Individual End-User Terms and Agreement
NOW THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties each hereby agree as follows:
2. Grant of License. Subject to the terms and conditions set forth herein, Ergonomics grants to Customer and its Affiliates, for the Term of this Agreement, as defined in Section 6.1 of this Agreement, a limited, non-exclusive, non-transferable and non-sublicenseable license to access, display and use the Licensed Technology solely for its (their) internal business purposes within the United States and solely in connection with the use and operation of workplace ergonomics training courses.
3. License Restrictions.
3.1. Customer shall not:
3.1.1. copy, modify or create derivative works or improvements of the Services, Documentation or
3.1.2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services, Documentation or Licensed Technology to any Person, including on or in connection with the internet or any time- sharing, service bureau, software as a service, cloud or other technology or service;
3.1.3. bypass or breach any security device or protection used by the Services, Documentation or Licensed Technology or access or use the Services other than by an authorized user through the use of his or her own then valid access credentials;
3.1.4. input, upload, transmit or otherwise provide to or through the Services, Documentation or Licensed Technology, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
3.1.5. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Licensed Technology or Ergonomics’ provision of services to any third-party, in whole or in part;
3.1.6. remove, delete, alter or obscure any trademarks, specifications, Documentation, end user license agreement, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, Documentation or Licensed Technology, including any copy thereof;
3.1.7. access or use the Services or Licensed Technology in any manner or for any purpose that infringes upon, misappropriates or otherwise violates any Proprietary Right or other right of any third-party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Ergonomics customer), or that violates any applicable Law;
3.1.8. access or use the Services or Licensed Technology for purposes of competitive analysis of the Services or Licensed Technology, the development, provision or use of a competing service or product or any other purpose that is to Ergonomics’ detriment or commercial disadvantage;
3.1.9. allow multiple End Users to access a single Seat; or
3.1.10. otherwise access or use the Services or Licensed Technology beyond the scope of the authorization granted under Section 1.1 of this Agreement.
3.2. Customer acknowledges and agrees that (A) any rights granted hereunder to any of Customer’s Affiliates with respect to the Licensed Technology shall expire or terminate immediately upon the expiration or earlier termination of this Agreement in accordance with the terms hereof; (B) Customer’s Affiliates shall be subject to all of the terms and conditions set forth in this Agreement, in any Order and in any Statement of Work; and (C) Customer shall be fully responsible for ensuring the compliance of its Affiliates with the terms and conditions of this Agreement and any and all violations of the terms or conditions
of this Agreement by Customer’s Affiliates.
SERVICES; FEES; EXPENSES; INVOICES.
2.1. Assuming timely receipt of accurate information and assistance as required by Section 3.0 et seq. of this Agreement, Ergonomics agrees to provide, on a timely basis, the Licensed Technology and Services indicated on a written and executed Order, any Statement of Work and Schedule A (Description of Services) attached hereto.
2.2. After the execution of this Agreement, Ergonomics shall provide Customer with a hyperlink and login credentials for each purchased Seat to access the Services. Customer may increase the number of Seats at any time during the Term of this Agreement, but may not decrease the number of Seats. Any increase in Seats may be via an Order signed by both Parties.
2.3. Customer shall, at its own expense, be responsible for all hardware, internet access, ancillary software requirements and connectivity configuration necessary for use of or to access the Licensed Technology. Ergonomics shall have the sole right with respect to creating, managing, editing, reviewing, deleting and otherwise controlling the Licensed Technology. Ergonomics shall provide Customer technical assistance, if at all, in accordance with the terms and conditions of this Agreement, any Order and any Statement ofWork.
2.4. Ergonomics reserves the right, in its sole discretion, to make any changes to the Services and Documentation that it deems necessary or useful to: (A) maintain or enhance (i) the quality or delivery of Ergonomics’ services to its customers, (ii) the competitive strength of or market for Ergonomics’ services or (iii) the Services’ cost efficiency or performance; or (B) to comply with applicable Law. Provided, however, that Ergonomics’ shall inform Customer of any such changes to the Services which will materially affect Customer’s use of the Services, as contemplated in this Agreement. Customer may request changes to the Services by written request to Ergonomics. Within five (5) business days of Ergonomics’ receipt of Customer’s requested changes, Ergonomics shall prepare a change request (each, a “Change Request”). The Change Request shall set forth in detail the effect(s) (if any) of the proposed changes on Services with respect to quantity, price and timing. Ergonomics shall have the right, in its sole discretion, to reject any such changes proposed by Customer or seek any changes that are mutually acceptable to both Parties and modify and finalize the Change Request accordingly.
2.5. Ergonomics may from time to time in, its sole discretion, engage third parties to perform the Services (each, a “Subcontractor”).
2. Fees and Expenses.
2.1. Customer agrees to pay the charges (the “Services Fee(s)”) for the Licensed Technology and Services, as applicable and as set forth on each Order. The Services Fee shall remain in effect during the Term of this Agreement, unless modified in writing by the Parties. Notwithstanding the foregoing, Customer shall be responsible for all other applicable fees and expenses associated with any additional Services agreed upon by the Parties. The Service Fees consist of charges to Customer on a per Seat basis.
2.2. Customer shall reimburse Ergonomics for its expenses incurred in connection with the provision of any consulting services provided (including travel and lodging expenses).
2.3. Customer shall be liable for any taxes (including, but not limited to, federal manufacturers’ and retailers’ excise, state and local sales and use taxes, and personal property taxes), public charges and any interest and penalties thereon arising under this Agreement.
3. Billing. With respect to one-time and recurring fees related to the Licensed Technology and Services, Customer shall remit payment in advance in immediately available funds, which amount shall be posted to Customer’s account. Customer’s use of the Services and Licensed Technology shall be debited against the Customer’s account in accordance with the schedule of pricing set forth in the applicable Order or Statement of Work. Ergonomics shall have no obligation to provide the Services or access to the Licensed Technology upon the exhaustion of credits on Customer’s account. All payments, whether made in advance or in arrears are non-refundable, except as set forth in this Agreement. In the event of the termination or expiration of this Agreement, the balance of Customer’s account, and all unused credits associated therewith, shall become the property of Ergonomics.
4. Past Due Amounts. The Parties each agree that payments for fees related to Licensed Technology, Services and monthly fees due under this Agreement will be considered past due if Customer has not paid them within ten (10) days after the date of invoice. All past due amounts shall be subject to a late charge equal to three percent (3%) of the amount past due (the “Late
Charge”) beginning on the fifteenth (15th) day after the date of the applicable invoice if Customer has not remitted payment in full. In addition to the Late Charge, interest shall accrue on all past due balances at the rate of ten percent (10%) per annum or the maximum rate allowed by Law, whichever is less. If Customer does not pay an invoice by the earlier of seventy-five (75) days after its due date or fifteen (15) days after notice that Ergonomics intends to terminate this Agreement for non-payment, then this Agreement and all of Customer’s rights hereunder shall terminate immediately without further notice.
5. Refund/Adjustment/Overpayment. All fees paid hereunder are non-refundable. Ergonomics may, in its sole discretion, advance funds to Customer’s account. However, Ergonomics shall have no obligation to advance funds to Customer or permit Customer’s account balance to run a negative balance. In the event that Ergonomics advances funds to Customer, Customer agrees that it will reimburse Ergonomics not later than ten (10) days after such advance of funds. Ergonomics shall take
reasonable steps to inform Customer when Customer’s account has a negative balance.
2. Customer Assistance. In addition to the other obligations set forth herein, Customer shall:
2.1. assign personnel with relevant training and experience to work in consultation with Ergonomics, if applicable, and participate in meetings relating to the Services;
2.2. provide the equipment and software (including obtaining any third-party software licenses) required to operate the Licensed Technology in accordance with, and to otherwise comply with, the hardware and software specifications for the Licensed Technology;
2.3. safeguard the user ids, passwords and other security data, methods and devices furnished to Customer, if any, in connection with the Licensed Technology, and prevent unauthorized access to or use of the Licensed Technology;
2.4. be responsible for all maintenance of Customer’s networks, equipment and security required or appropriate in connection with the use of the Licensed Technology;
2.5. 2.6. 2.7.
2.8. take such other actions as are reasonably required of Customer pursuant to this Agreement, any Order or any Statement of Work.
OWNERSHIP OF INTELLECTUAL PROPERTY.
have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all provide the initial information reasonably necessary in order to implement the Services;
have all persons who use the Licensed Technology and/or Services complete and return to Ergonomics, on a quarterly basis during the Term, the questionnaire attached as Schedule B (Questionnaire); and
All title to and ownership of the Licensed Technology and all Proprietary Rights related thereto, other than the limited rights expressly granted to Customer herein, shall remain vested in Ergonomics, regardless of any participation or collaboration by Customer in any design, development or implementation of any such Licensed Technology. Customer shall not, and shall not permit others, to copy, translate, modify, create derivative works from, reverse engineer, decompile, recompile, disassemble, encumber or otherwise use the Licensed Technology, except as specifically authorized under this Agreement. Notwithstanding any other provision of this Agreement, failure by Customer, its agents, employees or contractors to comply with the terms of this Section 4.0 shall be deemed to constitute a material breach of this Agreement. Customer shall not challenge Ergonomics’ ownership of the Licensed Technology nor any part thereof, except in such circumstance where a third-party alleges infringement-related claims against Customer regarding Customer’s use of the Services.
5.0 OWNERSHIP OF CUSTOMER DATA.
Title and ownership of Customer Data is and remains with Customer. For purposes of this Agreement, “Customer Data” means the data provided or inputted by or on behalf of Customer for use with the Licensed Technology, including Customer’s Confidential Information and excluding any Confidential Information of Ergonomics. The Parties each acknowledge and agree that during the Term of this Agreement, Customer, its Affiliates or other third parties may disclose certain Customer Data, including, without limitation, personally identifiable data regarding employees or other individuals, to Ergonomics for the benefit of Customer or its Affiliates. All such Customer Data is and remains the property of Customer, however Customer provides Ergonomics with an indefinite, irrevocable, world-wide, paid-up, non-exclusive license to use anonymized Customer Data in connection with improving the Licensed Technology and Services, as set forth in Section 9.3. Customer represents and warrants to Ergonomics that (A) Customer, its Affiliates, employees, contractors and agents are authorized to disclose Customer Data to Ergonomics for use pursuant to this Agreement; and Ergonomics’ use or processing of Customer Data does not and shall not violate applicable Law or, if applicable, Customer’s or its Affiliates’ agreements with, or privacy notices to, individuals with respect to whom the Customer Data relates. ERGONOMICS SHALL HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA, UNLESS CAUSED BY THE GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF ERGONOMICS.
TERM AND TERMINATION.
2. Term. This Agreement shall commence on the Effective Date and remain in full force and effect for a period of Twelve Months (12 Months) thereafter (the “Initial Term”), unless terminated earlier in accordance with the terms and conditions of this Agreement. Upon the expiration of the Initial Term, this Agreement shall be renewed automatically for additional terms of one (1) year each (the “Renewal Term”, and together with the Initial Term, the “Term”), unless (A) Customer is not current on all amounts due to Ergonomics under this Agreement, any Order and/or any Statement of Work; (B) Customer is in default of any obligation hereunder; or (C) Customer or Ergonomics provides the other Party with written notice at least thirty (30) days prior to the expiration of the then-current Term that Customer or Ergonomics wishes to terminate this Agreement.
3. Termination for Cause. Ergonomics may terminate this Agreement if Customer was delinquent in making any payment due under this Agreement, any Order or any Statement of Work and has not cured such payment default within the notice
period set forth in Section 2.4 of this Agreement. Either Party may terminate this Agreement upon thirty (30) days’ advance written notice if the other Party shall have materially failed to perform and deliver the Services in accordance with the terms of this Agreement and shall have failed to cure such breach with thirty (30) days. Notwithstanding anything herein to the contrary, in the event that either Party commits a Material Breach (as hereinafter defined), the non-breaching Party shall have the right to terminate this Agreement, effective immediately.
4. Termination for Convenience. Either Party may terminate this Agreement for its own convenience upon ninety (90) days’ prior written notice to the other Party, provided however, that if Customer terminates this Agreement pursuant to this Section 6.3, the Services Fees shall not be refundable for any reason. Said Service Fees shall be due and payable on the date that Customer’s termination under this Section 6.3 becomes effective.
5. Events upon Expiration, Termination. Upon the expiration or termination of this Agreement:
5.1. Customer shall immediately: (A) cease all use of the Licensed Technology; (B) discontinue providing access to and remove all links to the Licensed Technology; (C) within ten (10) business days after the expiration or termination of this Agreement, destroy, all copies of the Licensed Technology in the possession or control of Customer and any of its Affiliates; and
6.4.5 Ergonomics shall invoice, and/or deduct from Customer’s account, all accrued but unpaid fees and expenses, including, without limitation, the full amount of any implementation fees specified on the Order or any Statement of Work.
WARRANTY; WARRANTY DISCLAIMERS.
2. Limited Performance Warranty. Ergonomics warrants that the Licensed Technology will perform in all material respects when used in accordance with the terms of this Agreement and with the third- party software specified by Ergonomics from time to time. Upon discovering that any Licensed Technology fails to conform to the warranty provided in this Section 7.1, Customer shall provide Ergonomics with written notice of such non-conformity within three (3) days after such discovery. Ergonomics’ liability and Customer’s sole remedy pursuant to this limited warranty shall be limited to Ergonomics’ good faith efforts to rectify any non-conformity.
3. Disclaimers. THE WARRANTIES SET FORTH ABOVE FOR THE LICENSED TECHNOLOGY AND SERVICES PROVIDED HEREUNDER ARE COMPLETE AND ARE IN LIEU OF, AND CUSTOMER HEREBY WAIVES, ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF THE TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ERGONOMICS EXPRESSLY DISCLAIMS ANY WARRANTIES OF DURABILITY THAT THE LICENSED TECHNOLOGY WILL MEET ALL OF CUSTOMER’S NEEDS, OR THAT THE OPERATION OF THE LICENSED TECHNOLOGY WILL BE ACCURATE, ERROR FREE OR UNINTERRUPTED.
INDEMNIFICATION; DISCLAIMER OF LIABILITIES AND DAMAGES.
2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Ergonomics and its Affiliates, and all of their respective employees, agents, officers, directors, members, managers and shareholders, from and against any and all losses, damages, costs, liabilities, expenses, claims, suits, actions or other proceedings, to the extent based on or arising in connection with (A) any breach of this Agreement by Customer, its Affiliates or their respective employees, agents or contractors and (B) the gross negligence or willful misconduct of Customer.
3. Indemnification by Ergonomics.
3.1. Ergonomics shall indemnify, defend and hold harmless Customer and its Affiliates, and all of their respective employees, agents, officers, directors, members, managers and shareholders for and against any losses, damages, costs, liabilities, expenses, claims, suits, actions or other proceedings, to the extent based on or arising in connection with the gross negligence or willful misconduct of Ergonomics, its Affiliates or their respective employees.
3.2. Ergonomics shall defend any suit, at Ergonomics’ cost and expense, brought against Customer that alleges the use of any Ergonomics manufactured, designed or labeled Licensed Technology, in accordance with its intended purpose and Ergonomics’ specifications, to be an infringement on any U.S. patent, copyright, or trade secret, and Ergonomics shall pay all reasonable legal costs and expenses incurred by Customer in conjunction with such an action and shall satisfy any final judgment against Customer, provided that Customer notifies Ergonomics promptly upon discovery of the existence or imminence of any such claim and terminate such infringement if and to the extent the infringement is within the control of Customer or any of its Affiliates, that Ergonomics shall have sole control of the defense or settlement of any such claims, and that Customer provides such assistance and cooperation to Ergonomics as is requested. The foregoing shall not include, and further Customer shall provide the defense and protection to Ergonomics for, an alleged infringement which results from (A) modifications to the Licensed Technology or any component thereof made by any person other than Ergonomics; (B) the use of any Licensed Technology other than in accordance with this Agreement or the Documentation; or (C) the use of Ergonomics’ Licensed Technology in combination with any item or process not supplied or formally approved by Ergonomics for use with the Licensed Technology. If the Licensed Technology is found to infringe, or, in Ergonomics’ opinion, is reasonably likely to be found to infringe, then Ergonomics may, within thirty (30) days, and at its sole option and expense, either (X) procure the right to continue to use such Licensed Technology; (Y) replace or modify such Licensed Technology or the offending part thereof so that the same
does not infringe without reducing the functionality thereof; or (Z) if neither of the foregoing is commercially practicable, terminate this Agreement and the license granted hereunder, if the settlement or other resolution of the claim subject to indemnification requires that Ergonomics also agree to terminate its use of the infringing Licensed Technology, and in the event Ergonomics exercises this option (Z), it shall reimburse to Customer all pre-paid fees. The remedies set forth in this Section 8.2.2 shall be Customer’s sole and exclusive remedies for any breach or infringement described in this Section 8.2.2.
4. Disclaimer of Certain Liabilities.
4.1. Ergonomics shall not be responsible for (A) any act or omission of Customer or its Affiliates, including, without limitation, any delays by Customer in its performance or cooperation; (B) any data that Ergonomics receives from Customer, its Affiliates or third-party sources; or (C) the Licensed Technology to the extent it is modified by any person other than Ergonomics.
4.2. To the extent the Licensed Technology utilizes the internet to transmit data or communications, Ergonomics shall have no liability for interception of any such data or communications, including encrypted data.
4.3. Ergonomics shall not be responsible or liable for (A) any damages arising in connection with access to or use of the Licensed Technology by Customer or its Affiliates, other than as authorized by this Agreement; or (B) any fault, inaccuracy, omission, delay or any other failure of the Licensed Technology caused by Customer or its Affiliates’ computer equipment or arising from use of the Licensed Technology on such equipment.
4.4. The content of third-party websites, systems, products or advertisements that may be linked to the Licensed Technology are not maintained or controlled by Ergonomics. As such, Ergonomics is not responsible for the availability, content or accuracy of third-party websites, systems or goods that may be linked to or advertised on the Licensed Technology.
4.5. Under no circumstances shall Ergonomics be liable for the actions of any person other than its employees, agents and contractors.
5. Disclaimer of Certain Damages. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, CONNECTED WITH, OR RELATING TO THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, ECONOMIC LOSS OF ANY KIND, LOSS OF PROFITS OR REVENUE, LOSS OF CUSTOMER’S GOODWILL, ATTORNEYS’ FEES, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTED FACILITIES OR SERVICES, DOWN-TIME COSTS, CLAIMS BY CLIENTS OR BUYERS OF EITHER PARTY, OR DAMAGES FOR ECONOMIC LOSSES OR PROPERTY DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO EITHER PARTY’S ACTS OR OMISSIONS, WHETHER UNDER NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY, OR OTHER PRODUCT LIABILITY THEORIES. ANY ACTION ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SOFTWARE OR SERVICES FURNISHED BY ERGONOMICS SHALL BE BROUGHT BY CUSTOMER WITHIN TWO (2) YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES, OR WITHIN THE APPLICABLE STATUTORY PERIOD, WHICHEVER IS SHORTER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THIS SECTION 8.4 SHALL NOT APPLY TO CLAIMS ARISING OUT OF OR RELATED TO A BREACH OF SECTIONS 4.0 OR 5.0.
MARKETING AND PUBLIC RELATIONS.
2. Use of Customer Name/Logo. Customer agrees that Ergonomics may, upon Customer’s written approval, include Customer’s name and/or company logo in new customer lists, current customer lists and press releases of Ergonomics at any time during the Term. Ergonomics agrees to promptly remove Customer’s name and/or company logo from any new customer or current customer lists of Ergonomics if Customer ceases to use the Licensed Technology or upon receipt of Customer’s written request to do so. Notwithstanding the foregoing, neither Party shall disclose the terms of this Agreement to any third-party without the prior written approval of the other Party.
3. Case Studies. Customer agrees that Ergonomics may, upon Customer’s written approval, write and distribute a case study regarding the choice of Ergonomics, the solution provided, and the benefits of such solution. Ergonomics agrees to write and distribute a case study only if Customer is reasonably satisfied with the Services and Licensed Technology as applicable.
4. Use of Customer Data. For purposes of improving the Services and the Licensed Technology, Customer shall provide Ergonomics with access to certain anonymized Customer Data relating directly to the Licensed Technology and Services provided to Customer pursuant to this Agreement. The anonymized Customer Data shall include, where applicable and available, the sex, age and height of any individuals whose workspaces are analyzed or modified during the Term of this Agreement and the symptom survey data collected on the survey attached hereto Schedule B. This Customer Data shall be used solely to improve the Services and Licensed Technology.
2. Compliance with Laws. The Parties shall comply with all applicable state and federal laws, regulations, rules,
ordinances and directives (collectively, “Laws”). Customer shall be responsible for ensuring that its use of the Licensed Technology fulfills the requirements of all such Laws and for determining the suitability of the Licensed Technology for Customer’s intended use. Both Parties expressly agree that (A) this Agreement is the result of arms-length negotiations; (B) neither Party has entered into this Agreement with a corrupt motive to obtain or retain business or to secure an unfair business advantage; and (C) each shall fully comply at all times with all applicable anti-corruption Laws including, but not limited to, the Foreign Corrupt Practices Act of 1977 of the U.S., as amended, and the UK Bribery Act 2010.
3. Export Control Compliance. Customer shall comply with all Laws of the United States governing the use, access or export of software products. Without limitation, the Licensed Technology or any part thereof may not be used or accessed within or by, or otherwise exported to, (A) any United States embargoed country or (B) anyone on the United States Treasury Department’s list of Specially Designated Nations, the United States Department of Commerce’s Table of Denial Orders, or other similar list.
MISCELLANEOUS; DISPUTE RESOLUTION.
2. Assignment. Customer may not assign this Agreement or delegate any of its duties under this Agreement without the prior written consent of Ergonomics.
3. Dispute Resolution. The Parties shall attempt in good faith to resolve any claim or dispute concerning this Agreement prior to the commencement of litigation. Upon the written request of either Party, each of the Parties will appoint a designated representative who does not devote substantially all of his or her time to the performance of this Agreement, whose task it will be to meet for the purpose of attempting to resolve the dispute. The designated representatives will meet in person or by telephone, as often as reasonably necessary, to gather and furnish to the other all information with respect to the matter in issue and which is pertinent to the understanding or resolution of the dispute. The representatives will discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding. The specific format for the discussions will be left to the discretion of the designated representatives. If the designated representatives do not resolve the dispute within thirty (30) days of receipt of written notice of the dispute, then an executive officer of Customer and an executive officer of Ergonomics will meet in person or by telephone to review and attempt to resolve the dispute prior to the commencement of litigation. In the event the executive officers do not reach a resolution within thirty (30) days of meeting in person or via telephone, either Party shall have the right to file a legal action in the Alameda County Superior Court. If either Party files a legal action without first complying with the requirements of this Section 11.2, that Party shall not be entitled to recover its fees and/or costs under Section 11.17 of this Agreement in the event that it is the prevailing party in the legal action.
4. Force Majeure. Neither Party shall be liable for any failure or delay in performing its obligations (other than the payment of amounts due hereunder) hereunder during any period in which such performance is prevented or delayed by causes or conditions beyond the Party’s control, including, without limitation, flood, war, embargo, strike or other labor dispute, riot or the intervention of any government authority, power failures, computer viruses that are not preventable through generally available retail products, catastrophic hardware failures, usage spikes, attacks on a Party’s server, or any inability to transmit or receive information over the Internet. The delayed Party shall (A) promptly notify the other Party in writing of any such failure or delay in performance, the expected duration thereof and its anticipated effect and (B) use its best efforts to remedy such failure or delay. Notwithstanding the foregoing, the non-delayed Party shall have the right to terminate this Agreement if the excused failure or delay continues for more than sixty (60) days from the date that performance was first delayed; provided that, in the case of Customer, Customer is not otherwise in breach of this Agreement and has paid Ergonomics all amounts due to Ergonomics hereunder, including, but not limited to, all unpaid implementation fees, through the effective date of the termination pursuant to this Section 11.3.
4. Governing Law and Venue. This Agreement shall be interpreted in accordance with, and governed in all respects by, the laws of the State of California without regard to any conflicts of laws principles, and any action initiated to enforce this Agreement shall be venued in Alameda County, California.
5. Independent Relationship. Nothing in this Agreement shall be deemed to create an employer/employee, principal/ agent, partnership or joint venture relationship. Neither Party shall have the authority to enter into any contract on behalf of the other Party without that Party’s express written consent. Neither Party shall make any representation or incur any obligation in the name of or on behalf of the other Party. Nothing in this Agreement shall be construed as or constitute an appointment of either Party as the agent for the other.
6. Third-party Rights. This Agreement is made for the benefit of the Parties and, where applicable, their successors and assigns, and is not intended to benefit, or be enforceable by, any other individual or entity.
7. Notices. All notices required or permitted hereunder shall be in writing and shall be deemed to have been given (A) when personally delivered; (B) when sent by confirmed email; (C) three (3) days after having been sent via certified mail, return receipt requested, with postage prepaid; or (D) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All notices shall be sent to the addresses below or any other address as may be designated by giving written notice to the other Party.
If to Ergonomics: Ergonomics First, Inc. Attn: John Fitzsimmons 6067 Margarido Dr.
Oakland, California 94618
If to Customer:
To the contact name at the address or email address shown on the Order.
8. Waiver. No waiver of any breach of this Agreement shall be deemed to constitute a waiver of any subsequent breach of the same or any other provision of this Agreement.
9. Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then all Parties will be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void; it being the intent and agreement of the Parties that this Agreement will be deemed amended by modifying the provision to the minimum extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objective.
10. Headings. All headings and captions employed herein are for convenience of reference only and shall not be considered in the construction or interpretation of any provision of this Agreement.
11. Entire Agreement. Each Order, each Statement of Work and this Agreement, and any exhibits, schedules and addenda attached hereto or thereto, constitute the entire agreement of the Parties with respect to the matters described herein, superseding in all respects any and all prior proposals, negotiations, understandings and other agreements, oral or written, between the Parties. Each additional Order shall become part of this Agreement upon execution by the Parties.
12. Amendment. This Agreement and any addenda hereto may be amended only by the written agreement of both Parties. Any amendments to this Agreement or any addenda, exhibits or schedules hereto, or to the Order or any Statement of Work agreed to on behalf of Ergonomics shall be signed by a representative of Ergonomics, holding the position as an Officer of Ergonomics.
13. Ergonomics Materials. Ergonomics has the right to change or modify its forms, documents, Documentation or materials without prior notice to Customer.
14. Authority. Each Party represents and warrants that it has full power and authority to enter into this Agreement and grant the rights granted herein.
15. Survival of Certain Provisions. Each Party covenants and agrees that the provisions in Sections 4.0 (Ownership of Intellectual Property), 5.0 (Ownership of Customer Data), 6.4 (Events Upon Expiration, Termination), 8.4 (Disclaimer of Certain Damages), 11.0 (Miscellaneous) and 12.0 (Definitions), in addition to any other provision that, by its terms, is intended to survive the expiration or earlier termination of this Agreement, shall survive the expiration or earlier termination of thisAgreement.
16. Irreparable Harm. Customer acknowledges that its breach of Sections 1.1, 1.2 or 10.0 of this Agreement will cause irreparable injury to Ergonomics that would not be adequately compensable in money damages, and for which Ergonomics shall have no adequate remedy at Law. In the event of a breach of Section 1.1, 1.2 or Section 10.0 of this Agreement, Ergonomics shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief. Customer hereby waives any requirement of the posting of a bond that may apply for issuance of any injunctions, orders or decrees.
17. Recovery of Litigation and Other Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, the successful or prevailing Party or Parties shall be entitled to recover reasonable attorneys’ fees, expert fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
18. Effect of Acquisitions. No acquisition, sale or other transaction involving Customer or any Affiliate of Customer shall in any way alter, diminish, eliminate or otherwise affect Customer’s obligations hereunder, including its obligations to pay any fees owing hereunder, regardless of whether such a transaction includes any other contract for the same or similar Licensed Technology or Services.
19. Incorporation by Reference. This Agreement and each Statement of Work shall be deemed a part of and shall be incorporated by reference into the Order. To the extent there is a conflict between the terms of this Agreement and any Order, any such Order shall control. To the extent there is a conflict between the terms of this Agreement and any Statement of Work, the Statement of Work shall control. To the extent there is a conflict between the terms of any Order and any Statement of Work, the Statement of Work shall control. Customer, by execution of each and every Order, represents and warrants that he/she/it has read, understands and agrees to be bound by the terms and conditions of this Agreement, any Statement of Work and any exhibits, schedules and addenda attached hereto or thereto, each as may be modified by subsequent Change Requests or amendments.
12.1. “Affiliate” means with respect to Party, its subsidiaries and controlled corporations or entities which are directly or indirectly controlled by such Party through ownership of more than fifty percent (50%) of the outstanding voting stock or rights, by control of a majority of the directors or managing members of the entities, by contract or arrangement, or otherwise.
12.2. “Certification Course” is a certification course and certificate provided by Ergonomics to qualified persons who
complete a one-day course to practice and demonstrate the principles and techniques identified by the “Full Course Module,” provided that they are currently employed by the Customer or they have agreed to the terms of this Agreement, and have successfully passed the Consultant Course with a score greater than 80%. The content of the Certification Course includes: demonstration of the qualitative and quantitative measures described in the “Full Course Module,” demonstration of knowledge of applicable medical research, demonstration of several chair adjustment strategies and chair modification practices, including chair cylinder changes, use of chair pads, armrest and caster replacement or modification, demonstrate understanding of various designs of fixed and adjustable work surfaces and their modification, demonstration for use of a commercial accelerometer program for objective measures, demonstrated practice and techniques to determine optimal work surface height and work surface tools location, presentation of several detailed case studies and Q&A session with the participants.
12.3. “Confidential Information” means any and all tangible and intangible information (whether written or otherwise recorded or oral) that is of value to the disclosing Party and not generally known. Confidential Information includes, without limitation, software and related documentation, technical and business information relating to inventions or products, research and development, intellectual property, know-how, trade secrets, pricing information, production processes, finances, customers, marketing, present or future business plans, and any other information that is identified as confidential by the disclosing Party or that the receiving Party should reasonably know to be confidential based on the circumstances. Notwithstanding the foregoing, the term Confidential Information shall not include any information that is: (A) available from public sources or in the public domain, through no fault of the receiving Party; (B) received at any time from any third-party without breach of a non-disclosure obligation to the disclosing Party; (C) readily discernible from publicly-available products or literature; (D) approved for disclosure by prior written permission of an authorized officer of the disclosing Party; or (E) required to be disclosed under any Law, governmental rule or regulation or court order.
12.4. “Consultant Course” refers to a comprehensive online presentation that includes the citation of scientific research pertaining to physiology, health, ergonomics studies and the epidemiology of work and work postures; these studies support the rationale to redefine seating strategies and workstation adjustment; a survey is provided to determine the nature and measure of symptomatic discomfort and productivity for the end-user as a means to measure subsequent progress. Processes are introduced to easily measure spinal posture in the field, identify the basic postural requirements of work, and determine chair and workstation settings for optimal support and movement; detailed examples are shown for chair adjustment and modification as needed, as well as work surface modifications. Studies of reliability and validity for the method in real-world situations are presented with statistical evidence of significant outcomes. Pre- and post-course exams are offered to test changes in client knowledge, and a complete list of current references is provided.
12.5. “Custom Software” means specifically modified versions or modules of the Software created by Ergonomics pursuant to the Order, any signed Statement of Work or any other written agreement between the Parties.
12.6. “Courses” mean the educational courses made available to Customer as part of the Licensed Technology, including the Consultant Course and the Certificate Course.
12.7. “Documentation” means, in printed or electronic form, each of the manuals, Courses, user guides, technical specification documents and other instructional and reference materials generally distributed by Ergonomics regarding the Software or any Custom Software, all as updated and redistributed by Ergonomics from time to time.
12.8. “End User” means Customer’s employees, associates, contractors, personnel or others who are authorized to access the Licensed Technology.
12.9. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (A) permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (B) prevent Customer or any authorized user from accessing or using the Services or Licensed Technology as intended by this Agreement.
12.10. “Licensed Technology” means any Software, Courses and any Custom Software licensed by Customer pursuant to the terms and conditions of this Agreement and any Upgrades thereto, if any, along with its related Documentation.
12.11. “Material Breach” means the occurrence of any of the following acts or events: (A) a Party’s breach of the confidentiality obligations in this Agreement; (B) if a Party is placed into receivership, becomes insolvent, admits in writing its inability to pay its debts as they mature, files a petition in bankruptcy, makes an assignment for the benefit of creditors or has an involuntary petition under any bankruptcy Laws filed against it which is not dismissed within thirty (30) days; and/or (C) an assignment by Customer of this Agreement in breach of Section 11.1 hereof.
12.12. “Order” means a specific written statement, executed by Ergonomics and Customer, which sets forth the Licensed Technology and Services to be provided by Ergonomics to Customer pursuant to the terms of this Agreement. Orders shall substantially be in the form of Order No. 1 and be numbered sequentially.
12.13. “Proprietary Rights” means all copyright, patent, trademark, trade secret and other intellectual property, trade secrets and proprietary rights.
12.14. “Seat(s)” means a license for one concurrent End User of the Licensed Technology.
12.15. “Services” means the implementation, training, support, maintenance, programming, hosting, data processing, printing, reporting, filing, transmitting, packaging, delivering and other services specified in the Order or any signed Statement of Work or otherwise provided by Ergonomics pursuant to thisAgreement.
12.16. “Software” means the object code version of Ergonomics’ proprietary software application(s) set forth in an Order and made available to Customer by Ergonomics under this Agreement.
12.17. “Statement of Work” means any statement of work, work order or services addendum, executed by Ergonomics and Customer, which sets forth the Services to be provided by Ergonomics to Customer pursuant to thisAgreement.
12.18. “Upgrades” means all updates, new versions, modifications and subsequent releases of the Licensed Technology. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
“ERGONOMICS” Ergonomics First, Inc.
DESCRIPTION OF SERVICES AND LICENSED TECHNOLOGY
The Courses provided by Ergonomics consist of lessons and programs designed to assist the End User in: (i) identifying and recording a list of personal symptomatic body parts which symptoms are initiated or exacerbated by work, for the purpose of recording the frequency and severity of those symptoms and personally assessing the effect of that symptom presentation on their personal work productivity; (ii) identifying and promoting optimal spine postures at work using a qualitative measure of spine posture in at least two different chair adjustments; (iii) identifying and using an objective measure of postural muscle strength to more easily sustain optimal spine postures during different work tasks; and (iv) identifying and locating proper adjustments or modifications to an adjustable, “ergonomic” chair and work surface that permit the End User’s body to have the necessary support and mobility to safely conduct the tasks of seated work.