Master Service Agreement for Textkernel Services

This Master Services Agreement (“MSA” or “Agreement”) governs Company’s access to and use of Textkernel’s Services. This MSA, together with any Order Form(s), TOS, DPA, SLA and SOW(s) (each as defined below), form a binding agreement (the “Agreement”) between Company (“Company”, “Licensee,” “Customer” “you” and “your”), and Textkernel B.V. and/or any entity identified on the Order Form or Pricing Schedule (“Textkernel”, “Licensor” “we” “us” and “our”) (each a “Party” and jointly “Parties” to the Agreement).

1. Definitions

A number of notions are handled in the Agreement, singular or plural, that start with a capital letter, and have the meaning of the italicized words as defined in this Section.

Affiliate: an entity that is owned or controlled by or is under common control or ownership with a Party, where “control” is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, or by contract.

Authorized Affiliates: Licensee may authorize use of the Services by an Affiliate, provided such Affiliate is approved by us in writing, is listed and identified in the Order Form and Licensee owns at least a majority of the equity interests of such Affiliate, such Affiliate is bound by the terms of this Agreement, and such Affiliate does not have an existing agreement for the provision of products and services by Licensor or its affiliates (“Authorized Affiliate”). Licensee hereby guarantees the performance of all terms and obligations of the Agreement by any such Authorized Affiliate and Licensor may enforce applicable terms and obligations of the Agreement against Licensee, Authorized Affiliates, or both.

Agreement: this Master Services Agreement, including any executed Order Forms, SOWs, SLAs, DPAs and TOS, and their amendments, addendums, and attachments.

Change of Control: any change in the persons or entities controlling the Company, including without limitation such changes resulting from a merger, consolidation, or stock transfer.

Company Content: all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Company that is stored, or inputted into the Services.

Confidential Information: the terms of the Agreement and any information that is not public knowledge that Parties designate, either in writing or orally, as confidential, or which, under the circumstances of disclosure ought to be treated as confidential. Confidential Information includes without limitation: software, hardware, products, services, policies and practices, Intellectual Property Rights, development and marketing plans, and financial information.

Data Protection Laws: the laws and regulations, guidance and codes of practice relating to data privacy and data protection, information security and privacy as applicable to Company as Data Controller and Licensor as Data Processor and Service Provider in the following geographies where Licensor offers its Services: (i) United States federal and state data protection and privacy laws, including without limitation the California Consumer Privacy Act of 2018 (“CCPA”), as amended by the California Privacy Rights Act of 2020 (together with the CCPA, the “CPRA”); (ii) Regulation (EU) 2016/679 (the “General Data Protection Regulation” or “GDPR”) and the Privacy and Electronic Communications (EC Directive) Regulations; (iii) the United Kingdom General Data Protection Regulation (“UK GDPR”) and the Data Protection Act, 2018; (iv) the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”); (v) the Swiss Federal Data Protection Act (“Swiss DPA”); (vi) the Dutch General Data Protection Regulation Implementation Act of 2018; and (vii) the Australian Federal Privacy Act 1988 and Australian Privacy Principles.

DPA: has the meaning ascribed to it in Section 10.1 of this Agreement.

Documentation: the product specifications, integration specifications, administration guides and user manuals concerning the Services and Functionality, that may be placed at the Company’s disposal by Textkernel. Documentation may be amended from time to time.

Enhancements: any Feedback, changes, updates, upgrades, releases, fixes customizations, additions, translations, improvements or modifications made to, or derivative works created from, the Services or Textkernel Content.

Feedback: ideas, comments, translations, or suggestions relating to the Services or Textkernel Content provided by Company to Textkernel.

Force Majeure Event: any event or circumstance beyond the control of the non-performing Party, that prevents the non-performing Party from complying with any of its obligations under this Agreement, other than its obligation to pay money. Force Majeure Event does not include any strike or other labor unrest that affects only one party, an increase in prices, or a change of law.

Functionality: the user functions and possibilities of the software applications that are described in the Agreement or the Documentation, whether divided in sub functionalities and/or modules.

Go-Live Date: means the date upon which the Service is delivered and made available for Licensee’s use in a live production environment.

Intellectual Property Rights: all intellectual property rights, whether those rights happen to be registered or not, and wherever in the world those rights may exist, including but not limited to associated Confidential Information, copyrights, data-base rights, trade secrets, trademarks, patents, inventions, designs and know how.

Order Form or Pricing Schedule: the form, regardless of actual name, executed by the Parties in which Parties describe the details of the Services that will be provided and the applicable prices, payment conditions, and scope of use. The Parties agree that all Order Forms shall be governed by this Master Services Agreement, and each Order Form along with the MSA terms it is governed by shall be considered a separate contract between the Parties. Order Forms may also be referred to as “Pricing Schedules.”

Personal Information: any data or information that constitutes personal data or personal information under any applicable Data Protection Laws.

Security Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal and/or Confidential Information.

Service(s): all services identified in an Order Form or SOW or otherwise performed or made available by Textkernel under this Agreement, such as software services, API’s, the making available of the Functionality, work performed by Textkernel, data enrichment projects, ontologies and taxonomies operated and licensed by Textkernel, delivery of data sets and Customer Success; all of which including enhancements, implementation, support, training and Documentation.

Statement of Work (“SOW”): describes all mutually agreed work to be done by Textkernel for Company, including but not limited to implementation activities, technical or functional consultancy, project management, training, custom development, and non-standard support. The Parties agree that all SOW’s shall be governed by the applicable Order Form, TOS, and Master Services Agreement.

Term: any period during which the Agreement is in force and effect.

Terms of Service (“TOS”): specific terms and conditions, and their attachments, for Services committed under an Order Form, including but not limited to: terms of use, policies or service level agreements, that can be found on the Textkernel website (https://www.textkernel.com/terms-agreements/master-service-agreement-for-textkernel-services/terms-of-service-for-textkernel-services/). The Parties agree that the TOS shall be governed by the applicable Order Form and this Master Services Agreement.

Textkernel Content: any data, content, and information that is provided or stored by Textkernel, or that is retrieved from the Service. Textkernel Content includes Enhancements, and does not include Third Party Content, Company Content or information that Company obtained independent of Textkernel.

Third Party Content: means third party software, programs, applications, websites, or products or services, of which the Intellectual Property Rights and control rest with the third party, and that may be licensed under separate terms that become applicable to the Company when the Company elects to use such Third Party Content via the Services. The Services may enable Company to access and use Third Party Content, but Third Party Content is not part of the Services. Third Party Content may include, without limitation:

1. Third party applications, websites, products, and services allowing Textkernel to retrieve, search and download data on behalf of a User from an external database or system;
2. Content from third party websites collected, or linked to via the Services.

User: a person under the responsibility of Company, who has been given access to the Functionality with the Company’s consent or authority.

2. Scope and Structure of the Agreement

2.1 Each Party warrants and represents that it has the right, power and authority to enter into the Agreement and carry out its obligations hereunder.

2.2 Parties warrant and undertake to each other that they shall comply with all applicable laws relating to the provision and the receiving of the Services.

2.3 This Agreement constitutes the entire agreement and supersedes any previous agreements between the Parties relating to the subject matter of this Agreement.

2.4 Textkernel is an independent contractor of the Company, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

2.5 Textkernel’s provision of the Services to the Company is non-exclusive. Nothing in the Agreement prevents Textkernel from providing the Services to any other party.

2.6 Unless explicitly agreed otherwise in writing, the Textkernel Content is licensed or subscription based, and not sold. Except for the limited licenses and rights expressly granted to the Company in this Agreement, Textkernel reserves for itself and its licensors all other rights, title and interest.

2.7 Order of precedence: This Master Services Agreement governs all Order Forms, SOWs, TOS, SLAs, DPAs and their attachments that Parties execute during the Term of this Master Services Agreement. In the event of a conflict or inconsistency between the Sections (or clauses) or Exhibits or Addenda of this Agreement or any other document referred to in this Agreement (unless otherwise explicitly provided in such documents), the conflict or inconsistency shall be resolved in the following order of precedence (the first of the following having the highest order of priority): the Order Form(s), the terms and conditions of the Agreement set out herein, the DPA (as it relates to Personal Data), the TOS, the SLA(s), other Addenda/Exhibits for additional Services or third-party services, SOW(s), and other exhibits or addenda.

3. Co-operation and Commitments

3.1 Textkernel shall provide the Services competently, and in accordance with this Agreement, the relevant Order Form and/or SOW, and applicable laws. From time to time, on an as needed basis, the Parties may mutually execute an Order Form or SOW.

3.2 Company shall cooperate with Textkernel in the performance of the Services by Textkernel, and Company shall provide Textkernel with all information necessary for the execution of the Agreement.

3.3 The Company may only use the Services and Textkernel Content for the Company’s own internal, lawful business purposes (including complying with laws related to unsolicited electronic messages) or as set forth in the Order Form, and only insofar as necessary for the scope and purpose as described in the Agreement.

3.4 Company may only resell or make the Services or Textkernel Content available to any third party, after obtaining Textkernel’s written approval, and only if Company requires such third party to agree in writing to terms no less protective of Textkernel than the terms of this Agreement.

4. Use of the Service; Restrictions on Use of the Service

4.1 License Grant. Subject to Company’s compliance with the terms and conditions of this Agreement, including but not limited to payment of the Fees, Textkernel hereby grants to Company a limited, non-exclusive, non-transferable, non-sub-licensable, revocable (as described herein) subscription license to access and use the Service, Textkernel Content, and Documentation, during the Term solely and exclusively for Company’s internal business purposes or as set forth in the Order Form. Company shall comply with any addenda or exhibits attached hereto that contain terms or provisions applicable to any Services used by the Company. The Services are licensed on a subscription basis, are not sold, and Company acknowledges that it does not acquire any license to use the Service in excess of the scope and duration expressly stated in the Agreement.

4.2 Restrictions on Use. Licensee shall not: (i) alter, distribute, license, resell, sublicense, transfer, assign, rent, lease, timeshare, or otherwise commercially exploit the Service to any third party or provide it as a service bureau, (ii) except as expressly permitted by applicable law, reverse engineer, decompile or otherwise attempt to discover the source code, APIs or underlying ideas or algorithms of the Service or its technology, (iii) frame or mirror the Service, (iv) remove or obscure any proprietary or other notice contained in the Service, (v) disclose or publish performance benchmark results for the Service, (vi) conduct any penetration or vulnerability testing on the Service, network or application, (vii) use the Service in any manner that is illegal, misleading, defamatory, indecent, obscene, threatening, infringing upon Intellectual Property Rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”), or (viii) use or access the Service to: (A) build a competitive product or service, (B) make or have made a product or service with similar features, functions, text, or graphics, (C) make derivative works based upon the Service or Textkernel Content or Documentation, or (D) copy any features, functions, text, or graphics of the Service or the Content or Documentation including, without limitation, the structure, sequence or organization of the user interface.

5. Pilot Programs

5.1 Licensee may access the Services on a limited evaluation, trial, or pilot basis as described in an Order Form (“Pilot Program”). Access to and use of any Pilot Program is governed by this Section and may also be subject to the Licensee’s acceptance of additional terms, including a pilot or evaluation agreement.

5.2 Duration and Conversion. Unless otherwise stated in the applicable Order Form, each Pilot Program will continue for thirty (30) days from the start date identified in the Order Form and will automatically convert into a paid subscription for the applicable Services at the end of the Pilot Program term, unless Licensee provides written notice of non-renewal at least five (5) days prior to the end of the Pilot Program period. Fees for the post-pilot subscription will be as set forth in the applicable Order Form.

5.3 No Production Use. Licensee may use the Services during a Pilot Program solely for internal evaluation and testing purposes, and not for any production or commercial use.

5.4 Data Handling. Unless otherwise agreed in writing, any Company Content entered into the Services during a Pilot Program may be deleted or inaccessible after the Pilot Program ends if Licensee does not continue with a paid subscription. Licensee acknowledges that data exported from or generated during the Pilot Program may not be compatible with future versions of the Services.

6. Third Party Content

6.1 Subject to the terms and conditions of the Agreement, the Company or Textkernel may use Third Party Content. Textkernel does not warrant the availability, operation and practices of Third Party Content or Services, and shall not be responsible or liable for Third Party Content in any way.

7. Intellectual Property Rights

7.1 The Intellectual Property Rights to the Services and Textkernel Content is fully vested in Textkernel and/or its licensors. Textkernel shall retain license, title, and all ownership rights to the Services and Textkernel Content.

7.2 The Intellectual Property Rights of Company Content remains the property of the Company. The Company grants Textkernel a worldwide, fully paid up, license to use, store, copy, and modify Company Content for any purpose in connection with the exercise of its rights and the performance of its obligations in accordance with the Agreement.

7.3 Intellectual Property Rights to the Third Party Content made available via the Services remain with that third party.

8. IP Indemnification

8.1 Subject to the limitation and restrictions as set forth in this Agreement, Textkernel shall indemnify Company for all damages finally awarded by a non-appealable or not appealed court decision or agreed to in settlement by Textkernel, any related court costs and reasonable attorney fees against Company, arising out of or relating to claims stating that the Company’s use of the Services in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights, provided that:

1. Company promptly notifies Textkernel in writing of any such claim;
2. Company does not make any admission of liability, or prejudices or settles such claim without Textkernel’s prior written permission;
3. Textkernel has sole control of the defense and all related settlement negotiations, and Company gives reasonable cooperation and all information required to defend such claims.

8.2 The indemnity in Section 8.1 does not apply to the extent the claim is based upon:

1. modifications to the Services if such modifications were not made by Textkernel or were made by Textkernel in compliance with Company’s designs, specifications or instructions;
2. Company Content that is stored, inputted or processed as part of the Services; or
3. use of the Services by Company in breach of the Documentation or the Agreement.

8.3 If at any time a claim as mentioned in Section 8.1 that is not excluded from indemnity by Section 8.2 is made, or in Textkernel’s reasonable opinion is likely to be made, then in defense or settlement of such claim, Textkernel may (at Textkernel’s sole discretion):

1. obtain for the Company the right to continue using the items which are the subject of such claim; or
2. modify, re-perform or replace the items which are the subject of such claim so they become non-infringing; or
3. if neither (a) nor (b) are practicable in Textkernel’s sole judgment, Textkernel may terminate the affected Service and return to Company the unused portion of any subscription fees paid in advance for the affected Service.

8.4 The rights granted to Company under this Section 8 shall be Company’s sole and exclusive remedy for any (alleged) infringement of any third party Intellectual Proprietary Rights.

8.5 Company shall indemnify and will defend and hold Textkernel harmless against all claims from third parties related to:

1. Company’s or Company’s Users use of the Services and/or Textkernel Content in breach of the Documentation, the Agreement, or applicable law;
2. Company Content infringing the Intellectual Property Rights of that third party;
3. Company Content that is incorrect, illegal or misleading;
4. Any decisions made by Company or Company’s Users based on information obtained through use of the Services; or
5. The failure of the Company to obtain consents or provide notices from third parties, including by not limited to Data Subjects, with respect to Company Content that are legally necessary for Textkernel to provide the Services.

Textkernel shall provide Company with prompt notice of any such claims, allow the Company sole control of the defense, and shall reasonably cooperate with the Company in defending such claims at the expense of the Company. A claim may not be settled by the Company without the prior written consent of Textkernel if the settlement includes an admission of wrongdoing, fault or liability on the part of Textkernel.

9. Confidentiality

9.1 During the Term, Confidential Information may be disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is either identified as confidential or should be reasonably understood to be confidential due to the nature and circumstances surrounding its disclosure. Without limiting the generality of the foregoing, the terms of this Agreement, the Services, Documentation and Textkernel Content shall be considered the Confidential Information of Textkernel or its licensors or suppliers, and Company Content shall be considered the Confidential Information of Company.

9.2 Each Party agrees: (i) not to use, publish or otherwise disclose the Confidential Information of the other Party, or third-party Confidential Information, except to the extent reasonably necessary to perform its obligations or exercise its rights under the Agreement; (ii) to protect the confidentiality of such Confidential Information as it protects its own Confidential Information (but in any event with no less than a reasonable degree of care); and (iii) to make Confidential Information available to its own employees, consultants, sub-processors and subcontractors only on a need-to-know basis and only if such employees, consultants, sub-processors or subcontractors are under a binding, written obligation of confidentiality with respect to such Confidential Information at least as restrictive as the obligations contained in this Section 9.

9.3 Confidential Information shall not include information that (i) has become generally publicly available (unless made public by a breach hereunder by the Receiving Party or its representative); (ii) was rightfully received by the Receiving Party from a source not under obligation of confidentiality with respect to the Confidential Information; (iii) is lawfully in the possession of the Receiving Party, in written or other recorded form, prior to the disclosure by the Disclosing Party; or (iv) is developed by the Receiving Party independent of, and without reference to, any Confidential Information as demonstrated by Receiving Party’s written records.

9.4 Notwithstanding the foregoing, this Section 9 shall not prohibit the disclosure of Confidential Information, (i) to the extent such disclosure is permitted or required by applicable law or order of a court or other government authority, provided that (unless prohibited by such court, government authority or applicable law) the Disclosing Party has been given notice and the opportunity to petition for injunctive relief or protective order regarding such disclosure, or (ii) in connection with a claim between the Parties under the Agreement. As of the Effective Date, this Section 9 supersedes and replaces any prior non-disclosure agreement(s) entered into between the Parties related to the subject matter covered by this Agreement. A breach of confidentiality shall not be considered a data breach under any circumstances.

10. Privacy and Data Protection

10.1 Each Party acknowledges and agrees that any Personal Information transferred under this Agreement was and is obtained, held, stored, deleted, processed and transferred in accordance with this Agreement, the Data Protection Laws and the Textkernel Data Protection Addendum set forth at https://www.textkernel.com/terms-agreements/data-processing-agreement/ (the “DPA”).

11. Invoicing and Payment

11.1 All fees quoted in this Agreement or an Order Form or SOW exclude any taxes.

11.2 Unless otherwise agreed in the Order Form, all fees are firm for the term specified in the Order Form or SOW, or – if no term is determined – for a term of 12 months.

11.3 The Parties shall comply with the payment schedule specified in the Order Form or SOW. If the Order Form or SOW does not contain a payment schedule, Textkernel shall issue invoices for licenses or subscriptions on an Order Form per 12-month term in advance, and for work included on a SOW after performance of such work.

11.4 Invoices will contain an itemized description of all expenses, charges, costs, Service descriptions, and all state, federal, sales, or other applicable taxes separately.

11.5 Unless specifically stated otherwise in the Order Form or SOW, Company shall pay the invoice(s) within thirty (30) days after the invoice date.

11.6 If Company wholly or partially disputes the invoice, it must notify Textkernel accordingly within fourteen (14) calendar days of invoice date in writing, carefully stating the reasons and the disputed portion of the invoice. Disputing the invoice does not discharge Company from its obligation to pay the undisputed portion of the invoice within the thirty (30) day payment period or the disputed portion promptly upon resolution of the dispute. Textkernel and Company shall use their best efforts to resolve any disputes over an invoice carefully and without any undue delay.

11.7 In the event Company fails to pay any amount payable by it under the Agreement, Textkernel shall be entitled, but not obliged, to charge Company interest on the overdue amount, payable by Company forthwith on demand, from the due date up to the date of actual payment, at the rate of 1% per month on the outstanding sum with any part of the month being calculated as a full month.

11.8 If Company has arrears in payment of more than five (5) business days, Textkernel has the right to suspend the fulfillment of its obligations pursuant to all Order Forms or SOW’s, without being liable for damages in connection with this suspension or cancellation. All reasonable costs that Textkernel incurs as a result of Company’s non-compliance with its obligations pursuant to this provision shall be borne by Company in full.

12. Travel Expenses

12.1 Company shall reimburse Textkernel for all pre-approved, reasonable and necessary travel costs of Textkernel personnel incurred in connection with this Agreement. Company will not be responsible for expenses incurred by Textkernel that are not clearly documented or do not have proper receipts.

13. Term and Termination

13.1 This Agreement shall be effective from the date of mutual execution of the Order Form. The initial subscription term for each Service will commence on the earlier of the Billing Start Date as indicated on the Order Form or, if applicable, the Go-Live Date, and continue for the number of months indicated in the applicable Pricing Schedule (the “Initial Term”). Thereafter, following expiration of the Initial Term, the applicable Order Form(s), and the Agreement will automatically renew for successive one (1) year periods, (each a “Renewal Term”), beginning at the end of the Initial Term or the then current Renewal Term, as the case may be, unless either Party provides written notice to the other Party of its intent not to renew the Agreement at least sixty (60) days prior to the end of the then current Term. The Agreement shall terminate automatically upon termination or expiration of the last remaining Order Form. Applicable pricing and billing will continue unchanged during the then-current Term (as described on the applicable Order Form(s)), unless we, in our sole discretion, notify Customer in writing of changes in pricing and/or billing for the subsequent Renewal Term, including Subscription Fees, billing interval, minimum Subscription Fees, acceleration fees, or any other commercial terms, at least ninety (90) days prior to such Renewal Term start date.

13.2 Unless any pending Order Forms/SOWs are also expressly terminated as permitted by this Agreement and/or the relevant Order Form/SOW, upon expiration or termination of this Agreement for any reason, all Order Forms/SOW’s then in effect hereunder and all license rights granted pursuant to this Agreement and/or any Order Form/SOW will continue in accordance with their terms, in which case this Agreement will continue in effect with respect to such pending Order Forms/SOWs until the completion of such Order Forms/SOWs.

13.3 Either Party may, by notice to the other Party, immediately terminate the Agreement if the other Party:

(i) breaches any material provision of the Agreement or Order Form(s) and the breach is not: (a) remedied within 20 business days of the receipt of a notice from the first Party requiring it to remedy the breach; or (b) capable of being remedied;

(ii) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or

(iii) is unable to perform a material obligation under the Agreement for 30 days or more due to a Force Majeure Event;

(iv) has arrears in payment of more than twenty-one (21) days under this Agreement.

13.4 If Company undergoes a Change of Control, Textkernel may choose to terminate this Agreement by giving Company 30 days’ written notice.

13.5 While Textkernel will employ commercially reasonable efforts not to materially deprecate the Service during the Term, Textkernel reserves the right at any time, and from time to time, to modify or discontinue temporarily or permanently the Service (or any feature or part thereof). In the event that Textkernel modifies or discontinues the Service in a manner which removes or disables a feature or functionality on which Company, acting reasonably, materially relies, Textkernel, at Company’s request, shall use its reasonable endeavors to substantially restore or substitute such functionality to Company. In the event that Textkernel is unable to substantially restore or substitute such functionality with reasonable effort, Company shall have the right to terminate the affected Services and receive a pro rata refund of the license fees paid for the affected Services for the terminated portion of the Term, to the extent that Company has paid license fees in advance. This termination right of Company will expire thirty (30) days from Textkernel’s notice to Company that it is unable to substantially restore or substitute the functionality to Company. Company acknowledges that Textkernel reserves the right to discontinue offering the Service at the conclusion of Company’s then-current Term, subject to Company’s notice obligations under Section 13.1. Company agrees that, except as expressly provided in this Section 13.5, Textkernel shall not be liable to Company nor to any third party for any modification of the Service as described in this Section.

13.6 Textkernel reserves the right to terminate: (i) any Third-Party Content upon not less than sixty (60) days’ notice to Company; and (ii) the Agreement or any Service or product provided hereunder for convenience on not less than one (1) year’s written notice to Company.

13.7 Upon termination or expiry of the Agreement, or upon the request of the Disclosing Party, the Receiving Party must promptly return or destroy all Confidential Information of the Disclosing Party, and provide a written certification of such return or destruction.

13.8 Except as otherwise set forth in this Agreement, Company shall return all licensed intellectual property, and all tangible embodiments thereof, to Textkernel. Upon the expiration or other termination of this Agreement, Company shall have no further rights of use thereof.

13.9 Termination or expiry of the Agreement does not affect either Party’s rights and obligations that accrued before that termination or expiry. This includes Parties accrued rights and obligations regarding indemnity, confidentiality, liability, data protection, Intellectual Property Rights, and governing law.

14. Liability

14.1 Disclaimer of Warranties. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE SERVICES PROVIDED UNDER A PILOT PROGRAM ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY.

14.2 THE MAXIMUM AGGREGATE LIABILITY OF THE PARTIES UNDER OR IN CONNECTION WITH THE AGREEMENT OR RELATING TO THE SERVICES, WHETHER IN CONTRACT, OR ANY NON-CONTRACTUAL LIABILITY INCLUDING BUT NOT LIMITED TO TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY THE COMPANY DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE.

14.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY (INCLUDING, AS TO TEXTKERNEL, ITS AFFILIATES, ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR ENHANCED DAMAGES OF ANY TYPE OR KIND, DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOSS OF SAVINGS OR COMPUTER FAILURE (WHETHER IN EACH INSTANCE DIRECT, INDIRECT OR OTHERWISE), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.4 Section 14.1 shall not apply to limit a Party’s liability under this Agreement with respect to:

1. Breach of Section 4;
2. Company’s payment obligations under this Agreement;
3. Company’s breach of Textkernel’s, its affiliates, and/or its and their licensor’s or supplier’s Intellectual Property Rights;
4. Each Party’s indemnification obligations under this Agreement;
5. Death or personal injury;
6. Fraud or willful misconduct;
7. Any other losses which cannot be excluded or limited by applicable law.

15. Law and Jurisdiction

15.1 If Company is located within the United States of America, these Terms shall be exclusively governed by, construed, and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflict of laws. Any (contractual and non-contractual) disputes arising out of or in connection with this Agreement shall be exclusively submitted to the competent state or federal court located in Boston, Massachusetts.

15.2 If Company is located outside of the United States of America, this Agreement shall be exclusively governed by, interpreted, and construed in accordance with the laws of the Netherlands. Any (contractual and non-contractual) disputes arising out of or in connection with this Agreement shall be exclusively submitted to the competent court in The Hague, the Netherlands.

15.3 The applicability of the United Nations Convention on Contract for the International Sales of Goods (CISG) is explicitly excluded.

15.4 Section 15.1 and 15.2 leave unimpaired the obligation of both Parties to make reasonable effort to solve disputes connected to the Agreement, by mutual agreement.

16. Miscellaneous

16.1 Company shall not assign, sub-license, subcontract, charge or otherwise encumber any of its rights or obligations under this Agreement without the prior written consent of Textkernel, which shall not be unreasonably withheld. Any Change of Control of the Company is deemed to be an assignment for which Textkernel’s prior written consent is required.

16.2 Textkernel shall not assign or otherwise purport to transfer, novate or delegate its rights and/or obligations under this Agreement to a third party without written consent of Company, which shall not be unreasonably withheld, provided, however, Textkernel may assign this Agreement to an Affiliate, subsidiary, parent or holding company or to a successor of all or substantially all of the assignor’s line of business, stock or assets to which the Agreement relates or in a Change in Control transaction.

16.3 Textkernel has the sole right to verify compliance of the Agreement by Company, through an audit during the Term of the Agreement. Textkernel agrees to bear all costs incurred by it in relation to the audit, unless the audit results show material errors in the compliance of the Agreement by Company.

16.4 Textkernel reserves the right to amend this Agreement and any accompanying document without prior notice. Any changes to these terms will become effective immediately upon publication on the Textkernel website or other official communication channels. If Company disagrees with any material amendments to the Agreement, Company may terminate the Agreement upon notice provided within thirty (30) days after any such amendment is published. If Company however continues to use the services provided by Textkernel, Company accepts and agrees to any and all changes to these terms and conditions.

16.5 Verbal statements, promises or agreements connected to the execution of the Agreement have no legal effect unless these are confirmed in writing by both Parties.

16.6 Any notice or other communication will be deemed to be properly given only when sent via a recognized courier or confirmed e-mail, the contact information as provided on the Order Form shall be deemed the primary contact for sending notices. It is either Party’s sole responsibility to ensure that the other Party is informed of any changes or updates in the primary contact details.

16.7 Upon occurrence of a Force Majeure Event, the non-performing Party shall promptly notify the other Party of occurrence of that Force Majeure Event, its effect on performance, and how long that Party expects it to last. Thereafter the non-performing Party shall update that information as reasonably necessary. During a Force Majeure Event, the non-performing Party shall use reasonable efforts to limit damages to the other Party and to resume its performance under this Agreement.

16.8 The fact that a Party does not demand fulfillment or exercise a right or authority it has under the Agreement, to demand from any stipulation within a mentioned Term of the Agreement, does not affect the right to still demand fulfillment or exercise such right, unless this Party expressly and in writing has waived such right.

16.9 If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

16.10 Company consents to Textkernel’s disclosure of the fact that Company is a paying customer of Textkernel. During the Term, Textkernel may list or otherwise include Company’s name, corporate branding and logo on Textkernel’s or its Affiliates website and marketing materials.