Service Agreement:
THIS SERVICES AGREEMENT (the “Agreement”) contains and sets forth the terms and conditions of your contract with Peerview Data Inc., an Indiana corporation, through which Peerview Data provides services as set forth below. Please read this Agreement carefully. BY CLICKING “I AGREE”, YOU ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT IN THEIR ENTIRETY.
Section 1: Background and Purpose of Agreement.
The parties enter this Agreement in order to establish the rights, duties and obligations of Peerview Data and you (“You” or the “Customer”), respectively, in connection with Peerview Data’s provision of Services to Customer. Pursuant to the terms and conditions of this Agreement, Peerview Data shall provide financial data aggregation, analysis, reporting and consulting services to the Customer (individually or collectively, the “Services”).
Section 2: Services.
Upon the terms and subject to the conditions of this Agreement, Peerview Data shall provide the Services to Customer. In addition, Peerview Data may at any time in its sole discretion offer or provide Customer with electronic access to one or more websites, tools, software applications or other media in connection with the provision of the Services, and the same shall be subject to any license, agreement, or other terms or conditions of use specified by Peerview Data in connection therewith.
Section 3: Use.
Customer agrees to use reasonable security precautions in connection with its use of the Services to protect and maintain the confidentiality of any data provided or received in relation thereto. Further, Customer agrees to comply with any and all laws, rules or regulations applicable to Your use of the Services. Customer acknowledges that a breach of this Section 3 may cause irreparable harm to Peerview Data, and that if Peerview Data learns of any actual or threatened unauthorized disclosure of Confidential Information or breach of this Section 3, then in additional to any other rights, remedies or damages available to Peerview Data at law or in equity, Peerview Data may suspend the provision of Services and/or any or all of Customer’s rights under this Agreement, and shall be entitled to seek an injunction or other equitable remedy, without the necessity of posting a bond or other security. In addition to its Indemnification obligations set forth in Section 13, Customer agrees to indemnify and hold Peerview Data harmless for any and all damages, costs and losses, including without limitation its reasonable attorneys’ fees, incurred or sustained by Peerview Data as a result of any breach or non-compliance by Customer of the terms and conditions of this Section. For purposes of this Agreement, “Confidential Information” means all non-public information furnished by one Party to another or to its Representatives. The Confidential Information may contain, among other things, non-public financial and business information.
Section 4: Confidentiality.
Customer acknowledges that the Services, any software used to provide the Services, and any other information provided to Customer by Peerview Data incorporate Confidential Information licensed to, created by, developed by or acquired by Peerview Data), including, without limitation, financial and other performance metric information provided by others to Peerview Data, and the reports, spreadsheets, analyses and other materials incorporating or referencing that information and provided or made available by Peerview Data as part of the Services. Customer shall take all reasonable precautions to safeguard and keep confidential the Confidential Information. Customer shall use the Confidential Information for its internal strategic and decision-making purposes only. Customer shall not disclose any of the Confidential Information to any third party, in whole or in part, except for those Customer personnel (employees, consultants or agents) who have a reasonable commercial need to know the Confidential Information and who have been advised of the necessity of maintaining the confidentiality of the Confidential Information and agree to comply with the confidentiality obligations of this Section 4. Customer shall be responsible for any breach of this Section 3 arising from the unauthorized disclosure of Confidential Information by any such Customer personnel. Customer acknowledges that a breach of this Section 4 may cause irreparable harm to Peerview Data, and that if Peerview Data learns of any actual or threatened unauthorized disclosure of Confidential Information or breach of this Section 3, then in additional to any other rights, remedies or damages available to Peerview Data at law or in equity, Peerview Data may suspend the provision of Services and/or any or all of Customer’s rights under this Agreement, and shall be entitled to seek an injunction or other equitable remedy, without the necessity of posting a bond or other security. In addition to its Indemnification obligations set forth in Section 13, Customer agrees to indemnify and hold Peerview Data harmless for any and all damages, costs and losses, including without limitation its reasonable attorneys’ fees, incurred or sustained by Peerview Data as a result of any breach or non-compliance by Customer of the terms and conditions of this Section.
Section 5: Comparative Information; Use and Terms.
As part of the provision of Services, it is anticipated that Peerview Data will provide financial and other performance metric data and information derived from or provided by others to Peerview Data, and/or analyses, comparisons, recommendations and the like incorporating, referencing or relying on that data and information (individually and collectively, “Comparative Information”). The Comparative Information (other than any data or information in its original form as provided by Customer to Peerview Data pursuant to Section 5 and comprising all or part of the Comparative Information) shall be considered “Confidential Information” for purposes of this Agreement and the provisions of Sections 3 and 4 shall apply equally to the Comparative Information. Customer may access or use the Comparative Information for internal, business or client-related purposes during the Term only (unless the Services are suspended during the Term pursuant to Section 3 or 4, and Customer may not access or use the Comparative Information during the term of any such suspension Customer may use the Comparative Information internally or with individual clients. Customer may not publish or disseminate the Comparative Information publicly. Ownership of the Comparative Information (excluding any Customer Information included therein in its original form) and all trademarks, service marks, patents, copyrights, trade secrets, know-how and other proprietary rights in or related to the Services provided hereunder or used to perform the Services (including without limitation any improvements, refinements, modifications, derivative works or other alterations to or of the Comparative Information or the Services whether or not created or recommended by Customer) are and shall at all times be owned by Peerview Data, no provision of this Agreement shall be deemed to confer any ownership interest in the same to Customer, and Customer hereby transfers and assigns to Peerview Data all rights, title and interest which Customer now or may in the future have to any of the same.
Section 6: Customer Information and License.
Upon the terms and subject to the terms of this Agreement, Customer shall provide the financial and other performance metric information required or requested by Peerview Data from time to time in order to provide the Services, to provide and prepare the Comparative Information, and otherwise to perform under this Agreement and to provide the same or similar services to other customers of Peerview Data and its affiliates in the form and format specified by Peerview Data (the “Customer Information”). Additionally, Customer hereby grants to Peerview Data and its affiliates, successors and assigns, and Peerview Data accepts on behalf of itself and the foregoing, fully paid-up, non- exclusive, transferable, sublicensable, worldwide rights and licenses to (a) access, manipulate, modify, commercialize, aggregate with other information and use the Customer Information provided by Customer to Peerview Data at any time during or after the end of the Term in the course of Peerview Data’s performance of this Agreement and as needed in Peerview Data’s sole discretion to provide the same, similar or other services to other customers of Peerview Data and its affiliates, and (b) to utilize in any and all mediums now existing or hereafter created Customer’s entity name, trade name(s), assumed business names, trade mark(s) and trade dress for purposes of (i) identifying Customer as a customer of the Peerview Data business at any time during the Term and (ii) informing third parties at any time during or after the end of the Term that Customer’s Customer Information is included within and comprising part of the data and information utilized by the Peerview Data business in providing products and services to customers. Notwithstanding the payment of any fees, the entrance into or renewal or extension of this Agreement, or any provision of this Agreement to the contrary, Customer acknowledges and agrees that Customer shall have no right to receive the Services nor to access or use the Comparative Information unless and until Customer provides to Peerview Data the Customer Information and complies with subsection 6 from time to time as and when required by Peerview Data.
Section 7: Confidentiality, Aggregation and Identification of Customer Information.
Unless otherwise agreed, Peerview Data shall not label or identify any Customer Information as having been provided by Customer to any other person, entity or non-party without Customer’s prior permission. Peerview Data shall take reasonable steps to maintain the confidentiality of Customer Information and will not provide any Customer Information to any third party unless such Customer Information is aggregated with other customers’ similar data and provided in such aggregated or averaged format. Customer consents to, acknowledges and agrees that Peerview Data may identify or reveal the industry, geographic location, and other general information about Customer as part of the delivery, discussion and analysis of Comparative Information.
Section 8: Unauthorized Access to Customer Information.
Peerview Data is not responsible to You or to any third party for unauthorized access to Your data or the unauthorized use of any Customer Information or Comparative Information by any third party unless the unauthorized use resulted from Peerview Data’s reckless or gross negligent failure to take commercially reasonable steps to protect such data. You are responsible for the use of Services by any of Your employees, agents or representatives or any person to whom you give access to the Services or any person who gains access to the Services as a result of Your failure to use reasonable security precautions, even is such use was not authorized by You.
Section 9: Marketing.
Customer agrees to allow the use of Customer’s name and logo on Peerview listings, brochures, and reference lists. The names of Customer’s portfolio clients shall remain confidential, unless they are or become a direct customer of Peerview Data, at which time they will be governed by their own separate agreement.
Section 10: Fees and Payments.
The Services will be provided in consideration of the payment by Customer of fees and other charges as set forth on the applicable Fee Schedule unless otherwise amended in writing by Peerview Data and Customer via an accepted Peerview pricing Proposal (as the same may be updated from time to time). The fees and other charges shall be subject to change from time to time in Peerview Data’s discretion upon written notice to Customer. In addition, Customer shall pay or reimburse Peerview Data for all reasonable out of pocket expenses incurred by Peerview Data in connection with the provision of Services to Customer.
The Fees shall include, without limitation, onboarding fees, monthly costs and fees and the costs and fees relating to any additional Service requested by Customer after the Effective Date of this Agreement. Unless otherwise agreed in writing, Customer’s Fees shall be billed annually, but shall be paid in monthly installments during the Term of this Agreement. The amount due and the monthly payments shall be adjusted by Peerview in its sole discretion on a month-by-month basis, and may be changed in the event any charges increase as set forth above; the Customer requests additional Services; or as otherwise permitted or required by this Agreement.
All such amounts not paid within thirty (30) days of the invoice date shall bear interest following the invoice date at a rate of fifteen percent (15%) per annum (or, if lesser, the maximum rate of interest permitted under applicable law) until paid. Customer shall pay or reimburse Peerview Data for all costs of collection, including without limitation attorneys’ fees and court costs incurred by Peerview Data in collecting amounts payable under this Agreement.
Section 11: Term.
Subject to the payment of any fees payable at or in connection with signing of this Agreement, this Agreement shall become effective on the Effective Date, which is the date You accepted these terms and conditions and, unless sooner terminated, shall continue for a period of one (1) year from the Effective Date (the “Initial Term”). Thereafter, this Agreement (including without limitation the obligation to pay fees with respect to any Renewal Term and to provide Customer Information) shall renew automatically for one (1) or more successive one (1) year periods (each a “Renewal Term,” and together with the Initial Term and any Renewal Term(s), the “Term”) unless Peerview Data or Customer provides written notice to the other of its intention not to renew this Agreement at least thirty (30) days prior to the end of the then- current Initial Term or Renewal Term.
Section 12: Termination.
Either party may terminate this Agreement by giving written notice to the other party upon the occurrence of an Event of Default on the part of the other party. For these purposes, an “Event of Default” by the other party means either: (i) a failure by the other party to perform any of its material obligations under this Agreement, where such failure continues for thirty (30) calendar days after receipt by such party of written notice of such failure (which notice will detail the circumstances of such failure); or (ii) the other party dissolves or becomes insolvent, makes an assignment for the benefit of creditors, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it, a receiver or similar officer is appointed to take charge of all or part of that party’s assets, or that party discontinues for any reason substantially all of its business. Upon termination of this Agreement for any reason, Customer shall pay to Peerview Data immediately all fees, charges and reimbursements due or accrued with respect to the Services performed on or prior to the date of termination.
Section 13: Indemnification.
Customer shall defend, indemnify and hold harmless Peerview Data and its officers, directors, employees, agents and affiliates, and their respective successors and assigns, from and against any claims, losses, damages, liabilities, costs or expenses of any nature including without limitation attorney’s fees and costs suffered or incurred by any of them to the extent caused by, arising in connection with or related directly or indirectly to (a) Customer’s breach of or default under this Agreement; (b) the Customer Information provided to Peerview Data hereunder; and (c) any actual or alleged breach, violation, misappropriation or infringement of any third party intellectual property, trade secret or other rights or properties arising from the license, display or other use in accordance with this Agreement of the intellectual property and other rights licensed or granted to Peerview Data or its affiliates in this Agreement, or any Exhibit or amendment hereto.
Section 14: Force Majeure, Service Interruptions and Non-party data providers.
Neither party shall be deemed to have breached this Agreement solely as a result of any delay, failure in performance or interruption of service resulting directly or indirectly from any act of God, action of the elements, fire, accident, riot, strike, work stoppage or other labor disturbance, interruption of power or water, act of war, act of terrorism, invasion, civil commotion, enactment of laws or other casualty or cause, whether similar or dissimilar, arising in a manner beyond the reasonable control of the party required to perform and without such party’s negligence or willful misconduct.
Peerview Data shall not be liable for any interruption in the Services caused by internet connectivity issues. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of Customer Information or property. Further, Peerview Data shall not be liable for any interruption in the Services or loss of data or information caused by any delay, failure in performance, or negligence of any non-party data hosting or services providers.
Section 15: Damages Limitation.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, PEERVIEW DATA WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE OR LOSS OF PROFIT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. PEERVIEW DATA’S MAXIMUM AGGREGATE LIABILITY HEREUNDER FOR ANY CLAIMS WHATSOEVER SHALL BE LIMITED TO THE AMOUNT PAID UNDER THIS AGREEMENT BY CUSTOMER TO PEERVIEW DATA DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT, OCCURRENCE OR CAUSE GIVING RISE TO ANY SUCH CLAIM, IF ANY.
Section 16: Warranty Disclaimer.
THE SERVICES, COMPARATIVE INFORMATION AND ALL OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS, WHERE IS” BASIS WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PEERVIEW DATA EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND GUARANTEES WITH RESPECT TO THE SERVICES, COMPARATIVE INFORMATION, AND ALL OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER STATEMENT OF FACT OR OPINION, INCLUDING WITHOUT LIMITATION STATEMENTS REGARDING EFFICACY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, OR OTHERWISE, WHETHER MADE BY EMPLOYEES, AGENTS OR AFFILIATES OF PEERVIEW DATA OR OTHERWISE, WHICH ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY PEERVIEW DATA FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF PEERVIEW DATA WHATSOEVER. NO PROVISION OF THE UNIFORM COMMERCIAL CODE OR UNIFORM COMPUTER INFORMATION TRANSACTION ACT IN ANY JURISDICTION SHALL APPLY TO THIS AGREEMENT OR THE GOODS OR SERVICES PROVIDED HEREUNDER.
Section 17: Governing Law; Venue.
This Agreement shall be governed, interpreted, construed and enforced in accordance with the substantive laws of the State of Indiana, without regard to conflict of laws principles. Subject to the provisions of Section 16, the parties hereto irrevocably consent to and waive any objection to the exclusive jurisdiction and venue of the courts of the State of Indiana, Marion County, and the United States District Court for the Southern District of Indiana with respect to any and all actions related to this Agreement, the interpretation of this Agreement or the enforcement hereof, and the parties hereto hereby irrevocably waive any and all objections thereto.
Section 18: Arbitration.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and the American Arbitration Association Optional Rules for Emergency Measures of Protection shall apply to the proceedings, unless and to the extent any of the foregoing are modified by this Agreement or written agreement of the parties. Arbitration shall be conducted in Indianapolis, Indiana. The award rendered by the arbitrator(s) may be, alternatively or cumulatively, for monetary damages, an order requiring the performance of non-mandatory obligations (including specific performance) or any other appropriate order or remedy. The arbitrator(s) may issue interim awards and order any provisional measures which should be taken to preserve the respective rights of the parties to the dispute. The award entered by the arbitrator(s) shall be final and binding on all parties to arbitration and judgment on an award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Except as the parties to the dispute may otherwise agree, the arbitration hearing will commence within sixty (60) days after a party’s proper initiation of arbitration. The arbitration shall be conducted in a single hearing (which may last one (1) or more days with recesses for weekends and holidays only), and the arbitrator(s) shall render a decision within thirty (30) days after conclusion of the hearing. Reasonable discovery, including depositions, will be permitted. Discovery issues will be decided by the arbitrator(s) and post-hearing briefs will be permitted. All arbitration shall be conducted in the English language. This Agreement shall remain in full force and effect during the pendency of any dispute or arbitration.
Section 19: Attorney’s Fees.
The prevailing party in any arbitration or other action arising under or relating to this Agreement, or in any action to enforce and arbitration decision pursuant to Section 16, shall be entitled to reimbursement from the other party of reasonable attorneys’ fees and costs incurred in such action.
Section 20: No Assignment; Amendment; Waiver.
This Agreement shall inure to the benefit of and be binding upon both parties and their respective successors and permitted assigns. Neither party may assign their rights or delegate their responsibilities under this Agreement to any third party without the prior written consent of the other party; provided, however, that a party may assign its rights and delegate its responsibilities under this Agreement to any successor to all or substantially all of the business of the assigning/delegating party if the assignee/delegee expressly assumes the obligations of the assigning/delegating party or by operation of law or in writing. A waiver or consent, express or implied, to or of any breach or default by any party in the performance by that party of its obligations with respect to this Agreement is not a consent or waiver to or of any other breach or default in the performance by that party of the same or any other obligations. Failure on the part of a party to complain of any act or omission of any other party or to declare any other party in default with respect to this Agreement, irrespective of how long that failure continues, does not constitute a waiver by that party of its rights with respect to that default.
Section 21: Entire Agreement.
This Services Agreement constitutes the complete and exclusive agreement between the parties regarding the subject matter herein. This Service Agreement supersedes and replaces any prior understanding or communication, written or oral. You acknowledge that You have not relied upon any statement, promise or representation made or given by or on behalf of Peerview data which is not set forth in this Agreement.
Section 22: Additional Terms.
This Agreement is nonexclusive. Time is of the essence in the performance of this Agreement. All notices, requests, demands, approvals, consents and other communications under this Agreement shall be in writing and shall be delivered to the e-mail address specified for the receiving party in this Agreement, and shall be deemed to have been duly given (a) on the date of service if served personally; (b) on the date of transmission if sent via e-mail, provided that e-mail confirmation of receipt is obtained; (c) on the first day after delivery to any reputable overnight courier; or (d) on the fifth day after mailing if mailed by registered or certified mail, postage prepaid. A party may change its physical or e-mail address by providing written notice to the other party in compliance with this Section 22. The relationship of the parties is and shall be that of independent contractor and client. Nothing in this Agreement shall be construed to create a joint venture, partnership or employer/employee relationship. This Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and permitted assigns (except that the provisions of Section 11 shall inure to the benefit of each of the indemnified parties specified therein), and no other person (except to the extent provided in the immediately preceding parenthetical) shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise. If any provision of this Agreement or the application thereof to any person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to other persons or circumstances is not affected thereby and that provision shall be enforced to the greatest extent permitted by law. Except as otherwise provided herein, this Agreement, constitutes the entire agreement of the parties relating to the subject matter of this Agreement and supersedes all prior contracts or agreements with respect to the same, whether oral or written.
Section 1: Background and Purpose of Agreement.
The parties enter this Agreement in order to establish the rights, duties and obligations of Peerview Data and you (“You” or the “Customer”), respectively, in connection with Peerview Data’s provision of Services to Customer. Pursuant to the terms and conditions of this Agreement, Peerview Data shall provide financial data aggregation, analysis, reporting and consulting services to the Customer (individually or collectively, the “Services”).
Section 2: Services.
Upon the terms and subject to the conditions of this Agreement, Peerview Data shall provide the Services to Customer. In addition, Peerview Data may at any time in its sole discretion offer or provide Customer with electronic access to one or more websites, tools, software applications or other media in connection with the provision of the Services, and the same shall be subject to any license, agreement, or other terms or conditions of use specified by Peerview Data in connection therewith.
Section 3: Use.
Customer agrees to use reasonable security precautions in connection with its use of the Services to protect and maintain the confidentiality of any data provided or received in relation thereto. Further, Customer agrees to comply with any and all laws, rules or regulations applicable to Your use of the Services. Customer acknowledges that a breach of this Section 3 may cause irreparable harm to Peerview Data, and that if Peerview Data learns of any actual or threatened unauthorized disclosure of Confidential Information or breach of this Section 3, then in additional to any other rights, remedies or damages available to Peerview Data at law or in equity, Peerview Data may suspend the provision of Services and/or any or all of Customer’s rights under this Agreement, and shall be entitled to seek an injunction or other equitable remedy, without the necessity of posting a bond or other security. In addition to its Indemnification obligations set forth in Section 13, Customer agrees to indemnify and hold Peerview Data harmless for any and all damages, costs and losses, including without limitation its reasonable attorneys’ fees, incurred or sustained by Peerview Data as a result of any breach or non-compliance by Customer of the terms and conditions of this Section. For purposes of this Agreement, “Confidential Information” means all non-public information furnished by one Party to another or to its Representatives. The Confidential Information may contain, among other things, non-public financial and business information.
Section 4: Confidentiality.
Customer acknowledges that the Services, any software used to provide the Services, and any other information provided to Customer by Peerview Data incorporate Confidential Information licensed to, created by, developed by or acquired by Peerview Data), including, without limitation, financial and other performance metric information provided by others to Peerview Data, and the reports, spreadsheets, analyses and other materials incorporating or referencing that information and provided or made available by Peerview Data as part of the Services. Customer shall take all reasonable precautions to safeguard and keep confidential the Confidential Information. Customer shall use the Confidential Information for its internal strategic and decision-making purposes only. Customer shall not disclose any of the Confidential Information to any third party, in whole or in part, except for those Customer personnel (employees, consultants or agents) who have a reasonable commercial need to know the Confidential Information and who have been advised of the necessity of maintaining the confidentiality of the Confidential Information and agree to comply with the confidentiality obligations of this Section 4. Customer shall be responsible for any breach of this Section 3 arising from the unauthorized disclosure of Confidential Information by any such Customer personnel. Customer acknowledges that a breach of this Section 4 may cause irreparable harm to Peerview Data, and that if Peerview Data learns of any actual or threatened unauthorized disclosure of Confidential Information or breach of this Section 3, then in additional to any other rights, remedies or damages available to Peerview Data at law or in equity, Peerview Data may suspend the provision of Services and/or any or all of Customer’s rights under this Agreement, and shall be entitled to seek an injunction or other equitable remedy, without the necessity of posting a bond or other security. In addition to its Indemnification obligations set forth in Section 13, Customer agrees to indemnify and hold Peerview Data harmless for any and all damages, costs and losses, including without limitation its reasonable attorneys’ fees, incurred or sustained by Peerview Data as a result of any breach or non-compliance by Customer of the terms and conditions of this Section.
Section 5: Comparative Information; Use and Terms.
As part of the provision of Services, it is anticipated that Peerview Data will provide financial and other performance metric data and information derived from or provided by others to Peerview Data, and/or analyses, comparisons, recommendations and the like incorporating, referencing or relying on that data and information (individually and collectively, “Comparative Information”). The Comparative Information (other than any data or information in its original form as provided by Customer to Peerview Data pursuant to Section 5 and comprising all or part of the Comparative Information) shall be considered “Confidential Information” for purposes of this Agreement and the provisions of Sections 3 and 4 shall apply equally to the Comparative Information. Customer may access or use the Comparative Information for internal, business or client-related purposes during the Term only (unless the Services are suspended during the Term pursuant to Section 3 or 4, and Customer may not access or use the Comparative Information during the term of any such suspension Customer may use the Comparative Information internally or with individual clients. Customer may not publish or disseminate the Comparative Information publicly. Ownership of the Comparative Information (excluding any Customer Information included therein in its original form) and all trademarks, service marks, patents, copyrights, trade secrets, know-how and other proprietary rights in or related to the Services provided hereunder or used to perform the Services (including without limitation any improvements, refinements, modifications, derivative works or other alterations to or of the Comparative Information or the Services whether or not created or recommended by Customer) are and shall at all times be owned by Peerview Data, no provision of this Agreement shall be deemed to confer any ownership interest in the same to Customer, and Customer hereby transfers and assigns to Peerview Data all rights, title and interest which Customer now or may in the future have to any of the same.
Section 6: Customer Information and License.
Upon the terms and subject to the terms of this Agreement, Customer shall provide the financial and other performance metric information required or requested by Peerview Data from time to time in order to provide the Services, to provide and prepare the Comparative Information, and otherwise to perform under this Agreement and to provide the same or similar services to other customers of Peerview Data and its affiliates in the form and format specified by Peerview Data (the “Customer Information”). Additionally, Customer hereby grants to Peerview Data and its affiliates, successors and assigns, and Peerview Data accepts on behalf of itself and the foregoing, fully paid-up, non- exclusive, transferable, sublicensable, worldwide rights and licenses to (a) access, manipulate, modify, commercialize, aggregate with other information and use the Customer Information provided by Customer to Peerview Data at any time during or after the end of the Term in the course of Peerview Data’s performance of this Agreement and as needed in Peerview Data’s sole discretion to provide the same, similar or other services to other customers of Peerview Data and its affiliates, and (b) to utilize in any and all mediums now existing or hereafter created Customer’s entity name, trade name(s), assumed business names, trade mark(s) and trade dress for purposes of (i) identifying Customer as a customer of the Peerview Data business at any time during the Term and (ii) informing third parties at any time during or after the end of the Term that Customer’s Customer Information is included within and comprising part of the data and information utilized by the Peerview Data business in providing products and services to customers. Notwithstanding the payment of any fees, the entrance into or renewal or extension of this Agreement, or any provision of this Agreement to the contrary, Customer acknowledges and agrees that Customer shall have no right to receive the Services nor to access or use the Comparative Information unless and until Customer provides to Peerview Data the Customer Information and complies with subsection 6 from time to time as and when required by Peerview Data.
Section 7: Confidentiality, Aggregation and Identification of Customer Information.
Unless otherwise agreed, Peerview Data shall not label or identify any Customer Information as having been provided by Customer to any other person, entity or non-party without Customer’s prior permission. Peerview Data shall take reasonable steps to maintain the confidentiality of Customer Information and will not provide any Customer Information to any third party unless such Customer Information is aggregated with other customers’ similar data and provided in such aggregated or averaged format. Customer consents to, acknowledges and agrees that Peerview Data may identify or reveal the industry, geographic location, and other general information about Customer as part of the delivery, discussion and analysis of Comparative Information.
Section 8: Unauthorized Access to Customer Information.
Peerview Data is not responsible to You or to any third party for unauthorized access to Your data or the unauthorized use of any Customer Information or Comparative Information by any third party unless the unauthorized use resulted from Peerview Data’s reckless or gross negligent failure to take commercially reasonable steps to protect such data. You are responsible for the use of Services by any of Your employees, agents or representatives or any person to whom you give access to the Services or any person who gains access to the Services as a result of Your failure to use reasonable security precautions, even is such use was not authorized by You.
Section 9: Marketing.
Customer agrees to allow the use of Customer’s name and logo on Peerview listings, brochures, and reference lists. The names of Customer’s portfolio clients shall remain confidential, unless they are or become a direct customer of Peerview Data, at which time they will be governed by their own separate agreement.
Section 10: Fees and Payments.
The Services will be provided in consideration of the payment by Customer of fees and other charges as set forth on the applicable Fee Schedule unless otherwise amended in writing by Peerview Data and Customer via an accepted Peerview pricing Proposal (as the same may be updated from time to time). The fees and other charges shall be subject to change from time to time in Peerview Data’s discretion upon written notice to Customer. In addition, Customer shall pay or reimburse Peerview Data for all reasonable out of pocket expenses incurred by Peerview Data in connection with the provision of Services to Customer.
The Fees shall include, without limitation, onboarding fees, monthly costs and fees and the costs and fees relating to any additional Service requested by Customer after the Effective Date of this Agreement. Unless otherwise agreed in writing, Customer’s Fees shall be billed annually, but shall be paid in monthly installments during the Term of this Agreement. The amount due and the monthly payments shall be adjusted by Peerview in its sole discretion on a month-by-month basis, and may be changed in the event any charges increase as set forth above; the Customer requests additional Services; or as otherwise permitted or required by this Agreement.
All such amounts not paid within thirty (30) days of the invoice date shall bear interest following the invoice date at a rate of fifteen percent (15%) per annum (or, if lesser, the maximum rate of interest permitted under applicable law) until paid. Customer shall pay or reimburse Peerview Data for all costs of collection, including without limitation attorneys’ fees and court costs incurred by Peerview Data in collecting amounts payable under this Agreement.
Section 11: Term.
Subject to the payment of any fees payable at or in connection with signing of this Agreement, this Agreement shall become effective on the Effective Date, which is the date You accepted these terms and conditions and, unless sooner terminated, shall continue for a period of one (1) year from the Effective Date (the “Initial Term”). Thereafter, this Agreement (including without limitation the obligation to pay fees with respect to any Renewal Term and to provide Customer Information) shall renew automatically for one (1) or more successive one (1) year periods (each a “Renewal Term,” and together with the Initial Term and any Renewal Term(s), the “Term”) unless Peerview Data or Customer provides written notice to the other of its intention not to renew this Agreement at least thirty (30) days prior to the end of the then- current Initial Term or Renewal Term.
Section 12: Termination.
Either party may terminate this Agreement by giving written notice to the other party upon the occurrence of an Event of Default on the part of the other party. For these purposes, an “Event of Default” by the other party means either: (i) a failure by the other party to perform any of its material obligations under this Agreement, where such failure continues for thirty (30) calendar days after receipt by such party of written notice of such failure (which notice will detail the circumstances of such failure); or (ii) the other party dissolves or becomes insolvent, makes an assignment for the benefit of creditors, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it, a receiver or similar officer is appointed to take charge of all or part of that party’s assets, or that party discontinues for any reason substantially all of its business. Upon termination of this Agreement for any reason, Customer shall pay to Peerview Data immediately all fees, charges and reimbursements due or accrued with respect to the Services performed on or prior to the date of termination.
Section 13: Indemnification.
Customer shall defend, indemnify and hold harmless Peerview Data and its officers, directors, employees, agents and affiliates, and their respective successors and assigns, from and against any claims, losses, damages, liabilities, costs or expenses of any nature including without limitation attorney’s fees and costs suffered or incurred by any of them to the extent caused by, arising in connection with or related directly or indirectly to (a) Customer’s breach of or default under this Agreement; (b) the Customer Information provided to Peerview Data hereunder; and (c) any actual or alleged breach, violation, misappropriation or infringement of any third party intellectual property, trade secret or other rights or properties arising from the license, display or other use in accordance with this Agreement of the intellectual property and other rights licensed or granted to Peerview Data or its affiliates in this Agreement, or any Exhibit or amendment hereto.
Section 14: Force Majeure, Service Interruptions and Non-party data providers.
Neither party shall be deemed to have breached this Agreement solely as a result of any delay, failure in performance or interruption of service resulting directly or indirectly from any act of God, action of the elements, fire, accident, riot, strike, work stoppage or other labor disturbance, interruption of power or water, act of war, act of terrorism, invasion, civil commotion, enactment of laws or other casualty or cause, whether similar or dissimilar, arising in a manner beyond the reasonable control of the party required to perform and without such party’s negligence or willful misconduct.
Peerview Data shall not be liable for any interruption in the Services caused by internet connectivity issues. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of Customer Information or property. Further, Peerview Data shall not be liable for any interruption in the Services or loss of data or information caused by any delay, failure in performance, or negligence of any non-party data hosting or services providers.
Section 15: Damages Limitation.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, PEERVIEW DATA WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE OR LOSS OF PROFIT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. PEERVIEW DATA’S MAXIMUM AGGREGATE LIABILITY HEREUNDER FOR ANY CLAIMS WHATSOEVER SHALL BE LIMITED TO THE AMOUNT PAID UNDER THIS AGREEMENT BY CUSTOMER TO PEERVIEW DATA DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT, OCCURRENCE OR CAUSE GIVING RISE TO ANY SUCH CLAIM, IF ANY.
Section 16: Warranty Disclaimer.
THE SERVICES, COMPARATIVE INFORMATION AND ALL OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS, WHERE IS” BASIS WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PEERVIEW DATA EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND GUARANTEES WITH RESPECT TO THE SERVICES, COMPARATIVE INFORMATION, AND ALL OTHER PRODUCTS, SERVICES AND MATERIALS PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER STATEMENT OF FACT OR OPINION, INCLUDING WITHOUT LIMITATION STATEMENTS REGARDING EFFICACY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, OR OTHERWISE, WHETHER MADE BY EMPLOYEES, AGENTS OR AFFILIATES OF PEERVIEW DATA OR OTHERWISE, WHICH ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY PEERVIEW DATA FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF PEERVIEW DATA WHATSOEVER. NO PROVISION OF THE UNIFORM COMMERCIAL CODE OR UNIFORM COMPUTER INFORMATION TRANSACTION ACT IN ANY JURISDICTION SHALL APPLY TO THIS AGREEMENT OR THE GOODS OR SERVICES PROVIDED HEREUNDER.
Section 17: Governing Law; Venue.
This Agreement shall be governed, interpreted, construed and enforced in accordance with the substantive laws of the State of Indiana, without regard to conflict of laws principles. Subject to the provisions of Section 16, the parties hereto irrevocably consent to and waive any objection to the exclusive jurisdiction and venue of the courts of the State of Indiana, Marion County, and the United States District Court for the Southern District of Indiana with respect to any and all actions related to this Agreement, the interpretation of this Agreement or the enforcement hereof, and the parties hereto hereby irrevocably waive any and all objections thereto.
Section 18: Arbitration.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and the American Arbitration Association Optional Rules for Emergency Measures of Protection shall apply to the proceedings, unless and to the extent any of the foregoing are modified by this Agreement or written agreement of the parties. Arbitration shall be conducted in Indianapolis, Indiana. The award rendered by the arbitrator(s) may be, alternatively or cumulatively, for monetary damages, an order requiring the performance of non-mandatory obligations (including specific performance) or any other appropriate order or remedy. The arbitrator(s) may issue interim awards and order any provisional measures which should be taken to preserve the respective rights of the parties to the dispute. The award entered by the arbitrator(s) shall be final and binding on all parties to arbitration and judgment on an award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Except as the parties to the dispute may otherwise agree, the arbitration hearing will commence within sixty (60) days after a party’s proper initiation of arbitration. The arbitration shall be conducted in a single hearing (which may last one (1) or more days with recesses for weekends and holidays only), and the arbitrator(s) shall render a decision within thirty (30) days after conclusion of the hearing. Reasonable discovery, including depositions, will be permitted. Discovery issues will be decided by the arbitrator(s) and post-hearing briefs will be permitted. All arbitration shall be conducted in the English language. This Agreement shall remain in full force and effect during the pendency of any dispute or arbitration.
Section 19: Attorney’s Fees.
The prevailing party in any arbitration or other action arising under or relating to this Agreement, or in any action to enforce and arbitration decision pursuant to Section 16, shall be entitled to reimbursement from the other party of reasonable attorneys’ fees and costs incurred in such action.
Section 20: No Assignment; Amendment; Waiver.
This Agreement shall inure to the benefit of and be binding upon both parties and their respective successors and permitted assigns. Neither party may assign their rights or delegate their responsibilities under this Agreement to any third party without the prior written consent of the other party; provided, however, that a party may assign its rights and delegate its responsibilities under this Agreement to any successor to all or substantially all of the business of the assigning/delegating party if the assignee/delegee expressly assumes the obligations of the assigning/delegating party or by operation of law or in writing. A waiver or consent, express or implied, to or of any breach or default by any party in the performance by that party of its obligations with respect to this Agreement is not a consent or waiver to or of any other breach or default in the performance by that party of the same or any other obligations. Failure on the part of a party to complain of any act or omission of any other party or to declare any other party in default with respect to this Agreement, irrespective of how long that failure continues, does not constitute a waiver by that party of its rights with respect to that default.
Section 21: Entire Agreement.
This Services Agreement constitutes the complete and exclusive agreement between the parties regarding the subject matter herein. This Service Agreement supersedes and replaces any prior understanding or communication, written or oral. You acknowledge that You have not relied upon any statement, promise or representation made or given by or on behalf of Peerview data which is not set forth in this Agreement.
Section 22: Additional Terms.
This Agreement is nonexclusive. Time is of the essence in the performance of this Agreement. All notices, requests, demands, approvals, consents and other communications under this Agreement shall be in writing and shall be delivered to the e-mail address specified for the receiving party in this Agreement, and shall be deemed to have been duly given (a) on the date of service if served personally; (b) on the date of transmission if sent via e-mail, provided that e-mail confirmation of receipt is obtained; (c) on the first day after delivery to any reputable overnight courier; or (d) on the fifth day after mailing if mailed by registered or certified mail, postage prepaid. A party may change its physical or e-mail address by providing written notice to the other party in compliance with this Section 22. The relationship of the parties is and shall be that of independent contractor and client. Nothing in this Agreement shall be construed to create a joint venture, partnership or employer/employee relationship. This Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and permitted assigns (except that the provisions of Section 11 shall inure to the benefit of each of the indemnified parties specified therein), and no other person (except to the extent provided in the immediately preceding parenthetical) shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise. If any provision of this Agreement or the application thereof to any person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to other persons or circumstances is not affected thereby and that provision shall be enforced to the greatest extent permitted by law. Except as otherwise provided herein, this Agreement, constitutes the entire agreement of the parties relating to the subject matter of this Agreement and supersedes all prior contracts or agreements with respect to the same, whether oral or written.