Last Revised: March 20, 2019
THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS AS THEY RELATE OT THE USE OF CERTAIN HOLOPUNDITS, INC. APPLICATION AND WEB SERVICES RELATED TO THE TOTALAR PLAN YOU SELECTED. YOU ARE RESPONSIBLE FOR COMPYING WITH THE TERMS OF THIS AGREEMENT, SO YOU SHOULD READ THESE TERMS AND CONDITIONS CAREFULLY.
BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED BY HOLOPUNDITS, INC., YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THESE TERMS & CONDITIONS SUPERSEDE ALL EARLIER VERSIONS.
This agreement relates your use of the TotalAR™ Plan you selected is entered into by and between HoloPundits, Inc., an Ohio Corporation ("HoloPundits") and you (this “Agreement”), and is made effective as of the date of the first of the following: (1) electronic acceptance,; (2) use of the any products or services provided by HoloPundits in connection with the selected TotalAR Plan,; (3) the activation of your account; or (4) receipt of an email confirming your order. This Agreement sets forth the terms and conditions of your use of the HoloPundits’ TotalAR Plan’s products and services and represents the entire agreement between you and HoloPundits for your TotalAR Plan.
a. “Admin Users” shall mean any person identified you to log into your account and make changes to the Content, Customer Data, Your Data or any information which you may enter, edit or delete in the HoloPundits Software.
b. "Content" shall mean any images, videos or other displays, in any manner, that are made available by you, through the HoloPundits Software, to any person, whether or not each person can readily read the content or needs HoloPundits Software or other software, hardware or other technology to make the Content readable.
c. "Customer Data" means all data, files, including hypertext markup language files, documents, audio and visual information, graphics, scripts, programs, applets or servlets that you create, install, upload to or transfer in or through the Service or provide in the course of using the Service.
d. “Customer” shall mean you or the legal entity or any other entity which has an ownership or other beneficial interest in that legal entity, or any other entity in which you have an ownership or other beneficial interest that was identified by you when the created the account with HoloPundits under which you subscribed to use the TotalAR Plan. In the event you created an account and identified a legal entity that does not exist or for which you do not own or were not authorized to create an account or subscribe to services under that account, then you will be individually responsible for the non-exist entity or entity which you were not authorized to subscribe to these services. The term "you", "your" and grammatical variants thereof may also be used to refer to you and shall have the same meaning as the term Customer is defined herein. Any Customer that provides any services to, including but not limited to the marketing or promotion other individuals, products and/or entities (“its clients”) shall not be permitted to use its plan or direct any TAR Codes to its clients products, services or other information of its client, unless its client has its own valid and compatible TotalAR Plan.
e. “Customer Support" shall refer to assistance we may provide to you in attempts to resolve any problems or answers questions you may have for us regarding your use of the TotalAR Plan.
f. “Electronic Communications” shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically to or from the Service.
g. "HoloPundits” may be referred to in this Agreement as "us," "we," "our" and grammatical variants thereof.
h. “HoloPundits Software” means HoloPundits proprietary software applications, mobile applications and user interfaces, that are part of or associated with the TotalAR Plan and made available to Customer by HoloPundits as part of the Service.
i. "International Customers" shall mean customers residing in or accessing the TotalAR Plan from outside of the United States.
j. "Laws" shall mean the laws, statutes, and regulations then in effect in the locality, (which shall further mean the laws of any state, local, and/or federal governments and/or County(ies)) in which you use, access or allow other to use or access the HoloPUndits Software or Service.
k. "Payment Account" shall refer to the checking account, credit card, Pay Pal or other payment method provided by you and accepted by HoloPundits upon registration to pay for your TotalAR Plan. HoloPundits may add, delete, or modify the methods by which customers can pay for the TotalAR Plan at any time without prior notice, in its sole discretion. Payments processed by any third party payment processors are subject the terms and conditions of that processor, and HoloPundits makes no representations or warranties with respect to those services.
l. “Permitted Data” shall mean all Your Data, Customer Data or other data that is not prohibited by this Agreement.
m. "Purchase Order Form(s)" refers to a Customer document, in either electronic or written form, issued by Customer to confirm Customer’s purchase of the Service. The parties acknowledge and agree that the terms and conditions of any such Purchase Order Form shall not be binding upon the parties or in any way modify, amend, or supersede the terms and conditions of this Agreement.
n. “Service” shall mean the then current or past version of the software and infrastructure in a hosted environment provided and maintained by HoloPundits, which includes but is not limited to HoloPundits Software, to which Customer is being granted access under this Agreement to utilize the selected TotalAR Plan.
o. “Storage" shall mean a quantity of computer storage space provided by HoloPundits that you are entitled to use according to Your Services, and which is used solely for the purposes working with the TotalAR Plan.
p. "Technical Support" shall refer to communications from us to you dealing with problems or questions relating to technical matters involving software or services provided by us to you.
q. “Third Party Products” means application software products provided by third party vendors, including operating system and application software with which the HoloPundits Software interfaces and which provides certain functionality essential to the operation of the HoloPundits Software. Third Party Products are licensed to HoloPundits for incorporation and use in the hosted environment as part of the HoloPundits Software.
r. “Third Party Users” means any member of the public who uses any HoloPundits Software to scan an AR Code and display the associated Content as dictated you.
s. “Third Party Vendor” shall mean any vendor of HololoPundits which may supply any component or part thereof of any HoloPundits Software or content.
t. “TAR Codes” shall mean a unique combination of blocks or other images that are readable by the HoloPundits Software to produce the Customer’s desired result when scanned using the HoloPundits Software, as permitted by this Agreement and HoloPundits Software.
u. "TotalAR Plan" shall mean the products and services associated with the plan provided by HoloPundits and which you subscribe to, that at any given time either through its website(s), an affiliated website(s), its application(s), which can be used to generate TAR Codes, provide the destination for each AR Code, scan the AR Code Mark, displaying certain images, videos or other displays associated with each AR Code that you or your end user or any other person with the proper credentials are entitled to view. The details of the your TotalAR Plan are attached hereto as Schedule A, which will be provided to you in your confirmation email after you have purchased the plan. The permissions, functionality or other components, along with any associated support services, may be changed, amended, and/or otherwise altered at any time in HoloPundits’ sole discretion.
v. "User(s)" means any individual Customer or if the Customer is a legal business entity, the Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you or on your behalf.
w. "Your Data" shall mean any data, including but not limited to your Content, Customer Data, advertisements, documents, e-mails, images, movies, web pages, or other Content, related to your use of the TotalAR Plan and stored on or transmitted by the HoloPundits equipment.
x. "Your Services" shall mean the specific TotalAR Plan for which you have contracted, subject to the limitations and specifications of the particular service effective as of the date ordered and paid for by you.
2 PROVISION OF SERVICES
HoloPundits agrees to provide you with access to Your Services for your use, subject to the terms and conditions of this Agreement and any Schedules or addendums annexed hereto.
3 SET-UP OF SERVICE
HoloPundits will provide you with the number of admin logins associate with Your Services, so that you may use the HoloPundits Software to set up your Customer Data and create your AR Marks. You are solely responsible for entering the Customer Data and performing other functions as permitted within the HoloPundits so that Your Services function as desired and permitted by the HoloPundits Software and this Agreement. HoloPundits will provide Customer Support at the times and at the costs associated with Your Services.
4 LICENSE GRANTS
Subject to the terms and conditions of this Agreement, HoloPundits grants you, including any outsourced or other third-party consultants or similar personnel supporting you as part of its typical business practices, acting under your direction, during the Term of this Agreement the nontransferable, nonexclusive worldwide right to permit Users to (a) use the Service and (b) display and print Customer Data. Customer acknowledges and agrees that the license granted is not a concurrent user license and that the rights granted to Customer in this Agreement are subject to all of the following agreements and restrictions: (i) the maximum number of Users that Customer authorizes to access the Service shall not exceed the number of Admin Users permitted by the purchased TotalAR Plan, unless otherwise permitted; (ii) licenses cannot be shared or used by more than one individual User, but may be reassigned from time to time to new Users who are replacing your former Users, who are no longer permitted to access the Service; (iii) Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Service or HoloPundits Software available to any third party other than an authorized User; (iv) Customer shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service, including without limitation the HoloPundits Software that are provided as a part thereof, or access the Service in order to build a similar or competitive product or service; (v) Customer shall not create Internet "links" to the Service or "frame" or "mirror" any part of the Service, including any content contained in the Service, on any other server or device; (vi) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (vii) Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Service, except that Third Party Users may access the system for the sole purpose of scanning an AR Code and displaying the content associated with that AR Code; (viii) Customer acknowledges and agrees that HoloPundits or its Third Party Vendors shall own all right, title and interest in and to all intellectual property rights in the Service and any suggestions, enhancement requests, feedback, or recommendations provided by Customer or its Users relating to the Service, including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives or improvements thereof; (ix) unauthorized use, resale or commercial exploitation of any part of the Service in any way is expressly prohibited; (x) Customer does not acquire any rights in the Service or HoloPundits Software, and no rights are expressed or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Customer are reserved by HoloPundits and Third Party Vendors; and (xi) this Agreement is not a sale and does not convey any rights of ownership in or related to the Service, HoloPundits Software, or Third Party Products.
5 LICENSES FROM CUSTOMER
Subject to the terms and conditions of this Agreement, Customer grants to HoloPundits and its Third Party Vendors the non-exclusive, nontransferable worldwide right to copy, store, record, transmit, display, view, print or otherwise use (a) Customer Data and Content solely to the extent necessary to provide the Service to Customer and for its use by Third Party Users, and (b) any trademarks that Customer provides HoloPundits for the purpose of including them in Customer’s user interface of the Service (“Customer Trademarks”). Customer acknowledges and agrees that Customer Data and information regarding Customer and Third Party Users that is provided to HoloPundits and its Third Party Vendors in connection with this Agreement may be (a) processed by HoloPundits and its Third Party Vendors to the extent necessary to provide the Service and (b) transferred outside of the country or any other jurisdiction where Customer and Customer’s Users are located. In addition, Customer acknowledges and agrees that it is Customer’s obligation to inform Customer’s Users and customers of the processing of Customer Data and information regarding Customer and Customer’s Users pursuant to this Agreement and to ensure that such Users and customers have given any necessary consent to such processing as required by all applicable data protection legislation. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data and information regarding Customer and Customer’s Users. Customer agrees that the license to the Customer Data shall survive termination of this Agreement solely for the purpose of storing backup Customer Data in accordance with the terms of this Agreement.
By providing Customer with the Services, HoloPundits does not acquire any right, title and/or interest in the content material (including but not limited to text, Customer-provided Content, including software, scripts, trademarks, logos, HTML coding, domain names, links, graphics, audio, video, and any data) that Customer makes available for use by Users or Third Party Users by means of the Services. Except as expressly set forth as being the responsibility of HoloPundits, Customer is solely responsible for all Content made available to the Users and/or Third Party Users.
6 PROPRIETARY RIGHTS
Customer acknowledges and agrees that the Service and any necessary software and mobile applications used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that the content or information presented to the Customer through the Service may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except where expressly provided otherwise by HoloPundits, nothing in the Service or the Agreement shall be construed to confer any license to any of HoloPundits's or Third Party Vendors, intellectual property rights, whether by estoppel, implication, or otherwise. Without limiting the generality of the foregoing, any names or trademarks of the HoloPundits Software and other HoloPundits service marks, logos and product service names are marks of HoloPundits (the “HoloPundits Marks”). Customer agrees not to display or use the HoloPundits Marks, or the marks of any Third Party Vendor, in any manner without the owner’s express prior written permission. HoloPundits reserves the right to subcontract any or all services provided hereunder to third parties.
7 LICENSE FEE, TERM AND PAYMENT
The Agreement will commence on the Effective Date and shall continue for the term and price identified in your latest subscription to any TotalAR Plan (“Initial Term”). For purposes of this Section, a monthly term shall mean a 30 day period and an annual term shall mean a 365 day period. Following the expiration of the Initial Term or any successive term, the Agreement shall automatically renew for a period of time equal to the Initial Term at the then current price for the TotalAR Plan and any add-on services to which you have subscribed, until such time as either party provides thirty (30) days’ written notice to the other party of its intent to cancel the Agreement. Invoices shall be payable within thirty (30) days after receipt thereof. In addition to any remedies HoloPundits may have pursuant to this Agreement or at law for non-payment, delinquency in payment may result in a delay or suspension of the right to use the Service. In the event HoloPundits incurs any costs (including reasonable attorney’s fees) from efforts collecting overdue fees from Customer, Customer agrees to pay such costs. Customer further agrees to pay all foreign, federal, states, and local taxes, if applicable, to Customer’s access to, use, or receipt of the Service.
The monthly recurring charges shown above do not include the storage fees for storage that exceeds the cloud storage limit permitted by your TotalAR Plan or other add-on services and which are calculated, reported and charged monthly in arrears.
You permit us to charge your Payment Account at the expiration of your Initial Term or any successive term for an amount equal to the then current rate for the TotalAR Plan and any add-on services to which you have subscribed and you shall not be entitled to any refunds after a charge to your Payment Account is initiated by HoloPundits.
8 TERMS OF SERVICE
Customer further agrees that, unless explicitly stated otherwise, any new features that augment or enhance the Service, and or any new service subsequently purchased by Customer pursuant to an amendment accepted by HoloPundits referencing this Agreement will be subject to this Agreement.
In order to use the Service, Customer and/or the Third Party Users must have or must obtain access to the World Wide Web, either directly or through devices that access web-based content. Customer and/or the Third Party Users must also provide all equipment necessary to make (and maintain) such connection to the World Wide Web. The Customer is also advised that any Third Party User must have internet access to download and use the mobile application necessary to scan an AR Code and access the associated content. It is not the responsibility of HoloPundits to provide any internet access to any person or entity.
Customer shall provide HoloPundits with Customer’s e-mail address(es), and to accept emails (or other Electronic Communications) from HoloPundits at the e-mail address Customer specifies.
Customer may designate up to the number of Admin Users that corresponds to the number of permitted Admin Users as permitted by the TotalAR Plan to which you subscribed. Customer will provide and assign unique password and user names to each permitted Admin User. Customer acknowledges and agrees that Customer and Admin Users are prohibited from sharing passwords and or user names with unauthorized users. Customer will be responsible for the confidentiality and use of Customer’s (including its employees’) passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. HoloPundits will act as though any Electronic Communications it receives under Customer’s passwords, User name, and/or account number will have been sent by Customer. Customer agrees to notify HoloPundits if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, user names, and/or account number. The foregoing shall also apply to any Purchase Order Forms submitted by the Customer or for any changes to the TotalAR Plan to which you may subscribe.
Customer agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. Customer will ensure that any use of the Service by Customer’s Users is in accordance with the terms of this Agreement. Customer agree to notify HoloPundits immediately of any unauthorized use of any password or account or any other known or suspected breach of security or any known or suspected distribution of Customer Data. Customer acknowledges and agrees that the Service is subject to the U.S. Export Administration Laws and Regulations. Customer agrees that no part of the Service or information obtained through use of the Service, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government. Proscribed countries are set forth in the U.S. Export Administration Regulations and are subject to change without notice, and Customer must comply with the list as it exists in fact. Customer certifies that neither Customer nor any Users are on the U.S. Department of Commerce's Denied Persons List or affiliated lists or on the U.S. Department of Treasury's Specially Designated Nationals List. Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required. Any unauthorized use of the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
In addition to its responsibilities in this Agreement, Customer is responsible for all Customer responsibilities indicated in the Schedules attached hereto, if any, or entered into pursuant hereto and all other responsibilities not designated as responsibilities of HoloPundits.
Customer is solely responsible for obtaining all licenses and permissions necessary related to the Content, including without limitation licenses for any third-party software included in the Content.
Customer is solely responsible to ensure all Customer Data supplied by the Customer is Permitted Data.
Customer shall not resell the Services directly or indirectly to third parties.
Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to Customer or Third Party User’s use of the Service. Customer expressly consents to HoloPundits’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by HoloPundits. Customer acknowledges and understands that changes to Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Customer agrees that HoloPundits is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by HoloPundits.
Each party may have access to information that is confidential to the other party (“Confidential Information”). For purposes of this Agreement, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Customer’s Confidential Information shall include, but not be limited to, Customer Data. A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information, as established by written records. The parties agree to use commercially reasonable efforts not to make each other’s Confidential Information available in any form to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that HoloPundits may disclose Customer’s Confidential Information to its Third Party Vendors solely to the extent necessary to provide products or services under this Agreement. This Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the “Responding Party”) shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure, so as to permit such party an opportunity to obtain a protective order or take other appropriate action. The Responding Party will cooperate in the other party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed.
Notwithstanding anything to the contrary in this Agreement, Content is not included in Confidential Information as defined above. To the extent HoloPundits has any access to Content in the course of providing the Services, HoloPundits’s entire obligation to keep Content confidential is stated in this Section below. HoloPundits shall not, intentionally (i) access Customer’s Content or (ii) disclose Customer’s Content to any third party, except to the extent: (a) Customer makes its Content publicly available, (b) as necessary for HoloPundits to provide, or obtain third-party supplier support for, the Services or to provide information requested by Customer, or (c) as specifically authorized by Customer in writing. HoloPundits’s obligation to protect Content from unauthorized use, access or disclosure is: (i) to provide the Security Services specifically set forth in this Agreement and (ii) maintain and enforce the then-current standard HoloPundits security policies and standards applicable to the Services as practiced at the service locations from which HoloPundits is providing the Services to Customer.
The obligations in this Section shall not apply to the recipient of Confidential Information with respect to Content to the extent disclosure of Confidential Information or Content is required to comply with laws or respond to requests by a regulatory or judicial body and/or as otherwise required for legal process. In the event that any such disclosure is required, the recipient and/or HoloPundits with respect to Content, reserves the right to charge the other party on a time-and-materials HoloPundits’s reasonable efforts related to its compliance and response, including, if applicable, reasonable attorney’s fees.
You are prohibited from uploading or displaying any Your Data, Content, or Customer Data or using any TAR Code that displays any images, words, sounds or other display that you do own or have the proper permissions to display. In addition, HoloPundits shall make available on its website a list of all data that are prohibited from including, in any manner, in the Customer Data, Your Data, or in any other manner with Your Services. HoloPundits, in its sole discretion, shall determine if any data shall be considered Permitted Data.
You shall control the content that shall be displayed when a TAR Code you establish is scanned and processed by the Service, however, in the event your services are terminated, voluntarily or involuntarily, or any content violates the terms of this Agreement, HoloPundits, its sole discretion may upload its own content to display when the TAR Code is scanned.
9 SUSPENSION/TERMINATION/DENIAL OF SERVICES
HoloPundits reserves the right to suspend Customer and/or Third Party User’s access and/or use of the Service for any account for which any payment is due but remains unpaid. Customer agrees that HoloPundits shall not be liable to Customer, or to any third party, for any suspension of the Service resulting from Customer’s non-payment of the fees due under this Agreement.
Customer agrees that HoloPundits may, with reasonably contemporaneous telephonic or electronic mail notice to Customer, suspend Customer or Third Party User’s access to the Service if HoloPundits reasonably concludes that Customer or Third Party User’s use of the Service is causing immediate and ongoing harm to HoloPundits or others. Additionally, should HoloPundits become aware of the use of any data by the Customer which is not Permitted Data, HoloPundits may remove such data or suspend your use of the Service until such data is removed by you. HoloPundits will use commercially reasonable efforts to resolve the issues causing the suspension of Service. Customer agrees that HoloPundits will not be liable to Customer or to any third party for any suspension of the Service under such circumstances as described in this Section.
Customer acknowledges and agrees that following termination of this Agreement HoloPundits may immediately deactivate Customer’s account. Furthermore, unless otherwise agreed-upon by the Parties in writing, HoloPundits shall remove or overwrite all applicable Customer Data from HoloPundits’s systems following the effective date of termination or cancellation, in accordance with HoloPundits’s standard procedures. Prior to any such deletion or destruction, however, HoloPundits, in its sole discretion, shall either (1) grant Customer reasonable access to the Service for the sole purpose of Customer retrieving Customer Data or (2) transfer all Customer Data to other media for delivery to Customer. Customer agrees that HoloPundits shall not be liable to Customer or to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that HoloPundits is in compliance with the terms of this Section. Notwithstanding the foregoing, nothing shall preclude HoloPundits from maintaining one copy of Customer Data if required by law.
In the event your service is suspended or terminated, as permitted by the Agreement, you shall be entitled to no refunds for any time the account is suspended, terminated or for any remaining period of time remaining in your current term.
HoloPundits shall be entitled to deny or limit access to any individual or entity to use its Services in the event it is barred by regulations, laws, or agreement to provide its Services to you or if you have previously had your services terminated by HoloPundits for any uncured breach.
HoloPundits reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof), provided such modification does not diminish the functionality of the Service to the Customer on which the Customer materially relies. Notwithstanding the foregoing, except for routinely scheduled down time, or as otherwise provided in this Agreement, HoloPundits shall use commercially reasonable efforts to notify Customer prior to any such modification. Customer acknowledges that HoloPundits reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Customer agrees that HoloPundits will not be liable to Customer or any third party for any modification or discontinuance of the Service.
In order to perform maintenance, including infrastructure and application upgrades, there may be routinely scheduled down time as determined in advance from time to time. HoloPundits will make its best efforts to minimize the down time and provide notice of any planned maintenance or upgrades.
In the event that HoloPundits, in its sole discretion, determines that any unscheduled maintenance is necessary, HoloPundits will use commercially reasonable efforts to notify Customer as soon as it becomes aware of such need.
Customer shall not be entitled to any refunds for any planned or unplanned down time.
HoloPundits warrants to Customer during the Term of this Agreement that the Service will comply with the material functionality. Customer’s sole and exclusive remedy for HoloPundits’s breach of this warranty shall be that HoloPundits shall use commercially reasonable efforts to correct such errors or modify the Service to achieve the material functionality within a reasonable period of time. Further, HoloPundits shall have no obligation with respect to any warranty claim, and Customer may not terminate the Agreement, where any alleged nonconformity is due to User error as reasonably determined by the parties after investigation and analysis by HoloPundits’s Product Support Center. HoloPundits does not warrant that the Service will be will be free of non-material errors, bugs, or minor interruption, or that all such errors will be corrected.
HoloPundits warrants during the Term of this Agreement, that it will, at a minimum, utilize and maintain the backup procedures. In the event of a breach of this provision, HoloPundits will use commercially reasonable efforts to correct Customer Data or restore Customer Data within three (3) business days (or as otherwise agreed in writing between the parties depending upon the back-up options selected by Customer).
HoloPundits warrants that it is the sole owner of and or has full power and authority to grant the license and use of the Service and other rights granted by the Agreement to Customer with respect to the Service and that neither the performance by Customer in its utilization of the Service, nor the license of and authorized use by Customer of the Service as described herein, will in any way constitute an infringement or other violation of any U. S. copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure, or other rights of any third party.
12 DISCLAIMER OF WARRANTIES
HOLOPUNDITS DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPED OR ERROR FREE, OR THAT THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THE SERVICE WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY HOLOPUNDITS OR THE OPERATION OF THE SERVICES WILL BE SECURE OR THAT HOLOPUNDITS AND ITS THIRD PARTY VENDORS WILL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSING CUSTOMER DATA OR CUSTOMER’S CONFIDENTIAL INFORMATION, OR ANY ERRORS WILL BE CORRECTED OR ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE. THE WARRANTIES STATED IN SECTION 10 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY HOLOPUNDITS. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 11 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER’S PURPOSE.
13 LIMITATIONS OF LIABILITY
13.1 No Consequential Damages
HOLOPUNDITS SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY USER FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST REVENUE ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION THE SERVICE, THE USE OF THE SERVICE OR THE INABILITY TO USE SERVICE), EVEN IF HOLOPUNDITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 DIRECT DAMAGE LIMITATIONS
13.2.1 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HOLOPUNDITS OR ANY THIRD PARTY VENDORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY LICENSE, USE, OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THIS AGREEMENT EVEN IF THERE ARE MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE LIABILITY CAP.
13.2.2 HOLOPUNDITS SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM THE LOSS OR CORRUPTION OF ANY DATA OR CONTENT WHETHER RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES, SERVICE INTERRUPTIONS OR OTHERWISE.
THE LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY WITH RESPECT TO: (I) DAMAGES TO PERSONS AND/OR TANGIBLE PROPERTY OCCASIONED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, (II) BREACHES BY CUSTOMER OF LICENSE TERMS APPLICABLE TO VENDOR PROVIDED SOFTWARE AND THIRD PARTY PRODUCTS AS SET FORTH IN SECTION 2 ABOVE, (III) CUSTOMER’S UNAUTHORIZED USE OF VENDOR’S OR THIRD PARTY VENDOR’S INTELLECTUAL PROPERTY, MATERIALS OR ASSETS; (IV) DAMAGES INCURRED AS A RESULT OF A BREACH BY A PARTY OF ITS OBLIGATIONS UNDER SECTION 7.8 THAT RESULT IN THE DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY, OR (V) CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION PURSUANT TO SECTION 13 (WHICH ARE SUBJECT TO THE LIMITS, IF ANY CONTAINED THEREIN). DAMAGES AS LIMITED BY THIS SECTION 12 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IF ANOTHER REMEDY IS PROVIDED AND SUCH REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
Each party (the “Indemnifying Party”) agrees to defend at its expense and indemnify and hold harmless the other party and its affiliates, directors, officers, employees, agents, successors and assigns (each an “Indemnified Party”), in accordance with the procedures described in this Section, from and against any and all losses, costs, damages, liabilities and expenses including without limitation, reasonable legal fees and expenses paid to or for the benefit of an unaffiliated third party (collectively, “Losses”) arising from or in connection with any such third party claim for: (i) the death or bodily injury of any person caused by the negligence or willful misconduct of the Indemnifying Party; or (ii) the damage, loss or destruction of any real or tangible personal property caused by the negligence or willful misconduct of the Indemnifying Party. Take it out. Limit Liability to amount of remaining balance
HoloPundits will indemnify, defend and hold harmless Customer for losses Customer incurs as a direct result of any unaffiliated third party claim based on any claim that the Service infringes any U.S. copyright, trademark or trade secret, except to the extent resulting from (i) Customer’s modification of the Service or combination by Customer the Services with other products or services if the Service would not have been infringing but for such combination or modification, (ii) Customer’s use of the Service in a manner not authorized herein or for which it was not designed, (iii) Customer’s failure to use an updated non-infringing version of the applicable intellectual property to the extent Customer was notified that the update cured an infringement, (iv) changes to the Service made by HoloPundits at the direction of the Customer or (v) Customer Data. If any item for which HoloPundits has an indemnification obligation under this Section becomes, or in HoloPundits’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, HoloPundits will, in addition to indemnifying Customer as provided in this Section, promptly take the following actions, at no additional charge to Customer, in the listed order of priority: (a) secure the right to continue using the item or (b) replace or modify the item to make it non-infringing. If neither of such actions can be accomplished by HoloPundits using commercially reasonable efforts, and only in such event, HoloPundits will remove the item from the Service and the applicable service fee will be equitably adjusted to reflect such removal. This section states Customer’s sole and exclusive remedy for HoloPundits’s infringement or misappropriation of intellectual property of a third party.
Customer will indemnify, defend and hold harmless HoloPundits, its affiliates, successors, and assigns, including the applicable officers, directors, employees, and agents thereof for damages, costs and attorneys’ fees HoloPundits incurs from any unaffiliated third-party claim arising from Customer’s breach of Sections 8.5 and 8.8, Customer’s Data, Customer’s Content, Customer Trademarks or Customers or any end users use of the Services.
The party seeking indemnification shall give prompt notice of the claim and will tender the defense; provided, however, that such party’s failure to provide notification shall not affect the indemnifying party’s indemnification obligations. If the indemnifying party fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the party seeking indemnification shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the indemnifying party, and the indemnifying shall promptly reimburse the indemnified party for all such costs and expenses.
Except as otherwise provided in this Agreement, any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by registered or certified mail return receipt requested, (c) sent by overnight courier, (d) sent by facsimile (with a hard copy mailed on the same date), (e) by email whose receipt is acknowledged by an officer of the receiving Party. All notices shall be sent to the respective individuals who sign this Agreement and at the address stated in the preamble of this Agreement, unless either party shall provide the other party, in writing, with a new contact person an/or address to which notices should be provided. Notices shall be considered to have been given at the time of actual delivery in person, five business days after posting if by mail, one business day if by overnight courier service, or upon receipt of machine confirmation of successful transmission by facsimile or email as described herein.
The following provisions shall survive any termination of this Agreement: Sections 5, 7.8, 11, 12, 13, 14, 15, 20 and 21.
17 NO ASSIGNMENT
Customer may not assign this Agreement, or any login without the prior written approval of HoloPundits. Any purported assignment in violation of this section shall be void.
18 FORCE MAJEURE
Neither party will be liable to the other for any failure or delay in the performance of such party’s non-monetary obligations due to causes beyond its control, such as failure or delay caused, directly or indirectly, by fire, flood, earthquakes, other elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, communications line or power failures, or governmental laws, court orders, and regulations imposed after the fact.
19 SECURITY AND SECURITY POLICIES
HoloPundits will provide the security services set forth in the Schedules (the “Security Services”). Except to the extent caused by HoloPundits’s failure to provide Security Services, HoloPundits is not responsible for (i) unauthorized access to Customer’s Content, or (ii) damages arising out of unauthorized access.
Customer acknowledges that some of the Services may be performed by HoloPundits or its third-party suppliers outside the country(ies) where the Services are obtained, and information pertaining to Customer’s use of the Services may be incorporated into HoloPundits’s global database(s) to assist HoloPundits in providing the Services. Customer shall be solely responsible for obtaining any required consents to such off-shore support from Customer’s employees and other end users of the Services.
20 GENERAL PROVISIONS
Any action related to this Agreement will be governed by laws of the State of Ohio. No choice of law rules of any jurisdiction will apply. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Franklin County, Ohio. This Agreement, together with the Schedules annexed hereto, represents the parties’ entire understanding relating to the use of the Service and supersedes any prior or contemporaneous, conflicting or additional, communications. No text or information set forth on any Purchase Order Form, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between HoloPundits and Customer as a result of this Agreement or use of the Service. The failure of HoloPundits to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by HoloPundits in writing HoloPundits reserves the right to assign its right to receive and collect payments hereunder. Any rights not expressly granted herein are reserved by HoloPundits.