Terms & Conditions
GENIE, INC. (“GENIE” OR ‘WE”) IS WILLING TO PROVIDE CERTAIN SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT (A) ENTERS INTO A WRITTEN ORDER FORM, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH GENIE THAT REFERENCES THIS AGREEMENT OR (B) CLICKS ON THE “ACCEPT” BUTTON ACCOMPANYING THE SUBSCRIPTION SERVICE OR OTHERWISE USES THE SUBSCRIPTION SERVICE, ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (“AGREEMENT”). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SERVICES FROM GENIE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND GENIE. BY ENTERING INTO A WRITTEN ORDER FORM, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH GENIE THAT REFERENCES THE AGREEMENT BELOW OR BY CLICKING ON THE “ACCEPT” BUTTON ACCOMPANYING THE SUBSCRIPTION SERVICE OR OTHERWISE USING THE SUBSCRIPTION SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A “CORPORATE ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM “YOU” OR “CUSTOMER” REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.
Genie and Customer shall herein be referred to each as a “Party” and collectively as the “Parties”. In consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions
1.1 Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
1.2 Authorized Reseller means any third party reseller, distributor or channel partner that has been authorized by Genie to resell the Services and/or Hardware to Customer.
1.3 Confidential Information has the meaning given to it in Section 4.1.
1.4 Customer has the meaning set forth above.
1.5 Customer Data means all Data made available by the Customer or its Users to Genie or otherwise provided by Customer or its Users in connection with the provision of the Services.
1.6 Data means text, images, materials, photos, audio, video, and all other forms of data or communication.
1.7 Documentation means the documentation for the Subscription Service or Hardware generally supplied by Genie to assist its customers in the use of the Subscription Service or Hardware.
1.8 Feedback means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Subscription Service or Hardware.
1.9 Freemium Offerings means Services provided by Genie to Customer without charge (such as Services provided during a free trial period) as indicated on the Order Form.
1.10 Genie Data means all Data made available by Genie to Customer in connection with the Customer’s use of the Services.
1.11 Hardware means that equipment provided by Genie and set forth and described on an Order Form for use with Genie’s Subscription Service.
1.12 Order Form means each Genie order form, statement of work or similar ordering document signed by duly authorized representatives of both Parties (or Customer and an Authorized Reseller as the case may be) which references this Agreement, identifies the specific Services or Hardware ordered by Customer from Genie, sets forth the prices for the Services and contains other applicable terms and conditions.
1.13 Professional Services means configuration, implementation, training, consulting and/or custom services to be provided by Genie. All Professional Services will be set forth and described on an Order Form.
1.14 Services means the Subscription Service, Technical Support and any Professional Services provided by Genie.
1.15 Subscription Service means Genie’s proprietary subscription-based liquid handling automation software solution set forth and described on the applicable Order Form.
1.16 Technical Support means Genie’s technical support services described on Exhibit B attached hereto.
1.17 Third Party Applications means online, Web-based applications or services and offline software products that are provided by third parties, and interoperate with the Subscription Service.
1.18 Users mean individuals who are authorized by the Customer to use the Services, and, with respect to the Subscription Service, who have been supplied passwords by the Customer (or by Genie at the Customer’s request). Users consist of any employee of the Customer or its Affiliates and any independent contractor of the Customer or its Affiliates.
1.19 Work Product means any deliverables, content, reports, analyses or documentation developed by Genie on behalf of Customer and delivered to the Customer in the performance of any Professional Services.
2. Services and Hardware
2.1 Services and Hardware. Genie shall provide the Customer with the specific Services and/or Hardware specified on an Order Form. Any conflict between the terms and conditions set forth in this Agreement and any Order Form shall be resolved in favor of this Agreement unless an Order Form makes specific reference to the section of this Agreement that is to be amended in the Order Form. Any exceptions expressly agreed upon in writing by the Parties pursuant to a particular Order Form will apply only for purposes of that Order Form, and will not be deemed to in any way amend, modify, cancel, or waive the provisions of this Agreement for any other Order Form. The Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Genie regarding future functionality or features. Customer acknowledges that the Hardware is provided in accordance with and is subject to the provisions set forth in this Agreement, the applicable Order Form as well as the additional terms and conditions set forth on Exhibit A hereto.
2.2 License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Genie hereby grants to the Customer, solely during the term of the applicable Order Form, a non-exclusive, non-transferable (except as set forth in Section 11.2) license to access and use the Subscription Service solely for the Customer’s internal business purposes. This license is restricted to use by Customer and its Users and does not include the right to use the Subscription Service on behalf of any third party. The Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Subscription Service. The Customer agrees: (a) that only authorized Users are permitted to use the Subscription Service; (b) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service and the Documentation from unauthorized use and/or access.
2.3 Licensed Volume. The Customer acknowledges that access and use of the Subscription Service is licensed to the Customer for use up to the number of connected devices, Users or other metric purchased by the Customer and set forth and described on the applicable Order Form (the “Volume Limitations”). In the event that the Subscription Service is used in excess of the Volume Limitations then the Customer shall be obligated to pay Genie for the number of applicable connected devices, Users, or other metric used in excess of such Volume Limitations at the rates set forth in the Order Form.
2.4 Affiliates Not Under Direct Order Form. Subject to the terms of the Order Form and this Agreement, the Customer may make the Subscription Service and Hardware available for use by its Affiliates provided that (a) all licensing restrictions are complied with in each instance by each such Affiliate, and (b) such Affiliates are bound by obligations as protective of Genie as this Agreement for the benefit of Genie. Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates – except where the Affiliate has signed its own Order Form with Genie for the Services or Hardware pursuant to Section 2.5.
2.5 Affiliates Under Direct Order Form. In addition to Section 2.4, Customer’s Affiliates may acquire Hardware and Services subject to the terms and conditions of this Agreement by executing Order Forms hereunder directly with Genie. Each Order Form executed by an Affiliate hereunder shall incorporate the terms of this Agreement by reference and be deemed to be a two party agreement between Genie and such Affiliate. Each Affiliate executing an Order Form shall be solely responsible for its obligations pursuant to such Order Form as well as for the obligations to be performed pursuant to this Agreement and the liabilities arising out of this Agreement as if it was the named party instead of Customer. Customer shall have no obligations or liabilities as to such Order Form signed by its Affiliate and Genie shall look solely to the Affiliate executing such Order Form.
2.6 Third Party Applications. The Subscription Service may interact with and access Customer and third party applications and related information used by Customer in connection with the Subscription Service, including access to Customer Data and Customer Data sources. Customer shall make any such Third Party Applications, data sources, Customer Data and information available to Genie and the Subscription Service as necessary to use the Subscription Service as contemplated in this Agreement, including, without limitation, obtaining all required access and credentials. Customer shall be solely responsible for ensuring compliance with third party terms of use, privacy policies and contractual obligations in making such Third Party Applications, data sources, Customer Data and information available to Genie.
3. Fees; Payment Terms
3.1 Fees. The Customer agrees to pay Genie for Services and Hardware provided and expenses incurred in accordance with and at the rates specified in each Order Form. Unless otherwise set forth on the Order Form, payment shall be due within thirty (30) days after receipt of Genie’s invoice and shall be made in US Dollars. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due. In addition to paying the applicable fees, Customer shall also pay all reasonable travel and out-of-pocket expenses incurred by Genie in connection with any Services rendered provided that Customer has pre-approved of such travel and expenses in writing in advance. For purchases made by Customer from an Authorized Reseller, Customer agrees to pay the Authorized Reseller the fees as agreed to with the Authorized Reseller in accordance with any payment terms agreed to by Customer and such Authorized Reseller.
3.2 Taxes. Fees are exclusive of taxes. The Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services or Hardware rendered hereunder, except for taxes related to the net income of Genie and any taxes or obligations imposed upon Genie under federal, state and local wage laws.
4. Confidentiality
4.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. For the avoidance of doubt, all Customer Data shall be Customer’s Confidential Information. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. Customer further agrees that it shall not use the Services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Services and will not publicly post any analysis or reviews of the Services without Genie’s prior written approval. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.
4.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
4.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
5. Warranties
5.1 Subscription Service Warranty. Genie warrants that during the term of any Order Form for the Subscription Service the Subscription Service will conform, in all material respects, with the Documentation and perform in accordance with the service level commitment set forth on Exhibit B. Genie does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free. For any breach of the above warranty, Genie will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. The Customer will provide Genie with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. Such warranty shall only apply if the Subscription Service has been utilized by the Customer in accordance with the Order Form and this Agreement.
5.2 Hardware Warranty. Unless otherwise expressly stated in the Order Form, all Hardware is warranted against defects in materials and manufacturing for a period of twelve (12) months from the shipping date. Additional individual warranty statements in the instructions for use (“IFU”) may be included in the packaging of each Hardware product. As Customer’s sole and exclusive remedy for any breach of the foregoing warranty by Genie, Genie will repair or replace, at its election, Hardware discovered to be defective during the warranty period set forth above and returned by the Customer in accordance with Genie’s return policy described on Exhibit A. This warranty does not cover repair or replacement of any Hardware that malfunctions because of or is otherwise damaged as a result of (a) Customer’s failure to comply with the provisions and instructions contained in the manual or labeling accompanying the Hardware; (b) the failure of anyone other than Genie or its service or supply contractors to comply with the written instructions or recommendations; (c) Customer or its permitted users combining the Hardware with a third party’s product or an incompatible Genie product; (d) any alteration or improper storage, handling, transporting, use or maintenance of any part of the Hardware by anyone other than Genie or its service or supply contractors; (e) any external force or unusual stress such as building structural deficiency, power surge, fluctuation or failure, or climate control failure; or (f) actions beyond Genie’s reasonable control.
5.3 Services Warranty. Genie warrants that any Technical Support and Professional Services provided hereunder shall be provided in a competent and professional manner and in accordance with any specifications set forth in the Order Form in all material respects.
5.4 No Other Warranty. GENIE DOES NOT REPRESENT THAT THE SERVICES OR HARDWARE WILL BE ERROR-FREE OR THAT THE SERVICES OR HARDWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES OR HARDWARE WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY GENIE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. Limitation of Liability
6.1 Consequential Damage Exclusion. Except for a Party’s willful misconduct, neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.
6.2 Limitation of Liability. Except for Genie’s willful misconduct or gross negligence, the total cumulative liability Genie to Customer for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the greater of (a) $100.00 and (y) the fees paid or payable by Customer to Genie under the Order Form for the Services or Hardware which forms the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Order Form reflects this allocation of risk and the limitation of liability specified herein.
7. Term
7.1 Term. This Agreement will continue in effect until otherwise terminated in accordance with Section 7.2 below. The term of each Order Form for the Subscription Service shall be set forth on the Order Form. Genie reserves the right to modify this Agreement by posting a new Agreement online or in the Subscription Service and notifying Customer of such new agreement provided that such new Agreement will only be applicable for any Order Form entered into after the date such new Agreement goes into effect.
7.2 Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form (i) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Forms then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
7.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Genie shall no longer provide the applicable Services to the Customer and the Customer shall promptly cease and cause its Users to promptly cease using the Services. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession.
8. Ownership; Use of Data; Obligations
8.1 Subscription Service. The Customer acknowledges and agrees that as between Genie and the Customer, all right, title and interest in and to the Subscription Service (excluding any Customer Data) and including all modifications and configurations, all Genie Data and all of Genie’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to the Customer by Genie in providing the Subscription Service and all derivatives thereof are and shall remain Genie’s or its licensors’. The Genie name, all Genie logos, and the product names associated with the Subscription Service are trademarks of Genie or third parties, and no right or license is granted to use them. The Customer shall not remove any Genie trademark or logo from the Subscription Service. Genie will have the right to generate Aggregate Data, and the parties agree that Genie may use Aggregate Data for any business purpose during or after the term of this Agreement. Genie will not distribute Aggregate Data in a manner that personally identifies Customer, customers of Customer or its Users. For purposes of the foregoing, “Aggregate Data” means (a) data generated by aggregating Customer Data with other data so that the results are not personally identifiable with respect to Customer, customers of Customer or Authorized Users, and (b) any anonymous data and learnings regarding use of the Service. In the event Customer provides Genie with Feedback, Customer hereby grants to Genie an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed.
8.2 Customer Data. The Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, the Customer hereby grants to Genie a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Subscription Service to the Customer. Genie’s collection, use and disclosure of personal information the Customer provides to Genie will also be governed by Genie’s Privacy Policy located https://www.app.genielifesciences.com/resources/docs/privacy-policy. Upon termination of the Subscription Service, Genie shall make such Customer Data available to the Customer in a mutually agreed upon format. Notwithstanding anything to the contrary contained herein, neither Customer nor its Users shall upload into the Subscription Service any personally identifiable information (“PII”). To the extent that the Customer or any of its Users uploads any such PII into the Subscription Service then the Customer (and not Genie) shall be solely responsible for all liability or obligations with respect to such PII under any and all circumstances including but not limited to any data breach.
8.3 Customer Obligations. The Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Without Genie’s express prior written consent in each instance, the Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service. Except as expressly permitted in this Agreement, the Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Subscription Service to any third-party. Neither the Customer nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.
8.4 Work Product. The parties agree that unless otherwise expressly set forth in an Order Form, Customer will have a non-exclusive, non-transferable (except as set forth in Section 11.2) license to use any Work Product developed by Genie in the performance of any Professional Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder, solely for Customer’s internal use in connection with its use of the Subscription Service. Genie retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by Genie in the performance of this Agreement.
9. Indemnification
9.1 Genie Indemnification. Subject to Section 9.3 below, Genie will defend Customer, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Services or Hardware infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid by under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in Genie’s sole opinion, to be brought, Genie will, at its option and expense (A) obtain the right for Customer to continue using the Services or Hardware; (B) replace or modify the affected Services or Hardware so that they becomes non-infringing; or (C) upon notice to Customer, terminate this Agreement or Customer’s use of the affected Services or Hardware, provided that in the case of (C) Genie promptly refunds to Customer the prorated portion of any unearned pre-paid annual subscription fees paid hereunder for the affected Services and upon receipt of the returned Hardware a pro rata portion of any fees paid for the Hardware (as depreciated over a three year straight line basis). Genie’s obligations in this Section 9.1 do not cover third party claims to the extent such claims arise from: (1) any products, services, technology, materials or data not created or provided by Genie (including without limitation any Customer Data), (ii) any part of the Services or Hardware made in whole or in part in accordance to Customer specifications, (iii) any modifications made after delivery by Genie, (iv) any combination with other products, processes or materials not provided by Genie (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services or Hardware is not strictly in accordance with this Agreement or any Documentation.
9.2 Customer Indemnification. Subject to Section 9.3 below, Customer will defend Genie, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Genie Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Genie Indemnitees by a third party alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party (each, a “Claim Against Genie”), and will indemnify the Genie Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Genie Indemnitees as a result of, or for any amounts paid under a court-approved settlement of a Claim Against Genie.
9.3 Indemnification Procedure. Each Party’s obligation to indemnify the other party is conditioned on the Party seeking indemnification: (i) promptly notifying the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (ii) allowing the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim that requires the indemnified Party to admit fault without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (ii) giving the indemnifying Party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.
9.4 Sole Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section
10. Technical Support
During the term of any Order Form for the Subscription Service, Genie will provide Customer with technical support services for the Hardware and Subscription service as described on Exhibit B.
11. General
11.1 Entire Agreement. This Agreement, including all Order Forms, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Except as set forth in Section 7.1, only a written instrument that refers to this Agreement or the applicable Order Form and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Form. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the order is accepted by Genie. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
11.2 Assignment. This Agreement shall be binding upon and for the benefit of Genie, the Customer and their permitted successors and assigns. Neither Party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void provided that either Party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Genie may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Genie shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.
11.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions. The federal and state courts sitting in Suffolk County, Massachusetts, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.
11.4 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
11.5 Relationship of the Parties. Genie and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
11.6 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, pandemics, epidemics and other recognized health threats as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies (including but not limited to the health threats of COVID-19, H1N1, or similar infectious diseases) or any other reason where failure to perform is beyond the reasonable control of the non-performing Party (each a “Force Majeure Event”).
11.7 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt to the address of the Party set forth on the applicable Order Form or (iii) by email to the email address set forth on the applicable Order Form provided receipt of such email is confirmed. Either Party may change its address by giving written notice of such change to the other Party.
11.8 Modifications to Subscription Service. Genie may make modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any functionality or features of the Subscription Service.
11.9 Freemium Offerings. All Freemium Offerings are provided by Genie on an “AS IS” basis without any warranty of any kind. For the avoidance of doubt, Sections 5.1-5.3, Section 9.1 and Exhibit B shall not be applicable to the Freemium Offerings.
11.10 Publicity. Unless otherwise set forth in an Order Form, Customer hereby grants Genie a non-exclusive license solely during the term of the Order Form to list Customer’s name and display the Customer’s logo in the customer section of Genie’s website and to use Customer’s name and logo in Genie’s customer lists but only to the extent that other customers of Genie are also listed on such list. Any other use by Genie of the Customer’s name, logo or trademark requires the Customer’s prior written consent (such consent not to be unreasonably withheld).
11.11 No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
11.12 Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
