END USER AGREEMENT
This End User Agreement (“Agreement“) is a binding legal document between Findability Sciences and you, which explains your rights and obligations as an End User of Findability Sciences products. “End User” means either (a) you as an individual or (b) your company, if you are using Findability Sciences products in your capacity as an employee or agent of a company. You identify the specific “End User” during the registration process. “Findability Sciences” means Findability Sciences LLC having offices at 303, Wyman St. Ste 300, Waltham, MA 02451
- By allowing the “I Agree to the terms and conditions of the End User Agreement” box to remain checked, or by installing or using any Findability Sciences products, End User agrees to be bound by this Agreement. If you do not agree to this Agreement, then uncheck the “I Accept” box and do not install or use Findability Sciences products.
- From time to time, Findability Sciences may modify this Agreement, including any referenced policies and other documents. Any modified version will be effective at the time it is posted. To keep abreast of your license rights and relevant restrictions, please bookmark this Agreement and read it periodically. By using any Product after any modifications, End User agrees to all of the modifications.
- Introduction to Findability Sciences’s Products and License Terms.
1.1 What’s Included in “Software”. Findability Sciences offers many different software products. “Software” means any Findability Sciences product that End User orders from Findability Sciences (or an Findability Sciences Partner, as described below) and downloads from Findability Sciences. The term also includes (a) related documentation, (b) any Updates (defined below) to the Software, and (c) any add-ons, plug-ins, APIs or Internet-based components of the Software provided by Findability Sciences (but not third parties) (“Supplementary Software“). End User’s detailed rights to use Software are in Section 2 below.
1.2 What’s Included in “Hosted Services”. “Hosted Services” include any Findability Sciences online services products that End User orders, which can include “OnDemand” versions of many Findability Sciences Software products, and other online services provided by Findability Sciences. “Hosted Services” always means the version of the Hosted Services as described in Findability Sciences’s then-current product descriptions. End User’s detailed rights to use Hosted Services are in Section 3 below.
1.3 The “Products”. This Agreement uses “Products” to refer to the Software and/or the Hosted Services.
1.4 Findability Sciences’s Maintenance Offerings. For additional fees, Findability Sciences offers “Maintenance” to End Users. Maintenance includes (1) any generally released updates, upgrades, patches, and bug fixes for the Software (“Updates“) when and if generally released at Findability Sciences’s sole discretion, (2) web-based support and phone support (depending on End User’s support level), and (3) other support features.
1.5 Limits on Authorized Users. When buying a license to the Software or a subscription to the Hosted Services, End User pays fees for a specific number of users, which are counted based on number of then-authorized users for Software and number of seats or logins for Hosted Services (“Authorized Users“). End User designates Authorized Users through the Products. Authorized Users may include End User’s employees, representatives, consultants, contractors, agents, and Customers (note: detailed rules for Customers in Section 4.4 below). End User may add Authorized Users for additional fees. End User is responsible for all use of the Products by its Authorized Users and their compliance with this Agreement.
1.6 Purchase through “Findability Sciences Partners” (Resellers). Fees are payable directly to Findability Sciences as described in Section 5 (Fees and Payment) below unless End User ordered the Products from an Findability Sciences authorized reseller (“Findability Sciences Partners“). If End User ordered Products from an Findability Sciences Partner, then the sections of this Agreement referring to orders with Findability Sciences or payments to Findability Sciences do not apply for those Products. Instead, End User agrees to pay the Findability Sciences Partner the fees separately agreed with the Findability Sciences Partner. No Findability Sciences Partner may change the terms of this Agreement (but they may impose additional restrictions on use of the Products). No promises, warranties or agreements by Findability Sciences Partners are binding on Findability Sciences.
- License to Use Findability Sciences Software.
2.1 Software, Generally. Findability Sciences grants End User a worldwide, non-exclusive, non-transferable, non-sublicenseable right to use the Software, subject to the terms and conditions of this Agreement. Software licenses are recurring, time-limited as described in this Agreement. Only Authorized Users may use the Software, and only up to the permitted number of concurrent Authorized Users (except for Non-Production Purposes, as described below). All use of Software must be in accordance with the relevant Findability Sciences documentation and policies. End User may make a limited number of copies of the Software as is strictly necessary for purposes of data protection, archiving, backup, and testing and internal development (e.g., of End User Modifications or End-User Plug-ins, as defined below, but not development of End User’s unrelated products or services) (“Non-Production Purposes“). For clarity, End User’s employees and contractors may use the Software for these Non-Production Purposes, and End User will be responsible for their compliance with this Agreement on all the same terms as for Authorized Users, except that these users will not count against End User’s limit of Authorized Users, and End User will not need to pay additional fees for these users. Unless Findability Sciences agrees otherwise in writing, End User may only install, use or make available the Software on End User’s hardware systems, whether owned, leased or controlled. End User will be responsible for any use of the Software on any hardware systems not owned, leased or controlled by End User (“Uncontrolled Systems“).
2.2 Updates and Supplementary Software. The terms for Software in this Agreement apply to any Updates and Supplementary Software, unless Findability Sciences provides different terms.
2.3 Open Source Software. The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software“). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including any provisions governing access to source code, modification or reverse engineering.
2.4 Evaluation Software. This paragraph applies to any Software that Findability Sciences makes available on an evaluation basis (“Evaluation Software“). End User may only use the Evaluation Software for internal evaluation purposes for the period specified by Findability Sciences (or, if not specified, for 30 days), and may only permit a limited number of users (specified by Findability Sciences) to access the Evaluation Software. After the evaluation period, End User must delete all copies of the Evaluation Software. End User acknowledges that Evaluation Software may not be fully functional. Notwithstanding anything else in this Agreement, Findability Sciences does not offer any warranty, indemnity or support for any Evaluation Software.
2.5 Source Code. Findability Sciences may provide some elements of Software in source code form (“Source Code“). Unless otherwise specified, End User may modify Source Code solely to develop bug fixes, customizations, and additional features (“End User Modifications”) and, notwithstanding anything else in this Agreement, may only use End User Modifications internally for purposes of using the Software licensed from Findability Sciences. Findability Sciences will have no support, warranty, indemnity or other obligations relating to, and assumes no liability for, any End User Modifications or any effect they may have on the operation of the Products.
2.6 IP Protection Mechanisms. The Software has license protection mechanisms designed to manage and protect Findability Sciences’s and its suppliers’ and licensors’ intellectual property rights. Whether using Source Code or not, End User must not modify or alter these mechanisms or try to circumvent them or the usage rules they are designed to enforce.
- Use of Findability Sciences Hosted Services.
3.1 Access Rights. End User may access and use the Hosted Services during the applicable Subscription Term (defined below), subject to the terms and conditions of this Agreement. Only Authorized Users may use the Hosted Services, and only up to the permitted number of Authorized Users. All use of the Hosted Services must be in accordance with the relevant Findability Sciences documentation and policies.
3.2 Subscription and Renewals. End User selects its initial subscription term, which may be a month, quarter, year, or other mutually agreed period, at the time of order. Once that term expires, it will automatically renew for successive terms of the same period (but no longer than 1 year each) unless either End User or Findability Sciences notifies the other of non-renewal at least 5 business days prior to the upcoming expiration date or Findability Sciences ceases to make a particular Hosted Service available. Renewals are charged at Findability Sciences’s then-current rates unless otherwise agreed. “Subscription Term” means the initial term and any renewal term(s).
3.3 Evaluations. For evaluations of Hosted Services, the “Subscription Term” does not apply. Instead, the evaluation period is specified by Findability Sciences. Findability Sciences may notify End User of the remaining number of days through the Hosted Services. Notwithstanding anything else in this Agreement, Findability Sciences does not offer any warranty, indemnity or support for any Hosted Services offered on an evaluation basis.
3.4 End User Data. Unless otherwise specified, End User retains ownership of any data or other content or information that End User provides through the Hosted Services (as described below) (“End User Data“). End User’s use of the Hosted Services and all End User Data must comply with End User’s own privacy policies and all domestic, foreign and international laws and regulations, including those relating to data privacy, international communications, and the exportation of technical or personal data. End User is solely responsible for the accuracy, content and legality of all End User Data. End User agrees not to submit any content that is obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, that encourages conduct that would be considered a criminal offense or give rise to any civil liability. End User will not submit any material (including any virus, bot, worm, scripting exploit or other harmful code) that is likely to harm or corrupt the Hosted Services or any computer systems or data. End User represents and warrants to Findability Sciences that it has sufficient rights in the End User Data to grant the rights in this section and that the End User Data does not infringe the rights of any third party. End User agrees that Findability Sciences may, in its sole discretion, delete or remove any End User Data at any time and with or without notice.
End User hereby grants Findability Sciences a non-exclusive license to copy, distribute, perform, display, store, modify, and otherwise use End User Data in connection with operating the Hosted Services.
Findability Sciences may also use aggregate information to measure general Hosted Service usage patterns and characteristics of its user base and otherwise to improve its products and services, and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it will be not traceable to a specific recipient or user email address.
3.5 Return of End User Data. After termination or expiration of a Subscription Term or this Agreement, unless it was for End User’s breach, at End User’s request, Findability Sciences will use reasonable efforts to make available the End User Data for download. If made available, End User must download the End User Data within 30 days of termination or expiration. After that, Findability Sciences may delete the End User Data.
3.6 End User Responsibility for Systems. End User is responsible for its own Internet connection and must use software, systems and equipment compatible with the Hosted Services, as Findability Sciences specifies in its published policies. Any End User web browsers and other software must support the Secure Socket Layer (SSL) protocol. Findability Sciences is not responsible for any End User Data lost, altered, intercepted or stored across networks not owned or operated by Findability Sciences.
- Important Customer Obligations
4.1 Accounts and Passwords. End User will provide accurate, current and complete information when registering with Findability Sciences and ordering Products and agrees to update its information if it changes. This is important, because Findability Sciences may send notices, statements and other information to End User by email or through End User’s account (for Hosted Services). End User will keep all its Authorized Users’ passwords and usernames confidential and will not share them with third parties. End User is responsible for all actions taken through its accounts.
4.2 Use by End User’s Customers. End User’s customers (“Customers“) may be Authorized Users. End User will be responsible for Customers the same as any other Authorized User and must enter into valid, binding agreements with Customers consistent with this Agreement, including the additional conditions below. A Customer’s permitted use of Products under this Agreement is called “Customer Use“.
In addition to all other terms in this Agreement, the following conditions apply to Customer Use:
(a) End User may not distribute or make available any Product on a standalone basis. Instead, End User may only make available the Product to Customers in order to support Customers’ use of content and features that are part of End User’s own existing offerings.
(b) End User may not resell or OEM the Product or otherwise charge Customers for use of the Product itself, but may charge End Users as part of an overall program that includes access to End User content or features as supported by the Product. Example: A paid support offering that includes, as a minor component, access to the support forum.(c) Customers may interact with the Product, but may not receive any administrator, configuration or similar access to the Product. (d) In making available Products to Customers, End User may not violate any other term or condition in this Agreement, such as reverse engineering and anti-circumvention restrictions.
Findability Sciences will not have any direct or indirect liability or obligation to any Customers, and Customers do not acquire any rights under this Agreement.
Findability Sciences understands that Product usage may be flexible and that End Users may identify new proposed uses for the Products. If End User has questions about whether a proposed use complies with these rules, please contact Findability Sciences at sales@Findability Sciences.com.
4.3 Conditions on Use of Products. End User will not, and will not allow any Authorized User or other third party to: (a) resell, assign, rent, give, transfer, pass title to, lease, copy, provide access to or sublicense (including without limitation on a timeshare, subscription service, hosted service or outsourced basis) any Product to any third party (for use in its business operations or otherwise) or anyone else besides Authorized Users (including Customers) in accordance with this express terms of this Agreement, or permit anyone besides Authorized Users to use any data or information not owned by End User that is generated by the Products (and, in the event End User grants any security interest in any Products, the secured party has no right to use or transfer the Products); (b) use any Product to provide, or incorporate any Product into any product or service provided to, a third party, except as expressly permitted above for Customer Use; (c) reverse engineer, decompile, disassemble, decipher, decrypt, or otherwise seek to discover or obtain the source code or non-public APIs to Products (including any data structure or similar materials produced by the Products), except to the extent expressly permitted by applicable law despite this prohibition (and then only upon advance notice to Findability Sciences); (d) modify, adapt or create derivative works of a Product (excluding End User Modifications); (e) remove or obscure any proprietary or other notices of Findability Sciences or any third party contained in any Product (including any information or data generated by the Products); (f) publicly disseminate information regarding the performance of Products; (g) use any Product for commercial solicitation purposes or spam; (h) use the Findability Sciences name or any Findability Sciences trademarks or logos except as permitted in Section 4.4 (Attribution); or (i) commit any act or omission that could result in damage to Findability Sciences’s or its suppliers’ or licensors’ reputations. End User will not attempt to do any of the foregoing, encourage others to do so, or otherwise attempt to bypass or circumvent any usage restrictions in this Agreement.
4.4 Attribution. In any use of the Software, End User must include the following attribution to Findability Sciences on all user interfaces in the following format: “Powered by Findability Sciences”, which must in every case include a hyperlink to http://www.Findability Sciences.com/, and which must be in the same format as delivered in the Software.
4.5 Indemnification. End User will indemnify, defend and hold harmless Findability Sciences from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any breach by End User (including any Authorized Users) of this Agreement, (b) any End User Data, (c) any End User Modifications or other modifications of or combinations with a Product, or any service or product offered by End User in connection with or related to a Product, (d) any Uncontrolled Systems, or (e) any representations or warranties made by End User (including any Authorized User) regarding a Product to third parties. This indemnification obligation is subject to End User receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for End User to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim, provided that Findability Sciences may participate in the claim at its own expense and End User may not settle any claim without Findability Sciences’s prior written consent; and (iii) all reasonable necessary cooperation of Findability Sciences at End User’s expense.
- Fees and Payment
5.1 General. End User must pay all fees by their due date specified at the time of order or otherwise within 30 days of Findability Sciences’s invoice or notice. Renewal fees for Hosted Services will be charged as described in Section 3.2 (Subscription and Renewals). End User acknowledges that it is not relying on the future availability of any Products (including any Embedded Software) in agreeing to or making its payments hereunder.
5.2 Taxes. Payments made by End User under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Findability Sciences, End User must pay to Findability Sciences the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, End User may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, End User will have the right to provide to Findability Sciences with any such exemption information and Findability Sciences will use reasonable efforts to provide such invoicing documents as may enable End User to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
- Findability Sciences’s Ownership Rights; Feedback
Findability Sciences and its licensors reserve all rights not expressly granted to End User in this Agreement. The Products (including any content or information contained therein) and all copies thereof are protected by copyright and other intellectual property laws and treaties. Findability Sciences or its licensors own the title, copyright, and other intellectual property rights in the Products and all copies, modifications and derivative works of the Products and underlying software (including any incorporating Feedback) (“Findability Sciences Technology“), and End User does not acquire any ownership rights in Findability Sciences Technology. All Products are licensed, not sold.
“Feedback” means any feedback, comments, suggestions or materials (including, to the extent disclosed to Findability Sciences, any End User Modifications) that End User may provide to Findability Sciences about or in connection with the Products, including any ideas, concepts, know-how or techniques contained therein. End User may provide Feedback in connection with Maintenance and otherwise. End User hereby grants Findability Sciences a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the Products. End User agrees that Findability Sciences may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed End User’s Confidential Information, and nothing in this Agreement (including Section 7 (Confidentiality)) limits Findability Sciences’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Except as otherwise set forth in Section 6 (Findability Sciences’s Ownership Rights; Feedback) above, each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party“) from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Findability Sciences Technology, performance information relating to the Products, and the terms and conditions of this Agreement shall be deemed Confidential Information of Findability Sciences without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
This Agreement will continue so long as End User has a license to the Software or an ongoing Subscription Term for the Hosted Services, unless earlier terminated. Findability Sciences may suspend or terminate this Agreement and End User’s account, with respect to one or more of the Products, if End User fails to comply with the terms and conditions of this Agreement, including any failure to pay fees when due. Findability Sciences may terminate any free account or evaluation usage at any time in its sole discretion.
End User may terminate this Agreement at any time with notice to Findability Sciences.
Immediately upon termination of any license or subscription right granted under this Agreement, End User’s license to Software and Hosted Services will cease, and End User must at its own cost: (a) cease using (and require all Authorized Users, and anyone else to cease using) all the terminated Products; (b) remove all copies of Software from its computer systems and any Uncontrolled Systems; and (c) return to Findability Sciences all Software or provide Findability Sciences with written certification that it has destroyed all copies of the Software and other Findability Sciences Confidential Information in its possession, custody or control. Upon termination of this Agreement for whatever reason, End User will not be entitled to credits or refunds for any unused portion of this Agreement, including but not limited to unused maintenance and support.
- Warranties; Disclaimers of Warranties
9.1 General. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if End User is an entity, this Agreement and each order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
9.2 DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, FINDABILITY SCIENCES PROVIDES THE PRODUCTS (INCLUDING THE HOSTED SERVICES, SOFTWARE AND ANY MAINTENANCE) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE. WITHOUT LIMITING THE FOREGOING, FINDABILITY SCIENCES MAKES NO REPRESENTATION, WARRANTY OR GUARANTY (1) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, (2) THAT (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE PRODUCTS WILL MEET END USER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY END USER THROUGH THE PRODUCTS WILL MEET END USER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGIONG, TO THE MAXIMUM EXTENT PERMITTED BY APPLICBLE LAW, FINDABILITY SCIENCES MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO, AND ASSUME NO LIABILITY FOR, ANY PRODUCTS PROVIDED ON AN EVALUATION BASIS. IN ADDITION, FINDABILITY SCIENCES SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FINDABILITY SCIENCES.
END USER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
10.Limitation of Liability
10.1 MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO AMOUNTS PAYABLE TO THIRD PARTIES PURSUANT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS IN SECTION 4.5OR END USER’S BREACH OF ANY LICENSE OR USE RESTRICTIONS RELATING TO THE PRODUCTS, NOTWITHSTANDING ANY DAMAGES EITHER PARTY MIGHT INCUR FOR ANY REASON WHATSOEVER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF EITHER PARTY TO THIS AGREEMENT UNDER ANY PROVISION OF THIS AGREEMENT AND THE OTHER PARTY’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE ACTUAL DAMAGES SUCH PARTY INCURS, UP TO THE AMOUNT ACTUALLY PAID BY END USER FOR (A) SUCH SOFTWARE, DEPRECIATED ON A THREE-YEAR STRAIGHT LINE BASIS, OR (B) SUCH HOSTED SERVICE IN THE LAST TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EMBEDDED SOFTWARE LICENSORS WILL NOT BE LIABLE TO END USER FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT DAMAGES OR THE TYPES OF DAMAGES DISCLAIMED IN SECTION 10.2 BELOW.
10.2 OTHER DISCLAIMERS. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR END USER’S BREACH OF ANY LICENSE OR USE RESTRICTIONS RELATING TO PRODUCTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR REVENUE) WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT. END USER SPECIFICALLY UNDERSTANDS AND AGREES THAT FINDABILITY SCIENCES (ON BEHALF OF ITSELF AND ITS THIRD PARTY SUPPLIERS/LICENSORS) DISCLAIMS ALL WARRANTIES AND LIABILITY WITH RESPECT TO LOSS, LOSS OF USE OR CORRUPTION OF ANY END USER DATA (OR OTHER DATA END USER MAY PROVIDE) AND THE COSTS OF PROCUREMENT OF ANY SUBSTITUTE GOODS.
10.3 Failure of Essential Purpose. The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10.4 Force Majeure. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party.
Findability Sciences may identify End User as a customer in Product promotional material. End User may request that Findability Sciences cease identifying End User at any time by submitting an email to sales@Findability Sciences.com. Requests may take 30 days to process.
End User may not assign this Agreement without the prior written consent of Findability Sciences (which consent will not be unreasonably withheld), provided that the assignee agrees to be bound by the terms and conditions contained in this Agreement. Findability Sciences may assign its rights and obligations under this Agreement in whole or in part without consent of End User. Any permitted assignee shall be bound by the terms and conditions of this Agreement.
This Agreement is the entire agreement between End User and Findability Sciences relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended except as described on the first page of this Agreement or otherwise with the written agreement of Findability Sciences (which may be withheld in its complete discretion without any requirement to provide reasons). As used herein, “including” (and its variants) means “including without limitation” (and its variants). If either party to this Agreement breaches any provision of this Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Agreement. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.