ONLINE PICO PORTAL SOFTWARE LICENSING AGREEMENT
By using the PICO Portal software solution, you (“Subscriber”) agree to all the terms and conditions set forth in this Licensing Agreement.
This Software Subscription Agreement (“Subscription Agreement”), made and entered into as of the date of first use by the Subscriber (“Effective Date”) is between the Subscriber and PICO PORTAL INC, a Delaware corporation having its principal place of business at 136 4TH ST N, ST. PETERSBURG, FL 33701 (“PICO PORTAL”). PICO PORTAL and Subscriber shall each be referred to as a “Party” and shall together be referred to as the “Parties”.
PICO PORTAL and Subscriber desire to enter into this end user Subscription Agreement for certain Subscribed Products and Services. In consideration of the terms and conditions and mutual obligations contained in this Subscription Agreement, each Party agrees as follows:
1.DEFINITIONS.
1.1 “Documentation” means written materials made available by PICO PORTAL that relate to the Program and any updates thereto.
1.2 “Subscribed Product” means each Program and any related Documentation.
1.3 “Program” means a computer software program, identified in the Subscription Schedule, including any updates and upgrades.
1.4“Services” shall mean all of those activities that PICO PORTAL provides to the Subscriber to support and maintain the Subscribed Product
Any capitalized term not otherwise defined herein shall have the meaning that is given to it elsewhere in this Subscription Agreement.
2.SUBSCRIPTIONS.
2.1 Subscription Schedule. As part of this Subscription Agreement, PICO PORTAL and Subscriber have agreed to the Subscription Schedule (“Subscription Schedule”) as indicated on the website and based on your usage needs. A subscription is 1 year in length from the date of first use. Subscriber has one of three options to choose including:
Free version of PICO Portal - one project per user, unlimited citations, unlimited reviewers and collaborators.
Team License of PICO Portal - a team license includes 1 (one) research leader and allows this individual to have as many projects, and reviewers or collaborators on the platform underneath them. The key limiting factor here is that the licensed user has to be directly involved in the project(s) in some capacity. You can have multiple Team Licenses within one organization.
Site License of PICO Portal - a site license would allow you to have as many projects, researchers, reviewers and collaborators using the platform at any time. Basically, unlimited usage across the organization.
2.2 Scope of Subscription. PICO PORTAL grants to Subscriber a non-exclusive, non‑transferable, non-sublicensable and non-assignable (except as set forth in Section 12.3) license to use each Subscribed Product (in object code form only) specified in the Subscription Schedule for the Agreement Term (a “Subscription”) only for the purpose stated in the Subscription Schedule (“Specified Purpose”).
2.3 Services. PICO PORTAL shall provide the Services described in the Subscription Schedule in connection with the Subscribed Product.
2.4 No Reverse Engineering. Subscriber shall not, and shall not permit any third-party to, translate, reverse engineer, decompile, recompile, update or modify all or any part of the Subscribed Product or Services.
2.5 Ownership and Proprietary Rights. All right, title and interest in and to the Subscribed Product, the Services and any related intellectual property rights shall be the exclusive property of PICO PORTAL and PICO PORTAL’s licensors, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Subscribed Product and Services are used or licensed. Further, Subscriber covenants, represents, and warrants that no software provided by Subscriber and used with the Subscribed Product shall be covered by any open-source license or other software which could compromise or interfere in any way with PICO PORTAL’s property rights in or to the Subscribed Product.
3 TERM; TERMINATION.
3.1 Subscription Agreement Term. This Subscription Agreement shall be effective on the Effective Date and will continue as specified in the Subscription Schedule (“Initial Term”), at which time, unless otherwise specified in the Subscription Schedule, such Initial Term shall automatically renew for one or more renewal terms each having the same length as the Initial Term (“Renewal Term”) (together, the Initial Term and each Renewal Term are the “Agreement Term”).
3.2 Subscription Agreement Termination.
3.2.1 Termination. This Subscription Agreement may be terminated for any of the following reasons: (i) immediately by PICO PORTAL for Subscriber’s failure to make monetary payment due to PICO PORTAL or for Subscriber’s breach of Section 2.2, Section 5 or Section 6) (“Termination By PICO PORTAL”); (ii) by either Party upon written notice to the other Party after the other Party’s breach of any material non-monetary provision of this Subscription Agreement that is not cured within thirty (30) days of written notice of such breach to the breaching party (“Termination for Breach”); (iii) by either Party, via written notice of termination for convenience given at least ninety (90) days before the end of the Initial Term or the then-current Renewal Term (as the case may be), to become effective at the end of that term (“Termination for Convenience”); or (iv) by either Party immediately if: (a) the other Party is the subject of a Chapter 7 petition of involuntary bankruptcy which is not dismissed within sixty (60) days; (b) the other Party is the subject of a Chapter 7 petition of voluntary bankruptcy which is not dismissed within thirty (30) days; or (c) the other Party makes a general assignment for the benefit of creditors or is appointed a receiver on account of its insolvency (“Termination for Insolvency”).
3.2.2 Monetary Obligations Upon Early Termination. In the case of a Termination by PICO PORTAL, a Termination for Breach resulting from the Subscriber’s breach, a Termination for Convenience, or a Termination for Insolvency by PICO PORTAL, any unpaid payment obligations of Subscriber shall survive and continue beyond termination and PICO PORTAL shall be considered to have earned all fees set forth in the Subscription Schedule and shall be entitled to retain any fees that have already been paid by Subscriber and to collect the balance of any fees that remain unpaid by Subscriber. In case of Termination for Breach resulting from PICO PORTAL’s breach or Termination for Insolvency invoked by Subscriber, Subscriber shall have a right to a refund of any pre-paid amounts for the period from the date of termination to the end of the Initial Term or the then-current Renewal Term (as the case may be).
3.2.3 Other Obligations Upon Termination. Upon termination, the following will occur: (i) PICO PORTAL will immediately cease providing the Services to the Subscriber for the Subscribed Product; and (ii) Subscriber shall promptly return or destroy all copies of the Subscribed Product.
3.3 Effect of Termination. The respective obligations of the Parties under this Subscription Agreement that by their nature would continue beyond the termination or expiration of this Subscription Agreement, shall survive termination or expiration of this Subscription Agreement, including without limitation sections 2.5, 3, 4, 5, 6, 7, 8, 9 and 11.
4. FEES; PAYMENT.
4.1 Payment. Subscriber will make payment to PICO PORTAL of any fees (“Subscription Fees”) for each Subscribed Product specified in the Subscription Schedule. Subscriber will pay the invoice within thirty (30) days of receipt. Credit Card payments and etransfer or ACH payments are acceptable.
4.2 Annual Subscription Fee Increases. At least sixty (60) days prior to the beginning of each Subscription Renewal Term of the Subscription Schedule, PICO PORTAL shall have the option to send Subscriber notice of any fee increases or fee schedule changes.
4.3 Taxes. Subscriber shall pay any and all applicable federal, state or local taxes, such as, but not limited to sales tax, use tax, excise tax, personal property tax or any other applicable taxes, but Subscriber will not have to pay taxes based on PICO PORTAL’s net income. In the event Subscriber is required to withhold tax or any other amount from any payment due to PICO PORTAL, the amount due to PICO PORTAL shall be increased by an amount such that the amount PICO PORTAL receives is equal to the amount PICO PORTAL would have received if no withholding had been required.
4.4 Late Charges. Late payment charges may be assessed by PICO PORTAL beginning thirty (30) days following the due date of such payment at a rate equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate allowed by law.
4.5 Audit. Subscriber agrees to keep clear, accurate and complete records relating to all matters affecting the Subscription fees payable hereunder and the usage of the Subscribed Product. During the term of this Agreement and for a period of two (2) years thereafter, PICO PORTAL has the right to verify, at PICO PORTAL’s expense, Subscriber’s compliance with the terms and conditions of this Subscription Agreement. Verification will take place upon reasonable notice, during normal business hours and in a manner that does not interfere unreasonably with Subscriber’s operations. If an underpayment of Subscription fees by five (5) percent or more is found, Subscriber will reimburse PICO PORTAL for the costs incurred by PICO PORTAL in doing the verification. To the extent that PICO PORTAL discovers unpaid Subscription fees and/or unlicensed usage, Subscriber shall, within thirty (30) days, acquire the additional subscription rights required for such usage and retroactive to the day when unlicensed usage began or unpaid usage began, Subscriber shall pay the unpaid Subscription fees plus 1.5% per month applied to all such additional fees not paid. If PICO PORTAL undertakes such verification and does not find material unlicensed use or unpaid usage of any Subscribed Product, PICO PORTAL will not undertake another verification with respect to use of such Subscribed Product for at least one (1) year. PICO PORTAL will use the information obtained during verification only to enforce PICO PORTAL’s rights and to determine whether the Subscriber is in compliance with the terms and conditions of this Subscription Agreement. By invoking the rights and procedures described herein, PICO PORTAL does not waive its rights to enforce this Subscription Agreement (including any Subscription or service agreement incorporating these terms) or to protect PICO PORTAL’s intellectual property by any other means permitted by law.
5. PROPRIETARY INFORMATION.
5.1 Confidentiality. “Proprietary Information” shall mean: (i) any information in written, other tangible or electronic form which is labeled by the disclosing Party as “Confidential”, “Proprietary” or with a legend of similar import; (ii) any Subscribed Product; (iii) any trade secrets relating to a Party’s business, products, services or technologies; (iv) any information relating to a Party’s business, financial information, customers, schedules, projects, programs, products and services not generally known to the public; and (v) information orally disclosed to the recipient Party or received by the recipient Party through observation and identified by the disclosing Party as confidential at the time of such disclosure.
5.2 Exceptions. The obligations in Section 5.1 shall not apply to any Proprietary Information received from the disclosing Party which is: (i) lawfully in the receiving Party's possession, with no restriction on use or disclosure, prior to its acquisition from the disclosing Party; (ii) received in good faith by the receiving Party, with no restrictions on use or disclosure, from a third party not subject to any confidential obligation to the disclosing Party; (iii) now or later becomes publicly known through no breach of confidential obligation by the receiving Party; or (iv) independently developed by or for the receiving Party without any reliance on or use of Confidential Information of the disclosing Party.
5.3 Disclosure and Use. Each Party shall remain the exclusive owner of its Proprietary Information and neither Party shall use or disclose the other Party’s Proprietary Information except for the purposes expressly permitted by this Subscription Agreement. The Party that has received Proprietary Information (“Receiving Party”) shall exercise the same degree of care and protection with respect to the Proprietary Information of the Party that has disclosed Proprietary Information to the Receiving Party (“Disclosing Party”) that it exercises with respect to its own Proprietary Information and shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Proprietary Information of the Disclosing Party.
5.4 Disclosure Under Applicable Law and Notification. If a Receiving Party receives a request to disclose any Proprietary Information of the Disclosing Party whether pursuant to a subpoena, an order issued by a court or other governmental authority of competent jurisdiction or otherwise, the Receiving Party agrees that (to the extent permitted by law), prior to disclosing any Proprietary Information of the Disclosing Party, it shall: (i) notify the Disclosing Party of the existence and terms of such request or advice, (ii) cooperate with the Disclosing Party in taking legally available steps to resist or narrow any such request or to otherwise eliminate the need for such disclosure at the Disclosing Party’s sole expense, if requested to do so by the Disclosing Party, and (iii) if disclosure is required, it shall be the sole obligation of the Disclosing Party to use its commercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment shall be afforded to such portion of the Proprietary Information of the Disclosing Party as is required to be disclosed.
5.5 Continuing Obligations. The obligation of non-disclosure and non-use with respect to any Proprietary Information of the Disclosing Party shall survive for a period of three (3) years after the expiration or termination of the Agreement Term; however, obligations of non-disclosure and non-use with respect to Subscribed Products shall continue indefinitely.
6.OWNERSHIP AND USE OF THE SERVICE
6.1 PICO PORTAL Intellectual Property. PICO PORTAL owns and expressly retains all right, title, and interest in and to: (a) the Subscribed Product & Services, including the Platform and Technology; (b) all PICO PORTAL graphics, logos, service marks, trade names, trademarks, and copyrights (in each case, whether registered or unregistered); (c) all improvements, developments, enhancements, modifications, and derivative works related to any of the foregoing; and (d) all intellectual property rights related to any of the foregoing, or related to any other proprietary materials or information of PICO PORTAL. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise to Subscriber, any Representative, or any third party any intellectual property rights or other right, title, or interest in or to the Subscribed Product & Services or any confidential information of PICO PORTAL.
6.2 Subscriber’s License to Use the Subscribed Product & Services. Subject to and conditioned on Subscriber’s payment of Fees and compliance with the terms and conditions of this Agreement, PICO PORTAL hereby grants Subscriber a limited, royalty-free, non-exclusive, non-transferable, non-sublicensable, worldwide license to access and use the Subscribed Product & Services for Subscriber’s internal business purposes until Subscriber’s subscription and this Agreement is terminated in accordance with Section 3. PICO PORTAL expressly reserves all other rights in and to the Subscribed Product & Services.
6.3 Subscriber Data. Subscriber owns and expressly retains all right, title, and interest in and to the Subscriber Data, including all associated intellectual property rights. Subscriber hereby grants PICO PORTAL a royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify and create derivative works and improvements of the Subscriber Data in order to facilitate and provide the Subscribed Product & Services under this Agreement. Subscriber expressly reserves all other rights in and to the Subscriber Data. Subscriber is solely responsible to ensure that all Subscriber Data that Subscriber or any of its Representatives creates, uploads, discloses, or otherwise uses in connection with the Subscribed Product & Services—including without limitation, data related to Subscriber’s needs —is authorized for use in connection with the Subscribed Product & Services; is not used in violation of any intellectual property rights of others or agreements between Subscriber and any third party; and complies with all applicable laws and regulations. Accordingly, Subscriber represents and warrants that: (i) Subscriber is the sole and exclusive owner of all Subscriber Data that Subscriber or any of its Representatives uploads or otherwise uses in connection with the Subscribed Product & Services, or Subscriber has all rights, licenses, consents and releases that are necessary for use of such Subscriber Data in connection with the Subscribed Product & Services as contemplated under this Agreement; and (ii) the PICO PORTAL’s use of Subscriber Data (or any portion thereof) as contemplated under this Agreement will not infringe, misappropriate or violate a third party’s rights of any kind, or result in the violation of any other applicable law, regulation, or third-party agreement to which Subscriber is bound. Subscriber acknowledges and agrees that PICO PORTAL shall not be responsible to Subscriber or any third party for any claims, liabilities, or damages arising from the actual or alleged infringement or violation of intellectual property rights, third-party agreements, laws, or regulations by any Subscriber or Representative in connection with the Subscribed Product & Services.
6.4 Third Party Content. In using the Subscribed Product & Services, Subscriber may have access to content or materials that is obtained or derived from third party sources outside of PICO PORTAL (“Third Party Content”). The applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Content. PICO PORTAL does not have, and does not claim to have, any ownership rights to any Third-Party Content. PICO PORTAL makes no representations regarding, and disclaims all liabilities arising from or relating to, the ownership, license rights, reliability, accuracy, or completeness of any Third-Party Content, or of any Publication or other material referenced or included in the Subscribed Product & Services.
6.5 Usage Data. PICO PORTAL may collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscribed Product & Services and related systems and technologies (“Usage Data”), and PICO PORTAL will be free (both while this Agreement is in effect and after termination of this Agreement) to (1) use any Usage Data to improve and enhance the Subscribed Product & Services, and for other development, diagnostic, and corrective purposes in connection with the Subscribed Product & Services and other PICO PORTAL offerings; and (2) disclose Usage Data solely in aggregate or other de-identified form in connection with its business. Subscriber hereby consents to PICO PORTAL’s use of Usage Data, including to the extent any such Usage Data is derived from Subscriber’s use of or interaction with the Subscribed Product & Services. No rights or licenses are granted except as expressly set forth in this Agreement.
6.6 PDF Data Usage. PICO Portal ensures that PDFs and data derived from them remain confidential, with no access granted to individuals (or machines) outside the respective review. The platform utilizes Large Language Models (LLMs) that do not train on, store, or distribute any user-provided full-text PDF data. The LLMs use this data solely to generate outputs that assist the user’s review, without retaining or repurposing the input for any future use.
6.7 Feedback. Any comments, suggestions, input, or other submissions that Subscriber or any Representative provides to PICO PORTAL regarding the Subscribed Product & Services (collectively, "Feedback") shall become the sole and exclusive property of PICO PORTAL. PICO PORTAL shall be free to use, reproduce, and exploit any Feedback it receives without restriction or obligation of any kind to Subscriber or any Representative. Subscriber, on behalf of itself and its Representatives, to the maximum extent permitted by law, hereby waives all moral rights to any such Feedback. Subscriber agrees there shall be no recourse against PICO PORTAL for any alleged or actual infringement or misappropriation of any proprietary right in any Feedback.
7.RESTRICTIONS AND RESPONSIBILITIES
7.1 Use Restrictions. Subscriber and its Representatives shall not use the Subscribed Product & Services for any purposes beyond the scope of the access granted in this Agreement. Subscriber shall not at any time, directly or indirectly, and shall not permit any Representative to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover any protected or restricted Technology; (ii) use the Subscribed Product & Services or Technology to redistribute any data in a manner that is optimized in a machine-readable format (except to the extent expressly permitted by PICO PORTAL or authorized within the Subscribed Product & Services); (iii) use the Subscribed Product & Services or Technology to create, develop, or commercialize derivative works and/or services that are directly competitive with or substantially similar to the Subscribed Product & Services or any component of the Subscribed Product & Services; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, or transfer the Subscribed Product & Services or Technology to an unauthorized third party, or use the Subscribed Product & Services or any Technology for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices or labels; (vi) use the Subscribed Product & Services or Technology in any manner that would infringe upon or violate the intellectual property or any other rights of a third party; or (vii) use the Subscribed Product & Services or Technology for any unlawful purpose or in any manner that would violate any applicable law or regulation.
7.2 Compliance with Laws; Export Control. The Subscribed Product & Services, Technology, or other materials or information provided in connection with the Subscribed Product & Services may be subject to export control laws and regulations of the United States and/or other relevant jurisdictions. Subscriber shall not, directly or indirectly, export, re-export, or release any data, information, software programs, or materials related to or resulting from the Subscribed Product & Services, to or from any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Subscriber shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings related to the foregoing. Subscriber and Representatives are permitted to access the Subscribed Product & Services without regard to geographic location, and Subscriber shall be responsible to comply with all applicable laws, rules, and regulations related to the transfer of the Subscribed Product & Services, or other information or materials obtained or derived from the Subscribed Product & Services across different devices and/or geographic locations by any of its employees or agents.
7.3 Subscriber Equipment. Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Subscribed Product & Services or Technology, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Subscriber shall also be responsible for maintaining the security of the Equipment, and for all uses of Subscriber’s Equipment with or without Subscriber’s knowledge or consent. PICO PORTAL may perform periodic backups of data. However, Subscriber is solely responsible for all Subscriber Data and information maintained in Subscriber’s Account. Subscriber agrees that PICO PORTAL shall have no liability to Subscriber for any loss or corruption of any Subscriber Data or other information in Subscriber’s Account. Subscriber hereby waives any right of action against PICO PORTAL arising from any such loss or corruption of such data.
7.4 Subscriber is Responsible for its Representatives. Subscriber is responsible and liable for all use of the Subscribed Product & Services and Technology resulting from access provided by Subscriber and/or a Representative, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Subscriber is responsible for all acts and omissions of Representatives, and for their compliance with this Agreement. Any act or omission by a Representative that would constitute a breach of this Agreement if taken by Subscriber will be deemed a breach of this Agreement by Subscriber.
7.5 Subscribed Product & Services Updates. PICO PORTAL may update the Subscribed Product & Services or Technology at any time to reflect changes in, among other things, laws, regulations, rules, technology, industry practices and patterns of system use. PICO PORTAL will make reasonable efforts to ensure that any such updates do not materially reduce the level of performance, functionality, security or availability of the Subscribed Product & Services.
7.6 Subscribed Product & Services Maintenance & Support. PICO PORTAL shall use reasonable efforts consistent with industry standards to maintain the Subscribed Product & Services in a manner which minimizes errors and interruptions. The Subscribed Product & Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by PICO PORTAL or by third-party providers, or because of other causes beyond PICO PORTAL’s reasonable control, but PICO PORTAL shall use reasonable efforts to provide advance notice of any scheduled Subscribed Product & Services disruption.
7.7 Temporary Service Suspensions. Notwithstanding anything to the contrary in this Agreement, PICO PORTAL may temporarily suspend Subscriber’s and/or any Representative’s access to any portion or all of the Subscribed Product & Services if: (i) PICO PORTAL reasonably determines that (A) there is a threat or attack on any of the Technology; (B) Subscriber’s or any Representative’s use of the Subscribed Product & Services or Technology disrupts or poses a security risk to the Subscribed Product & Services or Technology; (C) Subscriber, or any Representative, is using the Subscribed Product & Services for fraudulent or illegal activities; (D) subject to applicable law, Subscriber has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) PICO PORTAL’s provision of the Subscribed Product & Services to Subscriber is prohibited by applicable law; (ii) any vendor of PICO PORTAL has suspended or terminated PICO PORTAL’s access to or use of any third-party services or products required to enable Subscriber to access the Subscribed Product & Services; or (iii) Subscriber fails to pay Fees for more than thirty (30) days beyond the date Fees are due, whether in whole or in part, in accordance with this Agreement (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). PICO PORTAL shall use reasonable efforts to provide written notice of any Subscribed Product & Services Suspension to Subscriber and to provide updates regarding resumption of access to the Subscribed Product & Services following any Subscribed Product & Services Suspension. PICO PORTAL will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber may incur as a result of a Subscribed Product & Services Suspension.
8. WARRANTIES; DISCLAIMER.
8.1 Mutual Warranties. Each Party executing this Subscription Agreement (“Executing Party”) warrants to the other Party: (i) that this Subscription Agreement has been validly executed and delivered by such Executing Party and that the provisions set forth herein constitute legal, valid and binding obligations of such Executing Party which are enforceable against such Executing Party in accordance with its terms; and (ii) that the Executing Party has all requisite corporate power and authority to enter into this Subscription Agreement and to carry out the transactions contemplated by this Subscription Agreement, and that the execution, delivery and performance of this Subscription Agreement and the consummation of the transactions contemplated by this Subscription Agreement have been duly authorized by all requisite corporate action on the part of the Executing Party.
8.2 PICO PORTAL Warranty. PICO PORTAL warrants to Subscriber that: (a) PICO PORTAL has the right to grant the licenses provided to Subscriber hereunder; (b) the provided Subscribed Product and Services do not contain any harmful code, viruses, malware or other similar mechanisms; and (c) the operation and performance of the provided Subscribed Product and Services shall materially conform to its specifications. The sole remedy for Subscriber under section (c) of this warranty is for Subscriber to follow the reporting procedures set forth in the Services section of the Subscription Schedule.
8.3 PICO PORTAL Disclaimer of Warranties. THE subscribed product AND SERVICES ARE PROVIDED BY PICO PORTAL “AS IS”. PICO PORTAL DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO ANY SUBSCRIBED PRODUCT AND SERVICES WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY.
9.1 LIMITATION ON TYPE OF DAMAGES. OTHER THAN DAMAGES FROM (I) A CLAIM FOR SUBSCRIBER’S BREACH OF SECTION 2 OR (II) A CLAIM FOR BREACH OF SECTION 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE AGREEMENT FAILS OF AN ESSENTIAL PURPOSE.
9.2 LIMITATION ON AMOUNT OF DAMAGES. IN NO EVENT SHALL PICO PORTAL BE LIABLE TO SUBSCRIBER FOR ANY CLAIMS ARISING UNDER THIS SUBSCRIPTION AGREEMENT FOR ANY AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY PAID BY SUBSCRIBER TO PICO PORTAL IN THE TWELVE MONTHS PRIOR TO EVENT CAUSING THE LIABILITY. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT INCREASE THIS LIMIT.
9.3 LIMITATION ON TIME OF ACTION. NO ACTION ARISING OUT OF THIS SUBSCRIPTION AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
10.INDEMNIFICATION.
10.1 PICO PORTAL’s Indemnification. PICO PORTAL shall indemnify, defend and hold Subscriber harmless from any and all costs (including reasonable attorneys’ fees), losses, damages, expenses, liabilities and penalties arising from, or in connection with, a third-party claim, suit, demand or other proceeding based upon any Subscribed Product & Services infringing upon any U.S. patent, copyright, trade secret or other intellectual property right of such third party. In the event a court of competent jurisdiction issues a final non-appealable order enjoining use of any Subscribed Product & Services based upon a such a claim, PICO PORTAL shall, at no expense to Subscriber, either: (a) procure for Subscriber the right to continue to use the effected Subscribed Product & Services, or (b) provide Subscriber with a non-infringing version of the effected Subscribed Product & Services with substantially similar functionality, or, if neither (a) nor (b) are financially practical, (c) withdraw the effected Subscribed Product & Services from the market. PICO PORTAL’s obligations under this paragraph with respect to an action are conditioned on: (a) the Subscriber notifying PICO PORTAL promptly in writing of such action; (b) the Subscriber giving PICO PORTAL sole control of the defense thereof and any related settlement negotiations; (c) the Subscriber cooperating with PICO PORTAL in such defense; and (d) the Subscriber not breaching any material term of this Subscription Agreement. Notwithstanding the obligations set forth in this Section 9.1, PICO PORTAL shall have no obligation to defend, indemnify or assume any expenses, or pay any settlement or damages if the alleged infringement is based on: (a) the combination by Subscriber of Subscribed Product & Services with non-PICO PORTAL software other than as explicitly approved in writing by PICO PORTAL; (b) use for a purpose or in a manner for which the Subscribed Product & Services were not designed or approved by PICO PORTAL or Subscriber’s failure to use any Subscribed Product & Services in accordance with the Documentation; (c) any version, modification or adaptation of any Subscribed Product & Services, if the claim would have been avoided by use of the current unaltered release of such Subscribed Product & Services; (d) any modification not made with PICO PORTAL’s written approval; or (e) any grossly negligent or willful act or omission by or attributable to Subscriber. THIS SECTION 10.1 STATES SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY AND PICO PORTAL’S ENTIRE LIABILITY FOR ANY THIRD-PARTY CLAIMS.
11. PRESS RELEASE.</lp
In connection with this Subscription Agreement, PICO PORTAL may cite Subscriber as a subscriber of the Subscribed Product & Services in press releases and other promotional material.
12. MISCELLANEOUS.
12.1 Notices. All notices required to be given hereunder shall be given to the respective Parties by hand delivery or reputable overnight delivery service. Either Party may change its contact person, address and notice purposes by giving the other Party written notice of the new address and the date upon which it will become effective in accordance with this section.
12.2 Compliance with Laws. Subscriber represents and agrees that it will use each Subscribed Product & Services made available by PICO PORTAL hereunder in compliance with all applicable federal, state, and local laws and regulations, and communications common carrier tariffs. PICO PORTAL reserves the right to take all actions, which it believes necessary, in its sole discretion, to comply with applicable laws, regulations and tariffs. Subscriber agrees to discontinue any improper use of the Subscribed Product & Services promptly after receipt of written notice from PICO PORTAL as is reasonably feasible under the circumstances.
12.3 Assignment; Successors. This Subscription Agreement is not assignable or transferable by Subscriber in whole or in part, by operation of law or otherwise, without the prior written consent of PICO PORTAL, not be unreasonably withheld. PICO PORTAL may assign this Agreement upon notice to Subscriber. This Subscription Agreement shall inure to and be binding upon the Parties’ respective successors and assigns.
12.4 Exclusion of Third-Party Rights. Notwithstanding anything contained herein, an entity that is not a party to this Agreement has no right to enforce any term of this Agreement and shall not be a third-party beneficiary hereof.
12.5 Severability. In the event that any portion of this Subscription Agreement adjudged to be void or unenforceable, that portion shall be severed and the remainder of the provisions of this Subscription Agreement shall continue and shall be effective and enforceable.
12.6 Waiver. No delay or omission by either Party to exercise any right or power hereunder shall preclude the exercise of such right or power in subsequent instances or be construed to be a waiver. A waiver by either Party of any of the covenants to be performed by the other Party shall not be construed to be a waiver of any other covenant herein contained or a subsequent waiver of the same covenant, and the waiver of any breach of covenant shall not be construed to be a waiver of any succeeding breach.
12.7 Force Majeure. Except for Subscriber’s financial obligations to PICO PORTAL, neither Party shall be responsible for delays or failures in performance resulting from acts or events beyond its control, whether foreseeable or not, including, but not limited to acts of nature, governmental actions, fire, labor difficulties or shortages, terrorism, civil disturbances, transportation problems, interruptions of power, supply or communications or natural disasters.
12.8 Governing Law; Venue. The construction, interpretation and performance of this Subscription Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to any conflicts of law principles that would require application of the laws of any other jurisdiction. Any action or dispute arising out of this Subscription Agreement shall be brought in a state or federal court in the County of New York, State of New York (and any appellate courts therefrom) with jurisdiction over the subject matter.
12.9 Injunctive Relief. Subscriber acknowledges that any breach of its obligations under Section 2.2, Section 5 or Section 6 will cause irreparable harm to PICO PORTAL for which its remedies at law will be inadequate in these cases, PICO PORTAL shall be entitled to obtain injunctive relief from any court of competent jurisdiction without posting a bond therefor.
12.10 Independent Contractor. PICO PORTAL and the Subscriber are independent contractors, and this Subscription Agreement does not create any joint venture/collaboration, partnership, principal-agent relationship, or any other relationship between the Parties hereto.
12.11 Non-Solicitation of Employees. During the term of this Subscription Agreement and for a period of one (1) year following its termination, Subscriber—without PICO PORTAL’s permission—shall not (directly or indirectly): (a) solicit for employment or contract with any PICO PORTAL employee; or (b) employ or contract with any PICO PORTAL employee.
12.12 Entire Subscription Agreement; Survival. This Subscription Agreement and its Subscription Schedules constitute the entire agreement between the Parties with respect to the subject matter hereof and there are no written or oral representations, understandings or agreements that are not fully expressed herein. No change, waiver, or discharge of this Subscription Agreement or any Subscription Schedule shall be valid unless in writing and signed by authorized representatives of both Parties.