TERMS AND CONDITIONS

 

1. DEFINITIONS.

In addition to capitalized terms defined elsewhere in this Agreement, the following terms have the meanings given to them below. 1.1 “Application Documentation” means text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions or operation of the Application Service that is provided or made available to Customer by OAI. 1.2 “Application Service” means the modules/functionalities of OAI’s proprietary software described on the Cover Page. 1.3 “Authorized End User” means any person who is authorized by Customer to use the Application Service on Customer’s behalf and for Customer’s internal business purposes. 1.4 “Customer Content” will mean the data regarding Customer’s assets uploaded from Tags or directly input into the Application Service on behalf of Customer.1.5 “SaaS Services” will mean OAI-provided background hosting and storage services for Customer to access and utilize the Application Service via the internet.2. ACCESS AND USE. 2.1 Provision of Access. No ownership of or intellectual property rights in the Application Service are transferred under this Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement, OAI hereby grants to Customer a non-exclusive, non-transferable right to access and use the features and functions of the Application Service (in association with OAI’s proprietary Tags) during the Term, solely for use by Authorized End Users for the internal business purposes of Customer. Customer shall be responsible for all acts and omissions of Authorized End Users, and any act or omission by an Authorized End User which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer. Customer shall undertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User’s use of the Application Service and shall cause Authorized End Users to comply with such provisions. Customer will ensure that each Authorized End User that is not a Customer employee will be bound by a written agreement that provides substantially the same or greater protections for OAI’s Confidential Information, the Application Service and the Application Documentation as are provided by the terms of the Agreement.2.2 Tags. OAI shall supply Tags of the nature, type and amounts subscribed for by Customer. Customer is responsible for placing Tags on desired assets in accordance with any placement recommendations of OAI as may be supplied from time to time. All Tags remain the property of OAI, and are subject to return on demand. Customer is responsible to protect Tags from damage. OAI is willing supply replacement Tags at no extra charge from time to time but reserves the right to charge $5 per replacement Tag if replacement requests are excessive or Customer fails to return Tags promptly as requested. Tags are provided on an as-is basis without any representation or warranty. OAI has the right to supply the Tags to Customer for use with the Application Service, but OA is not their manufacturer and does not represent or warrant the Tags will operate on an uninterrupted or error-free basis or provide any indemnity for Tags. Processing of Customer Content is a function of the Application Service and addressed by other terms of this Agreement; the Tag is just a tool to interface with the Application Service. 2.3 Implementation of the Application Service. Before the Application Service can be used, Tags must be located on Customer assets by or on behalf of Customer and the Application Services must be configured for Customer by OAI. OAI will provide configuration services pursuant to a Work Order. Customer acknowledges that (i) once the Application Service has been initially configured for Customer and accepted by Customer, any change in the data sources used in such initial configuration may negatively affect operation of the Application Service and (ii) the addition or deletion of data sources after such initial `configuration will require additional professional services from OAI, for which Customer which will incur additional fees.2.4 Application Documentation. No ownership of or intellectual property rights in the Application Documentation are transferred under this Agreement. Subject to Customer’s compliance with the terms and conditions of this Agreement, OAI hereby grants to Customer a non-exclusive, non-transferable right to use the Application Documentation solely during the Term for Customer’s internal purposes in connection with its use of the Application Service as contemplated herein.2.5 Usage Restrictions. Customer will not (i) copy or duplicate the Application Service or Application Documentation and any associated software on Tags (except for Customer’s internal training purposes); (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Application Service is compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify the Application Service, Application Documentation, or Tags, or create any derivative product from any of the foregoing, except with the prior written consent of OAI; (iv) provide access to, or use the Application Service for the benefit of, any person or entity other than Customer; (v) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Section 2.1; or (vi) attempt to interfere with operation of the computer systems hosting the Application Service or access applications or user accounts of third parties hosted on such computer systems. Customer will ensure that its use of the Application Service, Application Documentation and Tags complies with all applicable laws, statutes, regulations or rules.2.6 OAI Ownership; Retained Rights. As between the Parties, OAI and its licensors own all right, title and interest, including all intellectual property rights, in and to the Application Service, Application Documentation and Tags. Except as expressly provided herein, OAI and its licensors reserve all rights with respect to the same and Customer shall not have or exercise any such rights not expressly granted. 2.7 Customer Ownership; Retained Rights. As between the Parties, Customer owns all right, title and interest, including all intellectual property rights, in and to the Customer Content. Customer hereby grants OAI and its contractors the right to extract the Customer Content from Customer’s computer systems, and from the computer systems of the customer’s suppliers, in a mutually agreed upon manner and copy, distribute, display, perform, modify and otherwise use the Customer Content as necessary for providing the Application Service to Customer and for performing its obligations and exercising its rights under this Agreement and any Work Order. Except as expressly provided in this Agreement, Customer reserves all rights with respect to the Customer Content and OAI shall not have or exercise any such rights not expressly granted. 2.8 Third Party Access. Customer may enter into an arrangement with a third party whereby such third party will manage or perform other services for Customer (a “Service Provider”). Subject to the terms of this Agreement, OAI will grant such Service Provider the right to use and access the Application Service, provided that such Service Provider (i) only uses the Application Service for the benefit of Customer and in accordance with the terms of the Agreement, and (ii) if requested by OAI, executes a written access agreement permitting such use in the form provided by OAI, and provided further that Customer shall remain responsible to OAI for such Service Provider’s use of the Application Service and compliance with the terms of this Agreement. Upon the Service Provider’s execution of the written agreement referred to in the preceding sentence, the Service Provider’s employees using the Application Service will be deemed “Authorized End Users”. If Customer is authorized to do so and does provide third parties with access to the Application Service, Customer shall be solely responsible for all claims and liabilities resulting from such access or use of the Application Service, and for any breach of the Agreement, by such third parties.2.9 Security. OAI will employ and require its hosting provider to employ commercially reasonable safeguards to protect the Customer Content from authorized access or disclosure.3. CUSTOMER OBLIGATIONS.3.1 Access to Services. Customer is responsible for providing all hardware, software and communication services necessary for Authorized End Users to access the Application Service via the internet. 3.2 Provision of Support to Authorized End Users. OAI (directly or through its “help desk” service provider) will provide technical support as set forth in Schedule A. Other than as required from OAI under Schedule A, Customer will provide all maintenance and technical support services as may be required by its Authorized End Users, with respect to provision of access to, and use of, the Application Service or Tags, and, except with respect to OAI’s obligations under such Schedule A, nothing in this Agreement will be construed to grant Customer or its Authorized End Users any right whatsoever to receive maintenance or technical support services from OAI. 3.3 Assistance to OAI. Customer will, at its own expense, provide assistance to OAI, including, but not limited to, by means of access to, and use of, Customer facilities and Customer equipment, as well as by means of assistance from Customer personnel, to the limited extent any of the foregoing may be reasonably necessary to enable OAI to perform its obligations hereunder, including, without limitation, any obligations with respect to support services performed pursuant to Section 3. Customer shall reasonably cooperate with OAI and timely provide such background information, documentation, access to its personnel or other internal resources, and directions as necessary for OAI to provide the services ordered by Customer. In the event of any failure or delay on the part of Customer in this regard, any timeframe for performance will be equitably adjusted in the event that such failure or delay impedes the performance of OAI, and OAI shall not be in breach of its performance obligations.4. MUTUAL REPRESENTATIONS. 4.1 Mutual Representations. OAI represents and warrants that it owns or otherwise has the right to provide access to the Application Service and Application Documentation as set forth herein. Customer represents and warrants that it owns or otherwise has the right to provide the Customer Content to OAI for use in the Application Services and otherwise as set forth in this Agreement.5. INDEMNIFICATION.5.1 Indemnification of Customer. OAI agrees to (i) defend Customer against any lawsuit by a third party alleging that the Application Service, when used as authorized herein, infringes such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America, and (ii) pay all damages that are finally awarded in judgment or agreed to in settlement thereof; provided, however, that Customer promptly notifies OAI in writing of the claim, cooperates with OAI, and allows OAI sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit OAI, at OAI’s sole discretion, to enable it to continue to use the Application Service or to modify or replace any such infringing material to make it non-infringing. If OAI determines that none of these alternatives is reasonably available, Customer shall, upon written request from OAI, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. This Section 5.1 shall not apply if the alleged infringement or misappropriation arises, in whole or in part, from open source or third party software used in the Application Service or from: (1) modification of the Application Service or Tags by Customer, (2) combination, operation or use of the Application Service with other software, hardware or technology not provided by OAI, or (3) any Customer Content (any of the foregoing circumstances under clauses (i), (ii), or (iii), a “Customer Indemnity Responsibility”). THIS SECTION 5.1 STATES OAI’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION.5.2 Customer’s Indemnity Obligations. Customer agrees to defend OAI against any lawsuit by a third party claiming intellectual property infringement or misappropriation stemming from a Customer Indemnity Responsibility, or caused by Customer’s violation of applicable law or breach of this Agreement or the applicable hosting contractor’s acceptable use policy; and Customer agrees to pay all damages that are finally awarded in judgment or agreed to in settlement thereof; provided, however, that OAI promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim. 5.3 Consent for Settlement. Neither Party shall settle any claim against the other Party without the other Party’s prior written consent, which shall not be unreasonably delayed, withheld or conditioned. 6. TERM AND TERMINATION.6.1 Term. This Agreement commences on the Effective Date on the Cover Page, and this Agreement will continue for a period of one (1) year thereafter (the “Initial Term”), unless earlier terminated in accordance with this Section 6, and will automatically renew for successive one (1)-year terms (each, a “Renewal Term”), and together with the Initial Term, collectively, the “Term”) unless either Party gives written notice of its election not to renew not less than sixty (60) days prior to the expiration date of the then-current Initial Term or Renewal Term or terminates this Agreement earlier as provided herein. Termination of this Agreement automatically terminates any open Work Orders.6.2 Termination. Customer may terminate this Agreement at any time after the first anniversary of the Effective Date, for any reason by providing prior written notice to OAI at least thirty (30) days in advance of such termination. OAI may terminate this in the event the Customer breaches this Agreement and fails to cure the breach within fifteen (15) days written notice thereof from OAI to the Customer. 6.3 Termination Upon Bankruptcy or Insolvency. Either Party may terminate this Agreement upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.6.4 Effect of Termination. Termination of this Agreement for any reason automatically terminates all open Work Orders. Upon any termination of this Agreement, Customer will within not more than thirty (30) days from the date thereof: promptly pay to OAI all undisputed amounts due and payable under this Agreement. 6.5 Survival. The provisions of Sections 2, 5, 6.4, 6.5, 7, 8, 9 and 10 of these Terms and Conditions will survive the termination of this Agreement. 7. LIMITATION OF WARRANTIES AND LIABILITY. 7.1 Disclaimer. THE APPLICATION SERVICE AND ALL PROFESSIONAL SERVICES PERFORMED BY OAI ARE PROVIDED “AS IS,” AND OAI DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. OAI DOES NOT WARRANT THAT THE APPLICATION SERVICE OR ANY OTHER SERVICES PROVIDED BY OAI WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.7.2 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF OAI FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, INDEMNITY OR STRICT LIABILITY, WILL NOT EXCEED FEES PAID OR PAYABLE TO OAI IN THE 12 MONTHS PRECEDING THE CLAIM WITH RESPECT TO THE APPLICATION SERVICE OR PROFESSIONAL SERVICE AT ISSUE. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. 7.3 Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement.7.4 Insurance. OAI will maintain in effect insurance coverage appropriate to its performance of this Agreement, including commercial general liability insurance coverage, but the availability or unavailability of such coverage has no effect on the risk allocation provisions of this Section 7, which form an essential basis for this Agreement. 8. FEES AND EXPENSES; PAYMENTS.8.1 Fees. Customer shall pay to OAI, without offset or deduction, certain fees, in such amounts as may be determined by reference to the Cover Page and confirmed in the applicable Work Order. All such fees shall be due and payable within thirty (30) calendar days after OAI’s invoice date. Monthly Subscription Fees are payable in advance. Any cost estimate set forth in a Work Order is for budgetary purposes only and is not a fixed lump-sum bid. OAI reserves the right to raise fees annually upon notice to Customer and such increases shall be deemed to apply (without any requirement to amend a Work Order) unless Customer elects not to renew its subscription to use the Application Service in accordance with Section 6.1 above. OAI reserves the right to suspend access to the Application Service in the event of non-payment or to address security breaches or breaches of this Agreement. 8.2 Customer Operating Expenses. Customer will bear all expenses incurred by or on behalf of Customer in performance of this Agreement. 8.3 Taxes. Customer will be responsible for payment of any sales, use and other taxes, export and import fees, customs duties and similar charges (other than taxes based on OAI’s income) applicable to any services delivered under this Agreement. 8.4 Subpoena and Related Fees. If OAI is required to provide data or information relating to Customer’s use of services under this Agreement as a result of a subpoena or other legal process in a proceeding to which OAI is not a party, Customer agrees to pay OAI’s standard hourly rates for complying with such requirement and reimburse OAI for all out of pocket expenses and reasonable attorney’s fees incurred by OAI in complying with such requirement. 9. TREATMENT OF CONFIDENTIAL INFORMATION.9.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations, technology, business or personnel of either Party that has been identified as confidential or that by its nature would be regarded as proprietary or confidential by a reasonable person in either of the party’s industries. For purposes of this Agreement, the terms of this Agreement, the Application Service and Application Documentation will be deemed Confidential Information of OAI, and the Customer Content will be deemed Confidential Information of Customer. “Application Service,” “Application Documentation,” and “Customer Content” have the meanings given to those terms above. Customer waives any proprietary or confidentiality interest in any feedback provided by Customer to OAI regarding services under this Agreement, which feedback may be used by OAI in any manner it sees fit and shall be considered to be Confidential Information of OAI and not Customer. 9.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use Confidential Information of the disclosing Party only for the performance of this Agreement or the exercise of rights hereunder; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party except as expressly authorized under this Agreement, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any unauthorized third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and, if not employed by such Party, have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information disclosed by the other Party that is in its possession upon request of the other Party. Notwithstanding the foregoing, Customer agrees that OAI may collect, aggregate and analyze statistical data regarding Customer’s use of the services provided hereunder and provide such statistical data and analysis to third parties, provided that in so doing OAI shall not identify Customer as the source of any specific data.9.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 9.1 and 9.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall (if legally permissible) first have given written notice to the other Party and cooperate with legally permissible efforts of the other Party to obtain a protective order.10. MISCELLANEOUS.10.1 Entire Agreement. This Agreement, its Cover Page, Schedules, Addenda, and Work Orders collectively set forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein. Notwithstanding the foregoing, if the Parties have entered into an agreement relating to the protection of confidential information prior to the Effective Date, then such prior agreement shall continue in full force and effect according to its terms notwithstanding the execution, performance or termination of this Agreement.10.2 Independent Contractors. In making and performing this Agreement, Customer and OAI act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.10.3 Notices. All legal notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid or overnight courier to the Parties at the addresses set forth on the Cover Page, or to such other address as a Party may provide by written notice in accordance with this provision. All notices shall be effective upon receipt.10.4 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.10.5 Assignment; Delegation. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of OAI, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. OAI may subcontract or delegate services under this Agreement to a subcontractor or an affiliate, and this Agreement shall be assignable by OAI as long as the assignee assumes all of OAI’s obligations under this Agreement in writing. 10.6 No Third Party Beneficiaries. the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. 10.7 Severability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable.10.8 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.10.9 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay.10.10 Governing Law; Dispute Resolution. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. THE PARTIES SHALL ATTEMPT IN GOOD FAITH TO RESOLVE PROMPTLY BY NEGOTIATION BETWEEN EXECUTIVES ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. IF SUCH NEGOTIATIONS ARE UNSUCCESSFUL, SUCH DISPUTE SHALL BE SETTLED BY ARBITRATION BY A SOLE ARBITRATOR EXPERIENCED IN INTELLECTUAL PROPERTY AND SOFTWARE DISPUTES AND IN ACCORDANCE WITH THE THEN CURRENT COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (AAA), AND JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR SHALL BE FINAL AND BINDING AND MAY BE ENTERED BY ANY COURT HAVING JURISDICTION THEREOF. THE PLACE OF ARBITRATION SHALL BE SACRAMENTO, CALIFORNIA. THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO AWARD DAMAGES IN EXCESS OF COMPENSATORY DAMAGES OR TO AWARD DAMAGES WAIVED UNDER ANY LIMITATION OF LIABILITIES PROVISION HEREIN, AND EACH PARTY EXPRESSLY WAIVES AND FOREGOES ANY RIGHT TO PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES. THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER COSTS AND REASONABLE ATTORNEY’S FEES. 10.11 Publicity. OAI shall have the right to use Customer’s name and logos in OAI’s marketing materials for the purpose of identifying Customer as a client of OAI only upon the prior written consent of Customer approving said marketing materials. 10.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. Signature pages signed electronically or exchanged as PDFs over email will be considered originals for purposes of this Agreement.10.13 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.10.14 CCPA Clause. To the extent that Customer is subject to the California Consumer Protection Act (CCPA) and provides to OAI as part of the Customer Content or asks OAI to collect “personal information” within the meaning of the CCPA, then OAI agrees not to sell, use or transfer the personal information except as necessary to provide services under this Agreement or return data to Customer under this Agreement or as otherwise permitted under the CCPA. For clarity, de-identified or aggregated data excluded from personal information under the CCPA shall not be “personal information.”10.15 Export Controls. None of the Application Service or underlying information or technology may be downloaded or otherwise exported or re-exported in violation of the laws and regulations of the United States or other applicable jurisdictions.10.16 Restricted Rights. The Application Service is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government are subject to restrictions in sub-paragraph (b)(3) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, as amended and as applicable, and any successor regulations thereto. Manufacturer is OAI (as identified on the Cover Page).

 

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