MASTER SOFTWARE AS A SERVICE AND PROFESSIONAL SERVICES AGREEMENT
Last updated: 31st Oct 2018
This Master Software as a Service and Professional Services Agreement (the “Agreement”) governs your use of our Services. By accepting this Agreement, by clicking a box indicating your acceptance or by executing an order form that references this agreement, you agree to the terms of this Agreement. THIS AGREEMENT IS EFFECTIVE BETWEEN YOU (“CLIENT”) AND US (“GENUS ARTIFICIAL INTELLIGENCE, INC.” OR “GENUS AI”) AS OF THE DATE OF YOUR ACCEPTANCE OF THIS AGREEMENT.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY GENUS AI FROM TIME TO TIME. WHEN CHANGES ARE MADE, GENUS AI WILL MAKE A NEW COPY OF THIS AGREEMENT AVAILABLE ON THE WEBSITE AND ANY NEW SUPPLEMENTAL TERMS WILL BE MADE AVAILABLE ON THE WEBSITE. WE WILL ALSO UPDATE THE “LAST UPDATED” DATE AT THE TOP OF THIS AGREEMENT. ANY CHANGES TO THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY FOR NEW CLIENTS AND WILL BE EFFECTIVE THIRTY (30) DAYS AFTER POSTING NOTICE OF SUCH CHANGES ON THE WEBSITE FOR EXISTING CLIENTS. GENUS AI MAY REQUIRE YOU TO PROVIDE CONSENT TO THE UPDATED AGREEMENT IN A SPECIFIED MANNER BEFORE FURTHER USE OF THE SERVICES IS PERMITTED. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICES. OTHERWISE, YOUR CONTINUED USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGE(S). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT.
1. DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Client to access the Services.
1.2 “Authorized User” means any individual who is an employee or contractor of Client and is authorized by Client to access the Services pursuant to Client’s rights under this Agreement.
1.3 “Client Data” means any data and information submitted by or on behalf of Client to the Services.
1.4 “Client Objectives” means the products, services, or offerings made available by Client, or other objectives, purposes, or goals related to Client’s business.
1.5 “Confidential Information” means any and all technical and non-technical information of a party that is disclosed to the other party under this Agreement, which may include without limitation: proprietary and confidential information related to the current, future, and proposed products and services of each of the parties, and labeled or otherwise clearly identified as “confidential” or the equivalent at the time of disclosure or which, given the circumstances of disclosure, the receiving party would have reason to know the information is confidential or proprietary.
1.6 “Cooperation” shall have the meaning specified in Section 4.2.
1.7 “Error” means a reproducible failure of the Services to substantially conform to the Documentation.
1.8 “Deliverables” means the items specified in an Order Form as items to be provided by Genus AI to Client under the Order Form.
1.9 “Disclosing Party” shall have the meaning specified in Section 11.1.
1.10 “Documentation” means the technical materials provided by Genus AI to Client in hard copy or electronic form describing the use and operation of the Services.
1.11 “Feedback” shall have the meaning specified in Section 7.4.
1.12 “Fees” shall have the meaning specified in Section 6.
1.13 “Open Source Software” shall have the meaning specified in Section 3.3.
1.14 “Order Form” means an order form, which is signed by both parties, references this Agreement and contains a description of the Professional Services to be provided by Genus AI and the applicable fees.
1.15 “Professional Services” means those data analytics and consulting services performed by Genus AI under an Order Form. “Professional Services” does not include any services described under Section 2 of this Agreement.
1.16 “Receiving Party” shall have the meaning specified in Section 11.1.
1.17 “Reports” means those customized reports about Client’s current and future user base, based on the Client Data and Genus AI’s own database of information, made available through the Services.
1.18 “Services” means the SaaS services made available to Client under this Agreement, which may include automated analysis of Client Data designed to enable Client to achieve the Client Objectives through better understanding of the current and potential audiences.
1.19 “Subscription Term” means the term of Client’s access to the Services, as specified in an Order Form.
1.20 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Genus AI as required for use of the Services. The current requirements (if any) are described in an Order Form.
1.21 “Term” shall have the meaning specified in Section 13.1.
2. PROVISION OF SERVICES
2.1 Access. Subject to Client’s payment of the Fees and compliance with the terms of this Agreement, Genus AI will provide Client with access to the Services. As soon as reasonably practicable after the Effective Date, Genus AI shall provide to Client the Access Protocols to allow Client and its Authorized Users to access the Services in accordance with the Access Protocols.
3. LICENSE GRANT FOR THE SERVICES
3.1 License Grant. Subject to the terms and conditions of this Agreement, Genus AI grants to Client a non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 16.5) license during the applicable Subscription Term, solely for Client’s internal business purposes and in accordance with the limitations in Section 3.2 and the limitations (if any) set forth in an Order Form, (a) to access and use the Services in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Client’s use of the Services.
3.2 Restrictions. Client agrees that it will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Services or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services or Documentation for the benefit of any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) create derivative works based on the Services or Documentation; or (f) access or use the Services for the purpose of developing or creating a competitive service or product.
3.3 Open Source Software. Certain items of software may be provided to Client with the Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 3.1 or Section 12. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Client’s rights under, or grants Client rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Genus AI makes such Open Source Software, and Genus AI’s modifications to that Open Source Software, available by written request.
4. PROFESSIONAL SERVICES
4.1 Provision of Professional Services. Requests for Professional Services will be placed through SOWs. Genus AI will perform the Professional Services as described in the applicable SOW, subject to Client providing all necessary assistance, information, data, and materials set forth on the SOW (“Client Responsibilities”). Genus AI will not be responsible for any delay in the provision of Professional Services as a result of any delay or failure by Client to fulfill any Client Responsibilities. Client’s request for any change in any Professional Services must be in writing; this requirement pertains to all such requests including, but not limited to, requests for changes in project plans, scope, specifications, schedule, designs, or requirements. Genus AI will not be obligated to perform tasks described in Client’s request unless and until the parties agree to the proposed change in an amendment to the applicable SOW that is signed by both parties.
4.2 Client Cooperation. Client acknowledges that its timely provision of, and access to, facilities, equipment, assistance, cooperation, complete and accurate information and Client Data from its officers, agents, and employees, and suitably configured computer products, along with Client’s performance of any of its obligations specified in an SOW (collectively, “Cooperation”) are essential to performance of any Professional Services, and that Genus AI will not be liable for any deficiency in performing Professional Services if such deficiency results from Client’s failure to provide full Cooperation.
4.3 License For Deliverables and Reports. Subject to the terms and conditions of this Agreement, Genus AI grants to Client a non-exclusive, non- sublicensable, non-transferable (except as permitted under Section 16.5) license, during the Subscription Term for the applicable Services, to use the Reports and Deliverables solely for internal purposes.
4.4 Restrictions on Use of Deliverables and Reports. Genus AI reserves all rights not specifically granted herein. Client shall not modify any copyright notices, proprietary legends, any trademark and service mark attributions, any patent markings, and other indicia of ownership on the Reports or Deliverables or other materials accessed through the Services. The delivery of, and license to, the Deliverables and the Reports and/or access to third party materials included therein does not transfer to Client any commercial rights in the Deliverables and/or Reports or any portion thereof (i.e, Client shall not sell the Deliverables or Reports to any third party). Any use of the Deliverables and Reports for a purpose other than Client’s internal business purposes is strictly prohibited. Without limiting the foregoing, Client is not permitted to (i) make the Deliverables or Reports available to any third party, or (ii) use the Deliverables or Reports to develop a competitive service or provide services to any third party.
5. OWNERSHIP OF SERVICES, DELIVERABLES AND DOCUMENTATION
5.1 Ownership. Except for the licenses granted by Genus AI under this Agreement, Genus AI owns and retains all right, title and interest (including, but not limited to, all copyright and patent rights) in the Services, Deliverables, Reports, and Documentation. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Client regarding the Services, Deliverables, Reports, or Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the software used to operate the Services.
6.1 Fees and Payment. Client shall pay Genus AI the Services fees set forth in each Order Form (the “Fees”). Unless otherwise stated in an Order Form, Genus AI will invoice Client for the Fees monthly in advance and all undisputed amounts payable to Genus AI shall be due thirty (30) days from the date of invoice. Non-payment or late payment of undisputed fees is a material breach of this Agreement. If any undisputed amount is past due more than thirty (30) days, Client shall pay interest on the overdue balance at the rate of 1% per month or the maximum permitted by law, whichever is less, plus all expenses of collection. Genus AI shall be entitled to withhold performance and discontinue service until all amounts due are paid in full.
6.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Client will be responsible for payment of all such taxes (other than taxes based on Genus AI’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees or the provision of the Services to Client. Client will make all payments of Fees to Genus AI free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Genus AI will be Client’s sole responsibility, and Client will provide Genus AI with official receipts issued by the appropriate taxing authority, or such other evidence as the Genus AI may reasonably request, to establish that such taxes have been paid. Client shall indemnify and defend Genus AI in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
6.3 Audit. Client will permit Genus AI or its representatives to review Client’s relevant records and inspect Client’s facilities to ensure compliance with this Agreement. Genus AI will give Client at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Client’s normal operations. If any such audit should disclose any underpayment of Fees, Client shall promptly pay Genus AI such underpaid amount, together with interest thereon at the rate specified in Section 6.1. If the amount of such underpayment exceeds five percent (5%) of Fees actually paid during the audited period, Client shall also pay Genus AI for Genus AI’s expenses associated with such audit.
7. CLIENT DATA; FEEDBACK; USAGE DATA
7.1 License; Ownership. Client hereby grants Genus AI a non-exclusive, worldwide, royalty-free and fully-paid license (a) to use the Client Data as necessary for purposes of providing and improving the Services and Professional Services; and (b) to use the Client’s trademarks, service marks, and logos as required to provide the Services and Professional Services. As between the parties, Client owns all right, title and interest in the Client Data.
7.2 Client Warranty. Client represents and warrants that the Client Data shall not (a) infringe any copyright, trademark, or patent right; (b) misappropriate any trade secret; (c) be deceptive, libelous, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Genus AI’s system or data; or (e) otherwise violate any privacy or other right of any third party.
7.3 Authorized Users Access to Services. Client may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement. User IDs cannot be shared or used by more than one Authorized User at a time. If a Client wishes to add additional User IDs, Client may order such additional User IDs at any time by executing a new Order Form detailing the number of additional User IDs. Upon full execution of this Agreement, Genus AI shall make the Service(s) available to the additional Authorized Users. Client is solely responsible for maintaining the confidentiality of log-in accounts and passwords, and credentials and Genus AI will not be liable for any activities undertaken by anyone using Client’s log-in accounts, passwords or credentials. Client will immediately notify Genus AI of any unauthorized use of its log-in account, password or credentials or any other breach of security relating to the Services known to Client.
7.4 Feedback. Client hereby grants Genus AI a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate in the Services any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the Services (“Feedback”). In no event shall Feedback be deemed to be Client Confidential Information.
7.5 Usage Data. The parties acknowledge and agree that Genus AI may collect usage data relating to Client’s use of the Services. Genus AI will own all rights in such data and may use such data for any purpose (including, but not limited to, providing the Services, and auditing and improving the Services), provided that if Genus AI provides such data to a third party it will aggregate and anonymize such data so that Client cannot be identified as the source of such data.
7.6 Protection of Client Data. Genus AI will use reasonable industry standard efforts to try to protect the Client Data in its possession from authorized access or use.
8. CLIENT RESPONSIBILITIES
8.1 Assistance. Client will provide the information and assistance (if any) specified in an Order Form to enable Genus AI to provide the Services to Client.
8.2 Client Responsibility for Client Data and Access to Services. Genus AI is not obligated to back up any Client Data; the Client is solely responsible for creating backup copies of any Client Data at Client’s sole cost and expense. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data. Client must maintain the Supported Environment (if any) described in an Order Form.
9. WARRANTIES AND DISCLAIMERS
9.1 Limited Warranties. Genus AI represents and warrants to Client that the Services will operate materially free from Errors during the applicable Subscription Term. Provided that Client notifies Genus AI in writing of any breach of the foregoing warranty during the applicable Subscription Term, Genus AI shall, as Client’s sole and exclusive remedy, provide the support set forth in the Order Form. Genus AI represents and warrants that the Professional Services will be performed consistent with generally-accepted industry practices. For any breach of the warranty in the previous sentence, Client’s exclusive remedy, and Genus AI’s entire liability, will be the re-performance of the Professional Services and if Genus AI fails to re-perform the Professional Services as warranted, Client’s sole and exclusive remedy shall be to recover the Fees paid to Genus AI for the deficient Professional Services.
9.2 Disclaimer. THE LIMITED WARRANTIES SET FORTH IN SECTION 9.1 ARE MADE FOR THE BENEFIT OF CLIENT ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, THE DOCUMENTATION, DELIVERABLES, SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CLIENT.
10. LIMITATION OF LIABILITY
10.1 Limits on Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND BREACHES OF SECTION 11, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER; AND (B) EITHER PARTY’S LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CLIENT IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CLIENT.
10.2 Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
11.1 Confidential Information. During the Term, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with Confidential Information, which is proprietary to the Disclosing Party and will remain the sole property of the Disclosing Party.
11.2 Treatment of Confidential Information. The Receiving Party agrees that at all times and notwithstanding any termination or expiration of this Agreement it will hold in strict confidence and it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will not reproduce or create any derivative works of the Confidential Information of the Disclosing Party in any form. The Receiving Party will limit access to the Disclosing Party’s Confidential Information to Authorized Users (with respect to Client) or to those employees who have a need to know such Confidential Information to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, and who have been informed of the confidential nature of such information. The Receiving Party agrees that it will not use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the Disclosing Party. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. The Receiving Party will immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the Disclosing Party. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
11.3 Exceptions. Notwithstanding anything to the contrary in this Agreement, the Receiving Party does not have any obligations under this Agreement with respect to a specific portion of the Confidential Information of the Disclosing Party that the Receiving Party can establish with competent evidence: (i) was known to the Receiving Party prior to receiving the same from the Disclosing Party, free of any restrictions; (ii) is independently developed by the Receiving Party without reference to the disclosing party’s Confidential Information; (iii) is acquired by the Receiving Party from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the Receiving Party. Notwithstanding anything to the contrary in this Agreement, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
12.1 By Genus AI. Genus AI shall defend Client against any third party claims that the use of the Services or Deliverables as permitted hereunder infringes any U.S. copyright, patent or other intellectual property right of a third party, and Genus AI shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Genus AI. If any portion of the Services becomes, or in Genus AI’s opinion is likely to become, the subject of a claim of infringement, Genus AI may, at Genus AI’s option: (a) procure for Client the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that the Services becomes non- infringing; or (d) terminate this Agreement, and refund any Fees paid by Client to Genus AI for the applicable Services for the remainder of the term then in effect, and upon such termination, Client will immediately cease all use of the Services. Notwithstanding the foregoing, Genus AI shall have no obligation under this Section 12.1 or otherwise with respect to any infringement claim based upon (x) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Services in combination with other products, equipment, software or data not supplied by Genus AI; or (z) any modification of the Services by any person other than Genus AI or its authorized agents. This Section 12.1 states the sole and exclusive remedy of Client and the entire liability of Genus AI, and any of the officers, directors, employees, shareholders, contractors or representatives of Genus AI, for claims and actions described in this Section 12.1.
12.2 By Client. Client shall defend Genus AI against any third party claims arising out of Client’s breach or alleged breach of any of its representations, warranties or agreements under this Agreement, and Client shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Client. This Section 12.2 states the sole and exclusive remedy of Genus AI and the entire liability of Client, and any of the officers, directors, employees, shareholders, contractors or representatives of Client, for the claims and actions described in this Section 12.2.
12.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall (at the indemnifying party’s expense) reasonably cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
13. TERM AND TERMINATION
13.1 Term. The term of this Agreement (the “Term”) shall begin on the Effective Date and, unless earlier terminated under Section 13.2, shall continue until all the Subscription Term has expired or been terminated and all Professional Services under any Order Forms have been completed.
13.2 Termination. Either party may terminate this Agreement and each Order Form immediately upon written notice to the other party if the other party materially breaches this Agreement or an Order Form and fails to cure such breach within (30) days after its receipt of written notice of such breach. Either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party.
13.3 Effect of Termination. Immediately upon termination of this Agreement or any Order Form, (a) all applicable licenses granted to either party shall terminate; and (b) Client shall cease to use the applicable Services, and Genus AI shall cease hosting the applicable Services for access by Client. Termination shall not relieve Client’s obligation to pay all undisputed charges accrued before the effective date of termination. Sections 1, 3.2, 3.3, 5, 6.1, 6.2, 7.1 (last sentence only), 7.2, 7.4, 7.5, 9.2, 10, 11, 12, 13.3, 15 and 16 will survive the expiration or termination of this Agreement.
If requested by Genus AI, Client agrees to cooperate in good faith with Genus AI on a press release following execution of this Agreement and agrees to allow Genus AI to list (using Client’s name and/or Client’s logo, as determined by Genus AI) Client as a customer on Genus AI’s website.
15. GOVERNING LAW AND VENUE
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without reference to conflicts of laws principles. Both parties expressly agree that any action relating to this Agreement shall exclusively be brought in New York, New York, and both parties irrevocably consent to the jurisdiction of the state and federal courts located in New York, New York. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Client shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its use of the Services hereunder.
16.1 Subcontractors. Genus AI may subcontract this Agreement or any services or obligations hereunder to any third party. Notwithstanding any such performance through a subcontractor, Genus AI shall not be relieved of its performance or obligations under this Agreement. Genus AI shall be responsible for each of its subcontractor’s full and timely performance, and the acts and omissions of each such subcontractor within the scope of its agency with Genus AI shall be deemed and treated as the acts and omissions of Genus AI itself. Genus AI shall also be responsible for compensating its subcontractors.
16.2 Independent Contractors. The parties are independent contractors and nothing in this Agreement shall be deemed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
16.3 Entire Agreement. This Agreement, together with any Order Forms contains the entire agreement of the parties with respect to its subject matter and supersedes any prior or contemporaneous understandings or communications (oral or written) regarding such subject matter. This Agreement and any Order Forms may be modified only by a written amendment executed by an authorized representative of each party. In the event of a conflict between the terms of an Order Form on the one hand, and this Agreement on the other hand, the terms contained in this Agreement shall control unless otherwise expressly stated in such Order Form.
16.4 Severability. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void 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 shall remain in full force and effect.
16.5 Assignment. Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to its successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non- assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
16.6 Force Majeure. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes.
16.7 Export Control. The use of the Services and Deliverables is subject to U.S. export control laws and may be subject to similar regulations in other countries. Client agrees to comply with all such laws.
16.8 Remedies. Except as provided in Sections 9.1 and 12, the parties’ rights and remedies under this Agreement are cumulative. Client acknowledges that the Services, Deliverables and Documentation contain valuable trade secrets and proprietary information of Genus AI, that any actual or threatened breach of Sections 3 or 11, or any other breach by Client of its obligations with respect to intellectual property rights of Genus AI, will constitute immediate, irreparable harm to Genus AI for which monetary damages would be an inadequate remedy. In such case, Genus AI will be entitled to seek immediate injunctive relief without the requirement of posting bond.
16.9 Notice. Any notice given under this Agreement shall be in writing and shall be effective (i) upon receipt or refusal if (a) delivered by hand or (b) sent via overnight mail by a nationally recognized express delivery service; or (ii) sent via U.S. mail, postage prepaid, certified mail return receipt requested, when addressed to the address set forth below (or to such other address that a party may specify in a notice given under this Section 16.9).
16.10 No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
16.11 Waivers. No delay or omission to exercise any right or remedy accruing to either party hereunder shall impair that right or remedy, or be construed to be a waiver of any breach or default. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the waiving party.
16.12 Section Headings. Section headings are for convenience only, and shall not be used to interpret this Agreement.
16.13 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and both of which shall be taken together and deemed one instrument.