Master Subscription Agreement
IMPORTANT! THIS CUSTOMER AGREEMENT (‘AGREEMENT”) IS BY AND BETWEEN TRES TECHNOLOGY SOLUTIONS, LLC (“TRES SOLUTIONS”) AND YOU AS CUSTOMER (“CUSTOMER”) IN CONNECTION WITH THE TVA SERVICES CONTEMPLATED UNDER THE APPLICABLE ORDER FORM (THE “ORDER”) TO WHICH THIS AGREEMENT IS INCORPORATED BY REFERENCE. BY EXECUTING THE ORDER, CLICKING “I AGREE”, ACCEPTING ANY OF THE TVA SERVICES, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT FOR AND ON BEHALF OF CUSTOMER, AND ARE DOING SO, (B) YOU AND CUSTOMER CAN LEGALLY ENTER INTO THESE TERMS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND CUSTOMER SHALL BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, TRES SOLUTIONS WILL NOT PROVIDE ANY OF THE TVA SERVICES.
WHEREAS, Customer wishes to procure from Tres Solutions the TVA Services (as defined in the Order), and Tres Solutions wishes to provide such TVA Services to Customer, each on the terms and conditions set forth in the Order and this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the TVA Services and the TVA Materials.
“Action” has the meaning set forth in Section 12.1.
“Authorized User” means each of the individuals authorized by Customer to use the TVA Services and the TVA Materials pursuant to Section 4.1 and the other terms and conditions of this Agreement.
“Confidential Information” has the meaning set forth in Section 9.1.
“Customer Data” means, other than TVA Data, information and data, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User as required in connection with the TVA Services and TVA Analysis, including information and data related to the operations and performance of the Customer Vessel and its engines.
“Customer Indemnitee” has the meaning set forth in Section 12.1.
“Customer Systems” means the Customer's information technology infrastructure, including servers, computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Customer TVA Analysis” has the meaning set forth in Section 2.1.
“Customer Vessel” means the vessel or vessels identified on the Order.
“Data Logger” means the data logger sold or otherwise provided by Tres Solutions to Customer in connection with the TVA Services.
“Disclosing Party” has the meaning set forth in Section 9.1.
“Documentation” means any written manuals, instructions or other documents or materials that Tres Solutions provides or makes available to Customer which describe the functionality, components, features or requirements of the TVA Services or TVA Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Fees” has the meaning set forth in Section 7.1.
“Force Majeure Event” has the meaning set forth in Section 14.1.
“Harmful Code” means any software, hardware or other Solutions, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the TVA Services or Tres Solutions Systems as intended by this Agreement.
“Improvement Suggestions” has the meaning set forth in Section 8.4.
“Indemnitee” has the meaning set forth in Section 12.3.
“Indemnitor” has the meaning set forth in Section 12.3.
“Initial Term” has the meaning set forth in the Order.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“IP Indemnification” has the meaning given to that term in Section 12.1.
“Order Effective Date” has the meaning set forth in the Order.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Permitted Use” means any use of the TVA Services and the TVA Materials by an Authorized User for the benefit of Customer solely in connection with or for Customer's operations of the Customer Vessel.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Process” means to take any action or perform any operation or set of operations that the TVA Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Receiving Party” has the meaning set forth in Section 9.1.
“Reimbursable Expenses” has the meaning set forth in Section 7.3.
“Representatives” means, with respect to a party, that party's and its Affiliates' employees, officers, independent contractors and legal advisors.
“Specifications” means the written specifications for the TVA Services provided by Tres Solutions.
“Subcontractor” has the meaning set forth in Section 2.5.
“Term” has the meaning set forth in the Order.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the TVA Services or the TVA Materials, including the TVA Software, that are not proprietary to Tres Solutions.
“Tres Solutions Indemnitee” has the meaning set forth in Section 12.2.
“Tres Solutions Personnel” means all individuals involved in the performance of TVA Services as employees, agents or independent contractors of Tres Solutions or any Subcontractor.
“Tres Solutions Systems” means the information Solutions infrastructure used by or on behalf of Tres Solutions in performing the TVA Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Tres Solutions or through the use of third-party services.
“TVA Analysis” means the reports prepared by Tres Solutions based on the TVA Data.
“TVA Data” means information, data and other content that is derived by or through the TVA Services from Processing Customer Data.
“TVA Hardware” means the sensors and/or the Data Logger purchased from or otherwise provided by Tres Solutions to the Customer in connection with the TVA Services.
“TVA Materials” means the TVA Software, Specifications, Documentation and Tres Solutions Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Tres Solutions or any Subcontractor in connection with the TVA Services or otherwise comprise or relate to the TVA Services or Tres Solutions Systems.
“TVA Services” has the meaning set forth in the Order.
“TVA Software” means the Tres Solutions software application or applications and any third-party or other software, and all new versions, updates, revisions, customizations, improvements and modifications of the foregoing, that Tres Solutions provides for use as part of the TVA Services, whether as loaded locally onto the servers or computers on the Customer Vessel or accessible remotely.
“TVA Support Services” means those support services provided by Tres Solutions to Customer as set forth in Schedule A of the Order.
2. TVA Services.
2.1 Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, Tres Solutions shall use commercially reasonable efforts to provide to Customer and its Authorized Users the TVA Services during the Term. This includes the TVA Materials and the TVA Analysis. The Parties may modify the TVA Services to be provided at any time as agreed in writing. Under typical circumstances, Customer shall submit the Customer Data to Tres Solutions necessary to generate the TVA Analysis as contemplated under the applicable TVA Services. Under circumstances when Customer may have limited to no internet connectivity, however, Tres Solutions may provide Customer with TVA Software to be downloaded onto its servers or computers on the Customer Vessel that would enable Customer to generate the TVA Analysis on the Customer Vessel directly (the “Customer TVA Analysis”) without having to send the Customer Data to Tres Solutions to generate the TVA Data and TVA Analysis.
2.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Tres Solutions has and will retain sole control over the operation, provision, maintenance and management of the TVA Services and the TVA Materials, including: (i) the Tres Solutions Systems and (ii) the selection, deployment, modification and replacement of the TVA Software.
(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the TVA Services and TVA Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User.
2.3 Operations Management. Each party shall, throughout the Term, maintain within its organization an operations or technical manager to serve as such party's primary point of contact for day-to-day communications, consultation and decision-making regarding the TVA Services. Each operations or technical manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its operations manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity.
2.4 Changes. Tres Solutions reserves the right, in its sole discretion, to make any changes to the TVA Services and the TVA Materials, including the TVA Software that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Tres Solutions' services to its customers, (ii) the competitive strength of or market for Tres Solutions' services or (iii) the TVA Services' cost efficiency or performance; or (b) to comply with applicable Law.
2.5 Subcontractors. Tres Solutions may from time to time in its discretion engage third parties to perform the TVA Services (each, a “Subcontractor”), subject to Customer consent, not to be unreasonably withheld.
3. License and Hardware.
3.1 TVA Software License.
(a) Tres Solutions hereby grants to Customer a non-exclusive, non-sublicensable and non-transferable, limited license to use the TVA Software and Documentation solely for the Permitted Use during the Term. This limited license includes the right to use the TVA Software that has been downloaded onto Customer’s servers or computers on the Customer Vessels to generate the Customer TVA Analysis on the Customer Vessel directly when Customer has limited to no internet connectivity as contemplated under Section 2.1.
(b) Customer may install, use and run copies of the TVA Software on the computers and/or servers on the Customer Vessel for use by the Authorized User(s) solely for the Permitted Use. Authorized User(s) may remotely access and use the Licensed Software from any other device. Customer may make one copy of the TVA Software solely for testing, disaster recovery or archival purposes. Any copy of the Licensed Software made by Customer: (a) will remain the exclusive property of Tres Solutions; (b) be subject to the terms and conditions of this Agreement; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original.
3.2 TVA Hardware. Subject to payment in full (including any interest and collection related costs) for any TVA Hardware purchased by Customer from Tres Solutions, Customer will be the owner of all right, title and interest in and to all such TVA Hardware. Notwithstanding the foregoing, the Data Logger is proprietary to Tres Solutions and Customer shall treat the Data Logger as Confidential Information under Section 9.
4. Authorization and Customer Restrictions.
4.1 Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Tres Solutions hereby authorizes Customer to access and use, during the Term, the TVA Services and such TVA Materials as Tres Solutions may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and other than as may be expressly set forth in Section 6, non-transferable.
4.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the TVA Services or the TVA Materials including the TVA Software, or the Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the TVA Services, the TVA Materials and the Third-Party Materials are and will remain with Tres Solutions and the respective rights holders in the Third-Party Materials.
4.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the TVA Services or TVA Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the TVA Services or TVA Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any TVA Services or TVA Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the TVA Services or TVA Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the TVA Services or TVA Materials;
(e) remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any TVA Services or TVA Materials, including any copy thereof;
(f) access or use the TVA Services or TVA Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
(g) access or use the TVA Services or TVA Materials for purposes of competitive analysis of the TVA Services or TVA Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Tres Solutions' detriment or commercial disadvantage; or
(h) otherwise access or use the TVA Services or TVA Materials beyond the scope of the authorization granted under Section 1 or the license granted under Section 3.1.
5. Customer Obligations.
5.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the TVA Services are accessed or used; (b) submit applicable Customer Data on a daily basis (or such other basis as requested by Tres Solutions) as is necessary or useful for Tres Solutions to perform the TVA Services; (c) submit Customer Data and Customer TVA Analysis to Tres Solutions as soon as technically feasible when Customer has generated such Customer TVA Analysis as contemplated under Section 2.1; (d) download updates promptly to ensure that the TVA Software is fully up to date, as applicable; (e) provide Tres Solutions Personnel with such access to Customer's premises and Customer Systems as and when it is necessary or useful for Tres Solutions to perform the TVA Services, including providing the TVA Support Services; and (f) provide all cooperation and assistance as Tres Solutions may reasonably request to enable Tres Solutions to provide the TVA Services and exercise its rights and perform its obligations under and in connection with this Agreement and the TVA Services.
5.2 Effect of Customer Failure or Delay. Tres Solutions is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement.
6.1 Security Obligations and Customer Systems. Tres Solutions will employ security measures to protect the Customer Data and the TVA Data in accordance with applicable industry practice. Tres Solutions shall maintain the confidentiality of all Customer data, information, reports, analysis and all other materials provided or belonging to Customer, and should not use, distribute or publicize said data without Customer’s written consent.
6.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the TVA Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the TVA Services and TVA Materials, including the TVA Software, directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
6.3 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials in connection with the TVA Services and protect against any unauthorized access to or use of the TVA Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing through the TVA Services.
7. Fees and Payment Terms.
7.1 Fees. Customer shall pay Tres Solutions the fees set forth in the Order (“Fees”) in accordance with the Order and this Section 7.
7.2 Fee Increases. Tres Solutions may increase Fees for any subsequent Term by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of the applicable Term, and Schedule A will be deemed amended accordingly, provided Customer agrees in writing to said Fee Increases.
7.3 Reimbursable Expenses. Customer shall reimburse Tres Solutions for actual out-of-pocket expenses and costs reasonably incurred by Tres Solutions in connection with performing the TVA Services (“Reimbursable Expenses”) for Customer.
7.4 Taxes and Shipping Costs. All Fees and other amounts payable by Customer under this Agreement are exclusive of shipping costs and taxes and similar assessments. Customer is responsible for shipping costs and all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Tres Solutions' income.
7.5 Payment. Customer shall pay all Fees and Reimbursable Expenses in accordance with the Order.
7.6 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Tres Solutions may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Tres Solutions for all costs incurred by Tres Solutions in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
(c) if such failure continues for sixty (60) days following written notice thereof, Tres Solutions may suspend performance of the TVA Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
8. Intellectual Property Rights and Data.
8.1 TVA Services, TVA Materials. All right, title and interest in and to the TVA Services and TVA Materials, including all Intellectual Property Rights therein, are and will remain with Tres Solutions and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the TVA Services or TVA Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or Section 1 or the applicable third-party license, in each case subject to Section 4.3. All other rights in and to the TVA Services and TVA Materials (including Third-Party Materials) are expressly reserved by Tres Solutions and the respective third-party licensors.
8.2 Customer and TVA Data. As between Customer and Tres Solutions, and subject to Section 8.3, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data and TVA Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 3.
8.3 Consent to Use of Customer and TVA Data. Customer hereby grants the right and permission in or relating to Customer Data: (a) to Tres Solutions, its Subcontractors and the Tres Solutions Personnel as are necessary or useful to perform the TVA Services; and (b) to Tres Solutions as is necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
8.4 Improvement Suggestions. Tres Solutions shall own all right, title and interest in any suggestions for improvements or other changes to the TVA Services or TVA Materials made by Customer or any of Customer’s Representatives (“Improvement Suggestions”) and Tres Solutions shall be free to use any such Improvement Suggestions without restriction in any way.
9.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all TVA Materials are the Confidential Information of Tres Solutions, and all Customer Data are the Confidential Information of Customer.
9.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for three (3) years thereafter:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Sections 8.3 and 4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
9.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and if possible, prior to such disclosure, attempt to notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, (a) the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose, (b) on the Disclosing Party's request, and at Disclosing Party’s sole expense shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment and (c) all such Confidential Information shall continue to be treated as confidential under the terms of this Section 9.
10. Term and Termination
10.1 Term. The Initial Term of this Agreement commences as of the Order Effective Date and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect during the Initial Term. Unless otherwise provided in the Order, this Agreement will automatically renew for periods equal to the Initial Term unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then current Term.
10.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Tres Solutions may terminate this Agreement, effective on written notice to Customer, if Customer (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Tres Solutions' delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3 ( Authorization Limitations and Restrictions) or Section 9 (Confidentiality).
(b) a party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) a party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
10.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Customer shall immediately cease all use of any the TVA Services and TVA Materials and promptly return to Tres Solutions, or at Tres Solutions' written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any TVA Materials or Tres Solutions' Confidential Information.
(c) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information unless Disclosing Party requests the return or destruction of Disclosing Party’s Confidential Information in which case the Receiving Party shall immediately return or destroy said Confidential Information, and certify the destruction if requested, and (ii) Tres Solutions may retain Customer Data and TVA Data, in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iii) Tres Solutions may retain Customer Data and TVA Data only for on-going use in accordance with Section 8.3, (iv) Tres Solutions may also retain Customer Data and TVA Data in its backups, archives and disaster recovery systems until such Customer Data is deleted at Customer’s request or otherwise in the ordinary course; and (v) all information and materials described in this Section 2(c) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(d) Tres Solutions may disable all Customer and Authorized User access to the TVA Services and TVA Materials;
(e) if Customer terminates this Agreement pursuant to Section 1(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination.
10.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 4.2, Section 3, Section 7, Section 8, Section 9, Section 10.3, this Section 10.4, Section 11.4, Section 12, Section 13 and Section 15.
11. Representations and Warranties.
11.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
11.2 Additional Tres Solutions Representations, Warranties and Covenants. Tres Solutions represents, warrants and covenants to Customer that Tres Solutions will perform the TVA Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
11.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Tres Solutions that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Tres Solutions and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
11.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1, SECTION 11.2 AND SECTION 11.3, ALL TVA SERVICES AND TVA MATERIALS ARE PROVIDED “AS IS” AND TRES SOLUTIONS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND TRES SOLUTIONS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TRES SOLUTIONS MAKES NO WARRANTY OF ANY KIND THAT THE TVA SERVICES, TVA MATERIALS OR TVA ANALYSIS, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1 Tres Solutions Indemnification. Tres Solutions shall indemnify, defend and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise of or relate from (i) any allegation in such Action that Customer's use of the TVA Services (excluding Customer Data, TVA Data and Third Party Materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right (the “IP Indemnification”); (ii) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or (iii) the negligence or willful misconduct by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this. The foregoing IP Indemnification obligation does not apply to any Action or Losses arising out of or relating to any:
(a) access to or use of the TVA Services or TVA Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by Tres Solutions;
(b) modification of the TVA Services or TVA Materials other than: (i) by or on behalf of Tres Solutions; or (ii) with Tres Solutions' written approval in accordance with Tres Solutions' written specification;
(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Tres Solutions; or
(d) the negligence or willful misconduct by Tres Solutions or its Representatives in connection with this Agreement.
12.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Tres Solutions and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Tres Solutions Indemnitee”) from and against any and all Losses incurred by such Tres Solutions Indemnitee in connection with any Action by a third party (other than an Affiliate of a Tres Solutions Indemnitee) that arise out of or relates to any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Tres Solutions in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or Solutions) provided by or on behalf of Customer or any Authorized User, including Tres Solutions' compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Tres Solutions;
(c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(d) the negligence or willful misconduct by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
12.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12.4 Mitigation. If any of the TVA Services or TVA Materials are, or in Tres Solutions' opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the TVA Services or TVA Materials is enjoined or threatened to be enjoined, Tres Solutions may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the TVA Services and TVA Materials materially as contemplated by this Agreement;
(b) modify or replace the TVA Services and TVA Materials, in whole or in part, to seek to make the TVA Services and TVA Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute TVA Services and TVA Materials, as applicable, under this Agreement subject always to Customer’s written consent; or
(c) if either of the other two (2) options, in the sole opinion of Tres Solutions, are not commercially reasonable, by written notice to Customer, terminate this Agreement with respect to all or part of the TVA Services and TVA Materials, and require Customer to immediately cease any use of the TVA Services and TVA Materials and subject to Customer's compliance with its post-termination obligations set forth in Section 2, Customer will be entitled to a pro-rata (relative to the remaining Term) refund of any Fees paid in connection with the current Term.
THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND TRES SOLUTIONS' SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND TVA MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
13. Limitations of Liability.
13.1 EXCLUSION OF DAMAGES. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A BREACH OF SECTION 3.1, SECTION 4 OR SECTION 9, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF TRES SOLUTIONS AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE TVA SERVICES OR THE TRES MATERIALS OR, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER IN THE TWELVE (12) MONTH PRECEDING THE APPLICABLE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14. Force Majeure.
14.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority.
14.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.1 Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
15.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Tres Solutions may, without Customer's consent, include Customer's name in its lists of Tres Solutions' current or former customers in promotional and marketing materials.
15.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be provided in accordance with the Order.
15.5 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
15.6 Assignment. Customer shall not assign (by operation of law or otherwise) or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Tres Solutions' prior written consent, which consent Tres Solutions shall not unreasonably withhold. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 66 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15.7 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
15.8 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized Representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.9 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.10 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without regard to any conflict of law principles. Any legal suit, action or proceeding arising out of or related to this Agreement, the Tres Solutions Services or the TVA Materials shall be instituted exclusively in the federal or state courts of the United States Harrison County, Texas and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
15.11 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.12 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 4.3 or Section3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
15.13 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its attorneys' fees and court costs from the non-prevailing party.
15.14 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Updated as of 11 May 2017.