Terms and Conditions

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1. Definitions.
(a) “Additional Services” means any professional services beyond those that JAPER is obligated to perform under Section 4.
(b) “Affiliate” of a person means a person or entity that controls, is controlled by, or is under common control with that person.
(c) “JAPER Background Material” means any JAPER Materials or Intellectual Property Rights developed independently of this Agreement, and any Improvements thereto (excluding Client Background Material).
(d) “Client Application” means any mobile software application of the Client with which the Software is integrated or interfaced.
(e) “Client Background Material” means any Client Materials or Intellectual Property Rights developed independently from this Agreement, and any Improvements thereto (excluding JAPER Background Material).
(f) “Hosted Service” means the service enabled by JAPER’s back-end software platform, currently known as JAPER Cloud Access, that is used to configure location-related rules and perform related analytics for applications powered by the JAPER Cloud SDK.
(g) “Improvements” means, in relation to Materials, any improvements, enhancements, modifications, adaptations, extensions, developments, mutations, applications, derivative works or technical advances to or of those Materials, whether or not protected by laws.
(h) “Integrated Client Application” means the Client Application integrated with the Software.
(i) “Intellectual Property Rights” means all present and future intellectual and industrial property rights conferred by statute, at civil or common law, or in equity and wherever existing, including but not limited to: (i) patents, computer code, inventions, designs, copyrights, database rights, trademarks, domain names, inventions, trade secrets, know-how, proprietary information and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration; and (ii) any application, registration, or right to apply for or register any of the foregoing.
(j) “Licensed Materials” means the Software, Hosted Service, Public APIs, White Label Service, PoI Service and related services JAPER provides under this Agreement, together with any documentation, updates, upgrades, modifications or improvements to the foregoing that JAPER provides to the Client under this Agreement.
(k) “Losses” means any losses, damages, fees, costs, expenses and claims arising out of a given circumstance.
(l) “Materials” means any information, technology, software, reports, results, processes, discoveries, inventions, Intellectual Property Rights or other materials (whether in electronic, written, tangible or other form).
(m) “Personal Information” means information obtained from or about an individual that personally identifies or reasonably can be used to personally identify or contact that individual, or that is required to be protected pursuant to applicable Privacy Law.
(n) “Privacy Law” means any applicable statute, regulation, ordinance, code, standard or requirements of any governmental or quasi-governmental body that relates to individuals’ privacy.
(o) “Public APIs” means a set of Application Programming Interfaces (APIs) that allows the Client to access and manage the functionality of the Hosted Service with, or in conjunction with, JAPER’s standard web-based interface.
(p) “Scope of Use” means the purpose of enabling the Client Application to provide the Client or its Users with location-based data or actions in relation to the Client’s business, using the Licensed Materials in accordance with JAPER’s applicable documentation.
(q) “Service Level Commitments” means the service level commitments of JAPER as set forth, and as may be modified from time to time, in Support and Service Level Agreements.
(r) “Software” means the software development kit for Android and iOS, currently known as the JAPER SDK, that provides an optimized location-based-services capability for enterprise-level mobile applications, and that includes various APIs for integration and use in mobile applications, together with any updates, upgrades, modifications or improvements to the foregoing that JAPER furnishes to the Client under this Agreement. The Software is further defined in Software and Services Description, as it may be modified from time to time.
(s) “Statement of Work” has the meaning given in Section 4.3;
(t) “Support Services” has the meaning given in Section 4.2.
(u) “Unauthorized Use” has the meaning given in Section 3.5.
(v) “User” means a person who downloads, uses or accesses a Client Application.

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2. Term.
This Agreement is in effect from the Effective Date, continues for the Initial Term and thereafter continues automatically for successive periods equal to the greater of the period of the Initial Term or 12 months (each a “Renewal Term” and collectively with the Initial Term, the “Term”) unless (i) terminated earlier in accordance with this Agreement or (ii) either party notifies the other of non-renewal at least 60 days prior to the expiration of the then-current Term, in which case this Agreement will expire at the end of the then-current Term.

 

3. Software License

 

3.1 License Grant. JAPER grants to the Client a license in the Territory for the Term solely to (i) use and reproduce the Software for integration with or into Client Applications; (ii) redistribute to Users the relevant portions of the Software, solely as integrated with or into Client Applications, provided such Users are subject to binding end-user licensing terms that protect JAPER’s interests in the Software to at least the same extent as the terms of this Agreement; and (iii) use the Hosted Service, through JAPER’s web interface and/or the Public APIs, to configure and control the location-based behavior of the Client Applications; in each case only for the Scope of Use. JAPER will promptly provide access to the Software and related Public API key(s) necessary for Client to exercise its rights hereunder upon execution of this Agreement, and will provide instructions regarding the integration of the Software (which will be Client’s responsibility) and use of the Public API keys related to the Software.

 

3.2 Pilot Program. If so reflected on the Schedule of Key Terms, the Client will participate in JAPER’s Pilot Program identified therein for the Fee set forth therein (if any). Notwithstanding any other provision of this Agreement, during the Pilot Program, (i) the Licensed Materials are provided “As-Is” and without any warranty whatsoever, (ii) in no event shall JAPER be liable for damages of any kind (direct, indirect, incidental, or consequential) resulting from any defect in the Integrated Client Application, even if it has been advised of the possibility of such damages, (iii) the Client agrees to provide necessary information requested by JAPER prior to the commencement of the Pilot to enable JAPER to initiate and manage the Pilot, and (iv) the Client shall be responsible for any User claims for loss or damage resulting from inadequate warning to Users of (i) and (ii), including any failure to back up User data or to independently verify output of the Pilot Program.

 

3.3 Referral Partner Appointment. If so reflected on the Schedule of Key Terms, the Client is hereby appointed a non-exclusive referral partner with regard to the Licensed Materials during the Term and is granted a license to exercise the rights of a referral partner under Section 11 below.

 

3.4 Use by Affiliates. The Client may permit its Affiliate entities (if any) to exercise the rights granted under Section 3.1, provided that the Client ensures such Affiliate entities’ compliance with all limitations, restrictions, and other terms and conditions applicable to such rights under this Agreement. The Client will be responsible for its Affiliate entities’ acts and omissions in relation to the Licensed Materials as if they were the Client’s own acts and omissions. The Client may not otherwise sublicense any of the rights granted under this Section 3, unless agreed by JAPER in writing.

 

3.5 Limitations and Restrictions. Any use of the Licensed Materials not expressly granted under Section 3.1 (each an “Unauthorized Use”), including specifically (i) use of the Licensed Materials in combination with equipment, programs or services not set out in the Scope of Use or otherwise authorized in writing by JAPER; or (ii) any of the activities set out within Section 5.2), shall be prohibited unless expressly authorized in writing by JAPER.

 

3.6 No Modification, etc. Subject to any rights not excludable by law, the Client will not modify, reverse engineer, disassemble or decompile the whole or any part of the Software or make unauthorized copies of the Licensed Materials for any purpose.

 

3.7 Independent Contractor Relationship. The use of the term “Referral Partner” is not intended to and does not create an agency or partnership relationship. The Client as Referral Partner is an independent contractor and is responsible for paying all taxes, employee benefit payments, insurance premiums and other similar charges for all persons engaged by it to perform services. No relationship of employment, agency, joint venture or partnership is formed by this Agreement or the performance of any services hereunder.

 

4. Services

 

4.1 Hosted Service; Service Levels. Unless alternative hosting arrangements are specified in a Statement of Work:

(a) JAPER will host and operate the Hosted Service from a third-party data center.
(b) JAPER will use commercially reasonable efforts to meet or exceed the service levels set forth, and as may be modified from time to time, in Support Services and Service Levels, provided that the Client’s sole remedy for any actual failure by JAPER to achieve any service levels will be the relevant service level credits as described in the Service Level Commitments.

 

4.2 Support Services. JAPER will provide to the Client technical support services for the Licensed Materials as described, and as may be modified from time to time, in Support Services and Service Levels (“Support Services”), subject to the Client paying the Fees specified in Key Terms.

 

4.3 Additional Services. The parties may agree to have JAPER provide to the Client certain Additional Services. JAPER’s obligation to provide such Additional Services is conditioned on the parties’ execution of a corresponding written statement of work that: (i) expressly references this Agreement; (ii) defines the scope of the Additional Services; and (iii) sets forth the additional Fees to be paid by the Client for the Additional Services (each, a “Statement of Work”).

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4.4 Timing; Conditions; Changes. JAPER will use commercially reasonable efforts to perform the Support Services and Additional Services in accordance with any timetable specified in the Support Services and Service Levels or Statement of Work, but any timetable dates so specified are estimates only unless otherwise expressly agreed. JAPER’s obligation to provide any services hereunder is conditioned upon (i) the Client’s provision of all information and cooperation reasonably necessary for JAPER to efficiently perform the services and (ii) no Unauthorized Use or Event of Default by Client. JAPER shall have the right to use any Client Background Materials made available to it, for the sole purpose of providing its services and fulfilling its other responsibilities hereunder.

 

5. Certain Client Responsibilities

 

5.1 Generally. The Client is solely responsible for (i) the content and operation of any Client Application and its compliance with all applicable laws and regulations and the terms of this Agreement and Scope of Use; (ii) any representation, product warranty, condition, guarantee, indemnity, undertaking, legal or regulatory requirement relating to the Client Application, and any liability relating to any breach thereof; (iii) preparing and enforcing end user license agreements in relation to Users’ use of Client Applications; (iv) ensuring that its provision of Client Background Material, and the permitted uses of Client Background Material by JAPER in accordance with this Agreement, will not violate any laws or regulations or infringe the rights, including Intellectual Property Rights, of any party; and (v) compliance with all applicable import and export laws and trade sanction regulations and all applicable commercial and public anti-bribery laws.

 

5.2 Other Restrictions. The Client will not, and will not permit others to (i) use, sell, rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, timeshare or use for any service bureau purposes the Licensed Materials or any portion thereof except as expressly permitted by this Agreement, and will immediately notify JAPER of any unauthorized access to the Licensed Materials of which the Client becomes aware; (ii) provide Users with direct access to any of the Licensed Materials or bypass or disable any security mechanisms used to protect the Licensed Materials; (iii) use any Licensed Materials or JAPER Confidential Information to develop or operate a service that competes with the Licensed Materials; (iv) publish or disclose to third parties any evaluation of the Licensed Materials without JAPER’s prior written consent; (v) use the Licensed Materials or supply any Integrated Client Application in connection with any mission critical application, such as for the operation of emergency services, nuclear facilities, air traffic control or life support systems, where the use or failure of the Licensed Materials could lead to severe injury or property or environmental damage; or (vi) use the Licensed Materials or supply any Client Application in connection with any product, service, application or use (including advertising) that JAPER determines is likely to promote or constitute high-risk or illegal activity or involve JAPER in litigation, government investigation or claims of legal or moral wrongdoing.

 

6. Payment.

Fees for the Licensed Materials are set forth in Key Terms, and Fees for any Additional Services are set forth in the applicable Statement of Work. The Client agrees to be invoiced and to pay fees in accordance with JAPER’s Billing Policy, as set forth, and as may be modified from time to time, in Billing Policy.

 

7. Representations and Warranties.

 

7.1 Mutual. Each party represents and warrants that (i) it has full power and authority to enter into and fulfill its obligations under this Agreement and (ii) it will carry out all of its activities relating to this Agreement in accordance with all applicable laws and regulations.

 

7.2 JAPER. Subject to Section 7.3, JAPER represents and warrants that (a) it will provide the Support Services and Additional Services, if any, with care and diligence and in a professional manner; (b) it owns the Licensed Materials and all JAPER Background Material or has the necessary licenses, rights, consents and permissions to use the Licensed Materials and JAPER Background Material to perform its obligations under this Agreement; and (c) the Licensed Materials will meet any applicable specifications set forth in the official JAPER literature published as of the date of access to the Licensed Materials for the lesser of one year or the date such Licensed Materials are thereafter updated, upgraded, modified or improved as permitted by this Agreement .

The warranties and representations in Section 7.2 (b) and (c) do not apply to the extent that any breach of those warranties and representations is caused by Unauthorized Use or an Event of Default by the Client to meet its obligations under this Agreement. JAPER does not warrant that the Licensed Materials or provision of any services will be uninterrupted and error free or that the Client or any Client Application will have continuous access to the Hosted Service.

 

7.3 Disclaimer. OTHER THAN WARRANTIES EXPRESSLY GRANTED UNDER SECTION 7.2 AND THOSE, IF ANY, THAT CANNOT BE DISCLAIMED OR EXCLUDED UNDER APPLICABLE LAW, BLUEDOT DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND UNDERTAKINGS IN RELATION TO THE LICENSED MATERIALS, SERVICES OR ANY DELIVERABLES TO BE PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM PRIOR COMMUNICATIONS, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, BLUEDOT DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS, TITLE, CONDITION, ACCURACY, OR SUITABILITY OF THE LICENSED MATERIALS (INCLUDING ANY DATA CONTAINED IN OR SUPPLIED IN RELATION TO THE LICENSED MATERIALS OR REPORTS GENERATED OR PRODUCED BY OR WITH THE AID OF THEM).

7.4 The Client. The Client represents and warrants that (i) it owns the Client Application and Client Background Material or has the necessary licenses, rights, consents and permissions therein to perform its obligations and enable JAPER to exercise its rights under this Agreement; (ii) it has all necessary licenses, rights, consents and permissions to lawfully provide JAPER with any Personal Information of its customers or Users that it provides to JAPER in connection with this Agreement; and (iii) the supply, operation, use or possession of any Client Application, the use of the Software in connection with any Client Application, and the provision of any Personal Information of its customers or Users, complies with all applicable laws and regulations where it is used.

 

8. Confidentiality; Publicity; Privacy and Security.

 

8.1 Definition. “Confidential Information” means information that one party (or its agents or Affiliates) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Each party’s Background Material is its Confidential Information. The terms of this Agreement are the Confidential Information of both parties.

 

8.2 Confidentiality Obligations. The recipient will not disclose the discloser’s Confidential Information, except to employees, affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the Confidential Information only to exercise rights and fulfill obligations under this Agreement. The recipient may disclose Confidential Information when legally compelled by a court or other government authority. To the extent permitted by law, recipient will promptly provide the discloser with sufficient notice of all available details of the legal requirement and reasonably cooperate with the discloser’s efforts to challenge the disclosure. The recipient will ensure that its Delegates are also subject to the same or equivalent non-disclosure and use obligations.

 

8.3 No Rights. Except for the limited rights under this Agreement, neither party acquires any right, title, or interest in the other party’s Confidential Information.

 

8.4 Publicity. Neither party may make any public statement regarding this Agreement without the other party’s written approval, except as follows.

(a) Upon execution of this Agreement, the parties will work with one another to agree upon the wording of a joint announcement in relation to the entering into of this Agreement. If the parties do not make a joint announcement within 60 days of the Effective Date, the Client agrees that JAPER may issue its own announcement.
(b) Within 90 days of the Effective Date, the parties will work with one another to agree upon the wording of a case study in relation to the use of the Licensed Materials. The Client will provide JAPER with statistics and data, including but not limited to return on investment (ROI) figures, relating to the use and benefits of the Licensed Materials that are reasonably adequate to produce a case study. If the parties cannot agree to the wording of the case study within 90 days of the Effective Date, the Client agrees that JAPER may issue its own case study. If Client does not agree to or provide adequate data for a case study, the Fees shall be increased 25% as a reasonable estimate of the related Losses incurred by JAPER, and not as a penalty.
(c) Each party agrees that the other may use its logo and screen shots of its customer interfaces on the other’s website or promotional material, subject to that party doing so in a manner that is consistent with the other’s usage guidelines.
(d) The Client agrees that JAPER may acknowledge its relationship with the Client in presentations, meetings and discussions with potential licensees of the Software. Client agrees to visibly display “Powered by JAPER” in its marketing materials for any business-facing solution. Client will not use trademarks, trade names or service marks of JAPER (whether registered or not) that would create confusion regarding JAPER’s ownership of them.

 

9. Privacy and Data Security.

 

9.1 Personal Information. Each party will comply with all Privacy Laws in respect of all Personal Information that such party handles in connection with this Agreement. JAPER will configure its Software so that it will not have access to Personal Information or Users gathered through the Software or received through the Client Application unless such access is provided by the Client, other than aggregate information not including any identifiable Personal Information. JAPER will cooperate with reasonable requests or inquiries made by the Client in relation to the management of Personal Information, or to resolve any complaint made against either the Client or JAPER under any Privacy Law. JAPER’s privacy policy, which may be modified from time to time, may be viewed at Privacy Policy.

 

9.2 Disaster Recovery Plan. During the Term, JAPER will maintain and use good-faith efforts to comply with a commercially reasonable disaster recovery plan. JAPER’s disaster recovery plan, which may be modified from time to time, may be viewed at Disaster Recovery Plan.

 

9.3 Security Breaches. Each party will use and maintain standard industry processes and applications to safeguard against, minimize the impact of, and comply with all applicable laws and regulations related to, any unauthorized access to, disclosure or use of, or tampering with Personal Information that a party collects or otherwise handles in the course of or in connection with this Agreement (each, a “Security Breach”) and promptly notify the other party of any such Security Breach of which it becomes aware, and of its efforts to remediate such Security Breach.

 

10. Ownership of Intellectual Property Rights

 

10.1 Licensed Materials, Company Background Material, and Improvements.

(a) All Intellectual Property Rights in the Licensed Materials, any Improvements to the Licensed Materials, and JAPER Background Material are and shall remain exclusively the property of JAPER. To the extent that any Intellectual Property Rights in Improvements to the Licensed Materials and/or JAPER Background Material vest in the Client, the Client assigns and agrees to assign to JAPER all of those rights.
(b) All Intellectual Property Rights in Client Applications and Client Background Material are and shall remain the exclusive property of Client. Unless otherwise expressly agreed in a Statement of Work, all customization, improvements or modifications of the Client Application or Client Background Materials shall be the exclusive property of the Client, provided that any such customization, etc. of the Client Application made by JAPER to better integrate it with or improve its operation or functionality with the Software shall be owned by JAPER and licensed to the Client on a nonexclusive basis during the Term.
(c) Each party will execute and ensure that its personnel execute all documents that are reasonably requested as necessary or desirable to effect the assignment of, and perfect the title of the other party to, the Intellectual Property Rights of the other party, as specified in this Section.

 

10.2 Data.

(a) As used herein (i) “Client Data” means data that is generated from the operation of the Client Application, excluding JAPER Data; and (ii) “JAPER Data” means anonymized data collected from the interaction of the Software with the Hosted Service when a location-based event occurs, including but not limited to account details of the Client, installation reference, geographical coordinates, zone name, zone ID, geofence name, geofence ID, date and time of the event, make and model of device, name and version of operating system, bearing and orientation of the device, orientation of the device’s interface, speed the device is travelling, and the estimated accuracy with which the device is being located.
(b) As between the parties, all Intellectual Property Rights in JAPER Data are owned by JAPER, all Intellectual Property Rights in the Client Data are owned by the Client; and to the extent that any data stored in, processed by or retrievable from the Hosted Service or Software is neither JAPER Data nor Client Data, as between JAPER and Client, all Intellectual Property Rights in that data vest exclusively in JAPER or its licensors and are assigned to JAPER immediately upon their creation. Each party may make use its own data and exercise its own Intellectual Property Rights in any lawful manner.
(c) The Client grants to JAPER a perpetual, irrevocable, non-exclusive, sub-licensable, transferable, royalty free, worldwide license to use, modify, reproduce and communicate the Client Data (subject to JAPER’s obligations with regard to Personal Information) (i) in connection with JAPER’s provision of the Licensed Materials and any associated services under this Agreement; and (ii) for JAPER’s internal business purposes including testing, research and development purposes and in development of any further services or products for the Client and/or its Users.

 

10.3 No Implied Assignment. Nothing in this Agreement will be construed, as transferring or assigning to the Client, or as requiring JAPER to transfer and assign, any intellectual property rights (including those in any work product or deliverables under a Statement of Work), unless the parties have executed a Statement of Work for custom development services that expressly assigns rights to the Client with respect to deliverables identified under that Statement of Work.

 

11. Clients Appointed as Referral Partners
(a) Client Rights. If Client is identified as a referral partner in the Key Terms, Client shall have the following additional rights and responsibilities:
(i) Client shall make commercially reasonable efforts to provide qualified referrals to JAPER by identifying prospective customers who have expressed interest in JAPER Licensed Materials or related services for uses that would be permissible under this Agreement (“Referrals”). All Referrals shall be communicated in writing, subject to acceptance by JAPER, at JAPER’s sole discretion. Client shall not be entitled to any referral fee or other payment resulting from Referrals to any client or company to whom JAPER has previously provided, or with whom it has commenced discussions regarding, its products or services.
(ii) Client may prepare and distribute marketing materials and use JAPER trademarks, service marks and logos (“Marks”) to promote JAPER products and services, subject to JAPER’s prior written approval, which will not be unreasonably withheld or delayed. No such materials shall disclose any Confidential Information of JAPER without its express permission.
(iii) Client shall accurately represent the qualities and features of JAPER products and services, and shall be solely responsible for any representation or statement regarding JAPER or its products or services made by Client or its agents or representatives that is not contained in JAPER’s then-current published marketing materials.
(b) Payment of Referral Fees. If, within one hundred and eighty (180) days of the applicable Referral, the referred customer enters into a written agreement with JAPER for products or services, then Client shall be entitled to receive the referral fees specified in Key Terms, exclusive of any taxes, duties and processing fees, received by JAPER from the referred customer (the “Referral Fee(s)”). JAPER will pay the applicable Referral Fee, if any, to Client within thirty (30) days following the end of each fiscal quarter in which the corresponding payment was received from the referred customer.
(c) Resolution of Conflicts Regarding Referral Fees. JAPER shall not be liable for more than a single Referral Fee for each single Referral. If any third party should make a claim for any Referral Fee or part thereof, then the Referral Fee earned for any closing hereunder shall be apportioned among the claimants as determined by JAPER in its sole discretion. JAPER shall make a reasonable effort to consult with all relevant parties and provide non-confidential evidence regarding any apportionment. The decision of JAPER regarding the apportionment of any Referral Fee due and payable hereunder shall be final and unappealable.

 

12. Indemnities

 

12.1 JAPER Indemnity. JAPER will indemnify, defend and hold harmless the Client, its Affiliates, and its agents and representatives from and against any claims, demands, suits or proceedings made or brought by a third party (“Claims”) to the extent they are based on an allegation that the Licensed Materials, as furnished by JAPER and used in accordance with this Agreement, infringe any third-party Intellectual Property Rights. JAPER’s indemnity obligation is conditional upon the Client (i) notifying JAPER in writing as soon as practicable of any infringement or alleged infringement; (ii) not making any admissions in relation to any infringement or alleged infringement; (iii) giving JAPER or its nominee the right to conduct the defense of such a claim, including negotiations for settlement or compromise prior to and after the institution of legal proceedings; and (iv) providing JAPER with reasonable assistance in conducting the defense of such a claim at JAPER’s cost. JAPER may seek to mitigate the impact of any claim or potential claim covered by this Section 12 by modifying the Licensed Materials to make them non-infringing, and/or by suspending or terminating the Client’s license to use the Licensed Materials upon reasonable notice to the Client (provided, that JAPER will refund to Client the unearned portion of any fees prepaid by Customer for the period affected by the suspension or termination).

 

12.2 Limitation. JAPER is not required to indemnify the Client under Section 12.1 if the Claim relates to (i) Unauthorized Use; (ii) the Client Background Material; (iii) any combination of the Licensed Materials with products, services, methods, content or other elements not furnished by JAPER (including but not limited to the Client Background Material and Client Application, or any product, platform or service in which the Software is bundled and supplied by a third party), if the Licensed Materials themselves do not infringe the asserted Intellectual Property Rights; or any Event of Default by Client.

 

12.3 Client’s indemnities. The Client will indemnify, defend and hold harmless JAPER, its Affiliates, and its and their agents and representatives from and against all Claims based on (i) any breach by the Client of its obligations owed to JAPER under this Agreement or any of its representations or warranties made herein; (ii) any allegation that the Client Background Material, or the use of the Client Background Material by JAPER in accordance with this Agreement, infringes that party’s Intellectual Property Rights; or (iii) any allegation in any way connected with the supply, possession or use of a Client Application (or the Software integrated therein), except to the extent JAPER is required to indemnify the Client in respect of that allegation pursuant to Section 12.1.

 

13. Liability

 

13.1 Exclusion of damages

SUBJECT TO THIS SECTION 13, BLUEDOT IS NOT LIABLE TO THE CLIENT OR TO ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE; EXEMPLARY OR PUNITIVE DAMAGES; COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, REVENUE, PROFITS, BUSINESS, CONTRACTS, REPUTATION OR OPPORTUNITY; BUSINESS INTERRUPTIONS; LOSS OR CORRUPTION OF DATA; INCLUDING ANY SUCH LOSSES THAT ARE ALLEGED TO RESULT FROM ANY WRONGFUL OR NEGLIGENT ACT OR OMISSION OF BLUEDOT OR ANY OF ITS PERSONNEL.

 

13.2 Maximum liability; Exceptions.

The maximum aggregate liability of JAPER for all Losses arising out of or in connection with any Claim under this Agreement, whether arising under contract, statute, tort or any other theory of liability is limited to the sum of the amounts paid by the Client to JAPER in relation to the specific product or service to which the Claim relates in the 6-month period immediately prior to the notice of the Claim. Nothing in this Section 13 limits JAPER’s liability with respect to damages for personal injury, including sickness and death, or for any fraudulent acts or omissions.

 

14. Termination

 

14.1 Termination for Default. If either party materially breaches this Agreement, ceases to conduct business in the ordinary course or becomes insolvent or unable to perform its obligations under this Agreement (each of the foregoing conditions, an “Event of Default”) and does not cure said Event of Default within 30 days after the other party provides written notice thereof, then the other party may terminate this Agreement by written notice to the defaulting party.

 

14.2 Consequences of expiration or termination. On the expiration or termination of this Agreement, (a) the parties ongoing rights, obligations and licenses under this Agreement and any Statements of Work (including availability of the Hosted Service) shall terminate, other than the obligation to pay for items or services already then provided, which shall be immediately due and payable and (b) on the termination of this Agreement for any reason each party will cease using, and either return to the disclosing party or permanently destroy or delete, all Confidential Information of the disclosing party.

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14.3 Clauses surviving termination. Despite any other provision of this Agreement, this Section 14 and Sections 8, 9, 10, 12, 13, 15, 16, 17 and 18 survive the expiry or termination of this Agreement.

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15. Force majeure.
Where any failure or delay by a party in the performance of its obligations under this Agreement is caused, directly or indirectly, by any act, event or cause, other than a lack of funds, that is beyond the reasonable control of that party (a “Force Majeure Event”), the party is not liable for that failure or delay, and its obligations affected by a Force Majeure Event are suspended during the Force Majeure Event.

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16. Non-solicit.
Each party acknowledges that the other party invests substantial time and resources in training its staff and contractors. The parties therefore agree that during the Term and for 12 months thereafter, neither party will solicit or encourage any employee or contractor of the other party with whom that party has come into contact through this Agreement, to cease work for the other party. .

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17. Third party material.
If the parties determine that material not owned or licensed by JAPER or the Client (“Third Party Material”) is required, or support services in relation to Third Party Material are required, it shall be procured at Client’s expense and owned by Client, without warranty of JAPER, unless otherwise agreed.

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18. General

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18.1 Entire Agreement; Amendment; Waiver. This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes, terminates and replaces all prior agreements and communications between the parties concerning such subject matter. This Agreement, and any provision of this Agreement, is not to be construed to the disadvantage of a party because that party was responsible for its preparation. This Agreement cannot be amended or varied except in writing signed by the parties. A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right. A waiver of a breach does not operate as a waiver of any other breach or of the right to enforce any other provision hereof. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of this Agreement will remain in effect.

 

18.2 Assignment. Neither party may assign, delegate, sublicense or transfer its rights or obligations under this Agreement, including any license granted hereunder, without the prior written consent of the other, except that either party may make such an assignment to a successor in interest to all or any of its business lines or activities other than an assignee of Client that JAPER determines, in its sole discretion, is a competitor of JAPER or is engaged in any business in a manner that could conflict with any rights of exclusivity that JAPER has granted or is in the process of negotiating with any other customer or prospective customer of JAPER. Upon any such assignment by Client, JAPER may either (i) decline to expand the relationship beyond the business division represented by Client’s then-current business or (ii) adjust Fees or services to reflect the changed scope of the relationship. Subject to the foregoing, this Agreement binds and benefits the parties and their respective successors and permitted assigns.

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18.3 Governing law; Disputes. This Agreement is governed by and will be construed in accordance with the Applicable Law, excluding (i) any law thereof to the extent it would apply the law of any other jurisdiction, and (ii) the United Nations Convention for the International Sale of Goods. The parties submit to the exclusive jurisdiction of the courts in the jurisdiction whose laws are the Applicable Law in respect of all matters relating to this Agreement, and waive any objection to such jurisdiction. The parties will attempt to resolve any dispute under this Agreement informally for a period of at least 30 days before either party may commence legal action, except where such delay could create irreparable harm.

 

18.4 Notices. Any notice or similar communication to or by a party hereunder will be in writing and may be given by personal service, by postal or express delivery service, or by email.

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18.5 Miscellaneous. If this Agreement consists of signed counterparts, each is an original and all of them together constitute the same document. JAPER may subcontract the performance of any of its obligations under this Agreement and/or perform any such obligations through an Affiliate of JAPER. Nothing in this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary between the parties.

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End of Terms and Conditions

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