement) does not and will not (x) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party, or (y) violate any applicable laws, rules, or regulations. Company further represents, warrants and covenants that it shall perform the Services in a professional and workmanlike manner consistent with the quality provided by other first class SaaS providers in similar industries. Subscriber’s sole remedy, and Company’s exclusive liability, with respect to any breach of the representation and warranty set forth in this Section 6.3 is, at Company’s election, (i) Company’s re-performance of the non-compliant Services such that they are compliant or (ii) termination of the applicable Service Order to the extent it relates to such non-compliant Services and refund of a proportionate amount of the Fees paid under such Service Order to the extent such amount relates to such non-compliant Services.
7.1 Indemnification by OneSpace for Third Party Claims. OneSpace agrees to defend and hold Subscriber and its Affiliates and their respective officers, employees, directors, agents, and representatives (collectively, the “Subscriber Parties”) harmless from and against any claim, allegation, demand, proceeding, action or suit brought by a third party (each, a “Third Party Claim”) against a Subscriber Party to the extent arising out of or based upon any of the following: (i) any grossly negligent, reckless or intentionally wrongful act of OneSpace (but excluding OneSpace Contributors retained by Subscriber via the OneSpace Platform) in connection with this Agreement (ii) any failure of OneSpace to comply with all applicable laws, rules and regulations in connection with this Agreement and (iii) any allegation that the OneSpace Platform (excluding any Subscriber Data) and/or the Company technology underlying the OneSpace Platform infringes, misappropriates or otherwise violates such third party’s Intellectual Property Rights resulting from Subscriber’s use of the OneSpace Platform or OneSpace Platform Materials in accordance with the terms of this Agreement (but not to the extent a claimed misappropriation, infringement or violation of such third party’s Intellectual Property Rights arises from a OneSpace Contributor Deliverable). Where Intellectual Property Rights infringement is at issue, if Company, in its sole discretion, believes a Third Party Claim or an adverse judgment in connection with such a claim is likely, then Company may, at its option, (a) obtain a license from such third party claimant that allows Subscriber to continue the use of the OneSpace Platform, (b) modify the OneSpace Platform so as to be non-infringing, or (c) if neither (a) nor (b) is available to Company on commercially reasonable terms, terminate this Agreement upon written notice to Subscriber. If Company terminates this Agreement pursuant to clause (c) above then Company shall promptly refund to Subscriber the pro rata portion of the Fees already paid to cover the remainder of the applicable term. Company will have no obligation or liability relating to any Third Party Claim that: (x) is based on modification or customization of the OneSpace Platform at the direction of Subscriber or any third party acting on behalf of Subscriber; (y) is based on the combination or use of the OneSpace Platform (or any component of either) with any software, hardware, system, method, device or materials provided or required by Company; or (z) results from Subscriber’s use of the OneSpace Platform in a manner that is inconsistent with its intended use or is in breach of this Agreement. This Section 7.1 sets forth the entire liability of Company and the sole and exclusive remedy of Subscriber in the event of any claim that the OneSpace Platform infringes any third party Intellectual Property Right. For the avoidance of doubt, OneSpace will have no obligation under this Section 7.1 to the extent that any Third Party Claim or any liability resulting therefrom constitutes a liability for which Subscriber is obligated to indemnify the OneSpace Parties under Section 7.2 below.
7.2 Indemnification by Subscriber for Third Party Claims. Subscriber agrees to defend and hold OneSpace, the OneSpace Contributors and its and their Affiliates and their respective officers, employees, directors, agents, and representatives (collectively, the “OneSpace Parties”) harmless from and against any Third Party Claim against a OneSpace Party to the extent arising out of or based upon any of the following: (i) any act or omission (including without limitation intentional or negligent conduct) of Subscriber or Subscriber Personnel in connection with this Agreement, (ii) any failure of Subscriber to comply with all applicable laws, rules and regulations in connection with this Agreement (including misclassification of a OneSpace Contributor that it retains via the OneSpace Platform under applicable employee/contractor classification laws and regulations); or (iii) any allegation of infringement, misappropriation or other violation of such third party’s Intellectual Property Rights resulting from (A) OneSpace or any OneSpace Contributor’s use, strictly in accordance with the requirements and restrictions of this Agreement, and only when used to provide the services to Subscriber, of Subscriber-Owned Intellectual Property including Subscriber Data in connection with its performance of terms of this Agreement, or any use of or compliance with any specifications, designs, requirements, instructions, information provided by Subscriber, or (B) OneSpace’s use of materials provided by or on behalf of Subscriber (including materials provided by OneSpace Contributors acting in their capacity as service providers to Subscriber), and including instructions set forth in a Service Order or (C) any Deliverable being modified or reconfigured by Subscriber or any person acting by or through Subscriber other than OneSpace or a OneSpace Contributor, without OneSpace’s explicit permission.
7.3 Limitations to Indemnification. OneSpace’s obligations under Section 7.1 and Subscriber’s obligations under Section 7.2 are each conditioned upon the Subscriber Party or OneSpace Party seeking indemnification (as applicable, “Indemnified Party”) (i) giving the other party (the “Indemnifying Party”) full and complete control over the defense and settlement of the Third Party Claim (though the Indemnified Party may, at its option, participate in the defense of the Third Party Claim at its sole cost and expense); (ii) assisting the Indemnifying Party with the defense and settlement of the Third Party Claim as the Indemnifying Party may reasonably request (at Indemnifying Party’s expense); and (iii) complying with any settlement or court order made in connection with the Third Party Claim. The Indemnifying Party may settle any indemnified Third Party Claim without the Indemnified Party’s prior written consent; provided, however, that the Indemnified Party’s prior written consent must be obtained in the event such settlement (A) contains an admission of liability or wrongdoing by the Indemnified Party; and/or (B) imposes any material obligations upon the Indemnified Party, other than the cessation of use or return of an infringing or misappropriated, or allegedly infringing or misappropriated, item.
7.4 Scope of Indemnification. The Indemnifying Party will indemnify the Indemnified Parties against: (i) all damages, costs, and attorneys’ fees finally awarded against the Indemnified Parties as part of any Third Party Claim for which the Indemnifying Party assumes defense pursuant to Section 7.1; (ii) all out-of- pocket costs (including reasonable attorneys’ fees) reasonably incurred by the Indemnified Parties in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without the Indemnifying Party’s prior written consent after the Indemnifying Party has accepted defense of such Third Party Claim, or incurred by the Indemnified Party electing to participate at its sole cost and expense in the defense of the Third Party Claim); and (iii) if any such proceeding is settled, the Indemnifying Party will pay any amounts to any third party agreed to in settlement of such proceeding.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE ONESPACE PLATFORM AND ONESPACE CONTRIBUTOR DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO ANY MATTER WHATSOEVER. ONESPACE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, TITLE, QUALITY, ACCURACY, AND FITNESS FOR ANY PARTICULAR PURPOSE. ONESPACE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CLIENT’S USE OF THE ONESPACE CONTRIBUTOR DELIVERABLES.
Each party shall keep confidential the terms of this Agreement, all information and materials provided or made available by the other party, whether or not marked as confidential or proprietary, that the receiving party knows or should have reasonably known is confidential or proprietary at the time of disclosure (“Confidential Information”). For clarity, the features, functionality and content of the OneSpace Platform (including all data and information made available by the Company via the OneSpace Platform), any OneSpace Platform documentation, the Fees charged hereunder and any information regarding planned modifications or updates to the OneSpace Platform or other Company products and services constitutes Confidential Information of Company. Without limiting the generality of the foregoing, all Subscriber Data and all information pertaining to Subscriber’s personnel, marketing, business or other plans constitutes Confidential Information of Subscriber. Each party shall keep and instruct its employees and agents, including the OneSpace Contributors and the Subscriber Personnel, to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, or (iv) developed by the receiving party without reference to Confidential Information. In addition, any information required to be disclosed by law or legal process, may be so disclosed, provided that the receiving party (a) promptly provide notice (if permitted to do so) to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders, (b) discloses only the minimum amount necessary to comply with the legal requirement, and (c) reasonably cooperates (at disclosing party’s expense) if disclosing party desires to seek appropriate protective orders or otherwise limit disclosure. If any party, its employees or agents breaches or threatens to breach the obligations of this Section 9, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
10. LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, INFRINGEMENT, SYSTEM FAILURE OR NETWORK OUTAGE, SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT (INCLUDING LOST PROFITS OR LOSS OF BUSINESS), EVEN IF EITHER PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (A) LIABILITY ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (B) A LIABILITY ARISING OUT OF SECTION 7.1 OR 7.2, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, INFRINGEMENT, SYSTEM FAILURE OR NETWORK OUTAGE, SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY LIABILITY OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, FOR AGGREGATE LIABILITY, WHEN AGGREGATED WITH SUCH PARTY’S LIABILITY UNDER THIS AGREEMENT INCLUDING ALL SERVICE ORDERS HEREUNDER AND THEREUNDER, IN EXCESS OF THE GREATER OF ONE MILLION DOLLARS OR THE TOTAL FEES PAID OR PAYABLE TO ONESPACE FOR SERVICES ACTUALLY DELIVERED PURSUANT TO ALL SERVICE ORDERS, AND/OR THE PLATFORM LICENSE (EXCLUDING FREELANCER FEES), AS APPLICABLE. ANY CLAIM OR CAUSE OF ACTION BROUGHT BY CLIENT OR ONESPACE ARISING UNDER THIS AGREEMENT OR OTHERWISE RELATING TO THE CLIENT DATA, SERVICES OR DELIVERABLES PROVIDED HEREUNDER MUST BE BROUGHT WITHIN TWO (2) YEARS FROM THE DATE ON WHICH SUCH CLAIM OR ACTION AROSE OR ACCRUED OR SUCH CLAIM WILL FOREVER BE BARRED. FOR THE AVOIDANCE OF DOUBT, ANY LIABILITY TO A THIRD PARTY ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN SHALL BE DEEMED DIRECT DAMAGES.
11.1 Non-Solicitation; Non-Circumvention. During the Term and for two (2) years after, Subscriber will not, and will not assist any other Person to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor except through the OneSpace Platform any Person then or within the prior three (3) months employed or engaged by Company. In the event of a violation of this Section 11.1, Company will be entitled to liquidated damages equal to the greater of the following: (i) $10,000; or (ii) the amount of compensation paid by Subscriber and other clients of Company to the applicable employee or contractor during the prior twelve (12) months; or (iii) all compensation that would have been paid or payable to the applicable employee or contractor during the twelve (12)-month period, which shall be calculated based on the annualized amount earned by such OneSpace Contributor during the most recent normalized eight (8)-week period, or during such shorter period as data is available to Company. Payment of such amount shall be deemed to be due to Company as of the date Subscriber first makes payment to the subject OneSpace Contributor outside of the OneSpace Platform.
11.2 Non-Exclusivity. This Agreement is non-exclusive and does not restrict or prevent either party in any way from (a) entering into similar relationships with third parties or (b) providing similar or identical materials, information, data (excluding Subscriber Data), products, services, or technologies to other parties.
11.3 Third Party Beneficiaries. Except as expressly set forth in this Agreement, nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
11.4 Publicity. Company is permitted to use Subscriber’s name and logo for the purpose of listing Subscriber as a client of Company in external communications, marketing materials, and on Company’s website. Subscriber shall not use Company’s name, logo, or other marks without the prior written consent of Company. 11.5 Service Order of Precedence. In the event of a conflict between the terms of this Agreement and any Service Order, the terms of this Agreement shall control unless the parties explicitly state otherwise in a Service Order, and in such instances the terms of such Service Order will control only as to the subject matter discussed and only for that Service Order.
11.6 Assignment. Neither Party to this Agreement may assign, sell or transfer its rights or obligations under this Agreement to any other firm or entity without first obtaining the written permission of the other Party hereto; except that either Party may assign all of its rights and obligations under this Agreement without the other Party’s consent to an Affiliate or to a successor-in-interest to its business related to this Agreement (including a successor by way of merger, acquisition, sale of all or substantially all assets, or change of control).
11.7 Governing Law; Jurisdiction. The Parties hereto agree that all questions pertaining to the validity and interpretation of this Agreement will be determined in accordance with the laws of the State of Delaware, without giving effect to provisions related to choice of laws or conflict of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
11.8 Relationship of the Parties. There shall be no partnership or joint venture created by this Agreement. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either Party the power to a) act as an agent or b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each Party’s business are the sole responsibility of that Party. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
11.9 Force Majeure. Nonperformance of either Party of its obligations under this Agreement, excluding payment obligations, will be excused to the extent that performance is rendered impossible by fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non- performing Party.
11.10 Notices. Except as otherwise specified in this Agreement, any notice required or permitted to be given in accordance with this Agreement will be in writing and will be effective upon (i) personal delivery, (ii) the next business day after being sent by a nationally recognized overnight courier, (iii) the next business day after sending by confirmed facsimile, or (iv) except for notices pertaining to an indemnifiable claim, the next business day after sending by email. Notices to Subscriber may be delivered to the address set forth in the Service Order. Notices to OneSpace may be delivered to Attn: General Counsel, 33 Bronze Pointe Blvd, Swansea, IL 62226. Either Party may change its physical address or email address for receipt of notice by notice to the other Party in accordance with this Section 11.10.
11.11 Updates to Platform License Agreement. To the extent that Subscriber may be subject to click-through or other online terms in connection with its use of the Services and to the extent that such terms conflict with this Agreement, this Agreement shall control.
11.12 Interpretation. The Parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits, if any. No ambiguity will be construed against any Party based upon a claim that that Party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.
11.13 General. This Agreement constitutes the entire agreement of the Parties hereto regarding their subject matter and supersedes any prior agreement between the Parties relating to such subject matter. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein. This Agreement may only be amended by a writing signed by both Parties. This Agreement, including the referenced attachments, including the Statement(s) of Work, may be executed in any number of identical counterparts, notwithstanding that the Parties have not signed the same counterpart, with the same effect as if the Parties had signed the same document. All counterparts will be construed as and constitute the same agreement or executed attachment. This Agreement, including the referenced attachments, including the Statement(s) of Work, may also be executed and delivered by original signature, facsimile or other image capturing technology (including scanned files and by electronic signature), and such execution and delivery will have the same force and effect of an original document with original signatures. In construing or interpreting this Agreement, the word “including” shall not be limiting and the word “hereunder” shall mean under this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. No failure on the part of either Party to exercise, and no delay in exercising, any right or remedy available to it, shall operate as a waiver of such remedy, nor shall any single or partial exercise of any right or remedy hereunder preclude any other right or remedy. The waiver by either Party of any breach of this Agreement does not waive any other breach. No waiver shall be effective unless it is made in writing and executed by the Party to be charged.