Last Updated: May 18, 2021
THIS SUBSCRIPTION AGREEMENT (“Agreement”) IS MADE BETWEEN REPRISE, INC. (“Reprise”) AND THE COMPANY IDENTIFIED AS THE CUSTOMER IN THE ORDER (DEFINED BELOW) (“Customer”). THE PERSON WHO EXECUTES THE ORDER ON CUSTOMER’S BEHALF REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO AND DOES BIND CUSTOMER TO THIS AGREEMENT AND THE ORDER. IF SUCH PERSON DOES NOT HAVE SUCH AUTHORITY, OR IF SUCH PERSON DOES NOT AGREE WITH THIS AGREEMENT AND THE ORDER IN ALL RESPECTS, THEN SUCH PERSON MUST NOT EXECUTE THE ORDER. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
In addition to terms defined elsewhere in this Agreement, the following terms will have the following meanings when used in this Agreement:
1.1 “Affiliate” means with respect to a Party, any entity that currently or in the future controls, is controlled by or is under common control with such Party for so long as such control exists, where “control” means ownership of more than fifty percent (50%) of the outstanding securities representing the right to vote for the election of directors or other managing authority of such Party.
1.2 “Applicable Law” means all laws, rules, regulations and other proclamations having the effect of law anywhere throughout the world that are applicable to any activity carried out or proposed to be carried out by a Party under this Agreement.
1.3 “Authorized User” means any Customer employee or consultant: (a) who Customer authorizes to access the Reprise Platform on its behalf; (b) for whom a subscription to the Reprise Platform has been purchased under an Order; and (c) who has been supplied access credentials to the Reprise Platform by Customer (or by Reprise, at Customer’s request).
1.4 “Confidential Information” means any information disclosed, directly or indirectly, by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to this Agreement that: (a) is designated as “confidential,” or in some other manner to indicate its confidential nature; or (b) otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure and the nature of the information itself. Without limiting the foregoing, the Reprise Materials and Reprise Data, except for the public-facing aspects of the Reprise Platform, are Reprise’s confidential information, and the Customer Data are Customer’s confidential information. However, Confidential Information does not include any information which: (i) is or becomes generally known and available to the public through no act or omission of the Recipient; (ii) was already in the Recipient’s possession without a duty of confidentiality owed to the Discloser at the time of the Discloser’s disclosure, as shown by the Recipient’s contemporaneous records; (iii) is lawfully obtained by the Recipient from a third party who has the right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser and without any use of or reference to the Discloser’s Confidential Information.
1.5 “Customer Data” means all data, content, and other original, customer created material that Customer transmits to the Reprise Platform through the functionality available on the web-based user interface of the Reprise Platform, including all Replays, but in all cases excluding Reprise Data.
1.6 “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through third-party services.
1.7 “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Reprise Platform or the Reprise Documentation that Reprise may provide to Customer from time-to-time during the Subscription Term.
1.8 “Order” means a mutually executed order form referencing and incorporating the terms of this Agreement.
1.9 “Party” means Reprise or Customer individually, and “Parties” means Reprise and Customer collectively.
1.10 “Professional Services” means the implementation, training or other services outside the scope of the Subscription, if any, specifically identified in an Order. It is understood that Professional Services are separate and apart from Services (as defined below) and will be charged at a rate depending on the level of services required, which is separate and in addition to any Subscription (as defined below).
1.11 “Replay(s)” means the end product that consists of a compilation of captures created through use of the Reprise Platform.
1.12 “Reprise Data” means any: (i) data, information or other routines generated by or on behalf of Reprise through any automated data analysis, processing or other operations of the Reprise Platform; and (ii) aggregated and de-identified data generated or collected by or on behalf of Reprise in connection with the Reprise Materials, including any such data based on or derived from the Customer Data.
1.13 “Reprise Developed IP” means any and all technology or intellectual property related to the Reprise Documentation, Reprise Platform, or Professional Services that is conceived, developed, or reduced to practice in any form or medium, including software and other works of authorship, algorithms, user interfaces, designs, data, databases, and collections of data, inventions (whether or not patentable) or discoveries, process, know-how or techniques trademarks, trade secrets and confidential information.
1.14 “Reprise Documentation” means any documentation that Reprise makes available to Customer that describes the features or requirements of the Reprise Platform.
1.15 “Reprise Hosting Fees” means those tiers of fees (each a “Tier”) reflecting the: (i) number of sessions for Replays across the Subscription; and/or (ii) number of Replays permitted to be published by any Customer.
1.16 “Reprise Materials” means the Reprise Platform, Reprise Documentation and the Reprise Developed IP.
1.17 “Reprise Platform” means Reprise’s proprietary software-as-a-service software platform that assists users with the creation and distribution of Replays.
1.18 “Reprise Platform Fees” means those fees charged for access to certain features of the Reprise Platform, which may be offered as a package (e.g., “Team” or “Enterprise”), as described and set forth in any Order.
1.19 “Restricted Content” means any data, content, information or other material that directly or indirectly: (a) identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); (b) can be used to authenticate an individual (including, for example, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers); (c) misappropriates, violates or infringes any third party intellectual property, privacy or other rights; (d) violates or conflicts with any agreement to or commitment with any third party or any Applicable Law; or (e) as determined by a reasonable observer under the circumstances, is abusive, bullying, defamatory, harassing, hateful, obscene, pornographic, threatening, violent, vulgar or otherwise objectionable or inappropriate.
1.20 “Services” means the services provided in connection with the making the Reprise Platform available to Customers in conformance with the terms and features of any Subscription set forth in the applicable Order.
1.21 “Subscription” means a Customer’s specified combination of Reprise Hosting Fees and Reprise Platform Fees to which it subscribes during any Subscription Term.
1.22 “Subscription Term” means the subscription term for the Reprise Platform set forth in an Order.
2.1 License from Reprise. Reprise hereby grants to Customer during the Subscription Term a non-exclusive, non-transferable (except under Section 12.4), non-sublicensable and worldwide license to allow its Authorized Users to access and use the Reprise Platform and Reprise Documentation solely as necessary to create Replays in accordance with the terms of this Agreement and share those Replays with prospective customers (“Customers”) in product demonstration and sales presentations (“Authorized Purpose”), as set forth in any Order.
2.2 License from Customer. Customer hereby grants to Reprise during the Subscription Term a non-exclusive, irrevocable (subject to Customer’s rights to terminate this Agreement), non-transferable (except under Section 12.4), royalty-free and worldwide license to use, store, reproduce, modify and otherwise exploit the Customer Data for internal business purposes as necessary to provide and improve the Reprise Platform. The foregoing rights are sublicensable by Reprise to any of its Affiliates and to subcontractors permitted under Section 12.4.
2.3 Authorized Users. Customer is solely responsible for: (a) identifying and authenticating all Authorized Users; (b) approving access by such Authorized Users to the Reprise Materials; (c) protecting against unauthorized access by Authorized Users; (d) maintaining the confidentiality of usernames, passwords and account information for Authorized Users; and (e) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts. Reprise is not responsible for any harm arising from any acts or omissions of any Authorized Users, including individuals who were not authorized to access the Reprise Materials but who were able to gain access for any reason. Customer will notify Reprise immediately of any actual or suspected breach of this Agreement by any Authorized User. Any breach of this Agreement by any Authorized User is deemed a breach by Customer.
2.4 Services. Reprise will use commercially reasonable efforts to perform the Services hereunder, and as set forth in each Order. Nothing in this Agreement or any Order will be understood to prevent Reprise from developing similar work product or deliverables for other Customers. Any Reprise Developed IP that results from Services or Professional Services that Reprise incorporates into the Reprise Platform is deemed to be part of the Subscription and covered by the license to Customer in Section 2.1 solely as and to the extent the same is so incorporated into the Reprise Platform.
2.5 Monitoring; Suspension; Reporting. Reprise may, but is under no obligation to, monitor Customer’s use of the Reprise Platform. Reprise may, in its reasonable discretion, suspend access to the Reprise Materials if Reprise believes that: (a) Customer is in breach of this Agreement; (b) use of the Reprise Materials as contemplated in this Agreement poses a security risk; (c) Customer’s use of the Reprise Materials violates, misappropriates, or infringes the rights of Reprise or a third party; (d) Customer’s use of the Reprise Materials implicates any Restricted Content; (e) there is a bug or performance issue with the Reprise Materials that adversely affects Reprise’s servers or other systems or Customer’s use of the Reprise Materials otherwise imposes unexpected or excessive demands on the same; or (f) any Applicable Law prohibits Reprise from performing any of its obligations under this Agreement.
2.6 Restrictions. Customer may not, directly or indirectly, and may not authorize any third party (including any Authorized User) to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how of, the Reprise Materials, or reconstruct, or discover, any hidden or non-public elements of the Reprise Materials; (b) translate, adapt, or modify the Reprise Materials; (c) write or develop any program or derivative work based upon the Reprise Materials, or, to the fullest extent permitted by Applicable Law, otherwise use any portion of the Reprise Materials in any manner for the purpose of developing, distributing or making accessible products or services that compete with any portion of the Reprise Materials, including use of the Reprise Materials to benchmark any other product; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Reprise Materials; (e) use any portion of the Reprise Materials for any purpose other than the Authorized Purpose; (f) permit any portion of the Reprise Materials to be used by any persons other than Authorized Users; (g) alter or remove any trademarks, copyright information, patent markings or any other proprietary notices contained in or on the Reprise Materials; (h) circumvent or otherwise interfere with any authentication or security measures of the Reprise Platform, or otherwise interfere with or disrupt the integrity or performance thereof; (i) use any portion of the Reprise Materials in violation of any Applicable Laws, rules or regulations; or (j) TRANSMIT TO OR FROM THE REPRISE PLATFORM ANY RESTRICTED CONTENT. IF CUSTOMER KNOWS OR SUSPECTS THAT CUSTOMER HAS TRANSMITTED RESTRICTED CONTENT TO THE REPRISE PLATFORM, THEN CUSTOMER WILL IMMEDIATELY PROVIDE REPRISE WITH WRITTEN NOTICE OF THE SAME AND REASONABLE ASSISTANCE TO HELP ENABLE REPRISE TO IDENTIFY AND DELETE THE RESTRICTED CONTENT FROM ITS SYSTEMS. For the avoidance of doubt, it is the responsibility of Customer to seek any and all permissions, licenses, or other authorizations necessary to use any third-party materials, including partner materials, in connection with the Reprise Materials.
2.7 Feedback. Customer may elect to provide to Reprise ideas, suggestions, or feedback related to any aspect of the Reprise Materials (“Feedback”). Such Feedback will be non-confidential, and Customer hereby grants to Reprise a non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), royalty-free, and worldwide license to implement, use, modify, or otherwise exploit, in any way without restriction, the Feedback, without any fees, attribution or other obligations to Customer.
3. ADDITIONAL REPRISE OBLIGATIONS
3.1 Customer Support. Reprise further agrees to: (a) provide commercially reasonable technical support to Customers, by email or telephone, during Reprise’s normal business hours of 9 a.m. to 5 p.m. ET, excluding U.S. national holidays and days when banks in the U.S. are closed; (b) use commercially reasonable efforts to: (i) respond to support requests in a timely manner; (ii) resolve such requests by providing updates and/or workarounds to Customer, consistent with Reprise’s assigned severity level to the issues identified in such requests and their impact on Customer’s business operations, in Reprise’s reasonable discretion; and (iii) schedule downtime for routine maintenance of the Reprise Platform between the hours of 12 a.m. and 5 a.m. ET (“Scheduled Downtime”). Notwithstanding the foregoing, if Customers require a greater level of support than the standard Customer technical support offered for Subscriptions, Customer may purchase Professional Services offered for sale in connection with the Reprise Platform, which will then be reflected on the applicable Order and invoice accordingly.
3.2 Updates. Reprise will provide Customer with all Maintenance Releases that Reprise may, in its sole discretion, make generally available to its licensees at no additional charge. Customer is required to accept all Maintenance Releases. All Maintenance Releases provided by Reprise to Customer are deemed licensed to Customer in Section 2.1.
4. ADDITIONAL CUSTOMER OBLIGATIONS
4.1 Customer Systems; Customer Data. Notwithstanding anything to the contrary in this Agreement, Customer: (a) has and will retain sole control over the security of, operation, maintenance, management of, and all access to and use of, the Customer Systems, and Customer is solely responsible for obtaining all internet connectivity necessary to access and use the Reprise Platform at all times during the Subscription Term; (b) will at all times during the Subscription Term: (i) set up, maintain, and operate in good repair all Customer Systems on or through which the Reprise Platform is accessed or used as necessary to enable Reprise to perform its obligations under this Agreement; (ii) if applicable, will provide Reprise personnel with such access to the Customer Systems as is necessary for Reprise to perform its obligations in connection with this Agreement; and (iii) will provide all cooperation and assistance as Reprise may reasonably request to enable Reprise to exercise its rights and perform its obligations in connection with this Agreement; and (c) Customer is solely responsible for any security vulnerabilities and the consequences of such vulnerabilities arising from Customer Data, including any viruses, Trojan horses, worms or other programming routines in Customer Data that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.
4.2 Failure or Delay. Reprise is not responsible or liable for any delay or failure of performance arising from in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement, including any unavailability, errors, defects or other issues in connection with the Customer Systems or Customer Data (each, an “Customer Failure”).
5. FEES; PAYMENT
5.1 Subscription Fees. Customer will pay Reprise all Reprise Platform Fees and Reprise Hosting Fees of the type and in the amounts set forth for the applicable Subscription identified in any Order (“Fees”). If Customer’s actual use of the Reprise Platform exceeds that permissible under any Subscription as set forth in any Order, then Customer must pay for the additional use at Reprise’s then-current rates for the use, including an automatic and binding upgrade to the next level of Subscription.
5.2 Professional Services. Professional Services are additional services that Customers may purchase in connection with their Subscription, and will be described in the Order. If Fees for Professional Services are not set forth on an Order but are requested by Customer, such Fees will be billed at prevailing time and material rates. Customer agrees to promptly reimburse Reprise upon invoice for any actual, out-of-pocket travel and lodging expenses incurred by Reprise in connection with any Professional Services set forth on an Order. All Fees are non-cancellable, non-refundable and non-recoupable.
5.3 Payment Terms. All Fees will be billed in advance, and all invoices for Fees and Professional Services are due and payable in United States dollars within 30 days after the invoice date, without deduction or setoff. Interest accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by Applicable Law.
5.4 Taxes. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Reprise’s net income).
6. PROPRIETARY RIGHTS
6.1 Ownership. As between the Parties: (a) subject to the license that Reprise grants to Customer in Section 2.1, Reprise owns and retains all rights, title and interest in and to the Reprise Platform, Reprise Materials, Reprise Data, and Reprise Developed IP (collectively, “Reprise Property”), and Reprise may use and exploit all such Reprise Property without restriction or limitation; and (b) Customer solely owns and retains all rights, title and interest in and to the Customer Data, subject to the rights granted to Reprise in Section 2.2. Any Reprise Developed IP that results from Services or Professional Services that Reprise incorporates into the Reprise Platform is deemed to be part of the Subscription and covered by the license to Customer in Section 2.1 solely as and to the extent the same is so incorporated into the Reprise Platform.
6.2 Reservation of Rights. All rights that a Party does not expressly grant to the other in this Agreement are hereby reserved and neither Party grants to the other any implied rights or licenses under any theory.
7. TERM AND TERMINATION
7.1 Term. This Agreement will start on the date of last signature of the first Order executed by the Parties and continue, unless terminated earlier in accordance with this Agreement, until all Orders have expired or been terminated. The term of each Order will begin on the date of last signature and continue, unless terminated earlier in accordance with this Agreement, until the end of the applicable Subscription Term. Each Order will automatically renew for successive Subscription Terms equal in length to the initial Subscription Term in the applicable Order unless either Party provides the other with written notice of its desire not to renew at least thirty (30) days prior to the end of the then-current Subscription Term.
7.2 Termination. Either Party may terminate this Agreement or any Order by written notice if the other Party is in material breach of this Agreement or such Order, where such material breach is not cured within thirty (30) days after written notice of such breach from the non-breaching Party. For the avoidance of doubt: (a) by way of example only, Customer’s noncompliance with Sections 2.6 or 5 is deemed a material breach of this Agreement; (b) the expiration or termination of one Order will not impact the term of any other Orders then in-effect; and (c) any termination of this Agreement automatically will terminate all then-effective Orders. Notwithstanding the foregoing, Reprise may terminate this agreement and disable all access to the Reprise Materials immediately upon a breach of Section 2.6 (a), (b), (c), (e), (h), (i) or (j) of this Agreement.
7.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) all outstanding Orders and access to the Reprise Materials will automatically terminate; (b) all outstanding payment obligations of Customer will become due and payable immediately; and (c) Reprise will provide customer with the file for each Replay within 5 business days of termination. For the avoidance of doubt, Customer must request return of Customer Data prior to expiration or termination of this Agreement and upon expiration or termination, Reprise has no further obligation to store or permit retrieval of such data except as set forth in the following sentence. If Customer does request Customer Data return in accordance with the preceding sentence, then Reprise will use commercially reasonable efforts to provide Customer with a copy of the Customer Data in a reasonable format to be determined by Reprise in its sole discretion. The following Sections, and any defined terms and provisions required to interpret or enforce those Sections (but only to the extent required for such interpretation or enforcement), will survive the termination or expiration of this Agreement: 1, 2.3, 2.6, 2.7, 4.1(c), 4.2, 5, 6, 7.3, 8, 9, 10, 11, 12.
8.1 Nondisclosure of Confidential Information. The Receiving Party will use the same efforts to protect the Disclosing Party’s Confidential Information from loss or alteration, and unauthorized access, use or disclosure, that it uses to protect its own confidential information of similar sensitivity, but in no event will such efforts be less than reasonable efforts. The Receiving Party may only use the Disclosing Party’s Confidential Information to perform its obligations and exercise its rights under this Agreement. The Receiving Party will not disclose or provide access to the Disclosing Party’s Confidential Information to any third party except: (a) for disclosures to the Receiving Party’s: (i) employees with a need to know such information to perform its obligations under the Agreement and to subcontractors permitted under Section 12.4; or (ii) professional advisors or potential investors or acquirers (each in (i) and (ii), a “Permitted Recipient”); and (b) the Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled by Applicable Law to do so; provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall not, except as otherwise expressly authorized by the Disclosing Party, make any copies or duplications of any of the Disclosing Party’s Confidential Information. Any materials or documents that have been furnished by the Disclosing Party to the Receiving Party in connection with conducting its business pursuant to this Agreement, together with all copies of such materials or documents, shall be promptly returned or destroyed by the Receiving Party within ten (10) days after either (A) the termination of this Agreement or (B) the Disclosing Party requesting such return or destruction; provided, however, that Receiving Party may retain copies of such materials or documents that are stored on the Receiving Party’s IT backup and disaster recovery systems until the ordinary course deletion thereof. The Receiving Party will be liable for any breach of this Agreement by its Permitted Recipients.
8.2 Notice Requirements. The Receiving Party will promptly inform the Disclosing Party in writing of any actual or suspected loss or alteration of, or unauthorized access to, use or disclosure of, Confidential Information. In the event that the Receiving Party or any person to whom the Receiving Party or its representatives transmit or have transmitted Confidential Information become legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or otherwise) to disclose any such Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy, or both, or waive compliance with the provisions of this Agreement. In the event that the Disclosing Party is unable to obtain a protective order or other appropriate remedy, or if it so directs the Receiving Party, the Receiving Party shall furnish only that portion of the Confidential Information that the Receiving Party is advised by written opinion of its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information.
9. REPRESENTATIONS AND WARRANTIES
9.1 Mutual. Each Party represents and warrants to the other Party: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full corporate right, power, and authority to enter into and perform its obligations and grant the licenses it grants or is required to grant under this Agreement; (c) the execution of an Order by its representative whose signature is set forth on the Order has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when an Order has been executed by both Parties, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9.2 By Customer. Customer further represents, warrants and covenants to Reprise that Customer owns or otherwise has and will continue to have the necessary rights in and relating to the Customer Data so that, as received by Reprise and used in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any rights of any third party or violate any Applicable Laws.
10.1 By Reprise. Reprise will: (a) defend, or, at its option, settle, any claim brought against Customer by a third party alleging that Customer’s use of the Reprise Platform constitutes a direct infringement of any intellectual property rights of any third party, except to the extent that such a claim arises from or is connected to any Customer Data or Restricted Content as set forth in Section 10.3 (each, a “Claim”); and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Reprise; provided that Customer provides Reprise: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Reprise in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, Reprise may, at its sole option and expense: (1) procure for Customer the right to continue to use the infringing items; (2) modify the infringing items to make them non-infringing; (3) replace the infringing items with non-infringing technology having substantially similar capabilities; or (4) if none of the foregoing is commercially practicable, terminate this Agreement. Notwithstanding the foregoing in this Section 10.1, Reprise will have no obligation under this Section 10.1: (x) for any use of the Reprise Materials in combination with software, products, services or technologies not provided by Reprise, to the extent that the Reprise Materials would not be infringing but for such combination; (y) arising from or in connection with Customer’s failure to use the Reprise Materials in accordance with this Agreement; or (z) for any claims or actions that fall within the scope of Section 10.3.
10.2 Disclaimer. SECTION 10.1 STATES THE ENTIRE LIABILITY OF REPRISE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY CLAIMS FALLING WITHIN THE SCOPE OF SECTION 10.1.
10.3 By Customer. Notwithstanding anything to the contrary in Section 10.1, Customer will defend, or, at its option, settle, any claim brought against Reprise by a third party arising from or in connection with any Restricted Content or alleging that any Customer Data and/or any use of the same in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any Applicable Laws; provided that Reprise provides Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with, the defense or settlement of any such claim. Customer will pay all damages finally awarded against Reprise (or the amount of any settlement Customer enters into) with respect to any such claim defended by Customer.
11. DISCLAIMERS; LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE FOLLOWING TERMS APPLY:
EXCEPT AS EXPRESSLY SET FORTH HEREIN, REPRISE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. WITHOUT LIMITING THE FOREGOING, REPRISE DOES NOT REPRESENT OR WARRANT THAT: (a) THE REPRISE MATERIALS WILL BE ERROR-FREE OR UNINTERRUPTED; (b) THE REPRISE MATERIALS WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE; (c) ANY DATA PROVIDED BY OR THROUGH THE REPRISE MATERIALS (INCLUDING ANY THIRD PARTY CONTENT) WILL BE ACCURATE OR COMPLETE; OR (d) SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA OR CUSTOMER’S DEVICES OR ANY THIRD PARTY TECHNOLOGY USED IN CONNECTION WITH THE REPRISE MATERIALS.
IN NO EVENT WILL REPRISE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, OR ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS TERMINATION, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF REPRISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND REPRISE’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE ORDER(S) GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
12. GENERAL PROVISIONS
12.1 Interpretation. Unless a clear contrary intention appears: (a) any term defined in the singular includes the plural when required by the applicable context; (b) the headings in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement, and will not be referred to in connection with the interpretation of this Agreement; and (c) uses of “including” mean “including, without limitation.” Any ambiguity in this Agreement will be interpreted without regard to which Party drafted this Agreement or any part thereof.
12.2 Non-Solicitation. During the Subscription Term and for one (1) year thereafter, Customer shall not, and shall not assist any other party to, directly or indirectly recruit or solicit, other than by general advertisement not directed specifically to any person or company, for employment or engagement as an independent contractor any person then or within the prior six (6) months employed or engaged by Reprise.
12.3 Changes. Reprise may make changes or updates to the Reprise Materials during the Subscription Term, including to reflect changes in technology, industry practices and patterns of system use; however any such changes will not result in a material reduction in the level of performance or availability of the Reprise Materials provided to Customer during the Subscription Term.
12.4 Assignment; Subcontractors. Neither Party may assign this Agreement or any of its rights under this Agreement without the prior written consent of the other Party, except that Reprise may assign this Agreement without the consent of Customer as part of a corporate reorganization, to any Reprise Affiliate, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to this Agreement, or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Reprise in its sole discretion may from time-to-time engage third parties to perform any of its obligations under this Agreement, including hosting or other services. Reprise will be responsible for ensuring all such parties comply with this Agreement.
12.5 Force Majeure. Neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet, but in all cases excluding the payment of fees (each, a “Force Majeure”). The delayed Party must give the other Party notice of such Force Majeure and use commercially reasonable efforts to correct such failure or delay in performance.
12.6 Governing Law. If there is any dispute between the Parties arising out of this Agreement (each, a “Dispute”), then authorized representatives of each Party will negotiate in good faith to resolve the Dispute. If such representatives cannot resolve the Dispute after no less than thirty (30) days of good faith negotiations, then either Party may pursue all available remedies exclusively in courts of competent jurisdiction in Suffolk County, Massachusetts, and each Party waives all rights to challenge such venue on any theory. This Agreement will be governed by the laws of Delaware, excluding its conflicts of laws principles. The prevailing Party will be entitled to collect any fees, costs or expenses that such Party incurred in pursuing a claim or lawsuit against the losing Party.
12.7 Publicity. Reprise may use Customer’s name, trademark, or logo as a reference for marketing or promotional purposes on Reprise’s website and in other communications with existing or potential Reprise customers, investors or acquirers, subject to any written trademark policies Customer may provide Reprise in writing at the time of this Agreement. Reprise is authorized use the Replays or portions of the Replays created pursuant to this Agreement in its advertising and marketing materials, including on its website and in other communications with existing or Potential Reprise customers, investors, or acquirers. Neither Party will issue any press release or publish any publicly available statements or documentation describing the activities taking place under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld.
12.8 Entire Agreement; Order of Precedence. All Orders are incorporated by reference into this Agreement. In the event of a conflict between the terms of this Agreement and any Order, the terms in this Agreement will prevail unless the Order expressly states otherwise. This Agreement, including all Orders, is the sole agreement of the Parties concerning the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings with respect to said subject matter. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Reprise to object to such terms.
12.9 Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12.10 Waivers; Amendments. All waivers of rights arising under this Agreement must be made in writing by the Party waiving rights, and all amendments to this Agreement must be made in writing and signed by authorized representatives of both Parties.
12.11 Notices. Any notice required or permitted under this Agreement will be effective if it is: (a) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth in the Order, in the case of Customer, or as set forth below, in the case of Reprise, and with the appropriate postage affixed; or (b) sent via electronic mail to the applicable person set forth in the Order, in the case of Customer, or as set forth below, in the case of Reprise. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and/or on the same day an electronic mail is sent to the recipient. Notwithstanding the foregoing in this Section 12.11, any notices threatening litigation or alleging breach of this Agreement must be sent under method (a) in this Section.
12.12 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
12.13 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, then: (a) it will be severed from this Agreement; (b) the court of competent jurisdiction will replace the severed provision with another provision that most closely reflects the Parties’ original intent to the fullest extent permitted by Applicable Law; and (c) this Agreement will remain in full force and effect.
12.14 Counterparts. This Agreement may be signed in counterparts, each of which will be deemed an original, and all of which together will constitute a single agreement.
Reprise Contact Information:
407 Marlborough Street, Unit 6B
Boston, MA 02115