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“R.A.I.” the Reliability.aiTMChatbot
If Reliabilityweb, Inc. (“Reliabilityweb”) has granted Reliability Partner (“Partner”) a license by entering into an Order Form for Reliabilityweb materials to be used within Partner’s products or services, the terms of this Reliability Partner Agreement (“Agreement”) will apply as of the date the parties enter into the Order Form (the “Effective Date”).
1. License. Subject to the terms of this Agreement and only in the Territory, Reliabilityweb grants to Partner a non-exclusive, non-transferable, limited license to: (a) install and use the Reliabilityweb Material listed in an Order Form solely for Partner’s internal testing, development and support purposes and for demonstrating the Named Application; (b) copy and incorporate the Reliabilityweb Material into the Named Application designated in an Order Form; and (c) sublicense the right to access the Named Application to End Users for their internal use on terms (“End User Agreement”) no less protective of Reliabilityweb and no less restrictive for the Reliabilityweb Material than those used by Partner to license its proprietary products to the End User and the terms in this Agreement. In no event may Partner permit its Channel Partners to exercise its rights under this Agreement, including without limitation the foregoing license rights. Partner may not distribute the Reliabilityweb Material on a stand-alone basis under this Agreement, and the use of the Reliabilityweb Material must always be in conjunction with the use of the Named Application. Partner may not embed the Reliabilityweb Material into any other Named Application without the prior written consent of Reliabilityweb. All use of the Reliabilityweb Material must be in accordance with the Reliabilityweb attribution standards.
2. License Restrictions. Except as expressly permitted in this Agreement, Partner agrees not to and shall not allow any third-party to: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Reliabilityweb Material or related materials to a third-party; (b) decompile, disassemble, translate, or reverse engineer the Reliabilityweb Material,; (c) allow access or permit use of the Reliabilityweb Material by any users other than Partner’s employees or authorized third-party contractors who are providing services to Partner and agree in writing to abide by the terms of this Agreement, provided further that Partner shall be liable for any failure by such employees and third-party contractors to comply with the terms of this Agreement; (d) create, develop, license, install, use, or deploy any third-party Reliabilityweb Material or services to circumvent or provide access, permissions or rights which violate the license keys embedded within the Reliabilityweb Material; (e) modify or create derivative works based upon the Reliabilityweb Material or Documentation; (f) disclose the results of any benchmark test of the Reliabilityweb Material to any third-party without Reliabilityweb's prior written approval; (g) change any proprietary rights notices which appear in the Reliabilityweb Material or related materials; or (h) provide training or consulting services for the Reliabilityweb Materials.
3. Delivery. Reliabilityweb will make available to Partner electronically one (1) copy of the Reliabilityweb Material.
4. Partner Obligations. Partner represents and warrants that: (a) Partner will not make any representation or warranty on behalf of Reliabilityweb; (b) Partner will not create any obligation on behalf of Reliabilityweb except as specifically agreed to in this Agreement by Reliabilityweb; and (c) Partner shall indemnify and hold Reliabilityweb harmless against any loss, damage and expense arising from a breach by Partner of its obligations under this Section and any breach by an End User of the terms of the applicable End User Agreement.
5. Reports and Records. Within ten (10) days of the end of each quarter during the term of this Agreement, Partner will provide Reliabilityweb with a report of all transactions made under this Agreement during such month. The report shall include the End User contact information, the applicable Named Application and the transaction date. In addition, upon ten (10) days prior written notice, Partner will make records and books concerning transactions related to the Reliabilityweb Material available to Reliabilityweb and its agents during normal business hours. If the inspection reveals underreported amounts payable under this Agreement, Partner will immediately pay such amounts plus interest at one percent (1%) per month and will reimburse Reliabilityweb the full cost of the inspection. If no amounts are underreported, Reliabilityweb will be responsible for all of costs of the inspection.
6. Royalty Fees. Reliabilityweb shall invoice Partner for the royalty fees on an Order Form on a quarterly basis during the term of this Agreement or as agreed on an Order Form. All invoices are due upon receipt and payable within thirty (30) days in U.S. dollars. Partner will pay directly any taxes arising out of this Agreement or Reliabilityweb’s
performance under this Agreement, including applicable local, state, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on Reliabilityweb’s net income and all employer reporting and payment obligations with respect to Reliabilityweb’s personnel. If any applicable law requires Partner to withhold amounts from any payments to Reliabilityweb under this Agreement, (a) Partner will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Reliabilityweb with tax receipts evidencing the payments of such amounts, and (b) the sum payable by Partner upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Reliabilityweb receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Reliabilityweb would have received and retained absent the required deduction or withholding. Reliabilityweb is not responsible for any expenses incurred by Partner in connection with this Agreement. All fees are nonrefundable and made without right of setoff or chargeback. All amounts not paid when due are subject to a late fee of the lesser of one percent (1%) per month or the maximum amount allowable by law. If payment of any fee is overdue, Reliabilityweb may also suspend provision of Support until such delinquency is corrected.
7. Referral Fees. If Partner is eligible to participate in the Reliabilityweb referral fee program, the referral fees and process will be described in an Order Form.
8. Confidentiality. Confidential and proprietary information exchanged hereunder will be treated in accordance with the most recent Mutual Non-Disclosure Agreement between the parties in effect on the Effective Date and any amendments thereto (“Confidentiality Agreement”), which is hereby incorporated by reference; however if there is no confidentiality agreement in place between the parties, then the terms in Exhibit A will apply. The terms and conditions of this Agreement and the transactions and potential transactions under this Agreement constitute Confidential Information. The parties agree that for the purposes of this Agreement, the obligations of confidentiality specified in the Confidentiality Agreement will exist for a period not less than two (2) years following the termination of this Agreement, notwithstanding the earlier termination or expiration of the Confidentiality Agreement; provided that to the extent the confidential and proprietary information covered by such agreement constitutes a trade secret(s) under law, the parties shall protect such information for so long as it qualifies as a trade secret under applicable law.
9.1 Reliabilityweb reserves all intellectual property rights not expressly granted by it to Partner under this Agreement. Other than the limited licenses granted in this Agreement, Reliabilityweb retains all right, title and interest in the Reliabilityweb Material and Documentation, and all derivative works thereof. Except as otherwise set forth in this Agreement, Partner agrees that the rights granted to Partner under this Agreement do not extend to its affiliates or to any other third-party.
9.2 Notwithstanding anything to the contrary, the data captured from the Named Application assessment (“Raw Data”), as well as the related de-identified data and the interpretation of the data (“De-identified Data”) will be made available to both parties and will be proprietary and jointly owned by Partner and Reliabilityweb without any payment obligations to the other party. Each party is free to use and disclose the De-identified Data commercially, however the Raw Data may only be used internally. On a case-by-case basis, Partner may request that Reliabilityweb not download certain Raw Data based on contractual obligations with End Users, which request will not be unreasonable withheld.
10. Term and Termination.
10.1 Term. Unless otherwise agreed on an Order Form, this Agreement will become effective as of the Effective Date and will continue for a period of one (1) year. Thereafter, this Agreement will renew for additional one (1) year years unless either party provides at least ninety (90) days prior written notice of its intent not to renew.
10.2 Termination. This Agreement may be terminated with the prior written consent of both parties. In addition, either party may terminate this Agreement immediately upon giving notice in writing to the other party if the non- terminating party commits a material breach of this Agreement and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so.
10.3 Effect of Termination. Upon the expiration or termination of this Agreement: (a) all outstanding amounts
owed by Partner under this Agreement will become immediately due and payable; (b) Partner will have no further right to market or license the Reliabilityweb Material as part of the Named Application; (c) all licenses granted under this Agreement will terminate; (d) Partner will immediately cease using the Reliabilityweb Material and Documentation; and (e) each party will immediately cease using the Brand Features of the other party. Notwithstanding anything to the contrary: (i) no termination or expiration of this Agreement shall affect any End User’s existing right to use the Reliabilityweb Material as permitted under this Agreement; (ii) Reliabilityweb will provide Level 3 Production Support to Partner for such existing End User licenses; and (iii) Partner may retain the Reliabilityweb Material and Documentation after the termination of this Agreement solely as necessary to provide support for such existing End User licenses. Neither party will be liable to the other for damages, losses, costs or expenses of any kind due to the termination or expiration of this Agreement, including those arising from the loss of prospective sales, any expenses incurred or investments made in connection with establishing, developing or maintaining either party's business.
10.4 Survival. Sections 4, 5, 6, 8, 9, 10, 11, 12, 13 and 14 will survive the expiration or termination of this Agreement.
11. REPRESENTATIONS AND WARRANTIES.
11.1 Reliabilityweb Material. Reliabilityweb warrants to Partner only that, for a period of thirty (30) days following the date the Reliabilityweb Material is initially licensed under this Agreement ("Warranty Period"), the Reliabilityweb Material shall substantially conform to the description contained in the applicable documentation published by Reliabilityweb (“Documentation”).
11.2 Disclaimer. EXCEPT FOR THE WARRANTIES IN THIS SECTION, THE RELIABILITYWEB MATERIAL AND DOCUMENTATION ARE PROVIDED “AS-IS” AND RELIABILITYWEB AND ITS SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON- INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, THE RELIABILITYWEB MATERIAL, SUPPORT AND DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN THE PLANNING, CONSTRUCTION, MAINTENANCE, CONTROL, OR DIRECT OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, CONTROL OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT SYSTEMS.
12. LIMITATION OF LIABILITY IN NO EVENT SHALL RELIABILITYWEB BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), 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. RELIABILITYWEB’S TOTAL LIABILITY FOR ANY TYPE OF CLAIM WHATSOEVER ARISING HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY PARTNER TO RELIABILITYWEB UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. IN NO EVENT WILL RELIABILITYWEB’S SUPPLIERS HAVE ANY LIABILITY UNDER THIS AGREEMENT.THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
13.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof which does not include the use or distribution of the Reliabilityweb Material, Documentation or Support in a manner not permitted under this Agreement. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Reliabilityweb Material, Documentation and Support to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders
are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.
13.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable.
13.3 Waiver. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement.
13.4 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due).
13.5 No Third Party Beneficiaries. Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Reliabilityweb and Partner and do not create any right in favor of any third-party.
13.6 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of Florida, without reference to the principles of conflicts of law. The provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any litigation related to this Agreement shall be brought in the state or federal courts located in Lee County, Florida, and only in those courts and each party irrevocably waives any objections to such venue.
13.7 Notices. All notices must be in writing and shall be effective three (3) days after the date sent to the other party’s headquarters, Attention Legal Department.
13.8 Government Regulation. Partner acknowledges that the Reliabilityweb Material is subject to export restrictions by the U.S. government and import restrictions by certain foreign governments. Partner may not export or re-export the Reliabilityweb Material except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. Partner shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any Reliabilityweb Material or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Partner agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Reliabilityweb Material is further restricted from being used for: (a) terrorist activity, or (b) the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government. Partner shall at all times comply with all applicable laws and regulations in its performance under this Agreement, including without limitation any applicable anti-corruption laws.
14. DEFINITIONS. Capitalized terms in this Agreement have the following meanings:
Channel Partner means an entity such as a reselling partner that acquires a license for the Reliabilityweb Material for
End User means an end user customer that purchases the Reliabilityweb Material for its own internal use and not for resale, sublicensing or providing any services for any third-party.
Named Application means a Reliabilityweb Material solution set forth in an Order Form and developed by Partner that incorporates the Reliabilityweb Material with other Reliabilityweb Material applications.
Reliabilityweb Material means the object code version of the Reliabilityweb Material product(s) listed in an Order Form, including all Upgrades provided under this Agreement.
Territory means worldwide unless specified in an Order Form, except to the extent limited by applicable import and