STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions (“Standard Terms”) govern all Service Agreements (the “Agreement”) between Culturalyst and Client that reference or incorporate by reference these Standard Terms.
1. Definitions; Conflicts. Unless otherwise defined in the Agreement, words and phrases shall have the meaning set forth in these Standard Terms. If any provision of these Standard Terms conflicts with a provision of the Agreement, the latter shall control.
2. Marketing. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date. Client otherwise agrees to reasonably cooperate with Culturalyst to serve as a reference account upon request.
3. Termination.
a. For Cause. Except for the Client’s failure to pay fees, either party may terminate the Agreement for cause upon a material breach by the other party, provided that the non-breaching party provides prompt written notice of such breach. If the breaching party fails to cure such breach within thirty (30) days of receipt of such notice, the other party may, by written notice, terminate this Agreement. If Client fails to timely pay fees due under the Agreement, Culturalyst may, in its discretion, immediately suspend the Services until payment is received and/or terminate the Agreement.
b. For Convenience; Eary Termination Fee. Notwithstanding anything to the contrary, either party may terminate the Agreement without cause at any time upon ninety (90) days’ written notice to the other party; provided, however, if Client seeks to terminate the Agreement without cause, Client first must pay Culturalyst before or with such written notice a fee equal to the amount of fifty percent of the fees due for the remainder of the Term (the “Early Termination Fee”).
c. Post Termination Obligations. Client will pay Culturalyst all fees that are due, or will become due, on or before the effective date of Termination. Upon the termination or expiration of the Agreement, Client’s right to access the Services will end and Culturalyst may no longer make a copy of Client Data available to Client.
4. Payment. There are no refunds for fees paid to Culturalyst. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorney fees and collection costs. Client shall be responsible for all taxes associated with Services, including sales and use taxes, if any.
5. Notices. The parties agree to receive and accept all notices permitted or required under the Agreement via the email reflected in the signature page of the Agreement with a copy of such notice sent via certified mail or common carrier to the address reflected on the signature page of the Agreement. All such notices shall be effective upon sending the notice via email, except if the sender received a notification that the email was not delivered then the notice shall be effective upon depositing the notice with the U.S. Postal Service or common carrier. Either party may update their email address or address upon notice to the other party.
6. Limitations on Use of Services. Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any software used therewith; or remove any proprietary notices or labels.
7. Data Rights. Client shall own all right, title and interest in and to non-public data provided by Client to Culturalyst to enable the provision of the Services (“Client Data”). Client hereby grants to Culturalyst a non-exclusive, perpetual, irrevocable, worldwide, fully paid license to use, reproduce, display, perform, modify, distribute, and create derivative works from the Client Data, as well as any data that is based on or derived from the Client Data and/or provided to Client as part of the Services. Culturalyst shall exclusively own and retain all right, title and interest in and to (a) the Services, the software used to enable the Services, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation Services or support, and (c) all intellectual property rights related to any of the foregoing (other than Client Data).
8. Analytics. Notwithstanding anything to the contrary, Culturalyst shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Culturalyst will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Culturalyst offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.] No rights or licenses are granted except as expressly set forth herein.
9. Service Levels and Support. The Services shall be available 98%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Client requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Culturalyst’s control will also be excluded from any such calculation. Notwithstanding the foregoing, Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Culturalyst or by third-party providers, or because of other causes beyond Culturalyst’s reasonable control, but Culturalyst shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Culturalyst will provide Technical Support to Client via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Central Standard Time, with the exclusion of Federal Holidays (“Support Hours”). Client may initiate a helpdesk ticket during Support Hours by emailing info@culturalyst.com. Culturalyst will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
10. DISCLAIMER OF WARRANTIES. CULTURALYST DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES CULTURALYST MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND CULTURALYST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, CULTURALYST AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND CULTURALYST’S REASONABLE CONTROL; OR (D) FOR ANY DIRECT DAMAGES THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO CULTURALYST FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CULTURALYST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Choice of Law; Dispute Resolution. Before either party files or initiates any petition, complaint, claim, controversy, suit, action, cause of action, or other similar legal proceeding (“Dispute”), the complaining party must first submit the subject matter of the Dispute to mediation by giving the other party written notice. Unless both parties agree otherwise, the mediation will be conducted in accordance with the American Arbitration Association (“AAA”) Commercial Mediation Rules then in effect. The mediation will take place in Orleans Parish, Louisiana. This Agreement and all matters arising out of or relating to this Agreement or the Services, including any Disputes between the parties, whether arising in contract, tort, statute, regulation, or otherwise, shall be governed by, construed, interpreted, and enforced in accordance with the substantive and procedural laws of the State of Louisiana, without giving effect to its conflict of laws provisions, regardless of where any action may be brought. Furthermore, if such a Dispute is not successfully resolved by mediation within 45 days of commencement thereof, the parties each irrevocably agree that such Dispute shall be resolved on an individual basis exclusively in the Civil District Court for Orleans Parish in the State of Louisiana. Client irrevocably consents to the exclusive personal jurisdiction of such court and hereby waives any and all objections to the exercise of jurisdiction by such court, including any claim that any Dispute (including any tort claim) has been brought in an inconvenient or improper forum or venue. Notwithstanding anything to the contrary in this Agreement, the parties agree that Culturalyst may commence and maintain an action or proceeding seeking injunctive or other equitable relief in any court of competent jurisdiction. In the event a court rules that the litigation requirements under this paragraph are not enforceable, the Dispute shall be resolved by arbitration. The arbitration will be conducted in Orleans Parish, Louisiana, in accordance with the Rules of AAA in force at the time of the referral to arbitration. The tribunal shall consist of one arbitrator.
13. Other Provisions. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Culturalyst’s prior written consent. Culturalyst may transfer and assign any of its rights and obligations under this Agreement without Client’s consent. The Agreement, including all exhibits and these Standard Terms, is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications of any provision of the Agreement must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Client does not have any authority of any kind to bind Culturalyst in any respect whatsoever.
