1. ASCENT SERVICES ACCESS AND USE
1.1 Proposals. The Ascent Services to be provided by Ascent under this Agreement will be set forth in one or more Proposals executed by the Parties from time to time during the Term. Each Proposal shall set out any Ascent Wearables or Hardware Units to be provided by Ascent, the costs associated with the use of such Hardware in connection with the Shield Portal, the Refund Period for the Ascent Services, and the Initial Term of the Agreement.
1.2 License to Shield Portal. Subject to the terms and conditions contained in this Agreement, Ascent hereby grants to Buyer a non-exclusive, non- sublicensable, non-transferable right and license to install and use the Shield Portal on the number of Hardware Units set forth on the Proposal and to access and use (and allow Authorized Users to access and use) the Ascent Services through the Hardware and Shield Portal during the Term set forth therein solely for Buyer’s internal business purposes. On or as soon as reasonably practicable after the Effective Date, Ascent shall provide to Buyer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Buyer and its Authorized Users to download the Shield Portal and access the Ascent Services. Buyer and any Authorized Users may only use the Ascent Services in accordance with the Access Protocols.
1.3 Usage Restrictions. Buyer shall not: (a) use any Ascent Services to operate, monitor or control any inherently dangerous application or for any purpose other than its designated purpose, (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Ascent Services are compiled or interpreted, and Buyer acknowledges that nothing in this Agreement will be construed to grant Buyer any right to obtain or use such code; (c) allow third parties other than Authorized Users to gain access to the Ascent Services; (d) rent, lease, loan, or sell access to the Ascent Services to any third party; (e) interfere with, disrupt, alter, translate, or modify the Ascent Services or any part thereof; (f) access the Ascent Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Ascent Services, or (iii) copy any ideas, features, functions or graphics of the Ascent Services; or (g) strip or mine data from the Ascent Services. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Ascent Services or any part thereof. Buyer will ensure that its use of the Ascent Services complies with all applicable laws, statutes, regulations or rules.
1.4 Ownership of Ascent Services. Subject to the rights granted in this Agreement, Ascent retains all right, title and interest in and to the Ascent Services, and Buyer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement or any licenses to the software used to provide the Ascent Services. Buyer further acknowledges that Ascent retains the right to use the foregoing for any purpose in Ascent’s sole discretion.
1.5 User Data.
(a) License to User Data. Buyer hereby grants to Ascent a non-exclusive, royalty-free, sublicensable, worldwide license to store, analyze, reproduce, process, distribute, display, and use the User Data (i) to provide the Ascent Services to Buyer, and (ii) for Ascent’s internal business purposes.
(b) Sharing User Data. Buyer may from time to time elect to share User Data through the Ascent Services with other users of the Ascent Services, and Buyer acknowledges and agrees that (i) Ascent shares such User Data only at Buyer’s direction, and (ii) Ascent shall have no liability to Buyer or any third party in connection with same.
(c) Aggregate Data. Buyer acknowledges and agrees that Ascent may derive, use, and exploit in any manner on a perpetual, irrevocable, basis, any aggregated, de-identified or anonymized data related to any usage of the Ascent Services to operate and improve Ascent’s products and services and to create Performance Data.
(d) No Obligation to Store User Data. Buyer acknowledges and agrees that Ascent is under no obligation to keep, store, maintain, or make available to Buyer any User Data that has been processed by the Ascent Services. It is Ascent’s standard practice to delete all User Data collected by the Ascent Services within seven (7) days of such collection. In the event that Buyer desires access to any User Data collected by Ascent, Buyer agrees to notify Ascent within twenty-four (24) hours of the collection of such User Data by the Ascent Services, and Ascent will use reasonable efforts to preserve or enable Buyer to preserve such User Data.
2. TRAINING SUPPORT
2.1 Training. On or promptly following the Delivery Date, Ascent will provide Buyer with initial training session(s) for Buyer and Buyer’s Authorized Users.
2.2 Support. Subject to the terms and conditions of this Agreement, for one (1) year following the Delivery Date (the “Support Term‘) Ascent shall exercise commercially reasonable efforts to provide Support to Buyer and Authorized Users for the use of the Ascent Services during Ascent’s ordinary and customary business hours in accordance with its standard policies and procedures. Following the Support Term, Buyer may report any issues with the Ascent Services through Ascent’s standard online channels and Ascent will use commercially reasonable efforts to address such issues from time to time.
2.3 Access to Buyer Premises. As a condition of Ascent’s obligations under this Section 2, Buyer shall provide such information and/or access to Buyer premises and resources as Ascent may reasonably require in order to provide Support under this Agreement. Ascent shall be excused from any nonf performance of its obligations hereunder to the extent any such non-performance is caused by Buyer’s failure to perform its obligations under this Section 2.3.
3. BUYER RESPONSIBILITIES
3.1 Authorized User Access to Services. Buyer may permit any Authorized Users to access and use the features and functions of the Ascent Services as contemplated by this Agreement and subject to the terms hereof. Buyer acknowledges and agrees that Authorized Users’ access to the Ascent Services will be conditioned on such Authorized Users’ acceptance of the End User Terms. Buyer will be responsible for all actions or omissions of its Authorized Users. Ascent Wearables cannot be shared or used by more than one Authorized User at a time. Buyer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Ascent Services and shall notify Ascent promptly of any such unauthorized use known to Buyer. Buyer acknowledges and agrees that it may need certain device capabilities, networking capabilities and bandwidth to access and use the Ascent Services. Buyer is solely responsible for all Internet connectivity and bandwidth required to reach the Shield Portal to gain access to the Ascent Services.
3.2 Buyer Responsibility for Data and Security. Buyer shall be responsible for the security of all passwords and other Access Protocols required to access the Ascent Services. Ascent will use industry standard means designed to protect any User Data to which Ascent has access from unauthorized access. Buyer acknowledges and agrees that Ascent will have no obligation to archive or back-up User Data, nor will Ascent have any liability for any loss or corruption of User Data, nor will Ascent have any obligation under this Agreement to retain any User Data after the expiration or termination of the Term, except as set forth herein.
3.3 Third–Party Plugins. The Ascent Services may permit you to link your instance of the Shield Portal with one or more Third-Party Plugins. You represent and warrant that you are entitled under the terms applicable to any Third-Party Plugin to connect your account on such Third-Party Plugin to the Ascent Services and/or to grant Ascent access to your account on the Third-Party Plugin without breach of such terms or without obligating Ascent to pay any fees or otherwise be subject to any usage limitations. By granting Ascent access to any Third-Party Plugin, you understand and agree that Ascent may access, make available, and use any data or information stored in your account in such Third-Party Plugin, and that all such data shall be User Data hereunder. Your relationship with the Third-Party Plugin is governed by the applicable terms of such Third-Party Plugin, not by this Agreement, and Ascent disclaims any liability for all Third-Party Plugins, including for any data provided to Ascent by such Third-Party Plugins.
4. ASCENT WEARABLES AND PURCHASED HARDWARE.
4.1 Purchase of Goods. Buyer desires to purchase, and Ascent agrees to sell to Buyer on the terms set forth herein, the Ascent Wearables and Purchased Hardware set forth on the Proposal. Ascent shall be responsible for delivery of any Ascent Wearables and/or Purchased Hardware to Buyer at the address set forth on the Proposal.
4.2 Warranty for Ascent Wearable. Buyer shall use commercially reasonable efforts to maintain the Ascent Wearable in good operating condition and repair, normal wear and tear excepted. In the event that, during the Warranty Period, Buyer is unable to access or use the Ascent Services as a result of any defect in the Ascent Wearable not arising from Buyer’s willful misconduct, Buyer shall notify Ascent, which will repair or provide a replacement Ascent Wearable at no cost to Buyer within thirty (30) days.
4.3 Purchased Hardware. The Ascent Services do not require the purchase of Hardware through Ascent. If Buyer elects to purchase Hardware from Ascent, Buyer agrees (i) that Buyer shall pay the prices for such Purchased Hardware as set forth on the Proposal, and (ii) that Buyer shall additionally be liable for any subscription fees or other costs set forth on the Proposal or otherwise incurred by Buyer in connection with the Purchased Hardware. Buyer agrees to indemnify and hold Ascent harmless from and against any losses arising from or related to Buyer’s use or misuse of Purchased Hardware.
4.4 Shipping Delivery. Unless otherwise stated on a Proposal, all Hardware ordered by Buyer will be shipped by Ascent within a reasonable time from the date on which the Proposal is accepted by Ascent.
5. FEES AND EXPENSES PAYMENTS
5.1 Fees. In consideration for the access rights granted to Buyer and the services performed by Ascent under this Agreement, Buyer will pay to Ascent, without offset or deduction, all fees required by the Proposal (“Fees“)/Fees (if any) for professional services will be paid at Ascent’s then-current time and materials rates. Except as otherwise set forth herein, all Fees are non-
cancellable and non-refundable.
5.2 Payment. All Fees will be billed annually, unless otherwise agreed by the Parties, and paid in U.S. dollars. If any payment is more than thirty (30) days overdue, Ascent reserves the right to suspect the Ascent Services upon notice to Buyer.
5.3 Excess Usage. Buyer agrees that Buyer will pay for any usage of the Ascent Services in excess beyond that set forth in the Proposal at the rates set forth in the Proposal or, if no such rates are set forth at the Proposal, then at Ascent’s then-current rates. Any such excess usage fees will be billed on the next regular billing date unless otherwise agreed by the Parties,
5.4 Taxes. Buyer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Ascent’s income), and any related penalties and interest for the purchase of Hardware or grant of access rights hereunder, or the delivery of related services, if any. If Buyer is tax exempt, it shall furnish Ascent with evidence of its tax exempt status prior to placing an order for the Ascent Services. Buyer will make all required payments to Ascent free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Ascent will be Buyer’s sole responsibility, and Buyer will, upon Ascent’s request, provide Ascent with official receipts issued by appropriate taxing authorities, or such other evidence as Ascent may reasonably request, to establish that such taxes have been paid.
6. TREATMENT OF CONFIDENTIAL INFORMATION
6.1 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.
6.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (a) to use and disclose Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) 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 know and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
6.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. In addition, 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 first have given written notice to the other Party to the extent permitted under applicable law and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
6.4 Limitation Period. The obligations set forth in this Section 6 shall survive the termination or expiration of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 Mutual. Each Party hereby represents and warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and (b) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
7.2 By Ascent. Ascent represents and warrants that on the Delivery Date the Ascent Wearables will conform in all material respects to the documentation for such Ascent Wearables provided to Buyer by Ascent (the “Documentation”), provided that such warranty will not apply to failures to the extent such failures arise, in whole or in part, from: (i) any use of the Ascent Wearables or Ascent Services other than in accordance with the Documentation; (ii) any combination of the Ascent Wearables or Ascent Services with software, hardware, media or other technology not provided by Ascent under this Agreement (including without limitation any Hardware or Third-Party Plugin); (iii) modifications not performed or authorized by Ascent; (iv) virus, infection, worm or similar malicious code not introduced by Ascent; or (v) abuse, neglect, accident, loss or damage to the Ascent Wearables while in Buyer’s possession. Buyer agrees that Buyer’s sole remedy for any breach of the foregoing warranty is set forth in Section 4.2 (Warranty for Ascent Wearable).
7.3 By Buyer. Buyer represents and warrants that (i) Buyer has all rights in and to the User Data necessary to grant Ascent the rights granted hereunder; (ii) Buyer is appropriately licensed or registered in Buyer’s jurisdiction to use the Hardware in accordance with the Hardware’s label.
8. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY
8.1 Internet Delays. THE ASCENT SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ASCENT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.2 Team Awareness Kit. THE TEAM AWARENESS KIT IS OPEN-SOURCE SOFTWARE DEVELOPED AND MADE AVAILABLE BY A THIRD PARTY, AND IS NOT AN ASCENT SERVICE. FOR THE AVOIDANCE OF DOUBT, NOTHING SET FORTH HEREIN MODIFIES OR ABRIDGES THE TERMS OF THE OPEN-SOURCE LICENSE UNDER WHICH THE TEAM AWARENESS KIT IS MADE AVAILABLE. ASCENT IS NOT RESPONSIBLE FOR THE TEAM AWARENESS KIT, AND YOU USE THE TEAM AWARENESS KIT AT YOUR OWN RISK.
8.3 Beta Services. FROM TIME TO TIME, ASCENT MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ASCENT’S SOLE DISCRETION.
8.4 General Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HARDWARE AND ASCENT SERVICES ARE PROVIDED “AS IS,” AND ASCENT DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.5 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL, PERSONAL OR PROPERTY DAMAGE RESULTING FROM OR IN CONNECTION WITH ASCENT’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR THE INABILITY TO USE THE ASCENT SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF IT HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO ASCENT BY BUYER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH ABOVE SHALL NOT APPLY TO CLAIMS FOR BREACH OF SECTIONS 1.3 OR 6.2, OR INDEMNITY OBLIGATIONS UNDER SECTION 9.
8.6 Essential Basis of the Agreement. Buyer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 8 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, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
9. INDEMNIFICATION
9.1 By Ascent. Ascent agrees to defend, indemnify and hold Buyer harmless from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages awarded to a third party resulting from any claim by that third party that the Ascent Services infringes such third party’s patents, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights, provided that Buyer promptly notifies Ascent in writing of the claim, cooperates with Ascent, and allows Ascent sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Buyer agrees to permit Ascent, at Ascent’s sole discretion, to enable it to continue to use the Ascent Services, as applicable, or to modify or replace any such infringing material to make it non-infringing. If Ascent determines that none of these alternatives is reasonably available, Buyer shall, upon written request from Ascent, cease use of and, if applicable, return such materials that are the subject of the infringement claim. This Section 9 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Ascent Services by any party (including, without limitation, Buyer) other than Ascent, or (ii) combination, operation or use of the Ascent Services with other software, hardware or technology not provided by Ascent, or (iii) use of the Hardware independent of the Ascent Services.
9.2 By Buyer. Buyer agrees to defend, indemnify and hold Ascent harmless from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages awarded to a third party resulting from any claim by that third party arising from or related to a breach of Buyer’s representations and warranties hereunder.
10. TERM AND TERMINATION
10.1 Term. The term of this Agreement will commence on the Effective Date and will continue until the date that is three (3) years following the Delivery Date (the “Initial Term‘), unless earlier terminated in accordance with this Section 10. At the expiration of the Initial Term, this Agreement will automatically renew for up to two (2) successive one- (1-) year terms unless either Party provides written notice of its desire not to renew at least thirty (30) days prior to the expiration of the then-current term (the Initial Term, together with any such renewal terms, collectively, the “Term”).
10.2 Refund Period. During the Refund Period, Buyer may terminate this Agreement for convenience, return the Purchased Hardware and Ascent Wearables purchased hereunder, and receive a refund for any Fees; provided that Buyer shall be liable for (and Ascent shall have no obligation to refund) the costs of (i) any Purchased Hardware or Ascent Wearables that is damaged or destroyed prior to its return to Ascent; or (ii) any Purchased Hardware that cannot be returned to its original seller for any reason.
10.3 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
10.4 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (a) that the other Party becomes insolvent or unable to pay its debts when due; (b) 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; (c) the other Party discontinues it business; or (d) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
10.5 Effect of Termination. Upon any termination of this Agreement, Buyer will (a) immediately discontinue all use of the Ascent Services; and (b) promptly pay to Ascent all amounts due and payable under this Agreement.
10.6 Survival. All provisions of this Agreement that by their nature are intended to survive, including Sections 1.3, 1.5, 5, 6, 8, 9, 10.5, 10.6, and Section 11 shall survive the termination of this Agreement.
10.7 Suspension of Service. If Buyer fails to pay undisputed amounts in accordance with the terms and conditions hereof, the Proposal or any other agreement related, directly or indirectly, to the provision of the Ascent Services to Buyer or such amounts are not timely paid on behalf of Buyer, Ascent shall have the right, in addition to any of its other rights or remedies, to suspend the Ascent Services, without liability to Buyer until such amounts are paid in full.
11. MISCELLANEOUS
11.1 Publicity. Ascent may use Buyer’s name or (department name and logo for marketing and promotional purposes on Ascent’s website and in other communications with existing or potential customers of the Ascent Services.
11.2 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.
11.3 Independent Contractors. In making and performing this Agreement, Buyer and Ascent 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.
11.4 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses set forth in the preamble to this Agreement, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.
11.5 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
11.6 Assignment; Delegation. Buyer shall not assign any of its rights or delegate any of its duties under this Agreement except to an affiliate or subsidiary without the express, prior written consent of Ascent, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
11.7 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
11.8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. 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 whatsoever.
11.9 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.
11.10 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Illinois, without regard to conflicts of law principles thereof. In the event of any disputes arising from or related to this Agreement, the Parties agree to the exclusive venue and jurisdiction of (residing) County, Illinois to resolve such disputes.
11.11 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.
11.12 Force Majeure. Ascent shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of God, fire, strike, embargo, epidemic, pandemic, governmental order, terrorist attack, war, insurrection or riot or any other cause beyond the reasonable control of Ascent. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
12. DEFINITIONS
Certain capitalized terms have the meanings set forth below.
12.1 “Access Protocols” mean the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Buyer or any Authorized Users to download, install, or otherwise access the Ascent Services.
12.2 “Ascent Services” means the services provided by Ascent hereunder, including without limitation access to the Shield Portal, any Ascent Wearables ordered by Buyer hereunder, and any other services provided by Ascent in connection therewith. For the avoidance of doubt, Ascent Services do not include the Team Awareness Kit or any Purchased Hardware.
12.3 “Ascent Wearable” means the visual sensor device compatible with the Shield Portal and designed to be used in connection with a mobile device, and any patches, fixes, updates or upgrades thereto, as well as related Documentation, accessories and parts, as made available by Ascent to Buyer in accordance with these terms.
12.4 “Authorized User” means any individual who is an employee of Buyer or such other person or entity as may be authorized under a Proposal, or authorized, by virtue of such individual’s relationship to, or permissions from, Buyer, to access the Ascent Services pursuant to Buyer’s rights under and in compliance with this Agreement.
12.5 “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or of a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
12.6 “Delivery Date” means the date on which the Ascent Wearables and any Purchased Hardware are delivered to Buyer.
12.7 “End User Terms” means Ascent’s then- standard terms of services for the Ascent Wearable, available at https://ascentitech.com/legal/terms-of-use/ and as may be updated from time to time
12.8 “Hardware” means any mobile phone, tablet, biometric tracking device, or other hardware device compatible with the Ascent Services and Team Awareness Kit and used by Buyer or any Authorized User in connection with the Ascent Services.
12.9 “Hardware Unit’ means a single unit of Hardware, as specified in the Proposal.
12.10 “Open-Source Software” or “OSS” means software released under a “free” or open-source license.
12.11 “Performance Data” means any data derived from or generated by Buyer’s and End Users’ use of the Ascent Service and includes, but is not limited to, performance data and technical information. For the avoidance of doubt, Performance Data does not include any of Buyer’s User Data from which it may be derived.
12.12 “Proposal’ means a document signed by both Parties on Ascent’s standard form and from which these Standard Terms are linked identifying (i) the number of Ascent Wearables to be sold by Ascent to Buyer; (ii) any Purchased Hardware to be purchased by Ascent for Buyer; and (iii) the terms on which Ascent will grant Buyer access to the Shield Portal.
12.13 “Purchased Hardware” means any Hardware purchased by Ascent and provided by Ascent to Buyer hereunder.
12.14 “Refund Period’ means the limited period following the Delivery Date during which Buyer may return the Ascent Wearables and receive a full refund for the Ascent Services ordered under the applicable Proposal.
12.15 “Support” means the provision of in-person, online and/or telephone responses to questions from Buyer related to Buyer’s use of the Ascent Services.
12.16 “Shield Portal’ means any downloadable or SaaS-based software to which the Hardware connects that provides a command center through which departments can view, analyze, and coordinate emergency personnel data during an incident through integrations with the Ascent Wearable, Hardware, and the Team Awareness Kit.
12.17 “Team Awareness Kit’ means the suite of open-source software and related tools and applications for web and mobile that provides geospatial information and allows user collaboration over geography.
12.18 “Third-Party Plugin” means any third-party service, including any third-party incident command platform, that is compatible with the Shield Portal and may be used in connection with the Ascent Services subject to these terms.
12.19 “User Data” means the data collected by the Ascent Services in connection with Buyer’s and Authorized Users’ use of the Ascent Services.
12.20 “Warranty Period’ means the period indicated on the Proposal during which Ascent warrants the Ascent Wearable, as further described herein.