1.0 SERVICES AND SUPPORT
- Services. Subject to Customer’s payment of the Fees (as defined below) and Customer’s compliance with the restrictions set forth in Section 2.1 and Section 3, Vendor will use commercially reasonable efforts to provide Customer with access to the Vendor software-as-a-service platform described on Exhibit A (the “ Platform”, and such provision, the “Service”) during the Term (as defined below). Customer may only access and use the Platform for Customer’s internal business purposes and in accordance with the Documentation (as defined below). Vendor will provide Customer with access information and account credentials for the Platform. All such information and credentials shall be deemed Vendor’s Confidential Information.
- Customer Materials. Customer hereby grants, and represents and warrants that Customer has all right necessary to grant, to Vendor, a royalty-free, fully paid up, transferable, non-exclusive, worldwide license to use, distribute, reproduce, publically display, publically perform, and create derivative works of any information, data, multimedia, video, audio, materials, or content that Customer provides to Vendor (collectively, the “Customer Materials”) for the purposes of: (i) providing the Service to Customer and (ii) developing, maintaining, supporting, or improving the Platform. Vendor may host and store Customer Materials in order to provide the Platform to Customer hereunder and may aggregate Customer data with other data and collect technical information and data about Customer’s use of the Platform.
- Technical Support. Vendor shall use reasonable efforts consistent with prevailing industry standards to maintain the Platform in a manner that minimizes errors and interruptions in the Platform. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Vendor or by third-party providers, or because of other causes beyond Vendor’s reasonable control, but Vendor shall use reasonable efforts to provide advance notice in writing or by e-mail to Customer of any scheduled service disruption.
- Feedback. Customer may have the opportunity to present Vendor with recommendations or feedback for new features, functionality, or other improvements to the Platform (“Feedback”), which Vendor will consider, at its sole discretion, implementing in future updates to the Platform. The Parties agree that all Feedback is and shall be given voluntarily. Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Vendor. Customer will not provide Vendor with any Feedback that Customer is not authorized or permitted to provide to Vendor. Vendor shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to Vendor in Vendor’s sole discretion, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
- Ownership. Except for the rights expressly granted in this Agreement, Vendor retains all right, title, and interest, including all intellectual property rights, in and to the Platform and the Documentation. No implied license or right is granted by Vendor, by estoppel, reliance, or otherwise.
2.0 RESTRICTIONS & RESPONSIBILITIES
- Restrictions. Customer shall not, and shall not permit or authorize any Customer employees or contractors to, share any account or access credentials for the Platform with third parties or exceed any usage restrictions for the Platform set forth in Exhibit A or separately agreed in writing by the Parties. Customer shall establish appropriate security measures, consistent with industry standards, to protect the Platform from unauthorized use. Customer shall notify Vendor immediately of any actual or alleged unauthorized use of the Platform. Customer shall not, and shall not permit or authorize any Customer employees or contractors, or third parties to, 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 Platform or the documentation provided hereunder (the “Documentation”), or data related to the Platform; (ii) modify, translate, or create derivative works based on, the Platform, or the Documentation; (iii) license, rent, transfer, assign or use the Platform for timesharing, resale, or service bureau purposes or otherwise for the benefit of a third party; (iv) remove any proprietary notices or labels from the platform; (v) use the Platform to store or transmit any viruses, software routines, or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (vi) copy, frame or mirror any part or content of the Platform; (vii) access or use the Platform or the Documentation in order to build a competitive product or service; (viii) publish or otherwise disclose to any third party any results of any benchmark or other performance tests of the Platform; (ix) take any action that imposes an unreasonable or disproportionally large load on Vendor’s infrastructure; or (x) interfere with or disrupt the integrity or performance of the Platform. Vendor may monitor Customer’s use of the Platform may prohibit any use of the Platform it reasonably believes may be in violation of the foregoing restrictions. Vendor may utilize technical measures to prevent over usage and/or stop usage of the Platform by Customer after any usage limitations are exceeded.
- Export. Customer may not remove or export from the United States or allow the export or re-export of the Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Platform and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, 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.
- Publicity. The Parties shall issue a joint press release announcing the fact of this Agreement and describing the nature of their relationship hereunder, and the content and timing of the press release shall be mutually agreed upon. Provided that Vendor complies with Customer’s brand guidelines as provided to Vendor from time to time, Vendor will have the right to list Customer as a customer in written, oral, and electronic materials, which include the names of Vendor’s customers and provide Customer as a customer reference for Vendor. Customer will also, in good faith, consider participating in a case study or “Success Story” regarding Customer’s use of the Platform.
- Confidential Information. The term “Confidential Information” means any information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether before or after the Effective Date, that: (i) is in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature; (ii) should be reasonably understood by Receiving Party to be the confidential or proprietary information of Disclosing Party; or (iii) that is oral information disclosed by Disclosing Party to Receiving Party, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by Disclosing Party within a reasonable time after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to Receiving Party. The Platform and Documentation shall be Vendor’s Confidential Information and Customer Materials shall be Customer’s Confidential Information.
- Confidentiality. Receiving Party shall treat as confidential all Confidential Information of Disclosing Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, Receiving Party shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of Disclosing Party. Receiving Party shall promptly notify Disclosing Party of any actual or suspected misuse or unauthorized disclosure of Disclosing Party’s Confidential Information.
- Exceptions. The obligations set forth in Section 3.2 above shall not apply to information that Receiving Party can show: (i) was in the public domain at the time it was disclosed or has become in the public domain through no act or omission of Receiving Party; (ii) was known to Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) was independently developed by Receiving Party without any use of Disclosing Party’s Confidential Information; or (iv) becomes known to Receiving Party, without restriction, from a source other than Disclosing Party without breach of an obligation to keep such information in confidence.
- Compelled Disclosure. If the Confidential Information of Disclosing Party must be disclosed by Receiving Party pursuant to the order or requirement of a court, administrative agency, or other governmental body, Receiving Party shall: (i) provide prompt notice thereof to Disclosing Party; (ii) use its commercially reasonable efforts to cooperate with Disclosing Party to obtain a protective order or otherwise prevent public disclosure of such information; and (iii) limit the disclosure to the exact Confidential Information (or portion thereof) required to be disclosed.
- Confidentiality of Agreement. Each Party agrees that the terms and conditions, but not the existence, of this Agreement shall be treated as the other Party’s Confidential Information and that no reference to the terms and conditions of this Agreement or to activities pertaining thereto can be made in any form without the prior written consent of the other Party; provided, however, that a Party may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of such Party; (iv) in connection with the requirements of an initial public offering or securities filing; (v) in confidence, to accountants, banks, and financing sources and their advisors; (vi) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vii) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
- Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, Receiving Party shall deliver to Disclosing Party all of Disclosing Party’s Confidential Information that Receiving Party may have in its possession or control or, at Disclosing Party’s option, shall destroy all such Confidential Information and certify such destruction in a writing signed by an authorized officer of Receiving Party.
- Resultant Data. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that Vendor shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and related systems and technologies (including, without limitation, information concerning Customer Materials and data derived therefrom) (collectively, “Resultant Data”), and Vendor will be free (during and after the term of this Agreement) to (i) use such Resultant Data to improve and enhance the Platform for other development, diagnostic and corrective purposes in connection with the Platform or other Vendor products or services and (ii) disclose such Resultant Data to third parties.
4.0 PAYMENT OF FEES
- Fees. Customer will pay Vendor the fees described in Exhibit A (the “Fees”) not later than 30 days following Customer’s receipt of an invoice therefor. Customer will pay the Fees in accordance with the manner and method designated by Vendor. If Customer believes that Vendor has billed Customer incorrectly, Customer must contact Vendor 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. Inquiries should be directed to Vendor’s customer support department. Vendor reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term and each Renewal Term, upon 30 days’ prior notice to Customer (which may be sent by email).
- Interest; Taxes. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Customer’s access and license to the Platform. Customer shall be responsible for all taxes associated with the Platform other than U.S. taxes based on Vendor’s net income.
5.0 TERM AND TERMINATION
- Term. The term of this Agreement will commence on the Effective Date and remain in effect for a period of time specified in your purchase order agreement (the “Initial Term”). Thereafter, the term of this Agreement will automatically renew for additional periods of one year each (each, a “Renewal Term” and all applicable Renewal Terms together with the Initial Term, the “Term”) unless and until either Party requests termination at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term, as applicable.
- Termination. In addition to any other remedies it may have, a Party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other Party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within such 30-day notice period, provided, however, that in the event that any material breach by Vendor requires more than 30 days to cure, Customer shall not be entitled to terminate this Agreement if Vendor promptly commences to cure such breach and proceeds diligently until cured. In the event of termination or expiration of this Agreement for any reason, Customer will pay in full for the Platform up to and including the last day on which the Platform is provided. Following the termination of this Agreement, Customer will immediately discontinue use of the Platform, and destroy any copies of the Software. Customer agrees to provide written confirmation of its compliance with the foregoing requirement upon Vendor’s written request.
- Suspension and Termination. Notwithstanding anything to the contrary in this Agreement, if Customer violates the restrictions set forth in Section 2.1, Vendor may immediately upon notice to Customer, suspend or terminate Customer’s access to the Platform.
- Survival. The following sections of this Agreement will survive the termination or expiration of this Agreement for any reason: Sections 1.4, 1.5, 2.1, 2.2, 2.3, 3, 4, 5.4, and 6-9.
6.0 WARRANTY AND DISCLAIMER
- Representations and Warranties. Each Party represents and warrants to the other Party that it has the full power to enter into this Agreement and to perform its obligations hereunder. Vendor represents and warrants to Customer that to the knowledge of the Vendor, the Platform when and as delivered or provided to Customer is free of any code that is designed to disrupt, disable, harm, modify, delete, or otherwise impair the operation of the Platform or any of Customer’s software, computer systems, or networks. Vendor’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of the warranty set forth above shall be Vendor’s use of reasonable efforts to maintain the Platform as described in Section 1.3 above.
- Disclaimer. VENDOR does not warrant that the Platform will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Platform. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM IS PROVIDED “AS IS” AND VENDOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Indemnification of Customer. Vendor agrees to defend Customer from (or at Vendor’s option, settle) any thirdparty claims, actions, suits, or proceedings alleging that Customer’s use of the Platform as authorized hereunder infringes any United States copyright or misappropriates any trade secret of such third party (a “Claim Against Customer”). Vendor shall pay any final award entered into against Customer, or the amounts set forth in any final settlement entered into on Customer’s behalf, in each case, arising from a Claim Against Customer. Vendor’s obligations under this Section 7.1 are conditioned on Customer’s: (i) promptly notifying Vendor of a Claim Against Customer; (ii) giving Vendor all reasonable assistance in connection with the defense of a Claim Against Customer; (iii) permitting Vendor to have sole control over the defense or settlement of a Claim Against Customer; and (iv) being in compliance with the terms and conditions of this Agreement. Vendor will not be responsible for any settlement of a Claim Against Customer that Vendor does not approve in writing. Vendor’s obligations under this Section 7.1 do not apply with respect to any Claim Against Customer arising out of or based on: (a) materials, equipment, software, or technology not supplied by Vendor; (b) Vendor’s compliance with the written instructions provided by Customer; (c) modification of the Platform by any third party; (d) combination of the Platform with any materials, equipment, software, or technology where the alleged infringement would not have arisen in the absence of such combination; (e) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (f) open source software supplied or used with the Platform. If the Platform is held by a court of competent jurisdiction to be infringing or is believed by Vendor to be infringing, Vendor may, at its option and expense (A) replace or modify the Platform to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (B) obtain for Customer the right to continue using the Platform; or (C) terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid fees for the Platform. This Section 7.1 sets forth Vendor’s sole liability, and Customer’s sole remedy, for claims related to infringement, violation, or misappropriation of third-party intellectual property rights.
- Indemnification of Vendor Parties. Customer shall defend Vendor, its affiliates, and its and their directors, employees, suppliers, licensors, representatives, and agents (collectively, the “Vendor Parties”) from (or at the applicable Vendor Party’s option, settle) any third-party claims, actions, suits, or proceedings alleging (i) damages, costs, liabilities, or expenses arising out of Customer’s use of the Platform, but excluding any Claim Against Customer that Vendor is obligated to defend under Section 7.1 above or (ii) that Vendor’s use and exploitation of the Customer Materials as authorized and licensed hereunder infringes, violates, or misappropriates the intellectual property rights of a third party (each of (i) and (ii), a “Claim Against Vendor”). Customer shall pay any final award entered into against Vendor Party, or the amounts set forth in any final settlement entered into on Vendor Party’s behalf, in each case, arising from a Claim Against Vendor. Customer’s obligations under this Section 7.2 are conditioned on the applicable Vendor Party’s: (a) promptly notifying Customer of a Claim Against Vendor, (b) giving Customer all reasonable assistance in connection with the defense of a Claim Against Vendor, and (c) permitting Customer to have sole control over the defense or settlement of a Claim Against Vendor. Customer will not be responsible for any settlement of a Claim Against Vendor that Customer does not approve in writing.
8.0 LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR BODILY INJURY OF A PERSON, VENDOR AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (ii) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (iii) FOR ANY MATTER BEYOND VENDOR’S REASONABLE CONTROL. THE AGGREGATE LIABILITY OF VENDOR AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO VENDOR FOR THE PLATFORM UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Notwithstanding anything to the contrary in this Agreement, no default, delay, or failure to perform on the part of Vendor will be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of the Vendor, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier. Customer acknowledges and agrees that any breach of its obligations with respect to Vendor’s Confidential Information and intellectual property rights may cause substantial harm to Vendor, which could not be remedied by payment of damages alone. Accordingly, Customer hereby agrees that Vendor will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the Parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This Agreement is not assignable by Customer except with Vendor’s prior written consent. A change of control of Customer (whether by merger, sale of equity, operation of law, or otherwise) shall be deemed an assignment requiring Vendor’s prior written consent. Any assignment in violation of the foregoing shall be void and of no force or effect. Vendor may transfer and assign any of its rights and obligations under this Agreement without Customer’s consent. This Agreement will be binding upon and inure to the benefit of the Parties, their successors, and permitted assigns. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers, amendments, and modifications of this Agreement must be in a writing signed by authorized representatives of each Party. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Vendor in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting Party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.” This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the State of California with regard to the resolution of any dispute arising out of or in connection with this Agreement. The application of the UN Convention of International Sale of Goods to this Agreement is disclaimed in its entirety. This Agreement may be executed in two counterparts, each of which will be deemed an original and which together will constitute one instrument.