Voxel Terms & Conditions
Services and Hardware
- Use of Software. Subject to the other limitations on use described in this Agreement, Client may use the Software solely for use at Client’s facilities set forth in the Order Form (the “Facilities”), and shall not, without the prior written approval of Voxel, allow any third party, except as may be permitted elsewhere in this Agreement, to use or itself use the Software for any other purpose or for the benefit of any third party.
- IT Support. Voxel will provide Client the technical IT Support described in the Service Level Terms.
- Software Customization (if applicable). To the extent specified on the Statement of Work, Voxel shall make any customizations to the Software for Client’s specific use of the Software set forth in the Statement of Work (the “Customization”). Client explicitly agrees and acknowledges that any such Customization will be deemed a component of the Software and that Voxel shall retain all proprietary rights.
- Lease and Installation of Hardware. Client agrees to lease from Voxel, and Voxel agrees to lease to Client, the Hardware specified in the Order Form and Statement of Work at the rates set forth therein, for the term of this Agreement. Voxel agrees to perform the Implementation Services described in the Statement of Work at a mutually agreeable date and time. In the event that any Hardware fails and such failure is not covered by the Hardware Warranty, Client agrees to pay a Replacement Fee of $5,000 described in the Statement of Work to replace such Hardware.
- Software Changes. Voxel reserves the right to make changes to the Software from time to time including upgrades, enhancements, bug fixes, and other modifications to adjust the Software, provided that such changes shall not eliminate or materially interfere with the core function of the Software.
Term and Termination
- Term. This Agreement will commence on the Effective Date and will continue for the Initial Term set forth on the Order Form (the “Initial Term”). After expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term”), unless at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable, either Party provides written notice to the other Party of non-renewal, in which case the Agreement shall terminate at the expiration of the Initial Term or the then-current Renewal Term, as applicable (the Initial Term and the Renewal Term(s) shall be collectively referred to as the “Term”).
- Termination. Either Party may terminate this Agreement in the event that the other Party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after the receipt from the non-breaching Party of notice specifying the breach requiring its remedy, unless such material breach cannot be cured, in which case the non-breaching Party may terminate this Agreement effective immediately upon written notice to the other Party. In the event Client files for protection of bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof, then Voxel may terminate this Agreement effective immediately upon written notice to Client.
Payment of Fees
- Fees. In consideration for Software, the Customization (if any), the Hardware (if any) and any other Services to be provided by Voxel under this Agreement, Client shall pay to Voxel the fees (“Fees”) in the amounts and manner set forth on the Order Form.
- Payment. Payment shall be made in immediately available funds in USD in the manner set forth on the Order Form. Any late fees shall incur interest until paid in full at the lesser of: (a) 1.5% per month or (b) the maximum rate allowed by applicable law.
- Taxes. The Fees do not include sales tax, use tax and other governmental charges, as may be appropriate under law.
- Software. Voxel owns and retains all right, title and interest in and to: (a) the Software, all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with the Services (including, without limitation, any Customizations); and (c) all intellectual property rights related to any of the foregoing. Subject to the terms and conditions of this Agreement, Voxel hereby grants to Client a non-perpetual, non-exclusive, non-transferable, non-sublicensable right and license, during the Term, to access and use the Software, and all of its features and functionality for the purposes set forth in this Agreement.
- Hardware. Subject to the terms of this Agreement, upon installation of the Hardware as set forth in this Agreement, title to the Hardware shall remain with Voxel. Client’s possession and use of the Hardware at the Facilities is pursuant to the lease described in Section 1.4.
- Client Data. Client shall own all right, title and interest in and to the data relating to or resulting from Client’s use of the Services (“Client Data”), as well as any data that is based on or provided to Client as part of the Services. Notwithstanding anything to the contrary, Voxel maintains the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related technologies (including, without limitation, information concerning Client Data and data derived therefrom). Client hereby grants to Voxel an exclusive, irrevocable, fully paid, royalty-free, sublicensable, and transferable license to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Voxel offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
Restrictions; Representation & Warranties and Responsibilities
- Restrictions. Client will not, under any circumstances, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or documentation or data related to the Services; modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Voxel or authorized within the Services)
- Suspension of Services. Notwithstanding anything to the contrary in this Agreement, Voxel may temporarily suspend, or permanently revoke, Client’s access to any portion or all of the Services if Voxel reasonably determines that: (a) there is a threat or attack on the Software; (b) Client’s use of the Software disrupts or poses a security risk to the Software; or (c) Client is using the Software for fraudulent or illegal activities or otherwise in violation of the terms of this Agreement (any such temporary suspension, a “Service Suspension” and any such revocation, a “Service Revocation”). Voxel shall use commercially reasonable efforts to provide three (3) days’ written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Software following any Service Suspension. In cases of Service Suspensions, Voxel shall (i) use commercially reasonable efforts to resume providing access to the Software as soon as reasonably practicable after the circumstance giving rise to the Service Suspension is cured, or (ii) determine, in its sole discretion, that the circumstance giving rise to the Service Suspension warrants a Service Revocation, in which case Voxel shall promptly notify Client of it determination. Voxel shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any third party may incur as a result of a Service Suspension or Service Revocation, and Client shall not be entitled to any refunds of any Fees on account of any Service Suspension or Service Revocation.
- Confidential Information. During the course of this Agreement, each Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”) certain non-public information or materials relating to the Disclosing Party’s products, intellectual property, business, business plans, marketing programs and efforts, customer lists, customer information, financial information and other confidential information and trade secrets (“Confidential Information”). Client’s Confidential Information shall also include Client Data.
- Protection of Confidential Information. Except as expressly provided herein, the Receiving Party will not use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent, except disclosure to and subsequent uses by the Receiving Party’s or its affiliates’ respective authorized employees or consultants on a need-to-know basis for the purpose of performing their obligations pursuant to this Agreement, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the Receiving Party’s obligations under this Section 6.3. Subject to the foregoing nondisclosure and non-use obligations, the Receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the Receiving Party uses to protect the Receiving Party’s own Confidential Information and trade secrets, and in no event less than reasonable care. Each Party will be responsible for a breach of this Section 6 by any of its or its affiliates’ respective employees or consultants as if they were party hereto. Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the Disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the Disclosing Party shall be entitled to injunctive relief to prevent such unauthorized use or disclosure. Neither Party shall remove or alter any proprietary markings (e.g., copyright and trademark notices) on the other Party’s Confidential Information.
- Return of Confidential Information. On the Disclosing Party’s written request or upon expiration or termination of this Agreement (unless the Parties mutually agree to enter into a continuing business relationship), the Receiving Party will promptly: (a) return or destroy, at the Receiving Party’s option, all originals and copies of all documents and materials it has received containing the Disclosing Party’s Confidential Information; and (b) deliver or destroy, at the Receiving Party’s option, all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by the Receiving Party, prepared under its direction, or at its request from the documents and materials referred to in subparagraph (a), and provide a written statement to the Disclosing Party certifying that all documents and materials referred to in subparagraphs (a) and (b) have been delivered to the Disclosing Party or destroyed, as requested by the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may retain a copy of the Disclosing Party’s Confidential Information solely for archival purposes or as otherwise required by law, provided that any Confidential Information so retained shall continue to be subject to the confidentiality obligations in this Section 6.
Warranty and Warranty Disclaimer
- Hardware Warranty. Voxel represents and warrants that it (a) has the legal power to enter into and perform its obligations under this Agreement with respect to lease of the Hardware to Client; and (b) has obtained and will maintain any and all consents, approvals, licenses, or other authorizations necessary for the lease of the Hardware to Client. Voxel warrants that any Hardware leased to Client pursuant to this Agreement will substantially conform to the specifications described in the Order Form or any other written communication from Voxel during this Agreement (“Hardware Warranty”). The Hardware Warranty does not extend to any damage or failure which results from alteration, accident, theft, misuse, abuse, neglect, abnormal use, improper or unauthorized use or repairs, or improper maintenance by Client, or any third-party. In the event that Voxel determines the alleged defect is covered by this Hardware Warranty, then Voxel shall, in its sole discretion, repair the Hardware at its own expense or replace the Hardware with comparable hardware. THIS LIMITED HARDWARE WARRANTY IS NON-TRANSFERABLE AND SHALL EXTEND ONLY TO CLIENT AND ANY THIRD-PARTY BENEFICIARY MUST BE APPROVED IN WRITING BY VOXEL.
- Warranty Disclaimer. CLIENT AGREES AND ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (A) THE SERVICES ARE PROVIDED “AS IS” AND VOXEL HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE; (B) VOXEL DOES NOT WARRANT THAT THE SERVICES AND/OR ANY HARDWARE (IF PROVIDED BY VOXEL UNDER THIS AGREEMENT) WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, OR THAT THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR ANY DATA PROVIDED BY VOXEL THROUGH THE SERVICE WILL BE ACCURATE; AND (C) VOXEL SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY HARDWARE, SOFTWARE, PRODUCTS, OR SERVICES PROVIDED WITH OR INCORPORATED INTO THE SERVICES.
Indemnification; Limitation of Liability
- Indemnification by Client. Client will indemnify, defend at Voxel’s request, and hold harmless Voxel and its directors, officers, employees, agents and other representatives (“Voxel Indemnified Parties”) against any loss, damage, liability, costs or expenses (including reasonable attorneys’ fees and expenses) in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Voxel or any Voxel Indemnified Party by a third party arising from or relating to: (a) any breach of any representation or warranty of Client contained in this Agreement; (b) any bodily injury or property damage related to the provision of or use of the Hardware; (c) any breach by Client and its personnel of Client’s obligations hereunder, including without limitation, any breach of Confidential Information of Voxel; or (d) the intentional or reckless acts or omissions of Client and its personnel or of any other person or entity acting for, on behalf of, at the direction of, or under the control of Client.
- Indemnification by Voxel. If any action is instituted by a third-party against Client based upon a claim that the Software infringes the intellectual property rights of a third-party (“Infringement Claim”), Voxel shall defend, indemnify, and hold harmless Client and its respective directors, officers, employees, agents, parent, subsidiary, and other affiliates as applicable (collectively, “Client Affiliates”), from and against all losses attributable to such Infringement Claims provided, however, Voxel shall have no liability to Client for any Infringement Claim to extent that such action arises out of a breach of this Agreement by Client, or any Client Affiliates. Voxel may, at its sole option and expense: (a) procure for Client the right to continue using the allegedly infringing items; (b) replace or modify such allegedly infringing items; or (c) terminate this Agreement.
- Indemnification Procedure. The obligations of each Party to indemnify the other pursuant to this Section 8 are conditioned upon the indemnified Party: (a) giving prompt written notice of any qualifying claim to the indemnifying Party once the indemnified Party becomes aware of such claim (provided the failure to provide prompt written notice to the indemnifying Party will not alleviate an indemnifying Party’s obligations under this Section 8 to the extent any associated delay does not materially prejudice or impair the defense of the related claims); (b) granting the indemnifying Party the option to take sole control of the defense (including granting the indemnifying Party the right to select and use counsel of its own choosing) and settlement of the claim (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified Party); and (c) providing reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the claim.
- Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) EXCEPT FOR CLIENT’S OBLIGATION TO PAY THE FEES AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE FEES ACTUALLY PAID BY CLIENT TO VOXEL DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO SUCH LIABILITY.
- Authority. Each Party represents and warrants to the other that: (a) it has full power and authority to enter in and perform this Agreement and the execution and delivery of this Agreement has been duly authorized; and (b) the performance of this Agreement by such Party will not: (i) violate any regulations or applicable law, (ii) breach any other agreement to which such Party is a party or is bound; or (iii) violate any obligation owed by such Party to any third party.
- Applicable Law. This Agreement is and will be governed by and construed in accordance with the laws of the State of California, USA. Exclusive venue for any action, claim, proceeding or suit related to this Agreement will be the federal and state courts located in San Francisco County, State of California, USA. Client irrevocably consents to the personal jurisdiction of such courts.
- Assignment. Neither Party may assign or transfer this Agreement or any rights herein or delegate any duties herein without the prior written consent of the other Party, except to an affiliate of such Party or otherwise in connection with a merger, consolidation, reorganization, or sale of all or substantially all of its assets. Any attempted assignment, transfer or delegation in contravention of this Section is null and void. This Agreement will be binding upon and inure to the benefit of any successors and permitted assigns.
- Force Majeure. The failure to perform or delay in performance by either Party shall be excused to the extent that performance is rendered commercially impracticable by strike, fire, flood, terrorism, governmental acts or orders or restrictions, or any other reason where a Party’s failure to perform is beyond such Party’s reasonable control and not caused by the negligence of such Party (each, a “Force Majeure Event”). In the event that either Party’s performance is directly impacted by a Force Majeure Event such Party shall provide prompt written notice to the other Party.
- Relationship of the Parties. Nothing in this Agreement will create, or be deemed to create, a partnership or the relationship of employer and employee between the Parties. Client understands and agrees that, notwithstanding Client’s limitations on use and access to the Services as set forth in this Agreement, nothing shall prohibit either party from entering into an agreement for the same or similar Services from any other third party.
- Severability. If any term of this Agreement will to any extent be held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term will be valid and enforceable to the fullest extent permitted by law.