GUIDING TECHNOLOGIES CORP.
SOFTWARE SUBSCRIPTION AGREEMENT
THIS SOFTWARE SUBSCRIPTION AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS ON WHICH GUIDING TECHNOLOGIES GRANTS TO YOU AND THE ENTITY YOU REPRESENT (INDIVIDUALLY AND COLLECTIVELY, “SUBSCRIBER”) THE RIGHT TO USE AND DEPLOY GAINS. BY CLICKING THE “ACCEPT BOX” BELOW (I.E. OR ELSEWHERE ON THE WEBSITE FOR GAINS), SUBSCRIBER HEREBY ACCEPTS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT IN ITS ENTIRETY, EFFECTIVE IMMEDIATELY, AND YOU PERSONALLY WARRANT AND REPRESENT TO GUIDING TECHNOLOGIES THAT YOU PERSONALLY ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON SUBSCRIBER’S BEHALF. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT. IF, UPON REVIEW, SUBSCRIBER CHOOSES TO NOT ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN SUBSCRIBER MUST NOT ACCESS, DOWNLOAD OR USE GAINS.
BY ENTERING INTO THIS AGREEMENT, SUBSCRIBER ALSO AGREES TO ENSURE THAT ANY PERSON ENTITLED TO USE GAINS, SUCH AS SUBSCRIBER’S EMPLOYEES, CONTRACTORS, AGENTS, AND/OR AFFILIATES, WILL ALSO ABIDE BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SUBSCRIBER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS GUIDING TECHNOLOGIES FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, AND/OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO ANY BREACH OF THIS AGREEMENT BY SUCH EMPLOYEES, CONTRACTORS, AGENTS AND/OR AFFILIATES.
1.1 Generally. Terms defined above and capitalized terms elsewhere in this Agreement have their assigned meanings, and the following terms have the meanings assigned to them:
1.1.1 “Agreement” means this Agreement, and all Schedules, Exhibits, Addendums, and Attachments agreed to by Subscriber and GUIDING TECHNOLOGIES, as each is amended from time to time.
1.1.2 “GAINS” means the Guidance Assessment and Information System Platform and all related materials, documents and media to which a Subscriber has access as part of a subscription.
1.1.3 “Guiding Technologies” means Guiding Technologies Corporation, a Pennsylvania corporation.
1.1.4 “Learner” means the person who learns using GAINS and on whom data are collected using GAINS.
1.1.5 “Notify” or “Notice” means to contact a Party through means designated in and in accordance with Section 22.1.
1.1.6 “Party” means a party to this Agreement.
1.1.7 “Subscription” means Subscriber’s right to use GAINS in accordance with and subject to the terms of this Agreement for the Subscription Period.
1.1.8 “Subscription Period” is the period for the Subscription during which GUIDING TECHNOLOGIES will bill and collect payment from Subscriber.
1.1.9 “User” means each person who is authorized by Subscriber to access or use GAINS, directly or indirectly.
1.2 Other Definitional Provisions.
1.2.1 Each term defined in this Agreement has its defined meaning when used in any other document associated with this Agreement unless the term is otherwise defined in that document. In that event, the term has the meaning that particular document assigns to it.
1.2.2 References to “Sections,” “Exhibits,” “Addendums,” “Schedules” and “Attachments” are to Sections, Exhibits, Addendums, Schedules and Attachments of this Agreement, unless otherwise specifically provided.
1.2.3 The words “including,” “includes,” and “include” are deemed to be followed by the words “without limitation.”
1.2.4 References to a person includes that person’s permitted successors and assigns and, in the case of any governmental person, the person succeeding to the relevant functions of that governmental person.
1.2.5 All references to statutes and regulations include:
i. Any past and future amendments of those statutes and related regulations; and
ii. Any successor statutes and related regulations.
1.2.6 All references in this Agreement to “Dollars” or “$” refer to lawful currency of the United States of America.
2. Grant of License. Subject to the terms and conditions of this Agreement, GUIDING TECHNOLOGIES agrees to provide Subscriber with access to GAINS. GUIDING TECHNOLOGIES grants to Subscriber, as part of the Subscription, a non-exclusive, nontransferable right to use GAINS. Subscriber may allow its employees and contractors to use GAINS solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement by any such employee and/or contractor, and provided further, that Subscriber may not allow any contractor, that directly competes with GUIDING TECHNOLOGIES, to use GAINS without GUIDING TECHNOLOGIES’s prior written consent. Subscriber may not allow any other person, business, corporation, government organization or any other entity to use GAINS.
3. Restriction on Use. Subscriber’s use of GAINS is restricted to Subscriber’s own internal business operations. GAINS may not be used by Subscriber, or allowed to be used by Subscriber, for the benefit of any other person or entity. Access to GAINS is governed by the maximum number of authorized Learners for whom Subscriber has purchased Subscriptions. Subscriber may not: (a) copy GAINS or any portion thereof; (b) use GAINS to store or transmit malicious code, or infringing, tortious or otherwise unlawful materials; or (c) interfere with the business or operations of GUIDING TECHNOLOGIES. Subscriber agrees to only use GAINS in compliance with all applicable laws, rules, and regulations, including without limitation, all applicable anti-corruption laws, employment laws, export laws, and privacy laws.
Subscriber may not use GAINS if the Subscriber is a direct competitor. In addition, Subscriber may not access GAINS for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
To the extent that GAINS may be used to reproduce, modify, publish and distribute materials, it is licensed to the Subscriber only for reproduction, modification, publication and distribution of non-copyrighted materials, materials to which the Subscriber owns the copyright(s), or materials Subscriber is authorized or legally permitted to reproduce, modify, publish or distribute.
3.1 Audit Rights. GUIDING TECHNOLOGIES may, at any time, audit Subscriber’s use of GAINS by accessing GAINS through the GUIDING TECHNOLOGIES servers to ensure compliance with the terms of this Agreement. Unless specifically authorized in writing in advance by GUIDING TECHNOLOGIES, Subscriber may not rent, lease or timeshare GAINS or provide subscription services for GAINS or permit others to do so.
4. Subscriptions. GAINS is a subscription service. Each Learner in GAINS must have an associated Subscription to GAINS.
5. Pricing. Pricing for GAINS shall be set by GUIDING TECHNOLOGIES and is determined on a per Learner per Subscription Period basis.
6. Term. This Agreement shall be in effect for entirety of the Subscription Period.
6.1 Automatic Renewal. After the initial Subscription term, all Subscriptions shall be renewed automatically for successive terms equal to the initial Subscription term unless either Party gives the other Party written notice of its intent not to renew the term at least thirty (30) days prior to the expiration of the then-current term.
7. Payment. All payments to GUIDING TECHNOLOGIES shall be due immediately upon receipt of GUIDING TECHNOLOGIES’s invoice. Invoices are generated for payment in advance of the Subscription Period. All fees paid for GAINS are nonrefundable.
7.1 Payment Method. Subscriber will provide GUIDING TECHNOLOGIES with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to GUIDING TECHNOLOGIES. By providing credit card information to GUIDING TECHNOLOGIES, Subscriber authorizes GUIDING TECHNOLOGIES to charge such credit card for GAINS for the initial subscription term and any renewal Subscription term(s). Such charges shall be made in advance, in accordance with the Subscription term chosen by Subscriber. Subscriber is responsible for providing complete and accurate billing and contact information to GUIDING TECHNOLOGIES and notifying GUIDING TECHNOLOGIES of any changes to such information.
7.2 Late Fees. For any past due amount not rendered to GUIDING TECHNOLOGIES, a late fee amounting to 5% of the total amount past due may be assessed.
7.3 Suspension of Account. If any amount due from Subscriber to GUIDING TECHNOLOGIES is overdue by thirty (30) days or more, Subscriber’s account shall be subject to immediate suspension until full payment, including any late fee(s), is made to GUIDING TECHNOLOGIES.
7.4 Taxes. GAINS fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with the use of or access to GAINS. If GUIDING TECHNOLOGIES has the legal obligation to pay or collect Taxes for which the Subscriber is responsible, GUIDING TECHNOLOGIES will invoice Subscriber and Subscriber will pay that amount or otherwise provide GUIDING TECHNOLOGIES with a valid tax exemption certificate authorized by the appropriate taxing authority.
8. Trial Period. If Subscriber registers for a free trial of GAINS, GUIDING TECHNOLOGIES will make GAINS available on a trial basis free of charge for thirty (30) days for up to ten (10) Learners. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA THAT SUBSCRIBER ENTERS INTO GAINS, AND ANY CUSTOMIZATIONS MADE TO GAINS BY OR FOR SUBSCRIBER, DURING SUBSCRIBER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS SUBSCRIBER PURCHASES A SUBSCRIPTION TO GAINS, PURCHASES UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
9. Delivery of GAINS. GAINS is provided to Subscriber through a web based portal and an application for handheld devices.
9.1 Subscriber-Hosted Environment. Subscribers are not authorized to host GAINS in their own environment and must use GAINS through the web-based portal and applications provided by GUIDING TECHNOLOGIES. Subscriber understands and agrees that, any changes made by Subscriber, without GUIDING TECHNOLOGIES’s written consent, to the administrative settings of the underlying operating system, servers, or third party libraries included in GAINS will void any warranty provided by GUIDING TECHNOLOGIES hereunder and will automatically make Subscriber ineligible for standard technical support.
10. Support and Training. GUIDING TECHNOLOGIES shall provide standard technical support services to Subscriber in accordance with the terms of this Agreement. The cost of maintenance and support services is included in the Subscription price. Additional support and development services may be available on a case-by-case basis. The terms for such additional services shall be mutually agreed upon and specified in a separate written agreement.
11. Updates and Upgrades. GUIDING TECHNOLOGIES may from time to time conduct updates and upgrades to GAINS, which may temporarily affect its use. GUIDING TECHNOLOGIES will, to the extent possible and commercially reasonable, provide prior notice of such updates and upgrades to Subscriber and conduct such updates and upgrades outside of regular business hours.
12. Data Collection and Use. GUIDING TECHNOLOGIES may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to unique system or hardware identifiers, information about User’s devices, computer, system and application software, and peripherals, that is gathered periodically to improve GUIDING TECHNOLOGIES’s products and services, facilitate the provision of software updates, product support and other services (if any) related to GAINS, and to verify compliance with the terms of this Agreement.
12.1 Protection of Your Data. GUIDING TECHNOLOGIES will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Subscriber’s data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Subscriber’s data.
12.2 Location Data. GUIDING TECHNOLOGIES may provide certain services through GAINS that rely upon location information. To provide and improve these services, where available, GUIDING TECHNOLOGIES may transmit, collect, maintain, process and use User’s location data. The location data and queries collected by GUIDING TECHNOLOGIES are collected in a form that does not personally identify any User and may be used by GUIDING TECHNOLOGIES to provide and improve location-based products and services. By using any location-based services provided by or through GAINS, Subscriber agrees and consents to GUIDING TECHNOLOGIES’s transmission, collection, maintenance, processing and use of location data and queries to improve such products and services. Subscriber may withdraw this consent at any time by turning off location based services on Subscriber’s device(s).
12.3 HIPAA Compliance. GUIDING TECHNOLOGIES recognizes that, in order to provide the services contemplated by this Agreement, it may receive information from Subscriber that falls under the protection of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). If such a disclosure should occur, it shall be governed by a separate Business Associates Agreement supplied by GUIDING TECHNOLOGIES.
12.3.1 Additional Requirements. Any additional requirements that govern the relationship between GUIDING TECHNOLOGIES and Subscriber, including those resulting from state laws or regulations, shall be recognized, if at all, in an additional Addendum to this Agreement.
12.3.2 Marketing Activities. Subscriber agrees that GUIDING TECHNOLOGIES may from time to time identify Subscriber (with its name, logo and/or trademark) as a GUIDING TECHNOLOGIES Subscriber on its websites, sales and marketing materials or press releases.
13. Research. GUIDING TECHNOLOGIES is committed to the science of Applied Behavior Analysis (“ABA”) and considers furthering that science one of its core objectives. To that end, GUIDING TECHNOLOGIES may, from time to time, without Subscriber’s further consent, use common scientific research practices to help individual organizations or the entire ABA community make better treatment decisions. Any research activities will be conducted by GUIDING TECHNOLOGIES using industry standard technical safeguards to assure that all data is anonymous and completely “scrubbed” of any personally identifying information. Further, GUIDING TECHNOLOGIES may periodically publish or present findings that are likely to advance the scientific literature. Any such activities will occur while protecting anonymity and confidentiality.
13.1 Opt Out. Any Subscriber may choose to opt out of GUIDING TECHNOLOGIES research projects without any effect to that Subscriber’s Subscription to, or use of, GAINS. However, GUIDING TECHNOLOGIES reserves the right to withhold any information about, or conclusions drawn from, research projects to those Subscribers who do not participate.
14. Beta Services. From time to time, GUIDING TECHNOLOGIES may invite Subscribers to try additions or modifications to GAINS as beta trials at no charge. Subscribers may accept or decline any such beta trials. Beta trials are for evaluation purposes and not for production use, are not considered part of GAINS under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any beta trial periods will expire upon the earlier of one year from the trial start date or the date that a version of the beta trials becomes generally available as an addition or modification to GAINS. GUIDING TECHNOLOGIES may discontinue beta trials at any time at its sole discretion and may never make them generally available. GUIDING TECHNOLOGIES will have no liability for any harm or damage arising out of or in connection with a beta trials.
15. Treatment Decisions and Outcomes. Any health or treatment information displayed in GAINS is provided for general informational purposes only and is not intended to be relied upon as, or a substitute for, medical advice. Subscriber is solely responsible for the health or treatment decisions made in conjunction with use of GAINS and any consequences resulting therefrom. GUIDING TECHNOLOGIES does not guarantee the accuracy, completeness, or timeliness of health or treatment information appearing within GAINS or that desired results will be obtained.
16. Proprietary Rights and Protection Thereof. GAINS is licensed as a subscription, not sold, by GUIDING TECHNOLOGIES to Subscriber, and nothing in this Agreement will be interpreted or construed as a sale or purchase of GAINS. GUIDING TECHNOLOGIES and Subscriber acknowledge and agree that, as between GUIDING TECHNOLOGIES and Subscriber, GUIDING TECHNOLOGIES owns and will own all rights, title, and interest, including all intellectual property rights therein and thereto, in and to GAINS and GAINS’s documentation, and no title to any rights is transferred to Subscriber. The use by Subscriber of any rights is authorized only for the purposes set forth herein and, upon termination of this Agreement for any reason, such authorization will cease. Subscriber will not have any rights in or to GAINS except as expressly granted in this Agreement. GUIDING TECHNOLOGIES reserves to itself all rights to GAINS not expressly granted to Subscriber under this Agreement.
16.1 Intellectual Property. Unless jointly developed by GUIDING TECHNOLOGIES and Subscriber, and agreed in writing otherwise, all right, title and interest of every kind and nature whatsoever in and to any intellectual property, including without limitation any inventions, patents, trademarks, copyrights, ideas, creations and properties furnished by GUIDING TECHNOLOGIES to Subscriber and/or by Subscriber to GUIDING TECHNOLOGIES during the term of this Agreement, will as between the Parties be, become and remain the sole and exclusive property of the furnishing Party for any and all purposes and uses whatsoever, and the receiving Party shall have no right, title or interest of any kind or nature therein or thereto, or in and to any results and proceeds therefrom. The provisions of this Article 16 shall survive the expiration or termination for any reason of this Agreement.
16.2 Independent Contractors. GUIDING TECHNOLOGIES and Subscriber are independent contractors, and nothing contained in this Agreement shall be construed to constitute GUIDING TECHNOLOGIES and Subscriber as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
16.3 No Other Rights. Subscriber may not, directly or through any person or entity, in any form or manner, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or object code from GAINS, except as explicitly permitted under this Agreement or expressly permitted by applicable law.
16.4 Proprietary Notices. Subscriber will ensure that all copies or partial copies of GAINS will display copyright and other proprietary notices to protect GUIDING TECHNOLOGIES’s underlying ownership rights in the same manner that GUIDING TECHNOLOGIES displays such notices in GAINS or in any manner reasonably requested by GUIDING TECHNOLOGIES. Subscriber will not, nor will it permit others to, remove, alter, cover, or obscure any such notices from any component of GAINS.
16.5 Comments and Suggestions. Should Subscriber provide GUIDING TECHNOLOGIES with comments or suggestions for the modification, correction, improvement or enhancement of any part of GAINS, Subscriber grants to GUIDING TECHNOLOGIES a non-exclusive, irrevocable, worldwide, royalty-free license, with the right to sublicense, the rights to use and disclose such comments and suggestions in any manner GUIDING TECHNOLOGIES chooses, without reference to the source.
17. Subscriber Data. GUIDING TECHNOLOGIES acknowledges that all Subscriber data belongs to Subscriber and that, other than specifically provided herein, GUIDING TECHNOLOGIES acquires no rights, title, or interest thereto. GUIDING TECHNOLOGIES shall maintain commercially reasonable safeguards for the protection and security of Subscriber data. Other than as specifically permitted by Subscriber in writing, GUIDING TECHNOLOGIES shall not: (a) modify the Subscriber data; or (b) disclose the Subscriber data unless compelled by law.
18. GUIDING TECHNOLOGIES Infringement Indemnification. GUIDING TECHNOLOGIES agrees, at its own expense, to defend, or, at its option, to settle, any claim or action brought against Subscriber on the issue of infringement of any copyright, trade secret, or U.S., or Canadian patent by GAINS used or distributed within the terms of this Agreement, and to indemnify Subscriber against any and all damages and costs, including legal fees, that a court awards against Subscriber under any such claim or action; provided that Subscriber provides GUIDING TECHNOLOGIES with (a) prompt written notice of such claim or action, (b) sole control and authority over the defense or settlement of such claim or action, and (c) proper and full information and reasonable assistance to defend and settle any such claim or action.
18.1 Injunctions. In the event that use of GAINS is, or in GUIDING TECHNOLOGIES’s sole opinion is likely to be, enjoined due to the type of infringement described above, GUIDING TECHNOLOGIES, at its option and expense, may either (a) modify GAINS so that they become non-infringing, (b) replace GAINS with functionally equivalent non-infringing Software reasonably acceptable to Subscriber or, if the foregoing alternatives are not reasonably available to GUIDING TECHNOLOGIES, (c) terminate this Agreement and accept return of GAINS and refund a prorated portion of the Subscription Fee.
18.2 Exceptions. Notwithstanding the other provisions of Section 18, GUIDING TECHNOLOGIES will have no liability to the extent that any such claim would have been avoided but for (a) use of GAINS with any other products not provided by GUIDING TECHNOLOGIES or (b) modification of GAINS after delivery by GUIDING TECHNOLOGIES.
18.3 Limitation. THE FOREGOING PROVISIONS OF THIS SECTION 18 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF GUIDING TECHNOLOGIES AND THE SOLE AND EXCLUSIVE REMEDY OF SUBSCRIBER WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY GAINS OR ITS REPRODUCTION, DISTRIBUTION OR USE.
19. Warranty & Disclaimer.
19.1 Limited Warranty. During the term of the Subscription, GUIDING TECHNOLOGIES warrants that GAINS will operate in substantial conformance with the then-current GUIDING TECHNOLOGIES published specifications under normal use. GUIDING TECHNOLOGIES shall use commercially reasonable efforts to remedy any significant non-conformance reported to GUIDING TECHNOLOGIES that GUIDING TECHNOLOGIES can reasonably identify and confirm. This paragraph sets forth Subscriber’s sole and exclusive remedy and GUIDING TECHNOLOGIES’s entire liability for any breach of warranty or other duty related to GAINS. Any unauthorized modification to GAINS, tampering with GAINS, use inconsistent with GAINS’s primary purpose, or related breach of this Agreement shall void the aforementioned warranty.
19.2 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, GAINS IS PROVIDED TO SUBSCRIBER “AS IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. GUIDING TECHNOLOGIES DOES NOT WARRANT THAT GAINS WILL MEET SUBSCRIBER’S REQUIREMENTS, BE ERROR-FREE, OR THAT THE OPERATION OF GAINS WILL BE SECURE OR UNINTERRUPTED. GUIDING TECHNOLOGIES EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON PRODUCTS AND/OR SERVICES THAT ARE BASED UPON OR CREATED THROUGH USE OF GAINS.
20.1 Further Assurances. In connection with this Agreement and the transactions contemplated herein, each Party shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions.
20.2 Cooperation. Each Party will take all necessary or desirable further action to carry out and effectuate the full purpose and intent of this Agreement.
21.1 Termination. Unless otherwise indicated in the Pricing Schedule, either Party shall be free to terminate this Agreement for any reason or no reason upon five (5) business days prior Notice to the other Party.
21.1.1 Date in Notice. A termination date shall be included as part of the Notice.
21.1.2 Effective Date. In the event that no termination date is provided in the Notice, the effective termination date shall be the first day of the first full month after the month in which the written notice was given.
21.2 Payment Due at Termination. Subscriber shall, on or before the termination date, furnish to GUIDING TECHNOLOGIES all outstanding payments due to GUIDING TECHNOLOGIES.
21.3 Forfeiture of Discount Pricing. Any discounts given for full Subscription Periods will be forfeited if Subscriber terminates this Agreement before the end of the Subscription Period.
21.4 Accrued Rights. Termination shall not affect any rights previously accrued, including with respect to outstanding payments due from Subscriber.
21.5 Client Accounts. Subscriber shall retain rights to Subscriber client accounts and records, even after termination. GUIDING TECHNOLOGIES shall maintain such records for a period in accordance with relevant federal and state laws and regulations and provide read-only access to Subscriber’s data for at least that same period of time.
21.6 Termination for Cause. Other provisions of Article 21 notwithstanding, either Party shall have the right to terminate for cause at any time if the other Party: (1) fails to perform any duties or obligations within the time specified herein or any written extension thereof granted by the other Party; (2) so fails to make progress as to endanger performance of this Agreement in accordance with its terms; (3) fails to comply with any of the material terms and conditions of this Agreement; (4) is declared insolvent or bankrupt, or makes an assignment for the benefit of creditors, or a receiver is appointed or any proceeding is demanded by, for or against the other under any provision of the Federal Bankruptcy Act or any amendment thereof; or (5) acts in bad faith or in any way that might endanger the business relationships or business reputation of the terminating Party.
22. General Provisions.
22.1 Notices. Notices given with respect to this Agreement shall be in a writing sent to GUIDING TECHNOLOGIES.
22.1.1 Notice by Email. Notice by email will be considered given one business day after transmission if confirmation of transmission can be established.
22.2 Mutual Confidentiality. It is understood that each Party will likely receive confidential, proprietary, and/or sensitive information (“Confidential Information”) from the other in conjunction with providing the services contemplated by this Agreement. Each Party shall consider any information received from the other Party, whether written or verbal, as Confidential Information unless such information shall clearly and explicitly be designated otherwise.
22.2.1 No Other Purpose. Subscriber and GUIDING TECHNOLOGIES each agree not to use any Confidential Information disclosed to it by the other Party for its own use or for any purpose other than those contemplated by this Agreement.
22.2.2 Required Parties. Neither Party shall disclose or permit disclosure of any Confidential Information of the other Party to third parties or to employees of the Party receiving Confidential Information, other than directors, officers, employees, consultants and agents who are required to have the information for support of the purposes of this Agreement.
22.2.3 Limitation on Disclosure. Each Party shall limit disclosure of the other Party’s Confidential Information to those of its directors, officers, employees, consultants and agents who are subject to obligations of secrecy and limited use no less stringent than those set forth in this Agreement.
22.2.4 Degree of Care. Each Party shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree of care that the receiving Party utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care.
22.3.1 Agents and Employees. Neither GUIDING TECHNOLOGIES nor Subscriber shall solicit any agent, representative, consultant, contractor or employee from the other Party for any business that competes with the other Party during the term of this Agreement and for a period of two (2) years after the termination of this Agreement.
22.3.2 Clients. Neither GUIDING TECHNOLOGIES nor Subscriber shall solicit any clients or Subscribers from the other Party for any business that competes with the other Party during the term of this Agreement and for a period of two (2) years after the termination of this Agreement.
22.4 Non-Disclosure. In appreciation of the unique nature of the relationship between GUIDING TECHNOLOGIES and Subscriber, both Parties agree to keep the details of this Agreement and the terms herein, including but not limited to pricing and added consideration, confidential and refrain from disclosing the same to any third party without express consent from the other Party, provided however, that GUIDING TECHNOLOGIES may make this Agreement form, or any similar form, generally available to GUIDING TECHNOLOGIES’s actual or prospective subscribers and any other persons considering entering into a business relationship with GUIDING TECHNOLOGIES.
22.5 Successors; Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective parties, their successors, permitted assigns, heirs, legatees, executors, administrators and legal representatives (“Successors”) and any Successor shall be deemed a Party to this Agreement upon such Successor’s receipt of any interest in this Agreement. Whenever a Party is referred to in this Agreement, such reference shall include reference to such Party’s Successors.
22.6 Subscriber Indemnification. Subscriber agrees to indemnify, hold harmless, and defend, GUIDING TECHNOLOGIES and GUIDING TECHNOLOGIES’s employees, officers, directors, members, managers, affiliates and subsidiaries (collectively, the “GUIDING TECHNOLOGIES Parties”) from and against any and all liabilities, losses and/or claims, including without limitation reasonable attorney fees, that arise out of, result from, or are connected in any way with: (i) Subscriber’s breach of this Agreement; and/or (ii) Subscriber’s negligence, recklessness, or willful misconduct.
22.7 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GUIDING TECHNOLOGIES OR ANY OF THE OTHER GUIDING TECHNOLOGIES PARTIES OR ANY OF THE GUIDING TECHNOLOGIES PARTIES’ RESPECTIVE AFFILIATES BE LIABLE FOR: ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS; ANY THIRD PARTY CLAIMS; OR ANY DIRECT DAMAGES IN EXCESS OF THE FEES PAID OR PAYABLE BY SUBSCRIBER TO GUIDING TECHNOLOGIES FOR THE SUBSCRIPTION GIVING RISE TO THE LEGAL CLAIM(S) DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LEGAL CLAIM(S). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF ANY OF THE FOREGOING DAMAGES.
22.8 Force Majeure. Either GUIDING TECHNOLOGIES or Subscriber shall be excused from performance and shall not be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to any circumstance not within the reasonable control of the Party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence and the observance of reasonable care, cannot be, or be caused to be, prevented, avoided or removed by such Party, and (ii) such circumstances materially and adversely affects the ability of Party to perform its obligations under this Agreement, and such Party has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the Party’s ability to perform its obligations under this Agreement and to mitigate the consequences thereof.
22.9 Entire Agreement. This Agreement represents the entire agreement between the Parties regarding the subject matter hereof.
22.9.1 Prior Agreements. This Agreement supersedes in all respects any and all prior oral or written negotiations, discussions, commitments, representations, agreements, and other understandings between the parties with respect to the subject matter of this Agreement, and all such prior understandings are merged herein.
22.9.2 Modification. This Agreement cannot be modified or terminated, nor may any of its provisions be waived, except as specifically provided in this Agreement or by a written instrument signed by the Party(s) against whom enforcement is sought.
22.9.3 Terms in Purchase Orders. No term or condition of any Subscriber purchase order shall be binding upon GUIDING TECHNOLOGIES.
22.10 Amendment. This Agreement may only be amended if such amendment is in writing and signed by both Parties.
22.11 Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement.
22.12 Non-Waiver. The waiver, express or implied, by either of the Parties of any right or any failure to perform or breach by the other Party, shall not constitute or be deemed as a waiver of any other right or any other failure to perform or breach by the other Party, whether of a similar or dissimilar nature.
22.13 Captions. Headings and titles contained in this Agreement have been inserted for reference purposes only and shall not be considered part of this Agreement in construing this Agreement.
22.14 Construction. The language in all parts of this Agreement shall be in all cases construed according to its fair meaning, and not strictly for or against any Party.
22.15 Assignment. Any assignment of this Agreement is void.
22.16 Governing Law. This Agreement is governed by the laws of the State of Pennsylvania without giving effect to Pennsylvania’s conflict of laws principles. Subject to GUIDING TECHNOLOGIES’s rights in Section 22.17 (Arbitration) below, the Parties consent to the jurisdiction of the courts of the State of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania located in Philadelphia, Pennsylvania for any dispute arising out of a breach of this Agreement.
22.17 Arbitration. Notwithstanding anything in this Agreement to the contrary, to the fullest extent permitted by applicable law, GUIDING TECHNOLOGIES may, in GUIDING TECHNOLOGIES’s sole discretion, by notifying Subscriber of the same in writing, require that any dispute between GUIDING TECHNOLOGIES and Subscriber arising out of or in any way connected with this Agreement, be finally settled and resolved through binding arbitration conducted in Philadelphia, PA in accordance with Pennsylvania law and the then existing Commercial Rules of the American Arbitration Association or the Center for Alternative Dispute Resolution, with judgment upon any award may be entered by the courts of the State of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania located in Philadelphia, Pennsylvania.
22.18 Electronic Signatures. This Agreement may be executed by Subscriber’s clicking an icon or button or by checking a box on the GUIDING TECHNOLOGIES web portal, by electronic signatures, or by signatures transmitted by email, facsimile, or other electronic means, with the effect being that this Agreement shall be binding on all Parties to the same extent as an agreement with manual signatures.