CDS Visual Inc. Terms and Conditions
All orders placed for products (the “Products”) and/or services (the “Services”), as applicable, furnished by CDS Visual Inc. (“CDS”) to the Customer (the “Customer”, together with CDS, the “Parties”, and each a “Party”) identified on the CDS Order Form are subject to the terms and conditions set forth herein and included on the sales quotation for the Products or Services given by Seller (the “Order Form” or “Quote”), any Addendum referred to herein (collectively, these “Terms”), and any confidentiality and/or nondisclosure agreement executed between Seller and Buyer (the “NDA”). These Terms, the Order Form, and the NDA are hereafter collectively referred to as the “Agreement,” whether or not specifically referred to.
1. QUOTES.
Quotes automatically expire 30 calendar days from the date issued unless otherwise stated, and unless CDS withdraws the Quote earlier, which it may at any time prior to Customer’s acceptance of the Quote. Quotes relating to custom Services outlined in a SOW may rely on certain information and circumstances, including information that Customer provides. If information or circumstances on which a Quote relies on changes, CDS may adjust its Quote. CDS may choose to accept or reject any purchase order supplied by Customer; CDS will indicate order acceptance by CDS authorized representative executing signature on the order documents. Customer is not permitted to disclose any Quotes or other CDS product information to any third party without the prior written consent of CDS.
2. PAYMENT.
a. Terms of Payment; Method. Customer shall pay CDS all fees set forth in the Order Form for the Services (“Fees”) at the times identified in the Order Form (or if none, within thirty (30) days of the date of the invoice issued by CDS to Customer), without deduction or set-off. All payments of Fees shall be made in U.S. Dollars. Payment can be made by sending a good business check or by electronic funds transfer to the address and/or account referenced on the Order Form. Customer will ensure the CDS invoice number must be referenced on all payments. Customer agrees that all payments of Fees are nonrefundable, except as expressly set forth in this Agreement.
b. Late Payments. All late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.
c. Taxes. Fees are exclusive of Taxes, and Customer will be solely responsible for the payment of all such Taxes (other than Taxes based on CDS’s income).“Taxes” means all of the following: sales, use or privilege taxes, excise or similar taxes, value added taxes, .
d. Renewal Fees. Except as otherwise set forth in the Order Form, the Fees shall automatically increase upon the start of each Renewal Term by an amount that is the greater of 5% and the percentage increase in the United States Consumer Price Index for All Urban Consumers (CPI-U) over the previous year.
3. TERM AND TERMINATION.
a. Term; Renewal. This Agreement shall commence on the Effective Date and remain in full force and effect for the term set forth on the Order Form (the “Initial Term”), unless and until earlier terminated in accordance with this Agreement. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive periods of one year (each a “Renewal Term”, together with the Initial Term, the “Term”), unless either Party provides the other Party written notice of nonrenewal no less than sixty (60) days prior to the expiration of the then-current term or earlier terminated in accordance with this Agreement.
b. Termination for Breach. Either Party may terminate this Agreement if the other Party fails to cure any material breach of this Agreement within ten (10) days (or one (1) day if such breach is a breach by Customer of any payment obligation under this Agreement) after written notice of such breach.
c. Immediate Termination for Insolvency. Either Party may terminate this Agreement immediately upon notice to the other Party if: (a) the other Party (i) is adjudged insolvent or bankrupt, (ii) institutes or has instituted against it any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency (and, in the case of any such proceeding instituted against it, the proceeding is not dismissed within thirty (30) days after the filing), (iii) makes any assignment for the benefit of creditors, (iv) appoints a receiver, liquidator or trustee of any of its property, or (v) liquidates, dissolves or winds up its business; or (b) if any change occurs in any applicable laws or regulations that would, in that Party’s reasonable opinion, render the Party’s performance hereunder illegal.
d. Effect of Termination. Upon expiration or termination of this Agreement: (i) all rights granted to Customer and Users to access and use the SaaS Solution shall terminate immediately; (ii) CDS’ obligation to provide Services shall terminate immediately; (iii) each Party shall destroy all copies of the Confidential Information of the other Party in such Party’s possession or return such copies to the other Party; (iv) Customer shall certify in writing to CDS that it has satisfied all obligations in this Section 3(d), and (v) Customer shall pay all Fees incurred as of the date of termination or expiration. Customer acknowledges and agrees that CDS has no obligation to retain Customer Data after termination or expiration of this Agreement, and may delete such Customer Data after termination or expiration of this Agreement. If Customer wishes for CDS to preserve a copy of its Customer Data, Customer shall enter into a separate Order Form for the preservation of such Customer Data.
4. SERVICES.
a. SaaS Solution. Subject to the terms and conditions of this Agreement, CDS hereby grants Customer a limited, nonexclusive, nonsublicensable, nontransferable, revocable right to access and use CDS’ software-as-a-service platform identified on the Order Form (“SaaS Solution”) during the Term solely for Customer’s own business operations by the number of Users specified in the Order Form. “Users“ means employees of Customer that Customer permits to access and use the SaaS Solution for Customer’s internal business purposes. CDS will use commercially reasonable efforts to provide Customer with access to the SaaS Solution for use by Customer and its Users. CDS will provide access to the SaaS Solution via the Internet.
b. Professional Services. If the Order Form includes the provision of professional services, CDS will use commercially reasonable efforts to provide the professional services set forth in the Order Form (“Professional Services”). Any change to the scope of Work in the Order Form shall require a Change Order signed by authorized signatories of both parties and shall become a part of this Agreement.
c. Support. CDS will provide Customer with support relating to the SaaS Solution in accordance with its then-current Support Policy, copies of which are available upon request. The Support Policy may be modified from time to time, provided that such modifications will apply to all similarly situated CDS customers. CDS will provide Customer with notice of any material modification to the Support Policy.
d. Upgrades and Modifications. Customer agrees that CDS may update, upgrade, enhance or modify the SaaS Solution or any functionality thereof, at any time, including the removal or modification of previously available functionality. All updates, upgrades, enhancements or modifications to the SaaS Solution made available to Customer or Users by CDS will automatically be considered part of the SaaS Solution and will be subject to the terms and conditions of this Agreement.
e. Suspension. CDS may suspend or interrupt the provision of the SaaS Solution or Professional Services (collectively, “Services”), in whole or in part, at any time immediately upon notice to Customer if CDS determines that: (i) Customer or Users are using or intend to use the Services in violation of this Agreement or in violation of any applicable law, rule or regulation; (ii) any computer system of Customer has been compromised or unlawfully accessed; (iii) suspension of the Services is necessary to protect the infrastructure of CDS or its affiliates, the environment in which the SaaS Solution is deployed, or CDS’ other customers; (iv) suspension is required under law, rule or regulation; or (v) Customer has failed to pay Fees when due. All remedies in this Section 4(e) are in addition to, and not in lieu of, other remedies available to CDS.
5. CUSTOMER RESPONSIBILITIES
a. Unauthorized Access. Customer is responsible for access to the SaaS Solution and Customer Data by other persons as a result of Customer’s failure to comply with the terms of this Agreement or use reasonable precautions to secure its own systems or credentials for access to the SaaS Solution. Customer will: (i) prevent unauthorized access to or use of the SaaS Solution, and notify CDS immediately of any such unauthorized access or use; and (ii) promptly deactivate the SaaS Solution User account of any individual no longer tasked with the use of the SaaS Solution. Customer will be solely responsible to obtain the authorizations, licenses and consents, if and as required by any applicable law, to make the SaaS Solution available to Users and for the collection, storage and processing of information and/or sensitive information by CDS according to Customer’s instructions.
b. Use Restrictions. Customer will not, directly or indirectly through any third party: (i) use the CDS Materials (defined below) for any purpose other than its own business purposes; (ii) use or access the CDS Materials in violation of any applicable law, rule or regulation, including any data privacy law or regulation; (iii) sell, resell, license, lease, transfer, distribute, redistribute, assign, transmit, publish, display or otherwise commercially exploit or make available (collectively, “Distribute”) the CDS Materials to any third party, other than to Users; (iv) Distribute defamatory, obscene, invasive of privacy rights, abusing, inciting, harassing, threatening, unlawful, misleading, false or fraudulent Customer Data on, to or through the SaaS Solution; (v) Distribute Customer Data on, to or through the SaaS Solution that violates the rights of any party or infringes upon or misappropriates the patent, trademark, trade secret, copyright, or other intellectual property right of any party; (vi) Distribute malicious or harmful computer code on, to or through the SaaS Solution; or (vii) duplicate or reverse engineer the CDS Materials, in whole or in part. “Customer Data” means the electronic information or data submitted or made available by or on behalf of Customer or Users that is received, processed or stored by CDS or the SaaS Solution as part of the Services.
c. Users. Customer will cause all Users to comply at all times with all representations, warranties, restrictions, obligations and covenants of Customer in this Agreement. Customer will be directly liable to CDS for any breach of this Agreement by, or caused by, Users.
6. OWNERSHIP.
a. CDS Materials. Except for the limited rights expressly granted to Customer in this Agreement, CDS retains all right, title and interest (including all intellectual property rights) in and to the SaaS Solution (including all updates, upgrades, enhancements or modifications to or of the SaaS Solution), the solutions provided thereby, all software and technology underlying the SaaS Solution, all CDS documentation relating to the SaaS Solution, all content or works of authorship created, licensed or provided by CDS, any and all information, data or reports provided or made available to Customer vis the SaaS Solution (excluding Customer Data) and all Deliverables (collectively, “CDS Materials”). Title to and ownership of any CDS Materials created by CDS in the course of providing Services shall be held exclusively by CDS, whether such CDS Materials were requested by or on behalf of Customer or incorporate ideas, feedback or comments provided by or on behalf of Customer. Customer will not acquire any rights in or to the CDS Materials by implication, estoppel or otherwise. Customer hereby assigns all rights, title and interest in and to the CDS Materials to CDS.
b. Deliverables. If CDS provides to Customer any deliverables, reports or other materials in connection with the Services, whether via the SaaS Solution or Professional Services, CDS grants to Customer a limited, nonexclusive, nonsublicensable, nontransferable, revocable license to use the Deliverables internally during the Term solely for Customer’s internal business purposes. Deliverables are included within CDS’ Confidential Information and not Customer’s Confidential Information.
c. Customer Data. As between the Parties, Customer Data shall remain the property of Customer. Customer hereby grants to CDS a nonexclusive, worldwide, royalty-free right and license during the Term and any post-Term data retention period to use, reproduce, distribute, modify, display and prepare derivative works of the Customer Data for purposes of providing the Services to Customer and as set forth in CDS’ Privacy Policy available at https://cdsvisual.com/privacy-policy, as updated from time to time by CDS.
d. Feedback. Customer may suggest improvements to CDS’ Services or other products, services and technology from time to time. Customer hereby waives any right in or to such improvements and irrevocably consents to CDS’ unrestricted ownership and use thereof. Such suggested improvements are included within CDS’ Confidential Information and not Customer’s Confidential Information.
7. CONFIDENTIALITY.
a. Confidential Information. From time to time before or during the Term, either Party (as the “Discloser”) may disclose or make available to the other Party (as the “Recipient”), non-public, proprietary, or confidential information of Discloser (“Confidential Information”). Confidential Information does not include any information that: (i) is or becomes available to the public other than as a result of Recipient’s breach of this Section 7; (ii) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Recipient’s possession prior to Discloser’s disclosure hereunder; or (iv) was or is independently developed by Recipient without using any Confidential Information of the Discloser. The Recipient shall: (1) protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would use to protect its own Confidential Information, but in no event with less than a reasonable degree of care; (2) not use the Discloser’s Confidential Information, or authorize it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (3) not disclose Discloser’s Confidential Information to any person or entity, except to the Recipient’s Group who need to know the Discloser’s Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and who have agreed to confidentiality terms at least as restrictive as those set forth in this Section 7. If the Recipient is required by applicable law or legal process to disclose any Confidential Information of the Discloser, Recipient may disclose such portion of the Confidential Information required to be disclosed by applicable law or legal process if Recipient, prior to making such disclosure, uses reasonable efforts to notify Discloser of such requirements to afford Discloser the opportunity to seek, at Discloser’s sole cost and expense, a protective order or other remedy. “Recipient’s Group” means the Recipient’s employees, officers, directors, agents, independent contractors, subcontractors, attorneys, accountants, and financial advisors. Recipient will cause all members of its Recipient’s Group to comply with Recipient’s obligations under this Section 7. Recipient shall be responsible and liable for any and all breaches of this Section 7 by, or caused by, its Recipient’s Group.
b. Data Collection. In addition to the rights and licenses granted in Section 6, Customer hereby grants to CDS a nonexclusive, worldwide, royalty-free, irrevocable, perpetual right and license to (i) aggregate Customer Data and information or data that is derived by or through Customer’s or Users’ use of the SaaS Solution with other data to create Anonymous Aggregated Data; and (ii) use, reproduce, modify, distribute, display and create derivative works of Anonymous Aggregated Data. CDS may use Anonymous Aggregated Data to benchmark, operate and improve the SaaS Solution and other CDS goods and services, and market CDS products and services. “Anonymous Aggregated Data” means data that has been aggregated with other data and anonymized to exclude data that identifies any individual, company, or organization.
8. INDEMNIFICATION.
a. CDS Indemnification of Customer. CDS will indemnify, defend and hold Customer and its directors, officers, employees, agents, successors and permitted assigns harmless from and against all claims, actions, causes of action, investigations, lawsuits, litigation and proceedings initiated by a third party (“Claims”), and all awards, damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments) and expenses (including interest, court costs, reasonable fees and expenses of attorneys, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any claim, default or assessment) (“Losses”) resulting from Claims, to the extent the Claims arise out of or relate to a claim that the SaaS Solution infringes a third party’s U.S. intellectual property rights.
i. CDS Options. If an action or claim is brought that is subject to indemnification under this Section 8(a), or if CDS reasonably determines in its discretion that such an action or claim is likely to be made, CDS may, at its option, (a) replace or modify the SaaS Solution so it is no longer infringing but is functionally equivalent without material adverse impact on Customer, or (b) obtain for Customer the right to continue using the SaaS Solution. If CDS determines that neither (a) nor (b) is commercially practicable, then CDS may terminate Customer’s right to use the infringing SaaS Solution, in which event Customer shall receive, as its sole and exclusive remedy, a pro-rata refund of amounts paid for the SaaS Solution based upon the term of the Order Form.
ii. Exclusions. The indemnification obligation under this Section 8(a) will not apply to any Claims and Losses subject to indemnification under Section 8(b) or arising from or related to: (i) modification of the SaaS Solution by, or at the request of, any party other than CDS; (ii) Customer Data, or Third-Party Materials; (iii) the combination of the SaaS Solution with any item, technology, SaaS offering, data, website, content or material not supplied by CDS; (iv) the use of the SaaS Solution in violation of this Agreement; or (v) use of the SaaS Solution where such infringement or misappropriation could have been avoided by use of subsequent SaaS Solution provided by CDS and CDS has notified Customer in writing of a need to update the SaaS Solution.
iii. Sole Remedy. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION 8(a) STATES CDS’ ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
b. Customer indemnification of CDS. Customer will indemnify, defend and hold CDS and its directors, officers, employees, agents, successors and permitted assigns harmless from and against all Claims, and all Losses resulting from Claims, to the extent the Claims arise out of or relate to: (i) Customer’s or any User’s actual or alleged breach of this Agreement; (ii) Customer Data; (iii) Customer’s or any User’s actual or alleged gross negligence or more culpable conduct; or (iv) Customer’s violation of any law, rule ore regulation. Customer shall not enter into any settlement or compromise in connection with any claim subject to indemnification under this Section 8(b) that requires CDS or any other indemnified party under this Section 8(b) to admit wrongdoing or liability, make any payments, comply with any ongoing affirmative obligations or comply with any restrictive covenants.
9. WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY.
a. Customer . Customer represents and warrants that: (i) it is permitted to provide to CDS the Customer Data for all purposes related to this Agreement; (ii) CDS’ possession, reproduction, use or disclosure (separately and together) of the Customer Data in accordance with this Agreement will not infringe upon, misappropriate or violate any right of any third party or any federal, state, local or foreign law, rule, regulation, or statute; and (iii) Customer Data is and will at all times be free from viruses and other harmful computer code.
b. CDS. CDS warrants that the SaaS Solution will function substantially in accordance with technical documentation provided to Customer by CDS.
c. Warranty Disclaimer. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS SECTION 9, THE SAAS SOLUTION AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND CDS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS (IF ANY) IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY PROVIDER, OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. CDS HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIRD-PARTY MATERIALS. “Third-Party Materials” means all goods, services, technology, materials or information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components, of or relating to the Services or SaaS Solution that are not proprietary to CDS.
d. Consequential Damages Disclaimer. IN NO EVENT SHALL CDS OR ITS AFFILIATES BE LIABLE TO CUSTOMER, ITS AFFILIATES OR ANY THIRD PARTY FOR SPECIAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SERVICES, OR IN CONNECTION WITH ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) AND WHETHER OR NOT SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
e. Liability Cap. THE TOTAL CUMULATIVE LIABILITY OF CDS AND ITS AFFILIATES FOR ALL DAMAGES AND LIABILITIES ARISING UNDER ALL CLAIMS IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLAED HEREUNDER OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION (INCLUDING ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION, INDEMNITY AND BREACH OF WARRANTY) SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO CDS UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH CAUSED THE DAMAGE RELATING TO CUSTOMER’S FIRST CLAIM MADE UNDER THIS AGREEMENT. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 9(e) SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF CUSTOMER UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
10. Compliance and Export Control.
a. Compliance. In performing its obligations and exercising its rights under the Agreement, Customer shall, at all times, act ethically and in compliance with all applicable (i) legislation, regulations, codes of practice, guidance and other requirements of any relevant government, governmental or regulatory agency or authority, or other relevant body; (ii) common law; and (iii) any binding court order, judgment, or decree (collectively “Laws”) of the United States, including (without limitation) any applicable Laws in force from time to time regarding bribery, fraudulent acts, corrupt practices and/or money laundering (including without limitation, the U.S. Foreign Corrupt Practices Act) and any applicable Laws in force from time to time regarding import/export regulations, tax and/or customs and duties (the “Import/Export Legislation”).
b. Export/Accessibility. Customer shall ensure that the Products, and any other products or technology acquired from CDS under the Agreement, will not be: (i) for tangible products, exported, sold, diverted, transferred or otherwise disposed of in violation of Import/Export Legislation; and (ii) for SaaS products, be accessible by or for persons, entities or countries where prohibited by US law.
c. Prohibited Countries. Customer recognizes and accepts that CDS has determined that it will not sell or support Products to or in any country which is the subject of a sanctions program initiated by U.S. or E.U. laws. Additionally, because of the current political and humanitarian situation in as well as the reputational and business risks associated with trade with Cuba, Iran, Syria, Sudan, North Korea and the Crimea Region of Ukraine Currently held by Russia, at this time, CDS has determined that it will not sell to or support (including delivering spare parts and consumables) customers and users of its products located in those countries. As far as Myanmar (Burma) is concerned, sale and support to that country shall first be checked with CDS on a case-by-case basis. The list of countries may vary depending on international events and CDS will update this list accordingly. In addition, CDS may, in its sole discretion, determine not to sell or support Products to entities listed on the restricted parties lists. Customer will not be entitled to make any claim against CDS in the event CDS refuses to sell and support customer in any of those countries or to sell to any of those entities. Customer shall not export or re-export, directly or indirectly, any Products to any of the countries listed above.
d. Personnel. Customer shall fully comply with data protection and privacy legislation in all relevant jurisdictions and shall ensure that its employees, agents and contractors observe the provisions of such legislation.
11. MISCELLANEOUS.
a. Relationship of Parties. The parties acknowledge and agree that CDS and Customer are, and at all times during the Term of this Agreement shall remain, independent contractors in relation to each other, and that neither party nor its representatives are authorized to make any representation or any commitment on the other party’s behalf unless previously authorized by such party in writing. b. Modification. This Agreement may be amended only by a written document signed by duly authorized representatives of each Party. Notwithstanding the preceding sentence, (i) CDS may modify this CDS Software as a Service Agreement (including any referenced policies and other documents) at CDS’ sole discretion; and (ii) the modified version of this CDS Software as a Service Agreement will be effective as to Customer upon the commencement of the Renewal Term immediately following the term during which CDS modifies this CDS Software as a Service Agreement.
c. Assignment. Customer may not, directly or indirectly, assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, without the prior written consent of CDS. Any purported assignment or delegation in violation of this Section 11(c) shall be null and void.
d. Governing Law; Venue. This Agreement is governed by, and will be interpreted, construed and enforced in accordance with, the laws of the State of Illinois, without giving effect to the State of Illinois’ conflict of laws rules. Each Party expressly consents to the exclusive jurisdiction of the federal, state and local courts in Chicago, IL to govern all disputes arising out of or relating to this Agreement. Notwithstanding the foregoing, either Party may seek injunctive relief against the other Party from any other judicial or administrative authority pending the resolution of such dispute. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE, CONTROVERSY, CLAIM OR LEGAL ACTION ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
e. Additional and Conflicting Terms. Any terms included on a Customer order or other similar document are not binding upon CDS, unless such terms are set forth in a CDS Order Form signed by authorized representatives of each Party. In the event of any conflict between these Terms and the NDA, the NDA shall control with respect to the obligations of confidentiality of information between the parties, and these Terms shall control with respect to the sale of any Products or Services. Any additional terms provided by Customer shall not apply.
f. Force Majeure. CDS shall not be liable for failure or delay in performing its obligations under this Agreement if such failure is a result of any event outside of the reasonable control of CDS.
g. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.
h. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
i. Survival. The following Sections shall survive termination or expiration of this Agreement (where reference is to a Section, all subsections are deemed to be included): 1, 3-10, and any other provisions which by their nature should survive such termination or expiration.
j. Entire Agreement. This Agreement: (a) is binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns; and (b) constitutes the entire agreement of the Parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written or oral negotiations, understandings, agreements, representations, and warranties, with respect to the subject matter herein.
Last Update: May 20, 2024
