Global Technology Solutions, Inc.
End User License Agreement
This End User License Agreement and the documents referred to herein (the “Agreement”) is entered into between Global Technology Solutions, Inc., (“GTS”) and the party subscribing to the Product under an Order referencing this Agreement (“Client”) and governs Client’s access and use of the Product as defined below.
1. Definitions
1.1. “Affiliate” means an entity controlled by, controlling, or under common control with a party.
1.2. “AI Client Input” means information, data, materials, text, prompts, images, or other content that is (a) input, entered, posted, uploaded, submitted, transferred, transmitted, or otherwise provided or made available by or on behalf of Client or any User for processing by or through an AI Feature, or (b) collected, downloaded, or otherwise received by an AI Feature for or on behalf of Client or any User, including in the case of (a) and (b) for purposes of fine-tuning, grounding, or otherwise modifying, refining, adapting, or customizing an AI Feature by, for, or on behalf of Client.
1.3. “AI Client Output” means information, data, materials, text, images, code, works, expressions, or other content generated or otherwise output from an AI Feature in response to AI Client Input or from use of an AI Feature by or on behalf of Client or its Users.
1.4. “AI Feature” means any feature, functionality, or component of the Product that incorporates, uses, depends on, or employs any AI Technology.
1.5. “AI Technology” means any and all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other artificial intelligence tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied prompts.
1.6. "Confidential Information" means any nonpublic, sensitive information disclosed by or on behalf of one party (the “Discloser”) to the other (the “Recipient”) or accessible to the Recipient pursuant to this Agreement, in any form, which (a) the Discloser identifies to Recipient as “confidential” or “proprietary” or (b) should reasonably be understood as confidential or proprietary due to its nature and the circumstances of its disclosure. GTS’s Confidential Information includes technical or performance information about the Product.
1.7. "Client Data" means, other than Resultant Data, all of Client’s Confidential Information that Client (including its Users) submits, uploads, inputs, or enters to the Product or that is collected, received, transmitted, processed, or stored by Client or its Users using the Product, including from any third-party services or platforms; or is derived therefrom.
1.8. "Client Environment" means the Client computing environment in which GTS authorizes the deployment and use of the Product.
1.9. "Documentation" means GTS’s standard usage documentation for the Product regarding the capabilities, operation, and use of the Product as of the effective date of the applicable Order and any updates thereto.
1.10. "GTS Materials" means the Product, the Documentation, and all other items, materials, or deliverables that GTS distributes to Client as part of the Order.
1.11. "IP Rights" means all intellectual property and proprietary rights, including, without limitation, all registered or unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any copyright, trademark, patent, trade secret, database protections, or other intellectual property laws, and all similar or equivalent rights.
1.12. "Order" means the order form, order confirmation, or other document by which Client orders the Product pursuant to this Agreement.
1.13. “Product” means the GTS Product based on its proprietary software as identified in the applicable Order, and as modified from time to time, having the specific features and functionality described in the applicable Documentation. The Product includes the GTS Materials, but excludes Third Party Products and any deliverables from services provided by GTS.
1.14. “Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers and legal advisors.
1.15. “Resultant Data” means data and information related to Client’s use of the Product that is used by GTS in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Product.
1.16. “Subscription Term” the term for Client’s use of the Product as identified in an Order.
1.17. “Third Party Materials” means any materials and information, in any form or medium, including any software, documents, data, content, products, equipment or services of or relating to the Product that are not proprietary to GTS or its Affiliates.
1.18. “User” means Client and any individual or software program or computer systems that Client allows to access and use the Product including employees, consultants, contractors, and customers of Client and its Affiliates.
2. Licenses
2.1. Product License. Subject to and conditioned on Client’s and its User’s compliance with the terms and conditions of this Agreement, GTS hereby grants Client, during the applicable Subscription Term, a non-exclusive, non-transferable, non-terminable (except as provided in Section 9) license to deploy, operate and use the Product for the Permitted Uses in Client’s Environment and to allow its Users to access and use the Product as so deployed. Client may use the Product only: (a) in support of Client’s or its Affiliates’ internal business operations; (b) in connection with Client’s or its Affiliates’ products and services, but not as a stand-alone product or service; and (c) in connection with Client or its Affiliates’ interactions with Users, including for submitting AI Client Input to and receiving AI Client Output from the AI Features and otherwise processing Client Data (the “Permitted Uses”).
2.2. Documentation. Client may make a reasonable number of copies of the Documentation solely for the Permitted Use, provided that Client includes all proprietary legends and other notices on all copies.
2.3. Service Revisions. GTS reserves the right, in its sole discretion, to make any changes to the GTS Materials, including without limitation changes that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Product; (ii) the competitive strength of or market for the Product; or (iii) the Product’s cost efficiency or performance; or (b) to comply with applicable Law. GTS makes no warranty regarding the delivery of any future functionality or features (including the availability of the Product beyond the then current Subscription Term).
2.4. Third-Party Suppliers. Product may include Third Party Materials, which may be indicated on an Order. Some third-party suppliers require GTS to pass additional terms through to Client. Such additional terms will be provided through the applicable Order, such terms may change from time to time, and new third-party suppliers may be added. Client agrees to comply with all applicable third-party terms. GTS shall not have liability or additional obligations to Client or Users in connection with Third Party Materials.
2.5. Third-Party Platforms. Client may enable integrations or exchange Client Data with third-party platforms. Client’s use of a third-party platform is governed by its agreement with the relevant provider, not this Agreement, and GTS is not responsible for third-party platforms or how their providers use Client Data.
2.6. Configuration Services. The license to the Product under this Agreement does not automatically entitle Client to services such as installation, implementation or training, such services are available only as specified in an applicable Order and may be subject to additional terms or a separate agreement.
2.7. Order. Client’s Order identifies the Product, Subscription Term, quantities, fees, charges and other details of Client’s subscription or order. The applicable Order may also refer to and incorporate documents which may apply to the Product. Each Order is a separate agreement between Client and GTS. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the third party license terms contained in Section 2.4 of this Agreement with respect to the Third Party Materials; (b) second, the applicable Order (c) third, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (d) fourth, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (e) fifth, any other documents incorporated herein by reference. The Product licensed pursuant to this Agreement is limited to the Product referenced in the applicable Order, and is separate from any other product or service provided by GTS.
2.9. Service Levels. This Agreement does not entitle Client to any support for the Product. Client may purchase support services separately at the rates and subject to the terms of a new Order.
2.10. Maintenance. The Product includes all updates (bug fixes, patches, maintenance releases and other improvements) that GTS provides at no additional charge to its other Clients at the same subscription level as set forth in the Order.
3. Usage Restrictions and Client Control and Responsibility
3.1 Acceptable Use. Except as otherwise expressly permitted in this Agreement, Client shall not and shall not permit any User of the GTS Materials to: (a) copy or distribute copies of the GTS Materials, in whole or part, to any third-party; (b) modify, adapt, translate or create derivative works, translations, or improvements of the GTS Materials, in whole or in part; (c) rent, lease, lend, sell, sublicense, assign, or otherwise transfer any rights to any part of the GTS Materials to any third party; (d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to any software component of the Product, except as and only to the extent this restriction is prohibited by applicable law; (e) in whole or in part; remove, alter, or obscure any proprietary notices from the GTS Materials; (f) use the Product for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Product; (g) use the Product in any manner that interferes with, degrades or disrupts the integrity or performance of the Product; (h) circumvent or disable any security features or functionality associated with the Product; or (h) access or use the GTS Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any IP Right or other right of any third party, or that violates any applicable law.
GTS has no obligation to monitor any content uploaded to the Product. In the event that GTS suspects any breach of the requirements of this Section 3.1, including without limitation by Users, GTS may suspend Client’s access to the Software without advanced notice, in addition to such other remedies as GTS may have. Nothing in this Agreement requires that GTS or its licensors, take any action against Client or any User or other third-party for violating this Section 3.1 or this Agreement, but GTS is free to take any such action as they see fit.
3.2. Users. Client is responsible and liable for: (a) for ensuring proper use of the Product by its Users in accordance with all Documentation, usage instructions and operating specifications; and (b) for all access to and any use of the GTS Materials through Client Environment or any other means controlled by Client, directly or indirectly, including for all results obtained from and all conclusions, decisions and actions based on such access or use. Specifically, and without limitation to the foregoing, Client is responsible and liable for all actions and failures to take required actions with respect to the GTS Materials by its Users or by any other Person to whom Client may provide access or use of the GTS Materials, whether such access or use is permitted by or in violation of this Agreement. If Client allows an Affiliate or contractor to use the GTS Materials, Client will remain responsible for all obligations arising in connection with such Affiliate or contractor’s use of the GTS Materials, and Client agrees to be directly liable for any act or omission by such Affiliate or contractor as if the act or omission were performed by Client such that any breach of this Agreement by such Affiliate or contractor will be deemed a breach by Client.
3.3. Client Control and Responsibility. Client has and will retain sole responsibility and liability for: (a) all Client Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Client or any User in connection with the Product; (c) the operation, maintenance, and management of Client’s Environment, whether operated directly by Client or through the use of third-party services; (d) changes Client or its Users make to the GTS Materials; (e) implementing and maintaining proper and adequate virus or malware protection and proper backup and recovery systems; (f) installing updates; (g) Client’s combination of the Product with any Third-Party Materials; and (h) the security and use of Client’s and its Users’ access credentials. Client shall notify GTS of any known or suspected unauthorized use of Product or breach of security and shall use its best efforts to remedy identified security threats and vulnerabilities to Client’s Environment.
3.4. Data Accuracy. GTS shall have no responsibility or liability for the accuracy of data uploaded to the Product by Client or Users, including without limitation Client Data and any other data uploaded by Users.
3.5. Sensitive Personal Data. Client will not use the Product to store or process Sensitive Personal Data (as defined below) unless Client purchases a Product expressly designed to be used with Sensitive Personal Data. Client shall inform GTS of any Sensitive Personal Data within Client Data stored or processed by the Product promptly after discovery (without limiting GTS’s rights or remedies). GTS has no responsibility or liability for any failure to protect Sensitive Personal Data or for any data exposure or disclosure or related loss to the extent that it involves Sensitive Personal Data. “Sensitive Personal Data” means an individual’s (i) government-issued identification number, including Social Security number, driver’s license number, or state-issued identification number; (ii) financial account numbers, credit report information or credit, debit or other cardholder information, with or without any required security or access code, passwords or PINs, that permits access to the individual’s financial account; (iii) biometric, health, genetic, medical, or medical insurance data; (iv) geolocation data; or (v) information regarding their racial or ethnic origin, religious beliefs, sex life or sexual orientation, union membership or immigration status, an individual’s commercial, employment, or education history, and other personal characteristics and identifiers.
4. IP Rights & Feedback
4.1. Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Client’s express rights in this Agreement, as between the parties, GTS and its licensors retain all right, title, and interest in and to the GTS Materials and all IP Rights arising out of or relating thereto. As between the parties, Client is and will remain the sole and exclusive owner of all right, title, and interest in and to Client Data, including all IP Rights thereto, provided however, that Client hereby grants GTS and its Affiliates the right to access, reproduce, store, transmit, process, distribute, and otherwise use and display Client Data with the Product as is necessary to provide the Product for Client’s benefit, ensure proper operation of the Product, fulfill GTS’s obligations, enforce its rights, or as otherwise consistent with this Agreement and applicable law. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to GTS an assignment of all right, title, and interest in and to the Resultant Data, including all IP Rights relating thereto. With respect to the Third-Party Materials, the applicable third-party providers own all IP Rights in and to the Third-Party Materials.
4.2. Feedback. If Client gives GTS any suggestion or idea for improving or otherwise modifying any of GTS’s products or services, GTS may use the Feedback without restriction or obligations. All feedback is provided “as is.” Client hereby assigns to GTS on Client’s behalf, and on behalf of Client’s employees, contractors and/or agents and Users, all right, title, and interest in any ideas, know-how, concepts, techniques, or other IP Rights contained in the Feedback, for any purpose whatsoever.
5. Confidential Information
5.1. Use and Protection. Recipient shall: (a) not access or use Confidential Information other than to exercise its rights or perform its obligations under this Agreement; (b) not disclose Confidential Information to third parties without the Discloser’s prior approval, except as permitted in this Agreement; and (c) protect the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own similar information, but with no less than reasonable care. The Recipient shall promptly notify the Discloser of any unauthorized disclosure or use of its Confidential Information that comes to Recipient’s attention and cooperate with the Discloser to protect the confidentiality and ownership of all IP Rights, privacy rights, and other rights therein.
5.2. Permitted Disclosures. Recipient may disclose Confidential Information to its Representatives who have a legitimate need to know such Confidential Information, provided that: it remains responsible for their compliance with this Section 5; and they are bound by confidentiality obligations at least as protective as set forth in this Section 5.
5.3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) it rightfully knew without restriction on use or disclosure, prior to the time of disclosure in connection with this Agreement; (b) it independently developed without use of or reference to Confidential Information; (c) is or becomes known publicly through no fault of the Recipient; or (d) becomes known to the Recipient through a third-party without confidentiality restrictions. Client is on notice that the Confidential Information may include GTS’s valuable trade secrets. Notwithstanding the provisions of this Section 5.3 or any other provisions of this Agreement, none of the exclusions set forth above in this Section shall apply to any Client Data.
5.4. Compelled Disclosure. The Recipient may disclose Confidential Information (including Client Data) as required by applicable law or by proper legal or governmental authority. If permitted by applicable law, Recipient will give the Discloser reasonable notice of the required disclosure and reasonably cooperate to obtain confidential treatment for the Confidential Information at the Discloser’s expense.
5.5. Resultant Data. Notwithstanding anything to the contrary in this Agreement, GTS may monitor Client’s use of the Product and collect and compile Resultant Data. As between GTS and Client, all right title and interest in Resultant Data and all IP Rights therein, belong to and are retained solely by GTS. Resultant Data may be used or distributed by GTS for any purpose permitted under applicable law, provided that such Resultant Data does not identify Client, its Affiliates, or their Confidential Information.
6. Representations & Warranties
6.1. Limited Warranty. GTS warrants that during the Subscription Term the Product will conform in all material respects to the then current description of the Documentation when used in accordance with such Documentation. The warranties set forth herein will not apply and will become null and void to the extent arising from: (a) use of the Product by Client or any User in violation of this Agreement or applicable law; (b) any modifications to the GTS Materials not provided by GTS; or (c) misuse of the Product, including any use of the Product in combination with Third Party Materials not provided, made accessible or expressly authorized in writing by GTS or specified in the Documentation.
6.2. Remedies.
In the event that the Product fails to conform to the foregoing warranty, and such failure is not excluded from warranty, GTS shall, at its election, either: (a) exercise commercially reasonable efforts to promptly correct, repair or replace the Product (or in the case of outdated Documentation, to update the Documentation to reflect the current expected features and functionality of the Product);
(b) or provide a work around solution that will reasonably meet Client’s requirements, provided that, in either case, Client provides GTS with written notice of the breach, including all information GTS reasonably requests to resolve the failure, including sufficient information to enable GTS to recreate such failure. Except as otherwise expressly provided in this Agreement, the remedies set forth in this Section 6.2 are Client’s sole and exclusive remedy for breach of this limited warranty.
6.3. Mutual Representations.
Each Party represents and warrants to the other that it: (a) is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its organization; (b) it has the full right, power, and authority to enter into and perform this Agreement; (c) the execution of this Agreement by its Representative has been duly authorized;
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and (e) that it will comply with all applicable laws in its performance under this Agreement.
6.4. Warranty Disclaimers.
EXCEPT TO THE EXTENT SET FORTH IN SECTIONS 6.1 AND 6.2 ABOVE, THE GTS MATERIALS ARE PROVIDED “AS IS,” WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. GTS ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NONINFRINGEMENT AND ANY WARRANTIES THAT MAY ARISE FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GTS PROVIDES NO WARRANTY OR UNDERTAKING THAT THE GTS MATERIALS WILL MEET CLIENT’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OR THAT THE OPERATION OF THE PRODUCT WILL PERFORM WITHOUT INTERRUPTION OR ERROR OR THAT THE PRODUCT IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CLIENT DATA WILL REMAIN PRIVATE OR SECURE. THESE DISCLAIMERS APPLY TO THE FULLEST EXTENT OF THE LAW.
7. Indemnification
7.1. Indemnification By GTS. Subject to Section 7.4 and 7.5, GTS shall defend Client from and against any third-party claims to the extent arising out of or alleging that the Product in its unaltered state infringes, misappropriates, or otherwise violates such third party’s valid and enforceable patents, copyrights or trade secrets (“IP Claim”), and will indemnify Client against damages awarded against Client in a final judgement to with respect to such IP Rights Claim.
7.2. Indemnification by Client. Client shall defend, indemnify, and hold GTS, its Affiliates and, and each of its and their respective Representatives, successors, and assigns from and against any and all claims: (a) alleging that Client Data, or any use of Client Data, including any processing of Client Data in accordance with this Agreement, infringes or misappropriates such third-party’s IP Rights or violates any law; and (b) any claim based on Client’s or any User’s: (i) negligence or willful misconduct; (ii) use of the GTS Materials in a manner not authorized by this Agreement; (iii) use of the GTS Materials in combination with Third Party Materials not provided by GTS; or (iv) any modifications to the GTS Materials not made by GTS.
7.3. Procedure. Each party shall promptly notify the other party in writing of any claim for which such party believes it is entitled to be indemnified pursuant to Section 7.1 or Section 7.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall have the right, at its sole discretion to assume control of the defense and settle any claim. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any claim on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnitee’s failure to perform any obligations under this Section 7.3 will not relieve the Indemnitor of its obligations under this Section 7, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
7.4. Mitigation. In response to an IP Claim, or if in GTS’s opinion an IP Claim is likely, if required by settlement or injunction or as GTS determines is necessary to avoid material liability, GTS may at its sole cost and expense: (a) obtain the right for Client and its Users to continue to access and use the GTS Materials; (b) modify or replace the allegedly infringing portion of the GTS Materials, to avoid infringement, while providing substantially equivalent features and functionality; or (c) if neither of the remedies set forth in (a) or (b) is reasonably available, then GTS may direct Client to cease use of the Product, terminate this Agreement and refund to Client any prepaid unused fees for the remainder of the Subscription Term for such Product.
7.5. Exceptions.
GTS’s indemnification obligations under Section 7.1 shall not apply to any IP Claim to the extent that such IP Claim arises out of or results from: (a) Client’s or its Affiliates’ or its/their Users’ use of the GTS Materials in combination with any items not provided by GTS including Third Party Materials; or (b) modification of the GTS Materials not performed by GTS; (c) unauthorized use of the GTS Materials; (d) any AI Client Output; (e) or Client’s failure to use a suitable modified version or replacement for the GTS Materials, including the most recent release of the Product provided by GTS, that would avoid infringement.
TO THE FULLEST EXTENT PERMITTED BY LAW, THIS SECTION 7 STATES GTS’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY IP RIGHT CLAIM OR CLAIMS OF INFRINGEMENT OF ANY THIRD-PARTY IP RIGHTS RELATED TO THE GTS MATERIALS.
8. Limitations Of Liability
8.1. DOLLAR CAP. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.3 AND ANY THIRD-PARTY TERMS AGREED TO PURSUANT TO THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID TO GTS BY CLIENT FOR THE PRODUCT THAT ARE THE SUBJECT OF THE CLAIM FOR DAMAGES PROVIDED HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM.
8.2. EXCLUDED DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.3 AND ANY THIRD-PARTY TERMS AGREED TO PURSUANT TO THIS AGREEMENT, IN NO EVENT WILL GTS OR ITS THIRD-PARTY PROVIDERS BE LIABLE FOR ANY PENALTIES, INTEREST, TAXES OR OTHER AMOUNTS IMPOSED BY ANY GOVERNMENTAL OR REGULATORY AUTHORITY. NEITHER PARTY IS LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES.
8.3. CLARIFICATIONS & DISCLAIMERS. THE LIABILITIES LIMITED BY THIS SECTION 8 APPLY TO THE BENEFIT OF GTS’ REPRESENTATIVES, AND SUPPLIERS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. CLIENT ACKNOWLEDGES AND AGREES THAT GTS HAS BASED ITS PRICING ON AND ENTERED INTO THE AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTIES AND DAMAGES IN THIS SECTION 8 AND THAT SUCH TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
8.4. EXCEPTIONS. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTIONS 8.1, 8.2 AND 8.3 DO NOT APPLY TO LIABILITY ARISING FROM EITHER PARTY’S WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR ANY OTHER LIABILITY WHICH CANNOT BE LIMITED BY LAW OR CLIENT’S OBLIGATION TO PAY THE CHARGES ON THE APPLICABLE ORDER AND ALL USE OF THE PRODUCT THAT EXCEEDS THE USAGE PERMISSIONS AND RESTRICTIONS GRANTED TO CLIENT. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 8, GTS LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
9. Term & Termination
9.1. Subscription Term. Unless otherwise set forth in the Order, each Subscription Term will last for an initial period of one (1) year and will renew for successive (1) year periods at the then current rate for the Product, unless either party refuses such renewal by written notice thirty (30) or more days before the renewal date.
9.2. Term. This Agreement starts on the Effective Date and continues until the end of the Subscription Term, unless sooner terminated in accordance with its terms.
9.3. Suspension. GTS may suspend or otherwise deny Client’s, any User’s, or any other person’s access to or use of all or any part of the Product, without incurring any resulting obligation or liability, if GTS believes, in its good faith and reasonable discretion: (a) that the use of the Product violates applicable laws; or (b) Client or any User has failed to comply with any material term of this Agreement; or (c) the security or integrity of the network is jeopardized; or (d) upon fifteen (15) days’ notice of Client’s failure to pay, which is not cured during such notice period. Amounts payable to GTS shall continue to accrue during any period of suspension. Where practicable, GTS will give prior notice of the suspension so that Client may seek to resolve the issue and avoid suspension. This Section 9.3 does not limit any of GTS’s other rights or remedies, whether at law, in equity, or under this Agreement.
9.4. Termination for Cause. Either party may terminate this Agreement or an Order for the other’s material breach of this Agreement by written notice specifying in reasonable detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Either party may terminate this Agreement, effective immediately by written notice to the other party, if the other party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.5. Effects of Termination.
(a) Upon termination or expiration of this Agreement or the applicable Order, all authorizations and licenses granted hereunder will immediately terminate and Client shall cease all use of the GTS Materials and delete, destroy, or return all copies of the Documentation in its possession or control and verify such deletion or destruction by providing a statement to such effect signed by Client’s authorized representative to GTS. Termination or expiration of an Order will not terminate or modify any other Order.
(b) This Section 9.5 and the following provisions will survive termination or expiration of this Agreement: (a) any obligation of Client to pay fees incurred before termination; (b) Sections 3.1 (Acceptable Use), 4 (IP Rights & Feedback), 5 (Confidential Information), 6.4 (Warranty Disclaimers), 7 (Indemnification), 8 (Limitations of Liability); 10 (Miscellaneous) and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
10. Miscellaneous
10.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
10.2. Notices. Any notices to GTS must be in writing and sent to GTS’s corporate headquarters address set forth in the Order and must be delivered either in person, or sent by certified or registered mail (return receipt requested and postage prepaid), by recognized overnight courier service, or by email (except for any notices of breach of this Agreement, which may not be sent by email). Notices sent to GTS are deemed given upon receipt by GTS. Notwithstanding the foregoing, Client hereby consents to receiving electronic communications from GTS to Client’s email contact points designated by Client, and such notices will be deemed received 24 hours after they are sent. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Product including breach of this Agreement. However, GTS may give technical or operational notices or notices of third-party supplier terms through the Product. Client agrees that any notices, agreements, disclosures, or other communications that GTS sends to Client electronically will satisfy any legal communication requirements, including that such communications be in writing.
10.3. Force Majeure. Neither party shall be liable for any delay or failure in the performance of its obligations (other than a failure to pay fees when due) to the extent caused by acts of war, pandemic, terrorism, natural disaster, other acts of God or of nature, strikes or other labor stoppages or other industrial disturbances, third party internet or utility failure, riots or other acts of civil disorder, embargoes, passage of law or other action taken by governmental or public authority, or other causes beyond the performing party’s reasonable control, provided the affected party takes reasonable and customary measures to avoid or mitigate the effects of such events.
10.4. Assignment & Successors. Client may not assign this Agreement without GTS’s express written consent, which will not be unreasonably withheld or delayed. GTS may delegate or transfer any of its obligations or assign any rights under this Agreement in whole or in part to: (a) an Affiliate; or (b) in connection with a reorganization, merger, acquisition, divestiture or similar business transaction. GTS may subcontract any of the GTS Materials in GTS’s sole discretion. Any non-permitted assignment is null and void ab initio. This Agreement will bind and inure to the benefit each the party’s permitted successors and assigns.
10.5. Severability. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, it will be limited to the minimum extent necessary so that the remaining provisions of this Agreement will continue in full force and effect.
10.6. No Waiver. Waivers must be in writing and signed by an authorized representative of the waiving party, and cannot be implied from any conduct. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
10.7. Choice of Law & Jurisdiction. Unless otherwise stated in the applicable Order, the internal laws of the State of California govern this Agreement and any action arising out of this Agreement, without reference to any conflicts of law provision or rule. The parties consent to the personal and exclusive jurisdiction and venue of the federal and state courts of San Bernardino County, California in any such action, suit, or proceeding.
10.8. Injunction. A breach of Sections 3.1 (Acceptable Use) or 5 (Confidential Information): may cause substantial harm for which monetary damages are an insufficient remedy. In the event of any such breach the non-breaching party is entitled to seek appropriate equitable relief, including injunction, in addition to all other remedies.
10.9. Export. The GTS Materials may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to export, re-exporting, releasing or otherwise making the GTS Materials or Client Data available outside the US. Client shall not, and shall not permit any third party to, directly or indirectly, export, re-export, or release any GTS Materials to any jurisdiction or country to which, or any party to whom, or for any use for which, the export, reexport, or release of the GTS Materials is prohibited by applicable federal law, regulation, or rule. Client warrants that neither Client, nor any Affiliate of Client, nor its or their Representatives is a specially designated or sanctioned entity under any applicable law. Client shall be responsible for any breach of this section by its Affiliates or Representatives.
10.10. US Government Rights. The GTS Materials are “commercial items” 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. Accordingly, if Client is an agency of the US Government or any contractor therefor, Client only receives those rights with respect to the GTS Materials as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
10.11. Entire Agreement. The Agreement, together with any documents incorporated herein by reference, contains the entire agreement between GTS with respect to its subject matter and supersedes all prior or contemporaneous agreements with respect to its subject matter. Excluding Orders issued by GTS, terms in purchase orders or other forms used by Client will not amend or modify this Agreement; any such documents are for administrative purposes only. Each party acknowledges that it has not relied upon any representations made by the other that are not set forth in this Agreement.
10.12. Amendment. Client acknowledges and agrees that GTS has the right to modify this Agreement from time to time. Client will be notified of modifications through notifications or posts of the updated terms on GTS website or within the Product, by providing notice through Client’s account or through direct email communication. Modified terms will become effective thirty (30) days after such notice, provided that, if such amendment materially reduces Client’s rights or protections, such amendment shall only be effective if in writing and signed by authorized representatives of both parties. By using the Product after the effective date of the modified terms, Client agrees to be bound by the most recent version of this Agreement. Client is responsible for reviewing and becoming familiar with such modifications.