To be entered into via Order Form (published 11.04.22)
Services: Exos will provide Customer with the services outlined in the Order Form that is subject to these Terms.
Ownership: With respect to the Design and Development services only, to the extent that Exos first creates specifically for Customer any work product, tangible or intangible, that Exos incorporates into any materials delivered to Customer (such delivered materials, the “D&D Materials”), then Exos hereby assigns all right, title and interest in and to such portions of the D&D Materials to Customer, subject to Exos’ reservation of rights in any pre-existing or third party materials incorporated into such D&D Materials, to which Exos hereby grants Customer a non-exclusive, perpetual, royalty-free, worldwide license to use such pre-existing materials as part of the D&D Materials. In addition, Customer hereby grants Exos an irrevocable, nonexclusive, royalty-free, worldwide, perpetual license to exploit the D&D Materials for archival and demonstration purposes.
Term/Termination: The term of the Order Form is set forth therein. Either party may terminate any Order Form for cause (a) upon notice to the other Party of a material breach by the other Party if such breach remains uncured 30 days after the breaching Party’s receipt of such notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors not discharged within 60 days. All terms of these Terms and its corresponding Order Form are intended by their nature to survive such termination, including all payment obligations, indemnities, liability limitations and provisions regarding Confidential Information.
Fees; Expenses; Invoicing. Customer agrees to pay Exos all fees and expenses for the services described in the Order Form (the “Fees”), together with any applicable taxes, within 30 days of presentation of an invoice. Any late payment is a material breach of these Terms, and Exos may charge interest thereon at 1.5% per whole or partial month, or the highest rate allowed by law, whichever is less.
Confidential Information. Recipient will protect Discloser’s Confidential Information from unauthorized use, access or disclosure in the same manner as it protects its own Confidential Information, and with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, Recipient may use Discloser’s Confidential Information solely to exercise its rights and perform its obligations under this Agreement and shall disclose such Confidential Information: (a) solely to the employees and/or contractors who need to know it and who are bound by terms of confidentiality intended to prevent the misuse of thereof; (b) as necessary to comply with any valid court order (provided Recipient first gives Discloser, where legally permitted, an opportunity to oppose such disclosure); or (c) as reasonably necessary to comply with any other applicable law or regulation. The foregoing controls over any non-disclosure agreement of the parties with respect to Confidential Information disclosed following the Effective Date. “Confidential Information” means all information disclosed by a party (“Discloser”) to the other party (“Recipient”) which is in tangible form and designated as confidential, and all information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, but in all cases excluding information that: (a) was already known to Recipient at the time of disclosure; (b) is obtained by Recipient from a third party not under a duty of confidentiality to Discloser; (c) is or becomes available to the public other than by violation of any rights or duty owed to Discloser; or (d) is independently developed by the Recipient without the use of the Confidential Information. Without limiting the foregoing, these Terms and each Order Form are Exos’ Confidential Information. Nothing in this Agreement shall prevent Recipient from using any residual or background knowledge gained arising under this Agreement.
Indemnification: Each party shall indemnify, defend, and hold the other party harmless from and against any third-party claim, demand, suit, or proceeding brought against the other party arising out of or resulting from the first party’s negligence.
Indemnification Conditions: To receive indemnification: (a) the indemnified party must promptly notify the indemnifying party of any claim; provided any delay will not relieve the indemnifying party of its indemnification obligations except to the extent it is prejudiced thereby; (b) the indemnified party will reasonably cooperate with the indemnifying party at indemnifying party’s expense and (c) the indemnifying party will have sole authority to defend or settle any claim; provided the indemnifying party may not settle any claim unless it unconditionally releases the indemnified party of all liability, and provided further that the indemnified party may participate in its own defense at its own expense.
Disclaimer: THE SERVICES ARE PROVIDED “AS IS,” AND NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EXOS DOES NOT WARRANT THAT SUBSCRIBER WILL OBTAIN ANY PARTICULAR RESULTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR VIRUS OR ERROR-FREE.
Limitation of Liability: NEITHER PARTY OR ITS AFFILIATES WILL HAVE ANY LIABILITY UNDER THE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF ANY REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE TOTAL LIABILITY OF EACH PARTY AND ITS AFFILIATES ARISING OUT OF THE TERMS WILL NOT EXCEED THE FEES PAYABLE TO EXOS DURING THE 12 MONTHS PRIOR TO THE FIRST APPLICABLE CLAIM ARISING. SUCH LIMITATIONS APPLY IN THE AGGREGATE TO ALL CLAIMS BY A PARTY AND ITS AFFILIATES, AGENTS AND PRINCIPALS. THE PARTIES ARE RELYING ON THE FOREGOING ALLOCATION OF RISK IN SIGNING THESE TERMS.
No Waiver: No modification, amendment or waiver of any provision of these Terms shall be effective unless it is in a writing signed by both parties either manually or via a third party e-sign platform; provided an Order Form may be amended via email referencing the Order Form. No waiver by either party of its exercise of any right or power under these Terms shall operate as a waiver of any other exercise of such right or power of such party. No delay on the part of either party in exercising any right or power under these Terms shall operate as a waiver thereof.
Governing Law and Jurisdiction: These Terms are governed by New York law. The state and federal courts of New York County, NY are the exclusive venue to resolve any dispute between the parties, and the parties waive any objection that such courts are an inconvenient forum.
