Master Services Agreement
Last updated: November 4, 2024
MASTER SERVICES AGREEMENT – STANDARD TERMS AND CONDITIONS
This ComposablAgreement (the “Agreement”) governs the access and use of the Compable Technology on an internal evaluation basis. This Agreement is a legally binding contract between Composabl, Inc, aDelaware corporation with offices at 1212 Broadway Plaza, Ste 2100, WalnutCreek, Ca 94596 (“Composabl”) and the individual, entity, company, or organization entering into this Agreement(the “Licensee”). This Agreement is effective as of the date Licensee enters into this Agreement, including, for example, when Licensee or where Licensee is a company, organization, or entity, the individual entering into this Agreement on Licensee’s behalf, acknowledges the acceptance of this Agreement, (the “EffectiveDate”). If any individual is entering into this Agreement on behalf of Licensee, such individual represents and warrants that he/she has the authority to bind Licensee to this Agreement and agrees to be bound by thisAgreement on behalf of Licensee.
PLEASE READ THE FOLLOWING TERMS OF THIS AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT,” LICENSEE IS ENTERING INTO THIS AGREEMENT AND LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS IN THIS AGREEMENT. If Licensee does not agree to the terms and conditions of this Agreement, Evaluator may not access or use theService.
1.1 “Agent” means a skill-based artificial intelligence autonomous software agent.
1.2 “Authorized User” means an individual employee of Customer or where a contractor of Customer is an individual, the contractor themselves, or where a contractor of Customer is an entity, the individual employee of such contractor, in each case to whomCustomer has authorized access and use of the Composabl Platform.
1.3 “Composabl Platform” meansComposabl’s proprietary web-based platform for creating Agents to be provided pursuant to an Order and any updates thereto made available to Customer.
1.4 “Composabl SDK” meansComposabl’s proprietary software development kit for use with the ComposablPlatform in connection with creating Agents.
1.5 “Composabl Technology”means, collectively, the Composabl Platform, the Composabl SDK, andDocumentation that are provided or licensed to Customer.
1.6 “Documentation” means any user instructions, manuals or other materials, and online help files regarding the use of the Composabl SDK and Composabl Platform that are provided toCustomer by Composabl.
1.7 “Initial Order” means, theOrder to which these Terms are attached.
1.8 “Initial Term” means, with respect to an Order, the initial term set forth in that Order.
1.9 “Order” means a mutually agreed and executed order form referencing and incorporating these Terms, setting forth the additional terms applicable to the particular ComposablPlatform and Composabl SDK provided pursuant to this Agreement.
1.10 “Provided Components” means any software, code or other technology developed or created by Composabl or a third party that is provided or made available to Customer by Composabl through the Composabl Platform or Composabl SDK for the purpose of developing Agents thereon.
2. COMPOSABL TECHNOLOGY
2.1 Composabl Platform. Subject to Customer’s ongoing compliance with the terms of this Agreement (including any additional limitations or restrictions set forth in an Order and timely payment of all applicable fees), Composabl hereby grants to Customer anon-exclusive, non-transferable, non-sublicensable, internal right during the applicable Order Term to allow the number of Authorized Users set forth in the applicableOrder to access and use the Composabl Platform solely for Customer’s internal business purposes in connection with developing Agents for Customer or the customer or clients of Customer (the “Authorized Purpose”).
2.2 SDK and Documentation LicenseGrant. Subject to Customer’s ongoing compliance with the terms of thisAgreement (including any additional limitations or restrictions set forth in the applicable Order and timely payment of all applicable fees), Composabl hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the applicable Order Term to: (i) install theComposabl SDK on computer systems owned or controlled by Customer; (ii) permit the number of Authorized Users set forth in the applicable Order to run, access, or otherwise interact with the Composabl SDK as installed, in accordance with any associated Documentation solely as necessary in connection with the use of the Composabl Platform for the Authorized Purpose; (iii) make only those copies of the Composabl SDK absolutely necessary to exerciseCustomer’s rights under the foregoing (i) and (ii); and (iv) make only those copies of the Documentation reasonably necessary to exercise Customer’s rights hereunder and use any Documentation in connection with Customer’s use of theComposabl Platform and Composabl SDK.
2.3 Restrictions. Customer andAuthorized Users shall not, directly or indirectly, and shall not authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how of, the Composabl Technology, or reconstruct, or discover, any hidden or non-public elements of the Composabl Technology (except to the extent expressly permitted by applicable law notwithstanding this restriction); (ii)translate, adapt, or modify the Composabl Technology, or any portion of any of the foregoing; (iii) write or develop any program based upon the ComposablTechnology in any manner for the purpose of developing, distributing or making accessible products or services that compete with the Composabl Technology;(iv) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in any of the Composabl Technology or any rights to any of the foregoing; (v) export, sell or distribute any content or portion of the ComposablTechnology or use the Composabl Technology for the benefit of any third persons; (vi) use the Composabl Technology for any purpose other than theAuthorized Purpose; (vii) permit the Composabl Technology to be accessed or used by any persons other than Authorized Users; (viii) transmit unlawful, infringing or harmful data or code, or any data or code that Customer is not authorized to transmit, either to or from the Composabl Technology; (ix) alter or remove any trademarks or proprietary notices contained in or on theComposabl Technology; (x) circumvent or otherwise interfere with any authentication or security measures of the Composabl Technology or otherwise interfere with or disrupt the integrity or performance of any of the foregoing;(xi) submit to the Composabl Platform any information that can reasonably be used to identify an individual that constitutes personal data or personally identifiable information, as such terms may be defined under applicable law or custom (other than such information required for the apportionment of AccessCredentials); or (xii) otherwise use the Composabl Technology or any ComposablMaterials (defined below) except as expressly permitted hereunder. Customer acknowledges that Composabl may, but is under no obligation to monitor Customer’s use of the ComposablTechnology. Composabl may suspend Customer’s access to the Composabl Technology for any period during which Customer is, or Composabl has a reasonable basis for alleging Customer is, in noncompliance with the foregoing.
2.4 Third-Party Tools. Customer is solely responsible for maintaining any internet services and connectivity necessary to access and use the Composabl Platform, including to the extent anyCustomer Agent connects with the Composabl Platform for the purposes of tracking and monitoring (“Third-Party Tools”). In particular, Customer acknowledges that a high-speed Internet connection is required at all times in order to use the Composabl Platform properly, and Customer agrees that it will maintain such a high-speed connection throughout the Term. Not withstanding anything to the contrary herein, Composabl will not be responsible for any inability to access or use the Composabl Platform to the extent that such high-speed connection is not in operation. Customer acknowledges that Composabl engages third party solutions and services in connection with the hosting and operating of the Composabl Platform and Composabl shall have no warranty or other obligation with respect to such third party solutions and services.
2.5 Service Levels. Composabl will: (i) make the Composabl Platform available to Customer at least 99% of the time, excluding scheduled maintenance, measured on a rolling six (6) month basis; (ii) prepare and implement a disaster recovery plan intended to restore service within twenty-four (24) hours after any interruption of the ComposablPlatform; and (iii) implement commercially reasonable measures designed to secure the Composabl Platform against unauthorized access to or alteration ofCustomer Materials (defined below); provided that Customer is solely responsible for maintaining the security and operability of its systems and devices used to access the Composabl Platform and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of all CustomerMaterials.
2.6 Authorized Users. EachAuthorized User that Customer authorizes to access and use the ComposablPlatform or the Composabl SDK must use access credentials apportioned by or on behalf of Customer (“Access Credentials”). The number of AuthorizedUsers with active Access Credentials at any given time may not exceed the number of Authorized Users set forth in all Orders hereunder. Customer is solely responsible for all actions performed by the Authorized Users or through use of the Access Credentials. Customer will promptly alert Composabl of anAuthorized User whose Access Credentials should be disabled, due to termination of employment or other reason and of any unauthorized access to or use of theComposabl Platform or Composabl SDK through the use of any Access Credentials.
3.1 Fees.During the Order Term, Customer will pay Composabl all fees of the type and amount and in accordance with the applicable payment schedule set forth in the applicable Order (“Fees”), which may include, without limitation, fees for the Composabl Platform and Composabl SDK (“Subscription Fees”). IfCustomer’s users exceed the number of Authorized Users for which SubscriptionFees have been paid under the applicable Order, then the parties will execute anew Order for the additional users and Customer will pay for such additional use at Composabl’s then-current rates. Except as otherwise expressly set forthin the applicable Order, all Fees are non-cancellable, non-refundable, and non-recoupable.
3.2 Payment Terms. Unless otherwise set forth in the applicable Order, all Subscription Fees will be billed annually in advance, and all invoices for Fees are due and payable inUnited States dollars within thirty (30) days after the invoice date, without deduction or setoff. Interest accrues from the due date at the lesser of 1.5%per month or the highest rate allowed by law.
3.3 Taxes. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Composabl’s net income).
4. PROPRIETARY RIGHTS
4.1 Composabl Intellectual Property.All right, title, and interest, including all intellectual property rights in and to the Composabl Technology and the Provided Components, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information pertaining thereto or included therein, is owned exclusively by Composabl. Nothing in this Agreement shall preclude or restrictComposabl from using or exploiting any concepts, ideas, techniques or know-how included in or related to the Composabl Technology or Provided Components or otherwise arising in connection with Composabl’s provision of the ComposablPlatform and/or Composabl SDK. Composabl may, at any time and in its sole discretion, replace, modify, alter, improve, enhance, or change any of theComposabl Technology or the Provided Components. The licenses to the ComposablTechnology and Provided Components granted hereunder is a license and not a sale, and nothing herein grants or transfers to Customer any title or ownership interest in or to the Composabl Technology or Provided Components or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related to Composabl, the Composabl Technology, or the Provided Components. Composabl may monitor and collect data regarding the use, operation, and performance of the Composabl Platform and Composabl SDK; provided that the foregoing is not a grant for Composabl to access or make use of any Customer Materials. Notwithstanding anything to the contrary herein,Customer acknowledges and agrees that any feedback information that Customer discloses or submits to Composabl regarding the Composabl Technology, theProvided Components or Composabl’s products and services and any information or data that Composabl derives, collects, or observes based on the performance, operation, and use of the Composabl Technology or Composabl Materials may be used or exploited by Composabl to develop and improve the Composabl’s business, products, and services, including the Composabl Technology and the ProvidedComponents.
4.2 Customer Materials.Customer hereby grants Composabl a limited right to use content, information, data, software code and/or other materials submitted by Customer to theComposabl Platform (“Customer Materials”) solely for the purpose of providing the Composabl Platform to Customer hereunder. Composabl is not responsible for the Customer Materials. Customer represents and warrants that it has all necessary right, title, interest, and authorization to submit theCustomer Materials to the Composabl Platform and to grant Composabl the rights and licenses granted with to Customer Materials set forth in this Agreement. As between Composabl and Customer, Customer exclusively owns and retains all rights, title, and interest in and to the Customer Materials. Customer acknowledges and agrees that Composabl is under no obligation to keep, store, maintain, or make available to Customer any Customer Materials is no longer being processed by the Composabl Platform. Customer agrees that Composabl may use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, at any time during or after the Term, any aggregated non-personally identifiable information related to any usage of the ComposablPlatform to operate and improve Composabl’s products and services.
4.3 Customer Agents. As betweenComposabl and Customer, Customer owns and shall retain all right, title, and interest in and to any Agents developed by Customer or Authorized Users using the Composabl Platform or Composabl SDK (“Customer Agents”) with the exception of Provided Components, or any combinations of Provided Components, that are incorporated or embedded in any Customer Agent. Subject to the restrictions on the use of Provided Components set forth herein, Customer can freely use and modify its Customer Agents. Customer acknowledges and agrees that Customer’s creation and ownership of a CustomerAgent does not preclude Composabl or any other user of the Composabl Technology from using the Composabl Platform and/or Composabl SDK to make, create, or useAgents that are the same as or similar to the Customer Agents without use of or access to the Customer Agent and that Composabl or such other users are free to make, create, and use any such Agents. Customer, and not Composabl, is solely responsible for the performance, sufficiency, accuracy, quality, and legality of all Customer Agents. Customer hereby releases Composabl from any liability for any property or personal damage or injury caused by the function, malfunction, or operation of a Customer Agent. Customer acknowledges and agrees that all releases in these Terms applies to unknown claims and hereby waive any protection to which Customer would otherwise be entitled by virtue of the existence of any statute in any jurisdiction that renders null and void releases of any liabilities which are unknown to the releasing party at the time of execution of the release, including California Civil Code Section 1542, which states:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released part.”
4.4 Provided Components.Composabl grants Customer a perpetual, irrevocable, non-exclusive license to use and reproduce Provided Components in object code form only solely as and to the extent incorporated or embedded into the Customer Agents in connection with installing and using Customer Agents on equipment or computer systems. Customer may not, in the absence of a separate agreement with Composabl or the third party holder of sufficient rights to a Provided Component: (i) use or transfer any source code to any Provided Component that is made available to Customer within the Composabl Platform or the Composabl SDK external to the ComposablPlatform or Composabl SDK; (ii) decompile, disassemble, or reverse engineer anyProvided Component, or otherwise attempt to derive any source code, structure, ideas, algorithms, or associated know-how of any Provided Component that is not made available to Customer; (iii) use any Provided Components for the development of any Agents other than through the authorized use of theComposabl SDK or Composabl Platform or, subject to all other restrictions with respect to use of Provided Components, modifications to a Customer Agent in which the Provided Component is incorporated or embedded; (iv) create any derivative works of any Provided Components other than through the authorized use of the Composabl SDK or Composabl Platform, or, subject to all other restrictions with respect to use of Provided Components, through the modification of a Customer Agent in which the Provided Component is incorporated or embedded; (v) copy or reproduce any Provided Components as and to the extent incorporated or embedded in a Customer Agent independent of theCustomer Agent other than as part of a copy or reproduction of the CustomerAgent; or (vi) use any Provided Components incorporated into a Customer Agent independent of such Customer Agent.
5. TERM AND TERMINATION
5.1 Term. The Agreement will start on the Effective Date set forth in the Initial Order and will continue until terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in an Order, each Order will continue until completion of theInitial Term as set forth in that Order, and upon expiration of the InitialTerm, shall automatically renew, except as expressly set forth on the Order, for consecutive periods of the same duration as the Initial Term (each such period with respect to that Order, a “Renewal Term” and all RenewalTerms of an Order together with the Initial Term of that Order, the “OrderTerm”) unless either party provides notice of non-renewal at least thirty(30) days prior to the end of the then-current Initial Term or Renewal Term.Composabl may increase the fees of the Composabl Platform or Composabl SDK, effective at the start of the then-upcoming Renewal Term, by providing written notice at least sixty (60) days prior to the end of the then-current InitialTerm or Renewal Term.
5.2 Termination. Each party may also terminate this Agreement upon written notice in the event: (i) no Orders are in effect between the parties; (ii) the other party commits any material breach of this Agreement or the applicable Order and fails to remedy such breach within thirty (30) days after written notice of such breach; or (iii)subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings, assignment of substantially all its assets for the benefit of creditors, or becoming the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
5.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) Customer’s access to the Composabl Technology, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately; and (iii) Customer shall immediately return, or at Composabl’s request destroy and certify the destruction of any tangible embodiments ofComposabl’s Confidential Information (other than Provided Components incorporated or embedded into Customer Agents), including all copies of theComposabl SDK. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, 2.3, 3 (with respect to Fee amounts due), 4, 5.3, 6, 7, 8, and 9.
6.1 Definition. “ConfidentialInformation” means: (i) any information disclosed, directly or indirectly, by or on behalf of one party (“Disclosing Party”) to the other party (“ReceivingParty”) pursuant to this Agreement that is designated as “confidential,” orin some other manner to indicate its confidential nature; and (ii) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. Without limiting the foregoing, the ComposablTechnology and Provided Components are the Confidential Information ofComposabl, the Customer Materials are Customer’s Confidential Information, and the terms (but not the existence) of this Agreement will be kept confidential as each other party’s Confidential Information. Notwithstanding anything to the contrary herein, Confidential Information does not include any information that: (a) is or becomes generally known and available to the public through no act of the Receiving Party; (b) was already in the Receiving Party’s possession without a duty of confidentiality owed to the Disclosing Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without breach of an obligation owned to the Disclosing Party.
6.2 Use; Maintenance. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement.Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except: (i) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality, or (ii) where the Receiving Party becomes legally compelled to disclose Confidential Information, not withstanding the Receiving Party’s having given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Confidential information (if permitted by applicable law). Each party will take at least reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party, and, in any event, will take at least those measures that it takes to protect its own most highly confidential information.
7.1 By Composabl. Composabl shall: (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Customer’s use as authorized in this Agreement of the Composabl SDK or Composabl Platform during the Term constitutes a direct infringement of any third party intellectual property right (a “Claim”); and (ii) pay any damages awarded in a final judgment(or amounts agreed in a monetary settlement) in any such Claim defended byComposabl; provided that Customer provides Composabl (a) prompt written notice of, (b) sole control over the defense and settlement of, and (c) all information and assistance reasonably requested by Composabl in connection withthe defense or settlement of, any such Claim. If any such Claim is brought or threatened, Composabl may, at its sole option and expense: (w) procure forCustomer the right to continue to use the Composabl Platform or the ComposablSDK; (x) modify the Composabl Platform or Composabl SDK, as applicable, to make it non-infringing; (y) replace the affected aspect of the Composabl Platform orComposabl SDK with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate this Agreement. Notwithstanding the foregoing, Composabl will have no liability to Customer: (1) for any use of the Composabl Platform or Composabl SDK in combination with software, products or services not provided by Composabl; to the extent that the Composabl Platform or ComposablSDK would not be infringing but for such combination or modification; (2) forCustomer’s failure to use the Composabl Platform or Composabl SDK in accordance with this Agreement; or (3) for any Claims related to Provided Components or Customer Materials.
7.2 Disclaimer. SECTION 7.1STATES THE ENTIRE LIABILITY OF COMPOSABL, AND THE EXCLUSIVE REMEDY OF CUSTOMER,WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY COMPOSABL, COMPOSABL TECHNOLOGY, OR PROVIDED COMPONENTS, OR ANY PART THEREOF.
7.3 By Customer.Notwithstanding anything to the contrary in Section 7.1, Customer shall defend or, at its option, settle, any claim brought against Composabl by a third party alleging that the use by or on behalf of Composabl of the Customer Materials in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any laws.Customer will pay all damages finally awarded against Composabl (or the amount of any settlement entered into or approved in writing by Customer) with respect to such a claim. Composabl shall provide Customer with: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim.
8. DISCLAIMER; LIMITATION OF LIABILITY
8.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT (INCLUDING ANY ORDERS STILL IN EFFECT),COMPOSABL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. COMPOSABL DOES NOT WARRANT THAT THE COMPOSABL TECHNOLOGY OR PROVIDED COMPONENTS WILL BE ERROR-FREEOR UNINTERRUPTED, THAT COMPOSABL TECHNOLOGY OR PROVIDED COMPONENTS WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY OR THROUGH THE COMPOSABL TECHNOLOGY OR PROVIDED COMPONENTS WILL BE ACCURATE, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER MATERIALS OR CUSTOMER’S DEVICES. COMPOSABL SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY SOFTWARE, PRODUCTS, OR SERVICES PROVIDED WITH THE COMPOSABL TECHNOLOGY OR PROVIDED COMPONENTS AND FOR THE AVAILABILITY OR CUSTOMER’S USE OF ANY DATA OR INFORMATION STORED ON OR PROVIDED TO THE COMPOSABL TECHNOLOGY OR PROVIDED COMPONENTS.
8.2 Limitation of Liability. INNO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS TERMINATION IN ACCORDANCE WITH SECTION 5.2, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE),PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATIONS OFTHIS SECTION 8.2 WILL NOT APPLY TO LIABILITY ARISING UNDER SECTION 7.1 OR 7.3 OR CLIENT’S INFRINGEMENT OF COMPOSABL’S INTELLECTUAL PROPERTY RIGHTS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
9. GENERAL PROVISIONS
9.1 Assignment. Neither party may assign this Agreement or any of its rights or obligations under thisAgreement without the prior written consent of the other party, except thatComposabl may assign this Agreement without the consent of Customer as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to thisAgreement, or a similar transaction or series of transactions. Subject to thefore going, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
9.2 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.
9.3 Governing Law. ThisAgreement shall be governed by and construed under the laws of the State ofCalifornia without reference to conflict of laws principles. The application ofthe United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. If a lawsuit or court proceeding is permitted under thisAgreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.
9.4 Publicity. Composabl may use Customer’s name as a reference for marketing or promotional purposes onComposabl’s website and in other communication with existing or potentialComposabl customers, subject to any written trademark policies Customer may provide Composabl in writing, with reasonable advanced notice. Neither party will issue any press release or publish or disseminate any white papers, case studies describing the activities taking place under this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld.
9.5 Government Rights.Composabl provides the Composabl SDK and the Composabl Platform, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Composabl Platform and the Composabl SDK shall constitute “commercial” computer software. Government technical data and software rights related to the Composabl Platform and the Composabl SDK include only those rights customarily provided to the public as defined in thisAgreement. These customary commercial licenses are provided in accordance withFAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department ofDefense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) andDFAR 227.7202-3 (Rights in Commercial Computer Software or Computer SoftwareDocumentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Composabl to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
9.6 Dispute Resolution. The parties agree to resolve all disputes arising under or in connection with theAgreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American ArbitrationAssociation (“AAA”). The arbitration will be conducted in English in SanFrancisco, California, USA. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on whichthe decision and award, if any, are based. The costs and expenses of thearbitration will be shared equally by both parties; however, if the arbitratorfinds that either the substance of the claim or the relief sought inarbitration is frivolous or brought for an improper purpose (as measured by thestandards set forth in Federal Rule of Civil Procedure 11(b)), then the paymentof all fees will be governed by the AAA Rules. Notwithstanding the foregoing,this Section 9.6 will not prohibit either party from: (i) bringing anindividual action in small claims court; (ii) seeking injunctive or otherequitable relief in a court of competent jurisdiction; (iii) pursuing anenforcement action through the applicable federal, state, or local agency ifthat action is available; or (iv) filing suit in a court of law to address anintellectual property infringement or misappropriation claim. If thisSection 9.6 is found to be unenforceable, the parties agree that theexclusive jurisdiction and venue described in Section 9.3 will govern anyaction arising out of or related to the Agreement.
9.7 Miscellaneous. Any and allOrders related to this Agreement are hereby incorporated by reference into thisAgreement. In the event of a conflict between these Terms and an Order, theseTerms will prevail unless otherwise expressly stated in such Order. ThisAgreement is the sole agreement of the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter. Customer may not subcontract or delegate any rights or obligations granted to it under this Agreement to any third parties, including its consultants or contractors, without the prior written consent of Composabl, except for those independent contractors and consultants that are AuthorizedUsers pursuant to the terms of Section 2.1. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Composabl to object to such terms. Any ambiguity in this Agreement shall be interpreted without regard to which party drafted this Agreement or any part thereof. There are no third party beneficiaries to this Agreement, and Customer acknowledges that Composabl shall have noobligations or liability whatsoever with any third parties with which Customerdoes business. This Agreement may only be amended by a writing signed by bothparties. This Agreement may be executed in counterparts. The headings in thisAgreement are inserted for convenience and are not intended to affect theinterpretation of this Agreement. Any required notice shall be given in writingby customary means with receipt confirmed at the address of each party setforth above, or to such other address as either party may substitute by writtennotice to the other. Notices will be deemed to have been given at the time ofactual delivery in person, one (1) day after delivery to an overnight courierservice, or three (3) days after deposit in certified mail. The relationshipbetween the parties shall be that of independent contractors. Composabl may usesubcontractors or otherwise delegate aspects of its performance under thisAgreement; provided that, except as expressly set forth herein, Composabl shallremain responsible hereunder for any such subcontractor’s performance. Waiverof any term of this Agreement or forbearance to enforce any term by eitherparty shall not constitute a waiver as to any subsequent breach or failure ofthe same term or a waiver of any other term of this Agreement. Any provisionfound to be unlawful, unenforceable or void shall be severed from the remainderof this Agreement and the remainder of this Agreement will continue in fullforce and effect without said provision. The parties agree to comply with allapplicable export control laws and regulations related to their responsive useof the Composabl Technology and Provided Components.
Contact us
If you have any questions or concerns, please contact us at support@composabl.com.