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Except as otherwise set forth herein, by entering into a Virtua Research, Inc. Statement of Work, Virtua and Subscriber identified in the Statement of Work agree to this Virtua Research, Inc. Master Services Agreement which shall govern Subscriber’s access to and use of the Virtua Services selected by Subscriber and identified in the Statemen of Work. In the event; however, that Virtua and Subscriber have entered into a Negotiated Agreement (as defined in the Statement of Work), such Negotiated Agreement will govern Subscriber’s access to and use of the Virtua Services identified in the Statement of Work, and these terms shall be of no force or effect.

In consideration of the mutual covenants set forth herein, Virtua and Subscriber hereby agree as follows:

1. DEFINITIONS.
1.1 “Authorized User” means an individual that Subscriber has authorized to access and use a Service.
1.2 “Documentation” means written technical materials and end-user instructions pertaining to the operation of a Service delivered by Virtua in combination with a Service and any updates to such materials or instructions made available by Virtua.
1.3 “Provided Content” means any and all data, information, files and other materials that Virtua provides in conjunction with a Service or uploads to a Service and provides to Subscriber as part of a Service. Provided Content may originate with Virtua or its licensors or may be gleaned from publicly-available sources such as websites.
1.4 “Service” means any Virtua hosted cloud-based service listed on a Statement of Work.
1.5 “Statement of Work” means a document setting forth the Service(s) ordered by Subscriber, together with the Subscription Term and Fees.
1.6 “Subscription Term” means the time period during which the Services will be made available to Subscriber and shall consist of the Initial Service Term and any renewal of the Service Term as described in Section 11.1 below.
1.7 “Subscriber Content” means any and all data, information, files and other materials that Subscriber causes to interface with a Service, directly uploads to a Service, or provides to Virtua in order that Virtua may upload the data, information, files or other materials to a Service. Subscriber Content may originate with Subscriber or may be provided to Subscriber by a third party. For purposes of this Agreement, Subscriber Content shall not include Provided Content nor shall it include information or materials that may be available from publicly-accessible sources (solely by way of example, company filings with regulatory authorities).
2. ORDERING SERVICES.
2.1 Subscriber may order a Service by submitting a signed Statement of Work in a form supplied by Virtua identifying the Service and the Initial Service Term. Statements of Work are subject to acceptance by Virtua, such acceptance is deemed to occur on the agreed Effective Date of the Statement of Work. The Service selected may be subject to certain usage limitations and other terms and conditions specific to the particular Service as set forth in the Statement of Work.
2.2 Except as otherwise set forth herein, each Statement of Work submitted by Subscriber and accepted by Virtua is incorporated into and is subject to the terms and conditions of this Agreement; provided, however, that in the event of a conflict between the terms contained in the Statement of Work and the terms in this Agreement, the terms in this Agreement shall control.
3. SERVICE DELIVERY.
3.1 Virtua will use commercially reasonable efforts to provide the selected Service(s) in accordance with the Statement of Work. Subscriber agrees that its purchase of Services hereunder is neither contingent on the delivery of future features or functionality nor dependent on any oral or written representations made by Virtua regarding future functionality or features.
3.2 Virtua will use commercially reasonable efforts to make the Services available 24 hours per day, 7 days per week, except for: (a) planned downtime (for which Virtua will endeavor to give reasonable notice and which Virtua will schedule to the extent practical during the hours from 6:00PM Eastern Time to 6:00AM Eastern Time); or (b) any unavailability caused by circumstances beyond Virtua’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or internet service provider failures or delays.
3.3 Virtua represents that it has not intentionally introduced into the Service or any Provided Content any viruses, malware, or other code that is designed to disrupt, interfere with, or destroy software, data, services, or other property.
4. SCOPE OF USE / RESTRICTIONS.
4.1 Subject to the terms and conditions of this Agreement, Virtua grants to Subscriber for the Subscription Term specified in the applicable Statement of Work a worldwide, non-exclusive, non-assignable (except pursuant to a permitted assignee in accordance with Section 14.6 below), non-transferable right to access and use the Service(s) set forth in the Statement of Work (in accordance with the Documentation) solely for its own business purposes.
4.2 Subscriber may access and use the Service(s) and the applicable Provided Content in accordance with this Agreement. Subscriber will adhere to all laws, rules, and regulations applicable to Subscriber’s use of the Service and Provided Content.
4.3 A valid Virtua ID (user name and password) is required to access certain Services. Each Virtua ID allows one Authorized User to access and use a Service. Virtua ID’s are not transferrable to other individuals. Virtua is not responsible for unauthorized access to Subscriber’s account. Subscriber agrees to contact Virtua immediately if Subscriber believes an unauthorized third party may be using Subscriber’s account or if Subscriber’s account information is lost or stolen.
4.4 Subscriber may not sell, transfer, rent, copy (other than for archival or backup purposes), reverse engineer (except as allowed by and in compliance with applicable law), reverse compile, modify or create derivative works of, tamper with, use any Service to conduct a service bureau or similar business for the benefit of third parties, or grant any rights in any Service without Virtua’s prior written consent. Subscriber will not remove any copyright and trademark notices incorporated by Virtua in the Services. Subscriber will not cause or permit others to access or use the Services in order to build or support, and/or assist a third party in building or supporting, software or services competitive to Virtua. If Subscriber performs any benchmarking, testing or competitive analysis utilizing or relating to any Service, the results of such activities shall be deemed to be Confidential Information of Virtua.
5. FEES/PAYMENT.
5.1 The fees for each Service are due net forty-five (45) days from the date of Virtua’s invoice unless otherwise specified in the applicable Statement of Work. All fees are non-refundable, except as may otherwise be expressly provided in this Agreement. All payments shall be made in U.S. dollars and are free from all setoffs.
5.2 If payment is not received by the date due: (a) late payments may accrue interest at the lower of 1.5% per month or the maximum rate permitted by applicable law, from the date such payment was due until the date paid; and/or (b) Virtua may condition future subscription renewals on revised payment terms.
5.3 If any amount owing by Subscriber is 45 or more days overdue, Virtua may, without limiting its other rights and remedies: (i) suspend provision of Services; (ii) suspend Subscriber’s access to the Services; and/or (iii) terminate this Agreement or any Statement of Work in accordance with Section 11.2(a).
5.4 Fees do not include any taxes, levies, duties or similar government assessments including, but not limited to, value-added, sales, use or withholding taxes (collectively, “Taxes”). Subscriber is responsible for paying all Taxes related to Services, excluding taxes based on Virtua’s income. If Virtua has the legal obligation to collect and remit Taxes for which Subscriber is responsible, the amount of such Taxes will be invoiced to and paid by Subscriber.
5.5 The prices set forth in each Statement of Work for the provision of a Service(s) under this Agreement will be adjusted upon each anniversary of the Effective Date of the Statement of Work to the list price in effect at the time of renewal; but, in no event, will the annual fee charged Subscriber increase by more than seven percent (7%) over the cost of the prior annual term. Virtua’s invoice, issued in accordance with Paragraph 11.1 below, will indicate any change in Subscriber’s annual fee.
6. EVALUATION USE; ACCESS TO NON-GA SERVICES.
From time to time, Virtua may invite Subscriber to try, at no charge, Virtua products or services not generally available to Virtua customers (“Non-GA Services”). Subscriber may accept or decline any such trial in its sole discretion. Any Non-GA Services will be designated as beta, pilot, limited release, pre-release, non-production or by a similar description. Non-GA Services are provided for evaluation purposes only and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Virtua may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
7. PRIVACY / SECURITY.
7.1 As further described in Virtua’s Cloud Security Provisions and Compliance Policy which will be provided to Subscriber upon request, Virtua will take reasonable and appropriate technical and organizational measures designed to protect Subscriber Content against unauthorized access, accidental loss or damage and unauthorized destruction.
7.2 To the extent that Subscriber Content includes personal data, Subscriber shall act as the data controller for any and all personal data. Virtua shall act as the data processor on behalf of Subscriber with respect to such personal data and shall carry out the instructions of Subscriber with regard to the collection, processing and protection of such personal data in accordance with this Agreement. Subscriber hereby consents to Virtua’s processing of Subscriber Content, including personal data, if any, for the purposes of carrying out its obligations under this Agreement, and for other lawful purposes in accordance with applicable laws and regulations. Subscriber is responsible for obtaining any required consents from individual data subjects relating to the use of the Services.
7.3 Each party hereby agrees that it will comply with all laws, rules, regulations and orders pertaining to personal information to which it is subject in connection with such party’s activities related to this Agreement. To the extent that each party accesses or comes into possession of personal information, such party agrees to comply with the laws and regulations to which it may be subject as a result thereof. Each party represents and warrants it has taken appropriate technical and organizational precautions to protect all such information from loss, misuse, unauthorized access, disclosure, alteration and/or destruction.
8. PROPRIETARY RIGHTS.
8.1 Subscriber acknowledges and agrees that Virtua and/or its licensors own all legal right, title and interest in and to the Services and any underlying technology used to provide the Services, including any modifications thereto and including any and all intellectual property rights therein, whether registered or not, and wherever in the world they may exist. Subscriber further agrees that the Services and any underlying technology used to provide the Services, contain proprietary and confidential information of Virtua and/or its licensors and incorporate trade secrets of Virtua and/or its licensors protected by applicable intellectual property and other laws. Subscriber agrees not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Services.
8.2 Any software, documentation, reports, designs, specifications, works of authorship and data that are created by Virtua personnel in the course of Virtua’s provision of the Services or implementation of the Services for Subscriber, including computer software, algorithms and related documentation, and all intellectual property rights therein will be owned by Virtua.
8.3 Virtua acknowledges and agrees that Subscriber and/or its licensors own all legal right, title and interest in and to Subscriber Content including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. Except as provided in this Agreement, Virtua obtains no rights from Subscriber or its licensors to Subscriber Content. Subscriber consents to Virtua’s access to Subscriber’s account and Virtua’s use of Subscriber Content, to the extent such access and use is necessary to provide the Service or for purposes of administration related to the Service.
8.4 Subscriber is solely responsible for Subscriber Content. For example, Subscriber is responsible for providing Subscriber Content in a format requested by Virtua and required for use with a Service.
8.5 As part of using a Service, Virtua may provide Subscriber with the opportunity to submit comments, suggestions, ideas, feedback, information or other disclosures regarding Subscriber’s use of a Service (collectively, “Feedback”). Subscriber is not required to provide Feedback, but if Subscriber does so, then Subscriber agrees that Virtua is free to use without restriction (but is not obligated to use) any Feedback Subscriber provides, including without limitation, any ideas, concepts, know-how, or techniques relating to a Service (or any part thereof), for any purpose and without restriction and without any accounting, royalty or other obligation to Subscriber. Virtua will own all right, title and interest in and to the Feedback. Subscriber hereby irrevocably assigns to Virtua all right, title and interest in and to the Feedback and agrees to provide Virtua any assistance it may require to document, perfect, and maintain Virtua’s rights in the Feedback at Virtua’s expense. In the event Virtua elects to implement any such Feedback, it shall do so at its own expense and will not attribute any Feedback to Subscriber.
9. WARRANTIES / DISCLAIMERS.
9.1 Virtua warrants that (a) Virtua has validly entered into this Agreement and has the legal power to do so; and (b) the Service will perform materially in accordance with the Documentation. For any breach of the foregoing warranty, Subscriber’s sole and exclusive remedy shall be to terminate this Agreement pursuant to Section 11.2(a) and obtain a pro-rata refund of the Service fee in accordance with Section 11.4.
9.2 Subscriber warrants that Subscriber has validly entered into this Agreement and has the legal power to do so. Subscriber also represents and warrants that Subscriber has obtained all rights, permissions and consents necessary to use and transfer to Virtua any Subscriber Content within and outside of the country in which Subscriber is located in connection with Virtua’s performance of the Service or Subscriber’s use of the Service.
9.3 THE SERVICES DO NOT CONSTITUTE A RECOMMENDATION TO BUY OR SELL SECURITIES OF ANY KIND. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT NEITHER VIRTUA NOR ITS PROVIDERS: (I) ARE PROVIDING ANY FORM OF LEGAL OR INVESTING ADVICE; AND (II) HAVE UNDERTAKEN ANY LIABILITY OR OBLIGATION RELATING TO THE PURCHASE OR SALE OF ANY SECURITIES. SUBSCRIBER ACCEPTS SOLE RESPONSIBILITY FOR, AND ACKNOWLEDGES THAT IT EXERCISES ITS OWN INDEPENDENT JUDGMENT IN, ITS SELECTION OF ANY SERVICES AND ITS SELECTION AND USE OR INTENDED USE OF THE RESULTS OF SERVICES. ANY RELIANCE ON THE RESULTS OF SERVICES BY SUBSCRIBER IS AT SUBSCRIBER’S SOLE RISK.
9.4 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO SUBSCRIBER. EXCEPT AS SET FORTH IN SECTION 9.1 ABOVE, VIRTUA AND ITS AFFILIATES, SUB-CONTRACTORS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND QUIET ENJOYMENT. IN PARTICULAR (BUT WITHOUT LIMITING THE FOREGOING DISCLAIMER), VIRTUA AND ITS AFFILIATES, SUB-CONTRACTORS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE(S) WILL MEET SUBSCRIBER’S REQUIREMENTS; (II) SUBSCRIBER’S USE OF ANY SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY SUBSCRIBER AS A RESULT OF ANY SERVICE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN ANY SERVICE WILL BE CORRECTED.
9.5 Without limiting the disclaimers set forth in Section 9.4 above, Subscriber understands and agrees that Virtua has no control over Subscriber Content, or the manner in which Subscriber may use any Service to process Subscriber Content. Further, Subscriber acknowledges that certain Services make use of information gleaned from publicly-available data sources (such as, but not limited to, SEC filings, investment conference schedules, and published financial data) and that Virtua has no responsibility for the accuracy or timeliness of such data.
9.6 LIMITATION OF LIABILITY.
9.6.1 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH IN SECTION 9.6.2 BELOW MAY NOT APPLY.
9.6.2 EACH PARTY EXPRESSLY UNDERSTANDS AND AGREES THAT NEITHER PARTY OR ITS AFFILIATES, SUB-CONTRACTORS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE ANY SERVICE OR ANY PORTION THEREOF; (II) ANY CHANGES MADE TO ANY SERVICE, OR ANY TEMPORARY OR PERMANENT CESSATION OF ACCESS TO ANY SERVICE OR ANY PART THEREOF; OR (III) OTHERWISE ARISING UNDER THIS AGREEMENT. NEITHER PARTY’S AFFILIATES, SUB-CONTRACTORS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY DAMAGES SUFFERED BY SUCH PARTY OR ANY THIRD PARTY AS A RESULT OF USING ANY SERVICE. IN NO EVENT, AND UNDER NO THEORY OF LIABILITY, WILL EITHER PARTY’S LIABILITY TO THE OTHER PARTY EXCEED THE SERVICE FEE SUBSCRIBER PAID FOR THE SERVICE THAT GAVE RISE TO THE CLAIM FOR THE PERIOD OF THE INITIAL SERVICE TERM OR RENEWAL SERVICE TERM IN EFFECT AT THE TIME SUCH LIABILITY ACCRUED. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO LIABILITY ARISING FROM: (I) A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; (II) ANY VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY VIOLATION BY SUBSCRIBER OF THE PROVISIONS OF SECTION 4.4 OR 14.2 HEREIN; (IV) VIRTUA’S INDEMNIFICATION SET FORTH IN SECTION 10 BELOW; OR (V) ANY BREACH OF THE PRIVACY OBLIGATIONS OUTLINED IN SECTION 7 OF THIS AGREEMENT OR THE CONFIDENTIALITY OBLIGATIONS OUTLINED IN SECTION 12 OF THIS AGREEMENT; PROVIDED;HOWEVER, THAT IN NO EVENT, AND UNDER NO THEORY OF LIABILITY, WILL EITHER PARTY’S LIABILITY TO THE OTHER PARTY FOR ANY BREACH OF THE PRIVACY OBLIGATIONS OUTLINED IN SECTION 7 OF THIS AGREEMENT OR THE CONFIDENTIALITY OBLIGATIONS OUTLINED IN SECTION 12 OF THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF FIVE HUNDRED THOUSAND (U.S. $500,000.00) DOLLARS.
10. INDEMNIFICATION.
Virtua shall: (a) defend and indemnify Subscriber and its officers, directors, employees and agents from and against all claims and causes of action arising out of an allegation that any Service infringes a third party U.S. copyright, trademark, patent, or other intellectual property right; and (b) pay the resulting cost and damages finally awarded against Subscriber by a court of competent jurisdiction or the amount stated in a written settlement signed by Virtua, provided that Subscriber gives Virtua: (1) prompt written notice of such claim or action; (2) the right to control and direct the investigation, preparation, defense, and settlement of the action; and (3) reasonable assistance and information with respect to the claim or action. If a final injunction is obtained against Subscriber’s right to continue using a Service or, if in Virtua’s opinion a Service is likely to become the subject of a claim, then Virtua may, at its election, either: (a) obtain the right for Subscriber to continue to use the Service; or (b) replace or modify the Service so that it no longer infringes but functions in a materially equivalent manner. If Virtua determines that neither of these alternatives is reasonably available, then Virtua may terminate this Agreement and refund any prepaid unused Service Fees applicable to the infringing Service. This Section 10 shall not apply to infringement or misappropriation claims arising in whole or in part from: (1) designs, specifications or modifications originated or requested by Subscriber; or (2) the combination of the Service or any part thereof with other equipment, software or products not supplied by Virtua if such infringement or misappropriation would not have occurred but for such combination. THE FOREGOING STATES VIRTUA’S ENTIRE OBLIGATION AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY FOR ACTUAL OR POTENTIAL THIRD PARTY INFRINGEMENT CLAIMS OR CAUSES OF ACTION.
11. TERM AND TERMINATION.
11.1 The initial term for a Service will commence upon the Subscription Start Date set forth in the applicable Statement of Work and will continue for the period of time set forth in the Statement of Work (“Initial Service Term”). Virtua will endeavor to invoice Subscriber approximately forty-five (45) days prior to the expiration date of Subscriber’s current term at the renewal fee established in accordance with Section 5.5 above. Upon receipt of payment, Subscriber’s Subscription Term will renew for a term equal in duration to the Initial Service Term and Subscriber’s access to and use of the Service will continue.
11.2 This Agreement or a Statement of Work may be terminated as follows:
- a. Either party may terminate a Statement of Work and/or this Agreement immediately for cause if there is any material default or breach of this Agreement by the other party and the breaching party fails to cure such default or breach within thirty (30) days of receipt of written notice of the default or breach from the non-breaching party.
- b. Either party may terminate a Statement of Work and this Agreement by providing written notice of termination to the other party if the other party has a receiver appointed, or an assignee for the benefit of creditors, or in the event of any insolvency or inability to pay debts as they become due by such party, except as may be prohibited by applicable bankruptcy laws.
- c. Virtua may terminate a Statement of Work and this Agreement immediately upon notice to Subscriber: (i) for cause, if any act or omission by Subscriber results in a suspension described in Section 5.3; (ii) if Virtua’s relationship with a third party partner who provides critical software or other technology Virtua uses to provide the applicable Service(s), terminates or requires Virtua to change the way it provides the software or other technology as part of the Service(s); or (iii) if Virtua believes providing the Service(s) could create a material security risk.
11.3 Upon expiration or any earlier termination of this Agreement or a Statement of Work:
- a. all Subscriber’s rights under this Agreement or the affected Statement of Work immediately terminate;
- b. Subscriber will remain responsible for all fees and charges Subscriber has incurred through the date of termination;
- c. All rights of action accruing prior to termination, payment obligations, and any other terms and conditions of this Agreement which by their nature would naturally survive the termination of this Agreement will continue to apply.
11.4 All fees paid by Subscriber are non-refundable except that if a Statement of Work and/or this Agreement are terminated by Virtua pursuant to and in accordance with Section 10 or by Subscriber pursuant to and in accordance with Section 11.2(a), 11.2(b), or 14.9, Virtua will refund to Subscriber a pro-rata portion of the Service fee paid by Subscriber where such pro-rata portion is calculated based on the remainder of Subscriber’s Subscription Term.
12. CONFIDENTIALITY.
12.1 Confidential Information. As used in this Agreement, "Confidential Information" means all information of either party that is not generally known to the public, whether of a technical, business or other nature, that is disclosed by one party to the other party or that is otherwise learned by the recipient in the course of its activities with the disclosing party, and that has been identified as being proprietary and/or confidential or that the recipient reasonably ought to know should be treated as proprietary and/or confidential. Confidential Information of Virtua also includes the terms, conditions and pricing of this Agreement. Each party shall use the same degree of care as it uses with regard to its own information of like character, but not less than a reasonable degree of care, to hold the other party’s Confidential Information in confidence and not disclose such Confidential Information to anyone other than to its employees, contractors, attorneys, and accountants with a need to know. A recipient shall not reproduce or use such information for any purpose other than as reasonably required to perform pursuant to this Agreement or as reasonably necessary for use of a Service as contemplated by this Agreement. Either party may disclose the existence and nature of the relationship between the parties established hereby, provided it does not disclose any of the specific terms of such relationship.
12.2 Exceptions. The obligations of either party pursuant to this Section 12 shall not extend to any information that: (i) recipient can demonstrate through written documentation was already known to the recipient prior to its disclosure to the recipient; (ii) was or becomes known or generally available to the public (other than by act of the recipient); (iii) is disclosed or made available in writing to the recipient by a third party having a bona fide right to do so; (iv) is independently developed by recipient without the use of any Confidential Information; or (v) is required to be disclosed by process of law, provided that the recipient shall notify the disclosing party promptly upon any request or demand for such disclosure.
12.3 Injunctive Relief. The parties acknowledge that any breach of this Section 12 may cause immediate and irreparable injury to the non-breaching party for which monetary damages may be inadequate, and in the event of such breach, the non-breaching party shall be entitled to seek injunctive relief, in addition to all other remedies available to it at law or in equity.
13. GOVERNMENT USE.
If any Service is being used or acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government’s rights in the Service will be only as set forth herein. Any Service that is software, and related documentation are each a "commercial item" as that term is defined at 48 C.F.R. 2.101; consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Service that is software, and such documentation with only those rights set forth herein. Contract/Manufacturer is Virtua Research, Inc., 160 State Street, 8th Floor, Boston, Massachusetts 02109.
14. MISCELLANEOUS.
14.1 Notices. Any notice under this Agreement must be in writing and sent by certified mail or recognized overnight delivery service to the respective addresses shown on the applicable Statement of Work, and shall be deemed given on the date received or refused by the recipient. Any party may from time to time change such address by giving the other party notice of such change in accordance with this Section 14.1.
14.2 Export Control. Subscriber acknowledges that any Services and Confidential Information provided under this Agreement may be subject to U.S. export laws and regulations. Subscriber agrees that it will not use, distribute, transfer, or transmit the Services or Confidential Information in violation of U.S. export regulations. Without limiting the foregoing: (i) each party warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (ii) Subscriber shall not permit individuals to access or use the Services in violation of any U.S. or United Nations export embargo, prohibition or restriction.
14.3 Usage. Upon request (made by Virtua not more often than once per calendar year unless such inspection reveals non-compliance by Subscriber with applicable quantity and usage restrictions in which event such inspections may be made at the discretion of Virtua), Subscriber agrees to certify its compliance with any applicable quantity and usage restrictions set forth in this Agreement and any Statement of Work, or to allow Virtua or its approved designee to inspect Subscriber’s records to verify such compliance. Virtua may review Subscriber’s usage of the Services to determine Subscriber’s compliance with any applicable quantity and usage restrictions of this Agreement and any Statement of Work. Virtua will promptly notify Subscriber if Virtua (or a Subscriber certification) determines that Subscriber’s usage of the Services exceeds purchased quantities, and if so, Subscriber shall promptly pay additional Fees applicable to such prior over-usage, and either: (i) immediately discontinue any such overuse; or (ii) purchase such additional quantities to cover Subscriber’s actual usage going forward, at the charges set forth in the Statement of Work.
14.4 Applicable Law.
- a. Any litigation or other dispute resolution between Subscriber and Virtua arising out of or relating to this Agreement or Subscriber’s use of the Service(s) will take place in the State of Delaware, and Subscriber and Virtua hereby consent to the personal jurisdiction of, and exclusive venue in, the state and federal courts within the State of Delaware with respect to any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of Delaware, excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; and (iii) the Uniform Computer Information Transactions Act (UCITA) as adopted by any state.
- b. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of, but with notice to, the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or controlling interest. A party’s sole remedy for any purported assignment in breach of this Section 14.6 shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.6 Non Waiver. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
14.7 Relationship of the Parties. Virtua is an independent contractor. The provisions of this Agreement shall not be construed to establish any form of partnership, franchise, agency or other joint venture of any kind between Subscriber and Virtua, nor to constitute either party as the agent, employee or legal representative of the other.
14.8 Public Relations. Subscriber agrees that upon receipt of Subscriber’s written consent, Virtua may use Subscriber’s name and logo in press releases, marketing materials, and on its websites, solely for promotional purposes.
14.9 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control. The impacted party shall provide written notice to the other party of such event describing in reasonable detail the reasons for its non-performance and the time period the occurrence is expected to continue. In the event that the impacted party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 14.11, the other party may thereafter terminate this Agreement upon written notice without penalty or liability and, provided that Virtua is the party unable to perform due to such event, Virtua shall refund to Subscriber any prepaid unused fees (on a pro-rata basis).
14.10 Severability; Cumulative Remedies. Any provision of this Agreement that is unenforceable shall not cause any other remaining provision to be ineffective or invalid.
14.11 Modification of Agreement. Except as set forth herein, no addition to or modification of this Agreement shall be binding on either of the parties hereto unless reduced to writing and executed by authorized representatives of each of the parties.
14.12 Modification of Services. Notwithstanding anything to the contrary in this Agreement, from time to time at its sole reasonable discretion Virtua may make upgrades, changes and/or improvements to the Services, in order to enhance the Services generally and/or remedy any issues with the Services. Notwithstanding the foregoing, except as is required as a result of changes to applicable laws or regulations, Virtua will not modify any Services in any way designed to: (a) materially degrade the Services; or (b) add additional material obligations for Subscriber.
14.13 Survival. All provisions of this Agreement that reasonably may be interpreted or construed as surviving termination of this Agreement shall survive the termination of this Agreement.
14.14 Entire Agreement; English Language Controls. This Agreement comprises all the terms, conditions and agreements of the parties hereto with respect to the subject matter hereof and supersedes all other negotiations, proposals, or agreements of any nature whatsoever, unless otherwise specifically provided. Any contradictory terms and conditions, whether oral or pre-printed, that Subscriber may have provided in connection with a Statement of Work shall be deemed null and void. This Agreement and all Statements of Work, notices, or other documents given or to be given under this Agreement will be written in the English language only.