Master Services
Agreement

1.1.The Parties may enter into one or more Statements of Work (“SOW”) to define the scope of products or services to be provided by CIENCE.  Each SOW may include an Order Form which shall provide a summary of the basic performance obligations contained in the SOW. 

1.2. By agreeing to this Agreement along with an SOW incorporating these terms and conditions, CIENCE and Customer agree that these terms shall govern the relationship between the parties as to any CIENCE products or services provided or to be provided to Customer, including but not limited to any License granted to Customer in such SOW. In the event of any conflict between the SOW and these terms, the SOW shall prevail.

1.3. Subject to the terms of this Agreement, and as more specifically defined in each SOW, CIENCE will provide Customer with ongoing support, management and quality control relating to the Services.

2.1 CIENCE, directly or through an affiliate, agrees to provide to Licensee the products and/or services set forth in the SOW (the “Services”). The Services may include information (the “Licensed Materials”), access to and/or use of software or other technology (the “CIENCE Technology”), or other services including premium support. Specific Services may be defined by and are subject to the Services Definitions and Service-Specific Terms and Conditions included with the SOW. CIENCE will make the Services available to the Licensee via password-protected online access accessible by Licensee with usernames and passwords, via an application programmer interface (“API”), or as otherwise mutually agreed by the parties. Subject to the terms and conditions herein, CIENCE grants to Licensee a non-exclusive, non-transferable license to access and use the Services in accordance with this Agreement and during the Term of this Agreement.

2.2 The Services will be provided as they exist and are updated and amended throughout the Term. Information provided as part of any Licensed Materials may be updated on an ongoing basis and provided according to the criteria used to define the scope of the subscribed Services. Licensee understands and acknowledges that the contents of Licensed Materials will change over time as the data is updated, and that at any given time it has a right to access and use the data to which it is subscribed as it exists at that time. Certain portions of the Services may be provided by CIENCE’s third-party licensors, and CIENCE’s ability to provide such information may be subject to the willingness of such licensors to continue to contract with CIENCE. Features and functions of the CIENCE Technology are provided `as is' and as such they may be modified, supplemented, or removed from time to time in CIENCE’s sole discretion. CIENCE shall have no liability to Licensee for any modification to any Service, provided that the product or service provided substantially conforms to the description in the SOW.

2.3 Ownership. Licensee acknowledges and agrees that, as between Licensee and CIENCE, the Licensed Materials, the CIENCE Technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or CIENCE Technology) are the property of CIENCE, whether or not they are trademarked, copyrighted, or patented. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or CIENCE Technology, nor any part thereof, except the limited license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, CIENCE, its affiliates and/or its licensors reserve all right, title, and interest in and to the Licensed Materials and CIENCE Technology, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.

2.4 Third-Party Applications. “Third-Party Applications'' means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the CIENCE Technology may interoperate, including, for example, Licensee’s CRM, marketing automation software, or sales enablement software, if any. CIENCE may make available certain “Integration Tools' ' which consist of CIENCE Technology designed to allow Licensee to use CIENCE Technology and the Licensed Materials in such a way as to interoperate with one or more Third-Party Applications. CIENCE is not responsible for and does not endorse any Third-Party Applications or websites linked to by CIENCE Technology.

3.1.  Non-Solicitation of employees. During the term of this Agreement and for one (1) year after the termination hereof, each Party agrees not to directly or indirectly solicit or induce any employee of the other to terminate an employment or service relationship with that Party, whether for a Party’s benefit or the benefit of a third party. Nothing in this section shall prohibit a party from hiring an employee of the other party who responded to a general advertisement for employment; provided, however, that the hiring party shall not have otherwise solicited or induced such employee to respond to an advertisement.

3.2.  CIENCE shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise be able to provide the Services to Customer, including, without limitation, modems, hardware, servers, software (the “CIENCE Software”), operating systems, networking, web servers and the like (collectively, the “Equipment”). CIENCE shall also be responsible for maintaining the security of the Equipment, the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment. 

4.1. Customer acknowledges and agrees that CIENCE will operate in accordance with its published Privacy Policy (available at CIENCE.com/privacy-policy/ or as CIENCE may otherwise indicate), which is incorporated herein by reference.  

4.2 (a) Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as the “Confidential Information” of the Disclosing Party). 

(b) Confidential Information of CIENCE includes, but is not limited to: inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and customer lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. “Confidential Information” does not include the Licensed Materials (which are subject to other restrictions under this Agreement) nor otherwise include business contact or firmographic information regarding third parties. All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of CIENCE (the “CIENCE Data”). 

(c) Confidential Information of Customer includes non-public data provided by Customer to CIENCE to enable the provision of the Services, including, but not limited to, lists of existing or prospective customers (the “Customer Data”). The Receiving Party agrees: (a) to take commercially reasonable precautions to protect such Proprietary Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

4.3 Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement and shall protect the confidentiality of such information in a manner consistent with the manner in which such party treats its own confidential material, but in no event with less than reasonable care. Without the prior written consent of the other party, a party shall not disclose or make available any portion of the other party’s Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement. The foregoing restrictions shall not apply to Confidential Information that: (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; or (c) became generally available to the public, by publication or otherwise, through no fault of such party. The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section. All Confidential Information shall be returned to the disclosing party or destroyed upon receipt by the receiving party of a written request from the disclosing party.

4.4 The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof by the Disclosing Party to the Receiving Party or any information that (a) is or becomes generally available to the public; (b) was in the Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to the Receiving Party without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4.5 Personal Information. To the extent that either party transmits or receives personal information under this Agreement, such party shall comply with all applicable laws, rules, and regulations regarding privacy and the lawful processing of personal information. To the extent that personal data obtained by Customer under this Agreement is subject to the E.U. General Data Protection Regulation (the “GDPR”), each party agrees that it is a “controller” with respect to such data as defined in the GDPR and agrees to comply with all applicable provisions. Notwithstanding anything in this Agreement to the contrary, Customer shall not use any information subject to the GDPR unless it is for a purpose that constitutes a “legitimate interest” (including direct marketing) as defined in the GDPR, or Customer has another lawful basis to process such information. Within the CIENCE Technology, CIENCE may publish a list of persons who have requested that their personal information be removed from CIENCE’s database. Customer agrees to review such a list on a regular basis (no less frequently than once per month) and to remove from its possession any Licensed Materials Contact records relating to such persons in its possession, unless Customer has established an independent lawful basis to process such person’s personal information.

4.6. Customer shall own all right, title and interest in and to the Customer Data. CIENCE shall own and retain all right, title and interest in and to (a) the Services, the CIENCE Data, the CIENCE Software, and all improvements, enhancements or modifications thereto; (b) any other software, applications, inventions or other technology developed in connection with implementation services or support; and, (c) all intellectual property rights related to any of the foregoing. Data used, created or developed as part of the Services (the “Services Data”) shall be owned as follows: (i) Customer shall have no right, title or interest in Services Data that (1) was already in CIENCE’s possession, custody or control as of the Effective Date, or (2) is publicly available, attained from publicly available sources or from services that aggregate publicly available information; (ii) Customer shall be the sole owner of only such Services Data that is the result of enhancement of data or other specialized research from non-publicly available sources, provided the scope of the particular SOW involves such services. All Services Data shall be subject to legal or contractual restrictions arising from the source of third-party data used in developing the Services Data. In the event legal or contractual requirements restrict the right to use, license or transfer ownership of data used in the development of Services Data, Customer shall have no right, title, interest or license to use the Services Data after termination of the SOW under which the Services Data was developed.

4.7 Data Cleansing, Matching, and Related Requests. Customer acknowledges that, through the use of Integration Tools or otherwise, Customer may have the opportunity to transmit business contact information to CIENCE for purposes of matching, cleansing, or updating records with information from CIENCE’s database. In the event such information is transmitted to CIENCE, CIENCE will make commercially reasonable efforts consistent with its research protocols and priorities, to respond to match and clean and append requests by researching and/or verifying business contact information so submitted and supplementing CIENCE’s commercial database with information CIENCE is able to verify. CIENCE may also use email deliverability data (such as email “bounce” data) accessible through Customer’s use of CIENCE Technology to improve CIENCE’s database by, for example, eliminating invalid email addresses from the Licensed Materials.

5.1 Authorized Users. Where an SOW grants Customer a license, Licensee shall be entitled to designate persons as Authorized Users up to the number of Authorized Users subscribed as stated in the SOW. If Licensee designates additional persons as Authorized Users beyond the number subscribed, such designation may be deemed by CIENCE, to be confirmed by notice to Licensee, as Licensee’s subscription to such additional number of Authorized Users. In the event of such subscription, CIENCE may charge Licensee a corresponding additional Subscription Fee equal to the prevailing per-Authorized User rate multiplied by the period from the date of notice hereunder until the end of the then-current Term. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared and may not under any circumstances be used by anyone who is not an Authorized User. If any Authorized User’s login credentials are disclosed to any person who is not an Authorized User but who would satisfy the qualification requirements of Section 5.2 hereof, CIENCE may, upon notice to Licensee, deem such sharing to be Licensee’s subscription to the number of additional Authorized Users equal to the number of persons to whom such credentials were disclosed. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of Licensed Materials set forth herein. Licensee acknowledges and agrees that Authorized Users must provide CIENCE with certain identifying information, including their name and a business email address, and that Authorized Users may be required to accept an end-user license agreement agreeing to CIENCE’s privacy policy and representing that they are authorized to access the Services on Licensee’s behalf.

5.2 Qualification of Authorized Users. Licensee shall not designate any person as an Authorized User unless such person is: (1) a natural person and (2) an employee of Licensee. Licensee may designate a non-employee (i.e., an independent contractor) as an Authorized User only with CIENCE’s prior permission and provided Licensee takes reasonable steps to ensure such non-employee uses the Services only as permitted under this Agreement. If the employment of any Authorized User that was in effect as of the date such person was designated as an Authorized User terminates, such person’s authorization to access the Services shall be revoked automatically without any further action by CIENCE. In the event of a termination as described in the previous sentence, Licensee shall promptly notify CIENCE and take all reasonable steps to ensure that such person ceases accessing the Services. Licensee may reassign Authorized User designations at any time subject to the foregoing qualification requirements. Authorized User licenses that are not provisioned for more than 90 days may be deemed expired.

5.3 Authorized Uses, Restrictions. Licensee shall not access or use the Services for any purpose except the business-to-business sales, marketing, recruiting, or business development activities of Licensee. Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee. Subject to Licensee’s compliance with all applicable laws, rules, and regulations, Licensee may use the Services to: (i) view the Licensed Materials; (ii) communicate with any Licensed Materials Contact in a manner that relates to such person’s profession, business, or employment; and (iii) identify prospective sales opportunities, research Licensee’s existing customers and prospects, and otherwise analyze the Licensed Materials in a manner relating to Licensee’s business-to-business sales, marketing, recruiting, and business development activities. Licensee shall not permit anyone who is not an Authorized User to access or use the Services, including any Licensed Materials or any Authorized User login credentials. Licensee shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Licensed Materials or any part of the Services to any third party. Licensee shall not incorporate any portion of the Services or Licensed Materials into Licensee’s own products or services. Upon expiration or termination of this Agreement for any reason, Licensee shall cease accessing the Services and shall cease using the Licensed Materials in any way. Notwithstanding the foregoing, where Licensee has, through using the Licensed Materials in a manner permissible under this Agreement, received responsive communication from a Licensed Materials Contact, Licensee shall not be required to delete such Licensed Materials Contact record upon expiration or termination hereof, and may continue to use such information in a manner otherwise consistent with this Agreement. Licensee is solely responsible for any communications between Licensee or any Authorized User and any Licensed Materials Contact.

5.4 Permitted Use of CIENCE Technology, Restrictions. Licensee is permitted to use the CIENCE Technology solely for the purpose of accessing and using the Licensed Materials as permitted by this Agreement. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the CIENCE Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the CIENCE Technology or related documentation; (iii) distribute or display any of the CIENCE Technology or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the CIENCE Technology, or use the CIENCE Technology to operate any timesharing, service bureau, or similar business; (v) create any security interest in the CIENCE Technology; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the CIENCE Technology or related documentation; (vii) disclose the results of any CIENCE Technology or program benchmark tests to any third parties without CIENCE’s prior written consent; or (viii) use automated means, such as bots or crawlers, to access any CIENCE Technology or extract information therefrom (except such means as are included within the CIENCE Technology, such as Integration Tools, or such other means as are expressly approved in advance in writing by CIENCE). Licensee may use CIENCE Technology only in accordance with this Agreement and not for the benefit of any third party, except with CIENCE’s express prior written permission.

5.5 Limitations on Use of the Services. Licensee shall use the Services in a responsible and professional manner consistent with the intended and permissible uses herein and consistent with standard industry practice. Licensee shall not override or circumvent, or attempt to override or circumvent, any security feature, control, or use limits of the CIENCE Technology. Licensee will not use the Licensed Materials or CIENCE Technology for commercial purposes not permitted under this Agreement and shall not designate any person as an Authorized User if Licensee has reason to believe such person is likely to use the Services on behalf of a third party or otherwise in violation of this Agreement. CIENCE may use technological means to place reasonable use limits to prohibit excessive use, including excessive downloads or screen views that indicate a violation of this Agreement, such as sharing with third parties or attempting to circumvent limitations to purchased credits (if applicable). If Licensee’s access to the Services is limited under this paragraph, it may request that the limit be removed, and CIENCE may remove or modify a particular limitation if it determines in its sole and absolute discretion that the proposed use by Licensee is in good faith and otherwise consistent with this Agreement.

5.6 Identification of Licensed Materials. Licensee shall not integrate Licensed Materials into any CRM, marketing automation, or sales enablement system for the purpose of allowing persons who are not Authorized Users to access or use the Licensed Materials. Any Licensed Materials that are downloaded and/or integrated into any CRM system must be maintained with identifying information indicating that such materials originated with CIENCE by, for example, maintaining a leadsource of “CIENCE.”

5.7 Unauthorized Access and Use. In the event CIENCE has a reasonable belief that Licensee or any Authorized User is engaged in any unauthorized access or use of the Licensed Materials or CIENCE Technology in violation of this Agreement, CIENCE, in its sole discretion, may immediately suspend Licensee’s access to the Licensed Materials and/or CIENCE Technology until such violation is resolved to CIENCE’s reasonable satisfaction. CIENCE will have no liability to Licensee for such period of suspension and a suspension shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee.

6.1.  Customer will pay CIENCE all fees described in the SOW or Order Form for the Services (the “Fees”). All Fees are nonrefundable unless CIENCE has committed a material breach of this Agreement. CIENCE reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each term of any SOW by giving Customer at least sixty (60) days’ prior notice to Customer (which notice may be sent by email). Customer shall have a right to terminate the SOW upon 30 days’ notice at the end of the then current term if it does not agree to the changes proposed by CIENCE.
 
6.2. If Customer disputes some or all of the Fees based on CIENCE’s billing, Customer must contact CIENCE no later than ten (10) business days after the closing date specified on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit if appropriate. Inquiries should be directed to CIENCE’s customer support department.
 
6.3. If Customer provides credit card details or ACH bank charge details to CIENCE, Customer hereby agrees and authorizes CIENCE to auto bill the all due and payable Fees to Customer’s account each billing period.
 
6.4. Unless otherwise specified in an SOW, full payment for the Initial Term must be received by CIENCE within fifteen (15) days of Order Form execution or three (3) days prior to the Service Start Date, as defined in the applicable SOW, whichever comes earlier, and payments for each Regular Term must be paid in advance on the first day of each Regular Term.
 
6.5. Where Customer is granted a license pursuant to an SOW, if Licensee fails to timely make any payment of Fees, CIENCE may, in its sole discretion, take any or all of the following actions: (i) restrict or suspend Licensee’s access to the Licensed Materials until all past-due payments are made, (ii) terminate this Agreement, or (iii) accelerate the payment of Subscription Fees such that all unpaid Subscription Fees shall be immediately payable. CIENCE shall have the right to charge interest at the rate of 1.5% per month (or, if less, the highest rate permitted by law) on any late payments. Restriction or suspension of Licensee’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee
 
6.6. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including, but not limited to, reasonable attorneys’ fees and costs associated with efforts to recover unpaid amounts owed.
 
6.7. Customer shall be responsible for all taxes associated with the provision of the Services other than U.S. taxes based on CIENCE’s net income. CIENCE shall invoice Customer for any such taxes no earlier than sixty (60) days prior to their due date to the appropriate taxing authority and no later than sixty (60) days after payment of such taxes.

7.1.  Unless otherwise terminated pursuant to the provisions below, this Agreement shall remain in full force and effect until the later of: (1) the latest termination date of any SOW entered into pursuant to this Agreement (a “Service Term”); or (2) a one (1) year initial term from the Effective Date. Unless otherwise specified in an SOW, this Agreement shall be automatically renewed for successive one (1) year terms unless either party notifies the other, in writing, of its intent to forego the upcoming automatic renewal at least thirty (30) days in advance of the end of the then current term.

7.2.  Either Party may terminate this Agreement or one or more SOWs for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, in the event a Party reasonably believes the Party has breached the Confidentiality or Proprietary Rights provisions of Section 3 of this Agreement, or (iii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If CIENCE terminates this Agreement in accordance with this section, the Customer will pay any unpaid Fees covering the remainder of the Service Term of all then current SOWs. If Customer terminates this Agreement pursuant to this section, Customer shall be under no obligation to pay CIENCE the unpaid fees for the remainder of the Service Term beyond the effective date of the termination. In no event will termination relieve Customer of the obligation to pay any Fees due and payable to CIENCE through the effective date of the termination.

7.3. CIENCE may terminate this Agreement, along with any or all associated SOWs, if Customer fails to pay undisputed Fees as required under this Agreement. CIENCE shall provide Customer with notice of nonpayment and Customer shall have ten (10) business days to make payment. CIENCE shall have the right to terminate the Agreement, along with any or all associated SOWs, at the conclusion of the ten (10) day cure period if undisputed Fees remain unpaid. Should the Agreement, or one or more SOWs be terminated for nonpayment under this section, Customer shall be liable for all unpaid amounts and all Fees for the then current Term shall be and become immediately due and payable.

7.4. Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason, Licensee acknowledges and agrees that its access to the Licensed Materials may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into CIENCE’s systems by Licensee destroyed. Upon expiration or termination of this Agreement for any reason, unless otherwise provided herein, Licensee agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.

7.5.  Upon termination of this Agreement, CIENCE will maintain Customer Data for a period of thirty (30) days. During this period, Customer may: (i) notify CIENCE it would like to retrieve Customer Data electronically; or (ii) request that CIENCE delete all Customer Data and certify that such deletion has been completed. At the expiration of the thirty (30) day period, CIENCE may in its sole discretion, but is not obligated to, delete stored Customer Data.

8.1 CIENCE shall provide Services in a professional and workmanlike manner and in accordance with prevailing industry standards. CIENCE does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Services may be temporarily unavailable for unscheduled emergencies, sick days or other unforeseen issues that are beyond CIENCE's reasonable control, but CIENCE shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption due to holidays, vacation days or CIENCE-sponsored events. CIENCE will use commercially reasonable efforts to make up the activities missed during any period of unavailability without impacting the sequence of events of any particular Service. In the event that is not possible, the parties shall negotiate in good faith regarding an appropriate remedy for the unavailability. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, ALL SERVICES ARE PROVIDED “AS IS” AND CIENCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.

8.2  Customer represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party.

9.1. Customer agrees to indemnify, defend, and hold harmless CIENCE and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (1) Customer’s access or use of the Licensed Materials in violation of any law, (2) Customer’s violation of any provision of this Agreement, (3) Customer’s sending of any information, messages, or materials to any Licensed Materials Contact (including, but not limited to, through e-mail, mail, or fax) in violation of any law or the rights of any third party, or (4) the use of any Licensed Materials or CIENCE Technology by any third party to whom Customer has granted access (including access obtained through use of the usernames and passwords assigned to Licensee and its personnel).

9.2. CIENCE shall indemnify Customer only for any damages awarded in a final and appealable Order by any court of competent jurisdiction against Customer, or for amounts paid by Customer under a settlement approved by CIENCE in writing of, any legal proceeding brought by a third party alleging that the Licensed Materials or CIENCE Technology infringes upon or violates the intellectual property rights of any such third party.

9.3. As a condition to any right to indemnification under this agreement, the indemnified party must (a) promptly give the indemnifying party written notice of the claim or proceeding, (b) give the indemnifying party the option to exercise sole control of the defense and settlement of the claim or proceeding (except that the indemnifying party may not settle any claim or proceeding unless it unconditionally releases the indemnified party of all liability), and (c) give the indemnifying party all reasonable assistance, at the indemnifying party’s expense. This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any claim or proceeding subject to indemnification hereunder.

10.1 notwithstanding anything to the contrary, neither party nor their suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall be responsible or liable with respect to any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or  loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond such party's reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to cience for the services under the sow under which the claims arose in the six (6) month period prior to the act that gave rise to such liability, in each case, whether or not either party has been advised of the possibility of such damages. The foregoing limitations shall not apply to claims relating to breaches of a party’s confidentiality obligations under section 4 or indemnification under section 9 of this agreement.

10.2 in addition to the foregoing, in the event cience’s services involve the use of any professional or social media tools on behalf of customer, including using customer or its employees’ accounts, cience shall not be liable for any (I) loss of access or use of such accounts, whether a temporary suspension, permanently, or otherwise, (ii) any losses, costs, damages or other claims associated with cience’s use, or (iii) any actual or alleged violation of the social media tool’s terms of service; provided, however, that the limitations in this paragraph shall not apply in the event of intentional misconduct, grossly negligent or fraudulent conduct.

11.1. If a dispute arises between the Parties, they shall follow the procedures set forth below in an effort to resolve the dispute prior to litigation:
a. Either party may notify the other, in writing, of the existence of a dispute (the “Notice of Dispute”). Such notice shall include a detailed description of the nature of the dispute, any claims for damages or costs asserted by the party and the identity and contact information of the person(s) having authority to resolve the dispute for said party. The receiving party shall have ten (10) business days to respond to the Notice of Dispute. The response must include, at a minimum, a substantive response to the factual assertions claimed in the Notice of Dispute and the identity and contact information of the person(s) having authority to resolve the dispute.

b. The person(s) with authority to resolve the dispute shall meet and confer within thirty (30) days in a good faith effort to resolve the dispute.

11.2. Mandatory Arbitration. If a resolution is not reached, except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator and shall be conducted in Denver, Colorado. Judgment on the Award may be entered in any court having jurisdiction. This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (1) punitive, exemplary, or multiple damages under any legal theory; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this section or Section 10 (Limitation of Liability) of this Agreement.

11.3. Litigation Claims. The following claims (“Litigation Claims”) shall be litigated and not arbitrated: (a) claims against a party to this Agreement under the provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s intellectual property or confidential, proprietary, or sensitive information; (c) claims by CIENCE to collect Subscription Fees; and (d) claims for a provisional remedy (such as a temporary restraining order or preliminary injunction) in aid of an arbitration under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration.

11.4. Class Action Waiver. No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.

During the Term of this Agreement and for a period of two (2) years after its expiration or termination, Licensee shall maintain complete and accurate records of Licensee’s use of the Licensed Materials and CIENCE Technology sufficient to verify compliance with this Agreement. Licensee shall permit CIENCE and its auditors, upon reasonable advance notice and during normal business hours, to examine such records and any systems used by Licensee in connection with the Licensed Materials. The scope of any such audit will be limited to verification of Licensee’s compliance with the terms of this Agreement. Any audit performed under this paragraph shall be at CIENCE’s expense, unless the audit uncovers material non-compliance with this Agreement, in which case, Licensee shall reimburse CIENCE for its reasonable out-of-pocket expenses incurred in performing such audit.​

13.1.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 

13.2.  Either party may assign this Agreement (i) upon thirty (30) days’ notice, to an entity which acquires all or substantially all of its assets, provided the acquiring party acknowledges the assignment of this Agreement and provides reasonable assurance of its ability to perform its obligations under this Agreement; or (2) with the written consent of the other party, which shall not be unreasonably withheld. 

13.3.  This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.

13.4.  All amendments, waivers and modifications to this Agreement must be in a writing signed by both Parties, except as may otherwise be provided herein.

13.5.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has the ability to bind the other in any respect whatsoever. 

13.6.  All notices under this Agreement shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

13.7.  This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without regard to its conflict of laws provisions, and each of the Parties hereto hereby irrevocably and unconditionally submits to the nonexclusive jurisdiction of any Colorado State court or federal court of the United States of America sitting in the city of Denver, State of Colorado and any appellate court from any thereof, jurisdiction for any claims shall be in the State of Colorado.

13.8.  The Parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 (ninety) days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with CIENCE to serve as a reference account upon request. In the event that Customer’s logo or other marks are necessary for use in conjunction with the Services, CIENCE shall request permission from Customer for each campaign in which the logo or marks will be used.

13.9. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

13.10. In the event of a conflict between the terms of this Agreement and an SOW, the terms of the SOW shall control.

13.11. Force majeure.

(a) Neither party shall be liable to the other for any failure to perform, or delay in performance, of its obligations under this Agreement to the extent that such failure or delay is caused, directly or indirectly, by forces beyond such parties control, including, but not limited to: acts of God, natural disasters, terrorism, epidemics, pandemics, union strife, governmental intervention, civil war, or widespread interruptions of computer or communications systems and networks.

(b) A party seeking relief of its obligations to perform under this section shall promptly notify the other party of the cause for such failure or delay in performance and the expected duration, if known, of the failure or delay.

(c) In the event the length of such failure or delay defeats the material purposes of this Agreement or deprives either party of the material benefits of its bargain, such party may notify the other of its intent to terminate this Agreement or any SOW. If suspension of Services is permitted under an SOW, the party seeking termination must be able to reasonably assert that suspension is an insufficient remedy prior to termination.

(d) The foregoing shall not apply to a Party’s obligations to make timely payments of amounts due under this Agreement.