TERMS AND CONDITIONS FOR USE OF SATMETRIX SERVICES
1.1 “Account Administrator” means a Client’s designated employee or contractor who has been granted administrator level access to the Service(s).
1.2 “Affiliate” means with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).
1.3 “Agreement” means collectively these terms and conditions and the attached exhibits, schedules, and amendments hereto, as well as any Order Schedule and/or SOW agreed to by the parties.
1.4 “Brand Licensor” means a person or entity that has the authority to license a trademark or service mark in connection with the sale of products or services under such mark.
1.5 “Client Content” means any Client logos, trademarks, trade names, service marks, and all other content transmitted by Client or its Users to or through the Service, or otherwise provided to Satmetrix for use in providing the Service.
1.6 “Client Data” means any Client-specific data provided or submitted by Client or its customers to or through the Service. “Client Materials” means Client Content and Client Data, collectively.
1.7 “Confidential Information” means this Agreement, the Satmetrix Technology, Satmetrix pricing information, Client Data, and any other information disclosed by one party ( “Discloser”) to the other ( “Recipient”) in connection with this Agreement.
1.8 “Documentation” means the manuals and online help Satmetrix provides for use in connection with the Service.
1.9 “Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the Service.
1.10 “Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.
1.11 “Operator” means a person or entity (e.g., a franchisee, licensee, distributor, or reseller) who is authorized by a brand licensor to sell specific goods or services under the brand licensor’s trademarks or service marks at specific location or within a specific service or delivery territory.
1.12 “Operator Portal” means a unique instance of the SATMETRIX NPX portal for measurement, use, and reporting of content that is specific to an operator and that is associated with specific store location(s) or specific delivery or service area(s) where goods and/or services are sold or provided under Client’s trademark or service mark.
1.13 “Order Schedule” means a document detailing the Service(s) to be provided by Satmetrix, the fees associated therewith, and any other transaction-specific terms and conditions. If the parties agree, an Order Schedule may be used in connection with, or in lieu of, a Statement of Work (SOW). In the event that multiple Order Schedules will apply to this Agreement, such Order Schedules will be numbered sequentially. Any and all mutually executed Order Schedule(s) are deemed incorporated herein by this reference. Each Order Schedule is intended to define a separate contract particular to that order, incorporating by reference the terms and conditions of the applicable portions of this Agreement. An Order Schedule may also contain other terms or conditions, mutually agreed upon by Satmetrix and Client, which apply specifically to that particular order/contract. Client agrees that each Order Schedule will be signed by a representative having the authority to bind Client, and that Satmetrix may presume that such representative has such authority. A binding order is created when Satmetrix accepts and executes the Client-executed Order Schedule.
1.14 “Permitted Purpose” means Client’s internal business purpose relating to the provision of customer satisfaction surveys and analysis of survey results.
1.15 “Satmetrix Technology” means Satmetrix’s proprietary software and other technology provided via the Service, including any enhancements, modifications, and derivative works thereto.
1.16 “Service(s)” means Satmetrix’s hosted service described in an Order Schedule, and/or ancillary Satmetrix proprietary products and/or services provided to Client by Satmetrix.
1.17 “Service Term(s)” means the Order Schedule-specified period(s) during which Users may use the Service.
1.18 “Statement(s) of Work” or “SOW” means the form describing the Service subscription(s), the number and type of other Service(s) contracted for, the applicable fees, the billing period, and other related terms and conditions. Upon execution by the parties of the Order Schedule governing the applicable SOW, such SOW will be incorporated into this Agreement by reference.
1.19 “User” means Client’s or Client’s Operator’s employees, consultants, contractors, or agents who are authorized to use the Service and have been supplied user IDs and passwords by Client (or by Satmetrix at Client’s request), provided, however, that no employee, consultant, contractor, or agent who is a Satmetrix competitor can be a “User” for purposes of this Agreement, unless Satmetrix otherwise agrees in writing, in advance.
2. PROVISION OF SERVICE AND SATMETRIX TECHNOLOGY.
2.1 Sales and Delivery Terms. Client will purchase from Satmetrix the Service(s) indicated in the applicable Order Schedule. Because Satmetrix hosts all of Satmetrix’s clients’ systems, Satmetrix does not sell its software outright; instead Satmetrix Clients purchase the right to use the software to access the Client-specific portions of the Satmetrix system on a “Software as a Service” basis. Consistent with the foregoing, the software license fee is based upon the specific features that are provided via the Service as listed in the applicable Order Schedule. The hosting and support fees cover both hosting (data center) and support (basic technical system support). Hosting includes the data center and related costs required to host and monitor the system software provided via the Service.
2.2 Provision of Service; Access Right. Subject to Client’s payment of the applicable fees, during the applicable Service Term, Satmetrix will provide to Client the Service described on one or more Order Schedule(s). The Service includes the standard features and functionality applicable to the Service, and any new features that augment or enhance such Service, excluding any new modules that Satmetrix markets and sells as a separate service. Satmetrix will host the Service and may update the content, functionality, and user interface of the Service from time to time. Unless otherwise specified in the applicable Order Schedule, the hosted Services are purchased on a subscription basis. Client has a non-exclusive, non-sublicenseable, nontransferable right to access and use the hosted Service and display the Satmetrix Technology during the applicable Service Term, solely for Client’s internal business purposes relating to the processing of Client Data for Client’s internal operational planning and performance management. Satmetrix reserves all rights not expressly granted hereunder. Satmetrix may create and maintain administrative, support, and maintenance accounts within the hosted Service, all with Client Data access for Satmetrix and its assigned operators and/or other service providers, in order to deliver the Service. Client acknowledges that the Service is a hosted service; accordingly, in order to use the Service, Client understands that: (a) Client must independently have or must independently obtain Internet access, either directly or through devices that access Web-based content, as well as browser software that supports protocols used by Satmetrix; (b) Client must follow logon procedures for the services that support such protocols; and (c) Satmetrix assumes no responsibility for the foregoing.
2.3 Access and License Restrictions. Within thirty (30) days following the commencement of the Service, Client agrees to add Satmetrix.com and any other Satmetrix-specified Service-related email domain(s) to Client’s whitelist, in order to facilitate the transmission and receipt of Service-related emails. Client will not (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Service or Satmetrix Technology; (ii) modify or create derivative works based on the Service or Satmetrix Technology; (iii) create Internet “links” to the Service or “frame” or “mirror” any content provided in connection therewith; or (iv) reverse engineer, or copy, or otherwise access the Service or Satmetrix Technology in order to build a product using features, functions or graphics similar to the Service or Satmetrix Technology, (v) copy any features, functions, or graphics of the hosted Service or Satmetrix technology; (vi) allow User subscriptions to be shared or used by more than one individual User (except that User subscriptions may be reassigned to new Users replacing individuals who have terminated employment or otherwise changed job status or function and no longer need to use the Service for the purposes described in Section 2.2. (vii) use the Service to: (a) send unsolicited or unlawful messages; (b) send or store infringing, obscene, threatening, harmful, libelous, or otherwise unlawful material, including material harmful to children or violative of privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (d) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (e) attempt to gain unauthorized access to the Service or its related systems or networks or (viii) provide or disclose to, or permit use of the hosted Service or Satmetrix Technology by, persons other than Users. Client agrees that: (1) Satmetrix is not acting on Client’s behalf as a Business Associate or subcontractor; (2) the Service is not designed to, nor may be used to, store, maintain, process, or transmit protected health information ( “PHI”); and (3) the Service will not be used in any manner that would require Satmetrix or the Service to be compliant with the Health Insurance Portability and Accountability Act of 1996 ( “HIPAA”), the Health Information Technology for Economic and Clinical Health Act ( “HITECH”) as amended and supplemented, or their enabling regulations, or similar state laws or regulations, and Client agrees that its use of the Service and Satmetrix Technology will not result in any of the foregoing clauses becoming inaccurate. In the preceding sentence, the terms, “Business Associate”, subcontractor, “protected health information”, and “PHI” shall have the meanings described in HIPAA, HITECH, their enabling regulations, or similar state laws or regulations.
2.4 Service Level. During the Service Term, the hosted Service platform (production site) will meet the service level specified in the “Service Level Commitment” listed on the Satmetrix website located at www.satmetrix.com/satmetrix-slc, or such other URL as specified by Satmetrix, which URL is incorporated by reference as applicable. Satmetrix reserves the right to update the Service Level Commitment or any support policies from time to time, provided that no such update will materially and adversely affect Client’s rights as provided under the preceding Service Level Commitment or support policy.
2.5 Security/Data Integrity. During the Service Term, Satmetrix will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Client Data (at least as rigorous as the safeguards Satmetrix employs to protect its own data). To protect the privacy of any Client Data that may have been provided, Satmetrix employs industry-standard controls including physical access controls, encryption, Internet firewalls, intrusion detection, and network monitoring. In addition, access to confidential information is limited to those individuals and agents having a need to know. Upon request, Satmetrix will provide additional information regarding Satmetrix’s data security policies and procedures. Client acknowledges that it is not feasible for Satmetrix to accommodate conflicting data security requirements from multiple Satmetrix clients; accordingly, in the event of a conflict between Satmetrix’s data security policies and procedures and any additional or different policies and procedures that Client requests that Satmetrix will follow, Satmetrix will use good faith efforts to accommodate Client’s request as and where feasible; however, failure to accommodate Client’s request will not be deemed a breach of this Agreement.
2.6 Professional Services. Satmetrix will provide such resources and utilize such Satmetrix employees and/or consultants as Satmetrix deems necessary to perform any implementation, training, consultation or other professional services described in an SOW or Order Schedule. The manner and method used by Satmetrix to perform such professional services are subject to Satmetrix’s sole discretion. Client agrees to provide Satmetrix with any required Client materials needed for Satmetrix to perform the professional services, and hereby grants Satmetrix a royalty-free, non-exclusive, worldwide license to use such materials for the sole purpose of enabling Satmetrix to perform the professional services described herein. Satmetrix will use commercially reasonable efforts to meet the schedules set forth in the SOW, and Client agrees to cooperate in good faith to allow Satmetrix to achieve completion of such professional services in a timely and professional manner. If achievement of any particular milestone is dependent upon performance of tasks by Client or by a third party outside of Satmetrix’s control, the projected dates for accomplishing such milestones will be approximately adjusted to reflect any changes in such tasks. Unless otherwise expressly set forth in this Agreement, Satmetrix is not providing to Client any Satmetrix Technology pursuant to this Section 2.6; such Satmetrix Technology (and the associated hosted Service) is being provided, if at all, pursuant to the terms of Section 2.2 ( “Provision of Service; Access Right”) and subject to the restrictions set forth in Section 2.3 ( “Access and License Restrictions”).
2.7 Trial Subscriptions. If Client receives free access or a trial or evaluation subscription to the Services (a “Trial Subscription”), then Client may use the Services in accordance with the terms and conditions of this Agreement for the period designated in the Order Form or otherwise by Satmetrix (and if not designated, then for up to thirty (30) days) ( “Trial Period”). Trial Subscriptions are permitted solely for Client’s use to determine whether to purchase a full subscription to the Services. Client may not use a Trial Subscription for any other purposes, including without limitation for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire, and Client will have the opportunity to purchase a full subscription to the Services. If Client purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Services. Satmetrix has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SATMETRIX WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR SLA OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
2.8 Orders by Affiliates. Any Affiliate of Client may enter into separate Order Schedules with Satmetrix for the provision of Services under this Agreement. Each such Order Schedule must specifically incorporate this Agreement by reference, and will be deemed a separate contract between the parties who execute it, independent of any other Order Schedule. Each Affiliate will only be liable for the obligations expressly set forth in an Order Schedule to which it is a signatory. An Order Schedule executed by one Affiliate may also cover use by other Affiliate(s), to the extent set forth in that Order Schedule; in such cases, the Affiliate executing the Order Schedule will remain fully liable for the acts and omissions of all such covered Affiliates. Where an Order Schedule is executed by Satmetrix and an Affiliate of Client, the term “Client” used in this Agreement will be deemed to refer to the executing Affiliate where required.
3. RESPONSIBILITIES. Each party will abide by all applicable laws and regulations in connection with use of the Service. Client will be responsible for any and all access to and use of the Service by any actual or purported User. Client will be responsible and liable for the acts and omissions of all Users in connection with this Agreement (such that any act or omission committed by a User that would, if committed by Client as a party to this Agreement, would be deemed a breach of this Agreement, will be deemed a breach hereof, regardless of whether or not a User is a signatory to this Agreement), as well as any and all access to and use of the Service by any User or any other person logging in under a User ID registered under Client’s account or providing and/or receiving Client Data or other information through the Service. Client acknowledges that Client’s access information, including User IDs and passwords of its Users, will be Client’s “key” to the Service and, accordingly, Client will be responsible for maintaining the confidentiality of such access information (including each User ID and password). Client will promptly: (i) notify Satmetrix of any unauthorized use of any password or account or any other known or suspected security breach; (ii) report to Satmetrix and use reasonable efforts to stop any known or suspected copying or distribution of Satmetrix Technology. Client will not provide false identity information to gain unauthorized access to the Service. Each Account Administrator will have the ability to create additional User accounts and additional licensed Operator Portals. There is no additional charge for adding User accounts associated with an existing Operator Portal ID unless otherwise indicated in the Order Schedule. Client’s designated Account Administrators are responsible for ensuring that Users are assigned the appropriate access level. Client is responsible for deactivating an Account Administrator’s User account upon his or her termination of employment or service or as Client deems appropriate. If Client is an Operator, Client acknowledges and agrees that the Users designated by the Brand Licensor who is associated with Client’s User accounts will have access to all Client Data or other content associated with Client’s User accounts. Client agrees to ensure that Client’s end users have Internet access and supported browsers to access the Satmetrix technology.
5. INTELLECTUAL PROPERTY OWNERSHIP. Satmetrix owns all right, title and interest, including related Intellectual Property Rights, in and to the Service, Satmetrix Technology, survey questions provided by Satmetrix, , and any related suggestions, enhancement requests, and feedback. Subject to the terms and conditions of this Agreement (including Client’s obligation to pay all fees hereunder when due), Satmetrix grants Client a non-exclusive, non-transferable, non-sublicenseable, revocable license to use any survey questionnaire provided by Satmetrix in connection with the Service, solely for the Permitted Purpose and not any other purpose, including engaging in the business of conducting surveys, and not for the benefit of any third party. Client acknowledges that the Satmetrix name, the Satmetrix logo, the Net Promoter logo, and the product names associated with the Service are trademarks of Satmetrix or third parties, and no license to such marks is granted herein. Client agrees that, where practicable, the first or more prominent use of a Satmetrix mark (including Net Promoter Score, Net Promoter, and NPS) within a Client document, presentation, or website, will be accompanied by the following trademark attribution statement(s), as appropriate: “Satmetrix is a trademark of Satmetrix Systems, Inc. Net Promoter Score, Net Promoter, and NPS are trademarks of Satmetrix Systems, Inc., Bain and Company, Inc., and Fred Reichheld.” Client agrees that during the Service Term, Satmetrix, in its sole discretion, may use Client trade names, trademarks, service marks, and logos in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your web site) solely for the purpose of advertising or publicizing the Service.
6. BILLING AND PAYMENT. Client will pay all fees or charges to Client’s account pursuant to the Order Schedule. Amounts are due and payable within the number of days following the invoice date as specified in the applicable Order Schedule (or if not so specified, then payment terms are net 30) and are payable in the currency identified in such Order Schedule (or if not so specified, then payment will be in U.S. Dollars ($ USD)). Client will pay for all Services ordered, unless Client terminates this Agreement (or the applicable Order Schedule) for Satmetrix’s Service-related breach. All fees are exclusive of taxes, levies, or duties, and Client will be responsible for payment of such taxes, levies, or duties, excluding United States (federal or state) taxes based on Satmetrix’s income. Client will pay all fees to Satmetrix free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees to Satmetrix will be Client’s responsibility, and Client will provide Satmetrix with receipts issued by the appropriate taxing authority to establish that such taxes have been paid. Satmetrix may suspend or terminate this Agreement and Client’s access to the Service if Client’s account falls into arrears. Client will continue to be charged for Services during any period of suspension. Upon termination of this Agreement, Client will pay the balance due on Client’s account. Client will not be deemed in breach of Client’s payment obligations as to any invoiced amount that Client disputes in good faith, in writing, during the applicable payment period.
7. TERM; TERMINATION. This Agreement commences on the Effective Date and, unless earlier terminated pursuant to this Agreement, will continue for the period specified as the Contract Term in an Order Schedule. Unless (i) Client provides Satmetrix written notice that it does not intend to renew the Satmetrix Hosted Service at least thirty (30) days in advance of the end of the Contract Term, or (ii) Satmetrix gives Client written notice that it does not intend to renew the Satmetrix Hosted Service at least thirty (30) days in advance of the end of the Contract Term, each Order Schedule that includes the purchase of the Satmetrix Hosted Service will be automatically renewed for a period of one year (each, a “Renewal Hosted Service Term”). The Renewal Hosted Service Term shall be: (i) on the terms and conditions set forth in this Agreement, and (ii) subject to the commercial terms provided in the Order Schedule that includes the purchase of the Satmetrix Hosted Service. Should Client decide not to renew, Client may send the notice required by this Section 7 by email to firstname.lastname@example.org. Either party may terminate this Agreement (or any Order Schedule) upon the other party’s breach that remains uncured for thirty (30) days following notice of such breach. Client agrees that following termination of Client’s account and/or use of the Service, Satmetrix may immediately deactivate Client’s account and delete Client Data. However, should Client so request (within thirty (30) days following expiration or termination of this Agreement or the applicable Order Schedule), Satmetrix will provide to Client a current copy of the Client Data, in .csv or other industry standard format. Satmetrix shall not be liable to Client nor to any third party for any termination of Client access to the Service or deletion of Client Data, provided that Satmetrix is in compliance with the terms of this Section 7. Upon expiration or termination of this Agreement: (a) amounts (including expenses) owed to Satmetrix for completed Services and work in progress, and fees applicable to the duration of the terminated subscription, will be due and payable; (b) all subscriptions granted under this Agreement and Satmetrix’s obligation to provide the Service and Satmetrix Technology, and Client’s right to access the foregoing, will terminate; and (c) Sections 1, 2.3, 3, 4, 5, 6, 7 (relating to effects of termination), and 8 through 12 will survive.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Representations and Warranties. Each party represents and warrants that it has the power and authority to enter into this Agreement. Client represents and warrants that, to the best of Client’s knowledge and belief: (a) Client Data does not and will not violate the terms or conditions of this Agreement, applicable law, or any third party’s privacy rights; and (b) any and all contact information that it provides to Satmetrix, including email addresses sent to or via the Service, will not include any inaccurate information. Satmetrix warrants that the applicable hosted Service, when used in accordance with the instructions in the Documentation, will materially conform to the description in the Documentation. Client will have thirty (30) days following the Order Schedule date (or if no Order Schedule applies, then 30 days following the initial provision of any Service) in which to notify Satmetrix of a breach of the foregoing warranty, in which event, Satmetrix’s entire liability and Client’s sole and exclusive remedy will be, at Satmetrix’s election, to either: (i) reperform, modify, or replace the Service so that it so conforms to such warranty; or (ii) provide a credit of the fees paid for the affected Service, in which event this Agreement, and Client’s right to access the refunded Service will immediately terminate. Any remedy provided by Satmetrix will not extend the original warranty period. Satmetrix will have no obligation under this Agreement to correct, and Satmetrix makes no warranty with respect to, errors caused by or relating to: (a) use of the Service in a manner inconsistent with the Documentation or this Agreement; or (b) third party hardware or software misuse, modification, or malfunction.
8.2 Warranty Disclaimers. EXCEPT AS SET FORTH IN SECTION 8.1, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY EACH PARTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SATMETRIX’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. SATMETRIX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN ADDITION, SATMETRIX RESERVES THE RIGHT TO UPGRADE, CHANGE, ADD, OR MODIFY SOFTWARE AND/OR SERVICES WITH OR WITHOUT NOTICE, AND WITHOUT PENALTY. IN ADDITION, SATMETRIX MAY AT ANY TIME, (A) INTERRUPT THE OPERATION OF THE SERVICES (OR ANY PORTION THEREOF) AS NECESSARY TO PERFORM ROUTINE OR NON-ROUTINE MAINTENANCE, ERROR CORRECTION, OR OTHER CHANGES, AND/OR (B) REVOKE OR SUSPEND ANY LOGIN OR PASSWORD UPON ANY SUSPECTED OR ACTUAL VIOLATION OF SECTION 2.3, OR TO FULFILL SATMETRIX’ OBLIGATIONS UNDER SECTION 2.5.
9. INDEMNIFICATION. Satmetrix will indemnify and hold Client harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with: (a) a claim alleging that the hosted Service directly infringes or misappropriates a copyright, trademark, or trade secret of a third party; or (b) a claim arising from breach of this Agreement by Satmetrix. Satmetrix will have no indemnification obligation, and Client will indemnify Satmetrix pursuant to this Agreement, for claims arising from any infringement or misappropriation to the extent arising from: (i) Client’s or any User’s use of the Service other than as permitted under this Agreement; (ii) the combination of the Service with any Client Materials or any other Client-supplied or utilized products, services, hardware, data, content, or business process(s) provided however, that for purposes of clarification, populating the Service with Client Data will not be deemed a combination that terminates Satmetrix’s indemnity obligation; or (iii) from the modification of the Service or any Satmetrix Technology by any party other than Satmetrix or Satmetrix’s agents. The foregoing is Satmetrix’s sole and exclusive obligation for infringement claims. Client will indemnify and hold Satmetrix harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with: (a) a claim alleging that use of the Client Materials infringe a copyright, trademark, or trade secret, privacy, or publicity rights of a third party; (b) a claim arising from the breach of this Agreement by Client or Client’s Users. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim. The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).
10. LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF SECTION 2.2, 2.3, 3, 5, OR 11, AND EXCEPT FOR INDEMNIFICATION OBLIGATIONS AND CLIENT’S RESPONSIBILITY FOR THE LEGAL SUFFICIENCY OF CLIENT MATERIALS: (A) NEITHER PARTY’S AGGREGATE LIABILITY WILL EXCEED THE AMOUNTS PAID OR PAYABLE IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM; AND (B) NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE, HEREUNDER, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, EVEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT ITS INDEMNIFICATION OBLIGATIONS ARE A DIRECT, RATHER THAN AN INDIRECT OBLIGATION OWED TO THE OTHER PARTY AND, ACCORDINGLY, THE FOREGOING DISCLAIMER WILL NOT BE CONSTRUED TO LIMIT EITHER PARTY’S OBLIGATION TO PAY AMOUNTS TO THIRD PARTIES PURSUANT TO SUCH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CLIENT ACKNOWLEDGES AND AGREES THAT SATMETRIX’S LICENSORS WILL HAVE NO LIABILITY UNDER THIS AGREEMENT. CLIENT ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
12. ONLINE ACADEMY AND RESEARCH. Satmetrix grants you permission to access and use the Site for your non-commercial use. You may not download (other than page caching), or modify any portion of it, except with the express written or e-mailed consent of Satmetrix. Your permission to use the Site does not include any resale or commercial use of the Site or its contents, whether provided by Satmetrix or registered Users contributing content in message boards, chats, blogs, wikis or other consumer-generated-content tool; or any derivative use of this Site or its contents; or any use of data mining, robots or similar data gathering and extraction tools or processes. You agree not to store in any form, distribute, transmit, display, reproduce, modify, create derivative works from, transfer, sell or otherwise exploit any of the content, software, products or services on this site for any commercial purpose. By using the Site, you warrant to Satmetrix that you will not use the Site, or any of the content obtained from the Site, for any purpose that is unlawful or prohibited by these Terms. If you violate any of these Terms, your permission to use the Site automatically terminates. Your privilege to use or access the Site may be terminated by Satmetrix immediately and without notice if you fail to comply with any term or condition of the Terms. Upon such termination, you must immediately cease accessing or using the Site and agree not to re-register or otherwise make use of the Site. Furthermore, you acknowledge that Satmetrix reserves the right to take action — technical, legal or otherwise — to block, nullify or deny your ability to access the Site. You understand that Satmetrix may exercise this right in its sole discretion, and that such actions will not limit Satmetrix’s other legal or equitable rights or remedies.
13. GENERAL. Notices will be sent by first-class mail or overnight courier, and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Client’s notices will be addressed to Satmetrix’s Chief Financial Officer. Client may not assign this Agreement without Satmetrix’s prior written consent; any attempted assignment in breach of the foregoing will be void. This Agreement will be governed by the governing law identified in the Order Schedule incorporating this Agreement by reference without regard to conflicts of law provisions. Any claims arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the courts in the venue identified in the Order Schedule incorporating this Agreement by reference; each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, such courts in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THIS AGREEMENT. Except as provided in Sections 8 and 9, the parties’ rights and remedies hereunder are cumulative. Each party acknowledges that the following items contain the other party’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to non-breaching party for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy: as relates to Satmetrix, the Service, Satmetrix Technology, and Satmetrix’s Confidential Information, and as relates to Client, Client’s Confidential Information. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Client and Satmetrix as a result of this Agreement or use of the Service. If Client is a branch agency or instrumentality of the United States Government, the following provision applies. The Satmetrix Technology and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” per 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with 48 C.F.R. 227.7202-1 and 22.7202-3. A party’s failure to enforce any provision in this Agreement will not constitute a waiver of such provision unless in writing. No modification hereof will be effective unless in writing and mutually executed. Headings are for reference purposes only and do not define, limit, construe or describe the scope or extent of such section. As used herein, “including” means “including but not limited to.” This Agreement comprises the entire agreement between Client and Satmetrix and supersedes all prior or contemporaneous discussions or agreements between the parties regarding its subject matter. In the event of a conflict between these terms and conditions and the terms of any Order Schedule or SOW, such conflict will be resolved in the following order: (a) any Order Schedule; (b) these terms and conditions; and (c) any SOW. Client purchase orders and similar ordering documents are provided for administrative purposes only. Notwithstanding any contrary terms set forth on such ordering documents, any preprinted terms on such ordering documents will not add to, modify, or have any effect on the terms of this Agreement and are hereby rejected.