During the Term of this Agreement, UniGroup, C.A. (“UniGroup”) shall arrange for Customer to use Rose Rocket Services and Support via UniGroup’s Master Agreement with Rose Rocket. “Rose Rocket Services” means: (i) the Rose Rocket TMS; and (ii) any related services (including consulting and training services) provided by Rose Rocket to Customer under this Agreement. “Rose Rocket TMS” means Rose Rocket’s transportation management solution and services, as described at https://www.roserocket.com/ and any updates or new features thereto made available by or on behalf of Rose Rocket during the Term.
2(a) License Grant. Subject to the terms and conditions of this Agreement, Rose Rocket hereby grants to Customer and its Authorized Users a limited, non-exclusive, non-transferable, non-sublicensable license during the Term to access and use the Rose Rocket Services and Rose Rocket Materials in connection therewith. “Authorized User” means any Customer employees or contractors who have been provided access credentials to use the Rose Rocket Services. Each Authorized User must use a unique name and password, and may access the Rose Rocket Services only the extent purchased by Customer. “Rose Rocket Materials” means the Rose Rocket Platform, Rose Rocket Systems, documentation and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, in each case that are provided to Customer by or on behalf of Rose Rocket in connection with the Rose Rocket Services. “Rose Rocket Platform” means the software application(s) (including the Rose Rocket Software and any third-party or other software, and all updates of the foregoing) to which Rose Rocket provides access as part of the Rose Rocket Services. “Rose Rocket Software” means any of Rose Rocket’s proprietary software applications and components that form a part of the Rose Rocket Platform. “Rose Rocket Systems” means the information technology infrastructure used by or on behalf of Rose Rocket in performing the Rose Rocket Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Rose Rocket or through the use of third-party services.
2(b) License Restrictions. Customer shall not, and shall not authorize any other person or entity to, access or use the Rose Rocket Services or Rose Rocket Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer and its Authorized Users shall not, except as this Agreement expressly permits:
(i) copy, modify or create derivative works or improvements of the Rose Rocket Materials;
(ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available or exploit, whether for commercial purposes or otherwise, any Rose Rocket Services or Rose Rocket Materials to any person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Rose Rocket Services or Rose Rocket Materials, in whole or in part;
(iv) intentionally bypass or breach any security device or protection used by the Rose Rocket Services or Rose Rocket Materials or access or use the Rose Rocket Services or Rose Rocket Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(v) input, upload, transmit or otherwise provide to or through the Rose Rocket Services or Rose Rocket Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any software, or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (X) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system or network or any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (Y) prevent Customer or any Authorized User from accessing or using the Rose Rocket Services or Rose Rocket Systems as intended by this Agreement;
(vi) intentionally damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Rose Rocket Services, Rose Rocket Systems or Rose Rocket’s provision of services to any third party, in whole or in part, including by imposing any unreasonable or disproportionately large load on the Rose Rocket Systems;
(vii) remove, delete, alter or obscure any trademarks, service marks, trade names, logos, domain names or other indicia of source or affiliation or sponsorship, online terms, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Rose Rocket Services or Rose Rocket Materials, including any copy thereof;
(viii) access or use the Rose Rocket Services or Rose Rocket Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property 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 Rose Rocket customer or partner), or that violates any applicable law (provided, however, that any such infringement, misappropriation or violation by the Rose Rocket Services or Rose Rocket Materials in and of themselves shall not be deemed to violate the foregoing); or
(ix) access or use any Confidential Information (as defined in Section 6(a)) of Rose Rocket available through the Rose Rocket Services or forming a part of the Rose Rocket Materials for purposes of the development, provision or use of a competing software service or product (provided, however, for the avoidance of doubt, (A) an election by Customer to use any product or service of a third party that is competitive to the Rose Rocket Services and/or (B) development by Customer of a product or service competitive with the Rose Rocket Services (so long as such development is done without use of Rose Rocket’s Confidential Information) shall not be deemed to violate the foregoing); or
(x) otherwise access or use the Rose Rocket Services or Rose Rocket Materials beyond the scope of the authorization granted under this Agreement.
3(a) Control and Availability of the Rose Rocket Services. Except as otherwise expressly provided in this Agreement, Rose Rocket shall have sole control over the operation, provision, maintenance and management of the Rose Rocket Services and Rose Rocket Materials, including the location(s) where any of the Rose Rocket Services are provided in accordance with the Support Schedule, provided upon request.. Rose Rocket may schedule scheduled downtime of the Rose Rocket Services from time to time and shall provide Customer reasonable notice thereof, which shall not, in any event, be less than 2 hours. Rose Rocket will use reasonable efforts to schedule non-emergency downtime between 10:00 p.m. and 6:00 a.m. Eastern time or utilize weekend to perform maintenance work or technology updates and releases.
3(b) Customer’s Access to the Rose Rocket Services. Customer will require Authorized Users to maintain the security of any password they use to access the Rose Rocket Services, and will maintain the confidentiality of Customer’s Rose Rocket Services account; provided, however, that Rose Rocket acknowledges that Customer cannot guarantee such security or confidentiality in the event of unauthorized access by a third party to the systems of Authorized Users. Without limiting any other responsibilities Customer has under this Agreement, Customer is responsible for the actions of its Authorized Users and of anybody who accesses the Rose Rocket Materials using the Access Credentials of any of its Authorized Users, and of any other individuals to whom Customer may have given access to the Rose Rocket Services. In addition, Customer acknowledges that Rose Rocket may require Access Credentials (including a key, which shall mean a cryptographic string of electronic characters generated by the Rose Rocket and provided to Customer) in order for Customer’s Authorized Users to access the Rose Rocket Materials. Customer acknowledges that it must provide Rose Rocket with such information as may be necessary to generate the key(s), and that any delay in doing so may prevent Customer or its Authorized Users from using part or all of the Rose Rocket Materials, and that any such delay shall not be construed as a delay in providing the Rose Rocket Services. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair all Customer Systems on or through which the Rose Rocket Services are accessed or used; (b) provide Rose Rocket with such access to Customer’s premises and Customer Systems as is reasonably necessary for Rose Rocket to perform the Rose Rocket Services; and (c) provide all cooperation and assistance as Rose Rocket may reasonably request to enable Rose Rocket to exercise its rights and perform its obligations under and in connection with this Agreement
3(c) Access to Data. Subject to the terms and conditions of this Agreement, Customer’s Authorized Users may access Customer Data on the Rose Rocket Services at any time. “Customer Data” means non-public data submitted, stored, posted, displayed, processed or otherwise provided by any Authorized User (or at any Authorized User’s direction) to Rose Rocket when using the Rose Rocket Services. The Rose Rocket Services do not, however, replace the need for Customer to maintain regular data backups or redundant data archives. If any Customer Data is lost, Rose Rocket will make commercially reasonable efforts to assist in restoring such lost data. Rose Rocket does not guarantee that it (or its outsourced hosting provider) will back up Customer’s data, or that any backup will complete without error, or that any specific Customer Data will be restored, nor that it will retain any backup for longer than seven (7) days. Upon termination or expiration of this Agreement, if Customer so requests, and provided that Customer has paid all undisputed fees under this Agreement, Rose Rocket will furnish to Customer within fifteen (15) business days of such request, an electronic copy of all Customer Data, in a form to be determined by mutual agreement of the Parties.
4(a) Rose Rocket agrees to abide by all applicable local, state, national, and international laws and regulations in connection with providing the Rose Rocket Services, including, without limitation, all laws regarding the transmission of technical data exported from the United States through the Rose Rocket Services and all Applicable Privacy Laws. “Applicable Privacy Laws” means, in relation to any personal information that is processed in the provision of the Rose Rocket Services, the applicable legislation on the protection of identifiable individuals, including where applicable the California Consumer Privacy Act, the Gramm-Leach-Bliley Act found at 15 U.S.C. Subchapter 1, §6809(4), the Health Information Portability and Accountability Act of 1996 and the rules promulgated thereunder (“HIPAA”), and the EU Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”) and/or other applicable data protection or national/federal or state/provincial/emirate privacy legislation in force, including where applicable, statues, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, data protection authorities and other applicable government authorities. No later than July 01, 2022, Rose Rocket will provide independent assurance over the suitability of the design and implementation of business and information technology controls performed under this Agreement by providing a Service Organization Controls Report based on the American Institute of Certified Public Accountants (AICPA) Statement on Standards for Attestation Engagements No. 18 (SSAE 18) in the form of a SOC 2 Type I report. Beginning no later than July 01, 2023, Rose Rocket will provide such assurances in the form of a SOC 2 Type II report. The reporting period for the SOC report(s) will be each calendar year. If a SOC report from retained third-party auditors yields critical deviations, Rose Rocket shall within 120 days of receiving such report remediate, retest and resolve such critical deviations.
4(b) If Rose Rocket becomes aware of any unlawful access to any Customer Data stored on Rose Rocket’s equipment (including the Rose Rocket Systems) (a “Security Incident”), Rose Rocket will promptly (and in no event later than 48 hours after becoming aware): (1) notify Customer of the Security Incident; (2) take reasonable steps to mitigate the effects and to minimize damage resulting from the Security Incident; and (3) at Customer’s request, take commercially reasonable steps to assist Customer in complying with its obligations under Applicable Privacy Laws pertaining to responding to a Security Incident.
4(c) Notification(s) of Security Incidents will be delivered to one or more of Customer’s administrators specifically designated by Customer for the receipt of such notifications by any means Rose Rocket selects, including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the online portal for the Rose Rocket Services. Rose Rocket’s obligation to report or respond to a Security Incident under this Section is not an acknowledgement by Rose Rocket of any fault or liability with respect to the Security Incident. If Customer becomes aware of any possible misuse of its accounts or Access Credentials or any security incident related to the Rose Rocket Services, Customer must notify Rose Rocket promptly thereof.
4(d) Rose Rocket shall promptly notify Customer if Rose Rocket receives a request from a data subject to have access to personal information or any other complaint or request relating to Customer’s obligations under applicable data protection laws. Rose Rocket shall provide reasonable assistance to Customer to facilitate Customer’s ability to respond to such request or complaint (including, without limitation, by allowing data subjects to have access to their personal information if such access is required by the applicable data protection laws, and where the personal information is not already available to Customer).
4(e) As between the Parties, Customer or its Authorized Users have and will retain sole responsibility for: (a) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party service providers (“Customer Systems”).
5(a) Except to the extent licenses are expressly granted under this Agreement, each Party respectively retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, knowhow and trade secrets in and to that Party’s respective products and services, and Rose Rocket retains all right, title and interest in and to the Rose Rocket Materials and any work product created by Rose Rocket in the course of providing Rose Rocket Services or Support under this Agreement. The content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to the Rose Rocket site are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by Customer of any such parts of the Rose Rocket site or the Rose Rocket Services, except as expressly authorized by this Agreement, is prohibited. All other rights in and to the Rose Rocket Services and Rose Rocket Materials are expressly reserved by Rose Rocket and its respective third-party licensors. Customer agrees that it will not intentionally remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed on or embedded in the Rose Rocket Materials.
5(b) Customer shall own all right, title and interest in and to the Customer Systems and the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Rose Rocket Services. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use the Customer Data. Customer grants to Rose Rocket a non-exclusive, non-transferable, worldwide, royalty free license to utilize the Customer Data hereunder for the sole and exclusive purpose of providing the Rose Rocket Services to Customer hereunder (including a license to store, record, transmit, maintain, and use, reproduce, modify, adapt, distribute and publicly display Customer Data only to the extent necessary to carry out Rose Rocket’s obligations under this Agreement). In addition, and despite anything to the contrary in this Agreement, Rose Rocket shall have the right to collect and analyze Customer Data and other information relating to the provision, use and performance of various aspects of the Rose Rocket Services and related systems and technologies (including, without limitation, information concerning Customer’s use of the Rose Rocket Services and data derived therefrom), and Rose Rocket will be free (during and after the Term) to (i) internally use such information and data to improve and enhance the Rose Rocket Services and for other development, diagnostic and corrective purposes in connection with the Services and other Rose Rocket offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business and solely to the extent any such disclosure would not enable the recipient to determine (whether based on such data alone or as combined with any other data) that the source of such data is Customer.
6(a) Definition. “Confidential Information” means any information disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement if, when disclosed in tangible form, such information is marked “confidential,” “proprietary,” or with a similar designation, or if, when disclosed orally or by inspection, it is identified as confidential at the time of disclosure and followed by a letter designated by the legend “confidential” (or comparable legend) sent to Receiving Party within thirty (30) days of such disclosure and setting forth such oral or visual information to be treated as Confidential Information hereunder. Despite the foregoing: (i) each Party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such Party’s Confidential Information, whether or not such items are marked “confidential”, “proprietary”, or with a similar designation. Confidential Information will not, however, include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (c) is already in the possession or comes into the possession of the Receiving Party where such possession is not the result of a breach of confidentiality, in each case, as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by document and other competent evidence in the Receiving Party’s possession. Customer shall be deemed to be the Disclosing Party in the case of the disclosure of any information by an Authorized User.
6(b) Non-Use and Non-Disclosure. Except to the extent authorized in writing by the Disclosing Party, the Receiving Party shall hold in confidence and not use or disclose any Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required to be disclosed by a court or governmental agency pursuant to a statute, regulation, or valid order; provided, however, that (i) the Receiving Party first notifies the Disclosing Party and gives the Disclosing Party the opportunity to seek a protective order, or to contest such required disclosure and (ii) the Receiving Party will continue to treat the Confidential Information disclosed hereunder by the Disclosing Party as Confidential Information of the Disclosing Party for all other purposes. Each Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other Party have signed a nonuse and nondisclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees.
6(c) Equitable Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the Disclosing Party’s remedies at law for a breach by the Receiving Party of its obligations under this Section may be inadequate and that the Disclosing Party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance) for any such breach.
6(d) Return or Destruction of Confidential Information. Upon expiration or termination of this Agreement for any reason, the Receiving Party will destroy (or, at the other Party’s written request, return) all copies of all Confidential Information of the Disclosing Party in its possession or under its control.
The term of this Agreement will commence on the Effective Date and continue until terminated as provided hereunder (hereinafter, “Term”).
7(a) Expiration. UniGroup has obtained rights for Customer’s subscription hereunder based upon an initial four year term, as may be extended, and as further subject to the terms and conditions contained in such agreement between UniGroup and Rose Rocket. Upon the expiration or earlier termination of UniGroup’s agreement with Rose Rocket, this Agreement shall expire coterminously therewith.
7(b) Termination for Convenience. Customer may terminate this Agreement for any reason upon sixty (60) days written notice to Rose Rocket. Customer understands and agrees that, except as otherwise expressly provided for in this Agreement, purchase orders placed under this Agreement are not subject to refund, credit or off-set.
7(c) Termination for Cause. Either Party may terminate this Agreement at any time in the case of the other Party’s breach of any material term of this Agreement, unless the other Party cures such breach within thirty (30) days after written notice thereof. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law if such petition or proceeding is not dismissed within sixty (60) days; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business (each of (i) through (iv), an “Insolvency Event”).
7(d) Termination of UniGroup Relationship. If Customer ceases being an appropriate business partner of UniGroup (statutory agent of its motor carriers affiliates or otherwise), then, upon direction from UniGroup to Rose Rocket, this Agreement shall be immediately terminated.
7(e) Survival. Those provisions, which by their nature survive termination, shall continue after termination or expiration of this Agreement. Those provisions include, but are not necessarily limited to: Sections 2(b), 5, 6, 7(e), 7(f) and 8 to 11 of this Agreement, all related definitions, and all accrued rights to payment
7(f) Additional Remedies. Termination is not an exclusive remedy for breach of this Agreement by either Party. Subject to any limitations on remedies expressly set forth in this Agreement, all other remedies will be available to the non-breaching Party whether or not the non-breaching Party terminates this Agreement for breach by the other Party.
8(a) Rose Rocket’s Indemnification Obligation. Subject to Section 8(c), Rose Rocket (at its expense) shall defend or, at its option, settle, any Rose Rocket Indemnified Claim and indemnify Customer against any damages and costs finally awarded against and payable by Customer in any such Rose Rocket Indemnified Claim. For purposes of this Section, “Rose Rocket Indemnified Claim” shall mean any claim, action or proceeding brought by a third party against Customer (i) asserting that Rose Rocket Services, Rose Rocket Platform or Rose Rocket Materials or the use thereof infringes any intellectual property or other proprietary rights of any third party (“Infringement Claim”) or (ii) based on Rose Rocket’s (A) intentional misconduct or failure to comply with any applicable law (including Applicable Privacy Laws) in connection with its performance under this Agreement, (B) breach of its obligations under Section 4 or (C) breach of its obligations under Section 6
8(b) Customer’s Indemnification Obligation. Subject to Section 8(c), Customer (at its expense) shall defend or, at its option, settle, any Customer Indemnified Claim and indemnify Customer against any damages and costs finally awarded against and payable by Rose Rocket in any such Customer Indemnified Claim. For purposes of this Section, “Customer Indemnified Claim” shall mean any claim, action or proceeding brought by a third party against Rose Rocket based on Customer’s failure to comply with any applicable law (including Applicable Privacy Laws) in connection with its performance under this Agreement.
8(c) Indemnification Limits.
(i) Failure to Cooperate. A Party seeking indemnification hereunder shall: (i) notify the indemnifying Party in writing of, as applicable, the Rose Rocket Indemnified Claim or Customer Indemnified Claim (each, a “Claim”) promptly after its receipt of the Claim; (ii) allow the indemnifying Party to assume sole control of the defense and any settlement negotiations related to the Claim (provided, however, that the indemnifying Party may not, without the prior written approval of the indemnified Party, enter into or acquiesce to any settlement that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of the indemnified Party, that imposes any restrictions, obligations, or liabilities on the indemnified Party, or that could otherwise adversely affect the indemnified Party); and (iii) cooperate with the indemnifying Party, at the indemnifying Party expense, in the defense and any related settlement negotiations related to the Claim. The failure of the indemnified Party to perform any obligations under this Section will not relieve the indemnifying Party of its obligations hereunder except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.
(ii) Additional Limitations. Rose Rocket shall have no obligation under Section 8(a) for any Infringement Claim arising out of or related to:
(A) Customer Data, to the extent the alleged infringement would not have occurred in the absence of Customer Data;
(B) access to or use of the Rose Rocket Services or Rose Rocket Materials by any Authorized User in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Rose Rocket, to the extent the alleged infringement would not have occurred in the absence of such combination;
(C) modification of the Rose Rocket Services or Rose Rocket Materials by a Party other than Rose Rocket and not at Rose Rocket’s direction, to the extent the alleged infringement would not have occurred in the absence of such modification;
(D) Customer’s continued allegedly infringing activity after being notified thereof in writing by Rose Rocket and being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or
(E) Customer’s use of the Rose Rocket Services or Rose Rocket materials in breach of this Agreement, to the extent the alleged infringement would not have occurred in the absence of such unauthorized use.
8(d) Infringement Remedies. In the event that Customer’s use of the Rose Rocket Services or Rose Rocket Materials is held, or in Rose Rocket’s sole opinion may be held, to constitute an infringement, Rose Rocket, at its option and expense, will either (i) modify or replace the Rose Rocket Services or Rose Rocket Materials, or infringing part thereof, in a commercially reasonable time to make it non-infringing provided there is no substantial loss of functionality, (ii) procure for Customer the right to continue using the Rose Rocket Services and Rose Rocket Materials, or infringing part thereof, or (iii) terminate this Agreement and refund to Customer the fees paid by Customer for the Rose Rocket Services which includes the alleged infringement.
8(e) Exclusive Remedy. This Section 8 sets forth the Parties’ sole and exclusive remedies, and the Parties’ sole obligations, for a third-party claim that the Rose Rocket Services or Rose Rocket Materials provided hereunder infringe or misappropriate a third party’s intellectual property rights.
9(a) Rose Rocket Representations, Warranties and Covenants. Rose Rocket represents, warrants and covenants to Customer that Rose Rocket will perform the Rose Rocket Services using personnel of requisite skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
9(b) Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Rose Rocket that (i) it has the authority to provide the Customer Data to Rose Rocket for processing as contemplated by this Agreement, (ii) if any applicable law requires a data subject to receive notice of or to provide consent to the processing and/or transfer of his/her personal data, Customer shall provide such notice and obtain such consent from the applicable data subjects, and (iii) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data and that the Customer Data does not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law or regulation.
9(c) DISCLAIMER OF WARRANTIES. CUSTOMER ACKNOWLEDGES THAT THE NATURE OF INTERNET-BASED SERVICE DELIVERY IS SUCH THAT PERFORMANCE CANNOT BE COMPLETELY ASSURED. EXCEPT AS SET FORTH IN SECTION 9(A), ROSE ROCKET MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY ROSE ROCKET SERVICES, ROSE ROCKET MATERIALS, DOCUMENTATION OR SUPPORT PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS AND ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ROSE ROCKET DOES NOT WARRANT THAT ANY ROSE ROCKET SERVICE, ROSE ROCKET MATERIALS, DOCUMENTATION OR SUPPORT PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT ROSE ROCKET WILL SUCCEED IN RESOLVING ANY SUCH PROBLEM.
10(a) EXCEPT WITH RESPECT TO EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (IN EACH CASE WHETHER SUCH DAMAGES ARE CHARACTERIZED AS DIRECT, INDIRECT OR OTHER) OR FOR ANY EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.
10(b) EXCEPT WITH RESPECT TO EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) OR OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION) OR CUSTOMER’S BREACH OF SECTION 2(B), UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR DAMAGES EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO UNIGROUP, C.A. FOR THE LICENSE GRANTED UNDER THIS AGREEMENT DURING THE 24-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM FOR SUCH DAMAGES IS MADE. THE PROVISIONS OF THIS SECTION ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND ROSE ROCKET. WITH RESPECT TO OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR DAMAGES EXCEED THE AGGREGATE FEES PAID (PLUS IN THE CASE OF CUSTOMER’S LIABILITY, PAYABLE) BY CUSTOMER UNIGROUP, C.A. FOR THE LICENSE GRANTED UNDER THIS AGREEMENT IN THE 24 MONTHS PRECEDING ANY CLAIM.
10(c) DESPITE ANYTHING TO THE CONTRARY IN THIS SECTION 10 OR ANYWHERE ELSE IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL ROSE ROCKET HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER THIRD PARTY UNDER THIS AGREEMENT FOR ANY CLAIM, FINE, PENALTY OR OTHER LIABILITY IMPOSED BY ANY COURT, ADMINISTRATIVE OR SUPERVISORY AGENCY OR ANY OTHER PERSON OR ENTITY RELATED TO THE PERSONAL INFORMATION OR PERSONALLY IDENTIFIABLE INFORMATION OF ANY CITIZEN OR RESIDENT OF EUROPE OR THE EUROPEAN UNION OR FOR ANY PERSON SUBJECT TO THE PROTECTIONS OF EU REGULATION 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ON THE PROTECTION OF NATURAL PERSONS WITH REGARD TO THE PROCESSING OF PERSONAL DATA AND ON THE FREE MOVEMENT OF SUCH DATA, AND REPEALING DIRECTIVE 95/46/EC (THE “GDPR”) AND/OR OTHER APPLICABLE DATA PROTECTION OR NATIONAL/FEDERAL OR STATE/PROVINCIAL/EMIRATE PRIVACY LEGISLATION IN FORCE, INCLUDING WHERE APPLICABLE, STATUES, DECISIONS, GUIDELINES, GUIDANCE NOTES AND CODES OF PRACTICE ISSUED FROM TIME TO TIME BY COURTS, DATA PROTECTION AUTHORITIES AND OTHER APPLICABLE GOVERNMENT AUTHORITIES.
10(d) THE FOREGOING LIMITATIONS OF LIABILITY (I) ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT AND (II) SHALL APPLY EVEN IF ANY REMEDY AVAILABLE TO EITHER PARTY HEREUNDER IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11(a) Assignment; Subcontracting. Neither Party shall assign, transfer or delegate any obligation or benefit under this Agreement without the written consent of the other Party; provided, however, that either Party may assign this Agreement in its entirety in the event of a merger, acquisition, change of control or sale of all or substantially all of its business or assets. In addition, Rose Rocket may from time to time in its discretion subcontract and otherwise engage third parties to perform the Rose Rocket Services; provided, however, that Rose Rocket will remain responsible for the full performance of its obligations under this Agreement and for any failure by any such third party to comply with the terms of this Agreement when performing services on Rose Rocket’s behalf. This Agreement will be fully binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns. Any assignment, transfer or delegation in violation of this Section shall be null and void ab initio.
11(b) Independent Contractors. The Parties agree that each is an independent contractor and neither Party has the right or authority to assume or create any obligation or responsibility on behalf of the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture, fiduciary relationship or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
11(c) Notices. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered or three (3) days after being sent by prepaid certified or registered mail to the address of the Party to whom notice is being provided set forth below or to such other address as such Party last provided to the other by written notice.
11(d) No Waiver. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.
11(e) Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
11(f) Force Majeure. Neither Party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, floods, earthquakes, pandemic or epidemic illness, strikes (of its own or other employees), insurrection or riots, embargoes, requirements or regulations of any civil or military authority (an ‘Event of Force Majeure’). Each of the Parties hereto agrees to give reasonable notice to the other upon becoming aware of an Event of Force Majeure. Such notice shall contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure shall continue for more than thirty (30) days then the Party not in default shall be entitled to terminate this Agreement. Except for accrued fees, neither Party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
11(g) Governing Law; Venue. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of, the State of Delaware and the United States without regard to the conflict of law provisions thereof. The rights and obligations of the Parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any legal action or proceeding by either Party to enforce, construe or otherwise concerning this Agreement will be brought exclusively in the State or Federal courts located in New Castle County in the State of Delaware, United States of America, and in any such action or proceeding, each Party agrees to irrevocably submit to the exclusive jurisdiction and venue of those courts.
11(h) Counterparts. This Agreement may be executed in any number of counterparts and delivered electronically (e.g., by fax or PDF), each of which shall be considered an original, but all of which together will constitute one and the same instrument.
11(i) Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each Party.
11(j) Headings. Headings in this Agreement are for convenience of reference only and shall in no way affect interpretation of the Agreement.