Ludis Analytics General Terms and Conditions
These General Terms and Conditions (“Agreement”) set forth relate to access and use of the Ludis Analytics Software platform (“Service”). Your access and use of the Service in conditioned on your acceptance of, and compliance with, these terms. These terms apply to all users and others who access or use the Service. By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms when you may not access the Service. Each of Ludis and Customer may be referred to herein individually as a “Party” and together as the “Parties.”
The Parties agree as follows:
1. DEFINITIONS In addition to the capitalized terms defined throughout these General Terms and Conditions, the following defined terms will have the following meanings:
1.1 “Affiliate” means, with respect to either Party, any entity that directly or indirectly controls, is controlled by or is under common control with such Party (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity, or any other ability to select such directors or managing authority by law or contract.
1.2 “Ancillary Services” means, collectively, the ancillary, implementation, installation, data conversion, validation, training, and other professional services provided by Ludis under this Agreement, as agreed between the Parties and set forth in an Services Agreement.
1.3 “Confidential Information” means all nonpublic information disclosed by either Party, its Affiliates, or their agents (as applicable, such entities collectively, the “Discloser”) to the other Party, its Affiliates, or their agents (collectively, the “Recipient”) in connection with this Agreement that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. “Confidential Information” does not includ e any information that (i) is or becomes generally known to the public without breach of this Agreement, (ii) was known by the Reci pient prior to its receipt from the Discloser, (iii) is disclosed to the Recipient from any third party, except where the Rec ipient knows, or reasonably should know, that such disclosure constitutes a wrongful or tortious act, or (iv) is independently developed by th e Recipient without use of or reference to the Discloser’s Confidential Information. Without limiting the generality of the foregoing, any information, data and/or files Customer transmits, uploads, or stores to or on the Hosted Solution in connection with this Ag reement (collectively, “Customer Data”) shall be deemed Customer’s Confidential Information, and the Hosted Solution, Ancillary Services, Software (as defined in Section 2.2), Documentation, and Service Items shall each be deemed Ludis’s Confidential Information (except for any Customer Data included therein).
1.4 “Documentation” means the most recent version of documentation of the functional operation of the Hosted Solution that is provided to Customer by Ludis in connection with this Agreement.
1.5 “Hosted Solution” means the software program(s) identified on an executed Services Agreement.
1.6 “Licensed User” means an employee or contractor of Customer that is a permitted user of the Hosted Solution, subject to any limitations included in the applicable Services Agreement.
1.7 “Services Agreement” means an order executed by the Parties from time to time setting forth the Hosted Solutions being licensed, and the ancillary Service Items being purchased by Customer, scope of use, pricing, payment terms, and other relevant terms. Each Services Agreement will be a part of and be governed by the terms and conditions of this Agreement. In the event of a conflict between the terms of this Agreement and an Services Agreement, the Services Agreement will control solely for purposes of that Services Agreement.
1.8 “Service Items” means deliverables or modifications developed in connection with the configuration, implementation and/or support of the Hosted Solution, including any technology, documentation, software, and procedures developed, conceived or introduced by Ludis, as well as any designs, inventions, methodologies, techniques, discoveries, know-how, show-how and works of authorship, all United States and foreign patents issued or issuable thereon, all copyrights and other rights in works of authorship, database designs, machine learning items, trade secrets, trademarks, trade names, and other forms of corporate or product identification, and any division, continuation, modification, enhancement, or derivative work of any of the foregoing.
2. HOSTED SOLUTION; SERVICESLudis Analytics, Inc. Services Agreement
2.1 Grant of License. In consideration for the payment of all fees and Customer’s ongoing compliance with the terms of this Agreement, Ludis will make available the Hosted Solution and will provide Customer the Ancillary Services, each as set forth in Services Agreement entered into between the Parties under this Agreement. Ludis hereby grants to Customer, for the term of the Services Agreement(including any renewals), a non-exclusive, non-transferable (except in accordance with Section 10.5 below) license (without the right to sublicense) to use the Hosted Solution and any Service Items developed, conceived or introduced by Ludis in connection with the provision of the Hosted Solution and/or the performance of Ancillary Services, solely for Customer’s internal business use (and not for any external use) in accordance with the terms of this Agreement and the Services Agreement.
2.2 Limitations. Customer and its Licensed Users shall use the Hosted Solution in strict accordance with all applicable laws and regulations, including but not limited to laws and regulations relating to data privacy. Although Ludis has no obligation to monitor Customer’s use of the Hosted Solution, Ludis may do so and may prohibit any use of the Hosted Solution it believes may be (or alleged to be) in violation of the foregoing. Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Hosted Solution or any software, Documentation or data related to the Hosted Solution (excluding Customer Data) (collectively, “Software”); (ii) modify, translate, or create derivative works based on any portion of the Hosted Solution (except to the extent expressly permitted by Ludis or authorized within the Hosted Solution); (iii) use the Hosted Solution for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (iv) remove any proprietary notices or labels from the Hosted Solution.
2.3 Scope of Use. The Hosted Solution may be priced based on certain metrics as set forth in an Services Agreement. Customer may only expand its use of the Hosted Solution upon payment of additional fees at Ludis’s then-current rates. Any such fees for additional scope of use will be immediately due and payable unless otherwise agreed in writing.
2.4 Support. Ludis will provide Customer with reasonable technical support for the Hosted Solution in accordance with the terms of Exhibit A hereto.
2.5 Subcontractors. Ludis may in its discretion engage one or more Affiliates or subcontractors to assist in the provision of the Hosted Solution and/or the performance of the Ancillary Services; provided, Ludis shall (i) ensure that such Affiliates and subcontractors are bound by obligations of confidentiality at least as protective of Customer’s Confidential Information as set forth in this Agreement, and (ii) be responsible for any breaches of this Agreement caused by the actions or inactions of such Affiliates and subcontractors.
2.6 Ludis Reservation of Rights. Except for the limited licenses granted under Section 2.1 and any applicable Service Agreements, no other rights are granted to the Hosted Solution, Ancillary Services, Software, Documentation, or Service Items, or any improvements, modifications, or derivative works thereof, whether by implication, estoppel or otherwise. Ludis reserves any rights not expressly granted to Customer.
2.7 Export Control and Sanctions. In the event that Customer exports or re-exports the Hosted Solution, Software, or any Service Item, Customer will be responsible for complying with all applicable export and import laws, rules and regulations. Customer will not obtain, retain, use, transfer, provide or allow access to the Hosted Solution, Software, or any Service Item to any Affiliate or third party or end user in a manner that may breach any applicable economic sanctions laws and regulations for any jurisdiction, including the United States of America and the European Union and its Member States. Customer warrants that neither it nor any Affiliate or Representative to which Customer provides or allows access to the Hosted Solution, Software, or any Service Item is or is affiliated with a specially designated or sanctioned entity under any of those laws and that, in any transaction relating to Ludis, it will not involve sanctioned parties, including without limitation through the use of bank accounts at banks that are sanctioned parties.
3. CUSTOMER OBLIGATIONS
3.1 Equipment. Except as set forth in an Service Agreement, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Hosted Solution, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.2 Customer-Provided Materials. Customer agrees to provide Ludis with reasonable access to Customer materials, personnel, Equipment or facilities to the extent such access is necessary for Ludis to perform its obligations under this Agreement. Customer hereby grants Ludis a limited right to use any Customer materials provided to Ludis in connection with this Agreement (the “Customer Provided Materials”) solely for the purpose of providing the Hosted Solution and performing the Ancillary Services. Customer represents and warrants that it has all rights, licenses and consents necessary to provide the Customer-Provided Materials to Ludis for use in connection with, and for the purposes contemplated by, this Agreement (including any consents required by applicable data Ludis Analytics, Inc. Services Agreement 2 CONFIDENTIAL protection regulation, rules, or laws). For the avoidance of doubt, as between Customer and Ludis, Customer owns and will retain ownership (including all intellectual property rights) in and to the Customer-Provided Materials.
3.3 Service Agreements. Customer will comply with any additional Customer responsibilities included in an executed Service Agreement, subject to the terms of this Agreement.
4. CONFIDENTIALITY; OWNERSHIP
4.1 Each Party, as the Recipient, shall (i) secure and protect the Discloser’s Confidential Information using the same degree or greater level of care that it uses to protect its own confidential information, but no less than a reasonable degree of care; (ii) use the Confidential Information of the Discloser solely to perform its obligations or exercise its rights under this Agreement; (iii) only allow those of its employees, agents, attorneys, consultants and independent contractors (collectively “Representatives”) who (a) have a need to access such Confidential Information, and (b) are bound by confidentiality obligations consistent with the terms of this Agreement, to have access to the Confidential Information of the Discloser; and (iv) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party (excluding Representatives). A Party may disclose the other Party’s Confidential Information to the extent required by applicable law, regulation, or order of a court or other governmental entity. In such event, the Recipient will first attempt to redirect the third party to request it from the Discloser directly, and shall notify the Discloser as soon as possible and, if legally permissible, in sufficient time to allow the Discloser to respond or object to the disclosure. The Recipient may provide the Discloser’s basic contact information to the third party for the purpose of redirecting the request.
4.2 Ownership. As between the Parties, Customer shall own and retain all right, title and interest, including all intellectual property rights, in and to the Customer Data and the Customer-Provided Materials; Ludis and/or its licensors shall own and retain all right, title and interest, including all intellectual property rights, in and to the Hosted Solution, Ancillary Services, Software, Documentation, and Service Items.
4.3 Limited License to Use Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grants Ludis a limited, royalty-free, fully-paid up, non-exclusive license to process the Customer Data solely for purposes of performing its obligations under this Agreement. Ludis may collect and analyze data and other information relating to the provision, use and performance of the Hosted Solution and related systems and technologies (including, without limitation, information concerning Customer Data, in aggregated and de-identified form, and data derived therefrom) and to use such information and data during and after the term of this Agreement to improve and enhance the Hosted Solution and for other development, diagnostic and corrective purposes in connection with the Hosted Solution and other Ludis offerings.
4.4 Feedback. Customer hereby grants Ludis a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid-up right and license to use, copy, modify, sell, publish, distribute, sublicense and create derivative works based on Customer’s suggestions, comments, or feedback regarding the Hosted Solution (collectively, “Feedback”) in any manner and for any purpose. Ludis may, in its sole discretion, and without compensation to or attribution of Customer or any third party, use Feedback in any way, including in future modifications of the Hosted Solution, Software, Documentation, and/or Service Items.
4.5 Customer Reservation of Rights. Except for the limited licenses provided in Sections 3.2, 4.3, and 4.4, nothing contained in this Agreement will be construed as granting Ludis or any third party any right, title, or interest in or to any Customer-Provided Materials, including Customer Data, whether by implication, estoppel, or otherwise.
4.6 Data Security. Without limiting its obligations under Section 4.1, Ludis shall implement reasonable technical, administrative , and physical security measures intended to prevent the unauthorized access to or use of Customer Data stored on the Hosted Solution or otherwise in the custody or control of Ludis.
5. PAYMENT OF FEES
5.1 Payment. Customer shall pay all fees set forth in the Service Agreements. All invoices shall be paid net 30 days following the date of the invoice. Invoices that are more than 10 days past due shall be subject to a finance charge at a rate of interest the lesser of 1.5% per month or the maximum permissible legal rate. If Customer’s use of the Hosted Solution exceeds the Scope of Use set forth on the Order Form or otherwise requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Ludis reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial License Term (as defined in the Order Form) or then -current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Ludis has billed Customer incorrectly, Customer must contact Ludis no later than 60 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit.Ludis Analytics, Inc. Services Agreement 3 CONFIDENTIAL
5.2 Expenses. Customer shall reimburse Ludis for all reasonable travel, lodging and out-of-pocket expenses incurred by Ludis in connection with providing the Ancillary Services under this Agreement.
5.3 Taxes. Customer shall pay all taxes, fees or costs imposed by any governmental body arising as a result of this Agreement (other than on Ludis’s net income).
6. TERM AND TERMINATION
6.1 Term. The term of this Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with this Section 6, shall continue for the period of 1 year. Thereafter, the Agreement shall automatically renew for successive 1-year periods until terminated by either Party in accordance with this Section 6. For avoidance of doubt, the term of any license shall be for the period set forth in the Service Agreement, including any renewals.
6.2 Termination. Either Party may terminate this Agreement and any or all Service Agreements immediately upon notice in the event that: (i) the other Party materially breaches this Agreement or an Service Agreement and fails to cure such breach within 30 days after receipt of written notice of the same, except in the case of Customer’s failure to pay fees when due, which must b e cured within 10 days after receipt of written notice from Ludis; or (ii) the other Party becomes the subject of a voluntary proceeding relating to insolvency, receivership, liquidation, bankruptcy or composition for the benefit of creditors and such petition or proceed ing is not dismissed within 60 days of filing. Either Party may terminate this Agreement for convenience upon 30 days’ notice at any time while there are no Service Agreements in effect. This Agreement shall automatically terminate 2 years after the termination or expiration of all Service Agreements hereunder.
6.3 Suspension of Access. If Ludis determines that Customer has breached any terms of this Agreement or any Order Form, in addition to Ludis’s other remedies available at law or in equity, Ludis shall have the right to suspend Customer’s access to the Hosted Solution until the breach is remedied. In addition, Ludis may also suspend access if it determines that Customer’s continued use of the Hosted Solution may result in harm to the Hosted Solution, Ludis’s or third party systems, or other Ludis customers, or result in a violation of applicable law or legal rights of another.
6.4 Effect of Termination. Upon termination or expiration of this Agreement for any reason, Customer shall immediately cease all use of the Hosted Solution, Software, Documentation and Service Items, and the licenses granted and all other rights of Customer under this Agreement shall immediately and automatically terminate and revert to Ludis. Company remains liable for all fees and expenses incurred up to and including the effective date of termination. Customer shall, within 10 days following termination or expiration of this Agreement, (i) destroy or return to Ludis, at Ludis’s option, all magnetic media or tangible items and material in Customer’s possession containing any Ludis Confidential Information, and (ii) certify such return or destruction in writing to Ludis. All sections of this Agreement which by their nature should survive termination or expiration of this Agreement will survive such termination or expiration.
6.5 Return of Customer Data; Transition Assistance. At such time as this Agreement is terminated or expires for any reason, Ludis shall act in good faith and shall continue to provide the Hosted Solution and perform Ancillary Services through the termination or expiration date to wind down the relationship in an orderly manner and to avoid disruption, confusion or harm to Customer or its business.
7. LIMITED WARRANTY
7.1 Limited Warranty. Ludis shall use commercially reasonable efforts to provide the Hosted Solution in a manner which minimizes errors and interruptions. The Hosted Solution may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Ludis or by third-party providers, or because of other causes beyond Ludis’s reasonable control. Ludis shall use reasonable efforts to provide advance notice in writing (including by e -mail) regarding any scheduled disruption. In the event Ancillary Services are specified within an Order Form, Ludis shall provide such Ancillary Services in a professional and workmanlike manner.
7.2 Remedies. Customer’s sole and exclusive remedy for any breach of the warranties set forth herein or in an Service Agreement shall be to notify Ludis of the applicable non-conformity, in which case Ludis shall use commercially reasonable efforts to correct such non-conformity by re-establishing access to the Hosted Solution or re-performing the Ancillary Services, as applicable. Notwithstanding the foregoing, Ludis shall not be responsible for any non-conformity that arises as a result of (i) any act or omission of Customer, including a failure to use the Hosted Solution in conformance with the Documentation and this Agreement; (ii) an y person other than Ludis making modifications to the Hosted Solution or any Service Item in any way without Ludis’s prior written consent; or (iii) any failure of any component of hardware, software, or other materials not supplied by Ludis under this Agreement.
7.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN AN SERVICE AGREEMENT, THE HOSTED SOLUTION AND THE ANCILLARY SERVICES ARE PROVIDED “AS IS,” AND LUDIS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ARISING Ludis Analytics, Inc. Services Agreement 4 CONFIDENTIAL FROM COURSE OF DEALING OR USAGE OF TRADE, INDUSTRY STANDARD, OR STATUTORY. IN PARTICULAR, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED. LUDIS DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS: (I) THAT THE HOSTED SOLUTION OR THE ANCILLARY SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (II) THAT THE HOSTED SOLUTION OR THE ANCILLARY SERVICES WILL BE ERROR FREE OR FUNCTION IN AN UNINTERRUPTED MANNER; OR (III) REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE HOSTED SOLUTION OR THE ANCILLARY SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE.
8.1 Ludis Indemnity. Ludis shall defend, indemnify and hold Customer and its directors, officers, employees, and agents harmless from and against any third-party claims, suits, liabilities, obligations, judgments, and causes of action (“Third-Party Claims”) and associated costs and expenses (including reasonable attorneys’ fees) to the extent arising out of any claim that the Hosted S olution or any Service Item infringes any currently existing United States patent or copyright of any third party. The foregoing obligations do not apply with respect to portions or components of the Hosted Solution or Service Items: (i) not supplied by Ludis; (ii) made in whole or in part in accordance with Customer specifications; (iii) modified after delivery; (iv) combined with other products, processes or materials; (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; (vi) where the alleged infringement results from Customer-Provided Materials or Customer Data; or (vii) where Customer’s use of the Hosted Solution is not strictly in accordance with the Documentation, this Agreement, and applicable law. If the Hosted Solution or any Service Item is or is likely to be the subject of a Third-Party Claim as described in this Section 8.1, Ludis may, at its sole option and expense, and as Customer’s sole and exclusive remedy, either: (a) secure for Customer the right to continue to use the affected item; (b) replace, modify or correct the affected item to avoid such infringement; or (c) terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the affected item.
8.2 Customer Indemnity. Customer shall defend, indemnify and hold Ludis, its Affiliates and licensors, and their respective directors, officers, employees, and agents harmless from and against any Third-Party Claim and associated costs and expenses (including reasonable attorneys’ fees) to the extent arising out of or resulting from (i) Customer-Provided Materials (including Customer Data), or (ii) Customer’s use of the Hosted Solution or any Service Item (except to the extent Ludis is obligated to indemnify pursuant to Section 8.1).
8.3 Indemnification Procedures. To be indemnified, the Party seeking indemnification must: (i) give the other Party timely written notice of such Third-Party Claim (unless the other Party already has notice); provided, however, that failure to give such notice will not waive any rights of the indemnified Party except to the extent that the rights of the indemnifying Party are prejudiced thereby; (ii) give the indemnifying Party authority, information and assistance for the Third-Party Claim’s defense and settlement. The indemnifying Party has the right, at its option, to defend the Third-Party Claim at its own expense and with its own counsel. The indemnified Party has the right, at its option, to join in the defense and settlement of such Third-Party Claim and to employ counsel at its own expense, but the indemnifying Party shall retain control of the defense. The indemnifying Party has the right to settle the claim with out the indemnified Party’s prior written consent if the settlement does not require the indemnified Party to pay any money or admit any fault.
9. LIMITATION OF LIABILITY
9.1 EXCEPT FOR (I) EACH PARTY’S PERFORMANCE OF ITS INDEMNITY OBLIGATIONS UNDER SECTION 8, (II) EACH PARTY’S LIABILITY ARISING OUT OF ITS BREACH OF CONFIDENTIALITY, AND (III) CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT (COLLECTIVELY, THE “EXCLUSIONS”), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, PERSONAL INJURY AND FOR ANY OTHER PECUNIARY LOSS OF ANY SORT), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.2 EXCEPT FOR THE EXCLUSIONS, IN NO EVENT SHALL EITHER PARTY’S, ITS AFFILIATES’, OR THEIR RESPECTIVE DIRECTORS’, OFFICERS’, EMPLOYEES’ AND AGENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY CUSTOMER TO LUDIS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.Ludis Analytics, Inc. Services Agreement 5 CONFIDENTIAL
10.1 Governing Law. This Agreement will be governed by, construed, and interpreted in accordance with the laws of the State of California, excluding its rules of conflicts of law that would give rise to application of the substantive law of another jurisdiction.
10.2 Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, termination or validity thereof, including the determination of the scope or applicability of the agreement to arbitrate, shall be settled by arbitration in San Francisco, California administered by the American Arbitration Association in accordance with its Commercial Arbitration Rule s then in effect. Judgment upon the arbitration award may be entered, and application for judicial confirmation or enforcement of the arbitration award may be made in any court of competent jurisdiction.
10.3 Force Majeure. Neither Party shall be liable for any loss, damages or penalty (other than the obligation to pay money) resulting from any failure to perform due to causes beyond the reasonable control of such Party, including, but not limited to: supplier delay, acts of God, labor disputes, terrorism, war, unavailability of components, acts of governmental authorities or judicial action, or material interruption in telecommunications or utility service. The delayed Party shall perform its obligations within a reasonable time after the cause for the failure has been remedied, and the other Party shall accept the delayed performance.
10.4 Injunctive Relief. Customer acknowledges that any breach by Customer of this Agreement would cause Ludis irreparable harm not compensable with money damages, and that in the event of such breach, Ludis shall be entitled to seek injunctive relief, without bond, from any court of competent jurisdiction.
10.5 Assignment. Neither Party shall assign its rights, duties or obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, upon written notice (but without the need for consent), either Party may assign this Agreement to an Affiliate or in connection with any merger, reorganization or sale of substantially all of such Party’s assets relating to this Agreement or other change of control transaction.
10.6 Relationship of the Parties. Ludis is an independent contractor, and none of Ludis’s employees or agents shall be deemed employees or agents of Customer. Nothing in this Agreement is intended or shall be construed to create or establish any agency, partnership or joint venture relationship between the Parties. During the term of this Agreement, Ludis may identify Customer by name and may include Customer’s logo(s) (in the form provided and/or pre -approved by Customer, such approval not to be unreasonably withheld, conditioned or delayed) as part of Ludis’s promotional or marketing materials of every form, and may otherwise confirm the existence of a business relationship between the Parties. For avoidance of doubt, the terms of this Agreement shall remain the Confidential Information of both Parties and shall be treated in accordance with Section 4.
10.7 Notices. All notices required or permitted under this Agreement shall be in writing and shall be effective when delivered in person, one (1) day after being sent by overnight courier, or two (2) days after deposit in the United States mail, first class postage prepaid. All notices shall be addressed to the address set forth in the caption, or at such other address as either Party may designate.
10.8 Severability. If any provision of this Agreement or any Order Form is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby and the illegal provision shall be replaced with a legal provision that encapsulates the original intent of the Parties.
10.9 Entire Agreement; Amendment; Waiver. This Agreement and all Order Forms collectively constitute the entire agreement between the Parties and supersedes any prior or contemporaneous agreement or understandings with respect to the subject matter of this Agreement. This Agreement shall be construed as if both Parties had equal involvement in its drafting, and thus shall not be construed against the drafter. This Agreement may be modified only by a written agreement signed by both Parties hereto. No waiver or consent granted for one matter or incident will be a waiver or consent for any different or subsequent matter or incident. To be effective, waivers and consents must be in writing and signed by an authorized Representative of the applicable Party.
10.10 Purchase Orders; Acceptance of Quotes. If Customer submits its own terms in Customer’s acceptance of a price quotation or in a purchase order, which add to, vary from, or conflict with the terms herein, any such terms are of no force and effect and are superseded by this Agreement.
Ludis will provide technical support to Customer via electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of federal holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling by emailing firstname.lastname@example.org. Ludis will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.Ludis Analytics, Inc. Services Agreement
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