This Master Software and Services Agreement (this “Agreement”) is by and between Advantive LLC, a
Delaware limited liability company, or its local affiliate, with offices located at 4221 W. Boy Scout Blvd., Suite
390 Tampa, FL 33607 (“Provider”) and [Customer Name], a [Corporation Type] with offices located at
[Counterparty Street Address – Billing], [Counterparty City], [Counterparty State] [Counterparty Zipcode], acting on
behalf of itself and its Affiliates, (collectively, “Customer”). Provider and Customer may be
referred to herein collectively as the “Parties” or individually as a “Party.” The
effective date of this Agreement is the date when Customer signs this Agreement (“Effective Date”).
WHEREAS, Provider provides licenses to On-Premises Software and subscription-based access to Hosted Services to its
customers; and
WHEREAS, Customer desires to license and access the On-Premises Software and/or Hosted Services as specified in an
Order Form, and Provider desires to provide Customer a license and access to the On-Premises Software and/or Hosted
Services elected by Customer in the Order Form, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
- Definitions.
- “Affiliate” means with respect to a party, any corporation or other legal entity
that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with that party. The term “control” (including the terms “controlled by” and
“under common control with”) means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such entity, organization or body, whether
through the ownership of voting securities or otherwise.
- “Authorized User” means Customer’s employees, consultants, contractors, and agents
(i) who are authorized by Customer to access and use the On-Premises Software and/or Hosted Services
on behalf of Customer under the rights granted to Customer pursuant to this Agreement and (ii) in
the case of SaaS or hosted services, for whom a unique user name and password to access to the
Hosted Services has been provisioned per the terms and conditions of this Agreement.
- “Customer Data” means, other than Non-Identifiable Aggregated Data, all information
and data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer
or an Authorized User to Provider or that is received and analyzed by the On-Premises Software or
Hosted Services.
- “Customer Equipment” means all hardware, software, modems, routers,
telecommunication or Internet connections, and other communications equipment required for Customer
and its Authorized Users to access and use the On-Premises Software and Hosted Services
- “Documentation” means the then-current documentation made generally available by
Provider to its customers regarding use of the On-Premises Software or Hosted Services (as
applicable).
- “Delivery Date” means the date, set forth in the applicable Order Form, on which the On-Premises
Software or Hosted Services is scheduled to be made available to Customer.
- “Derivative Works” shall mean a revision, enhancement, modification, translation,
abridgment, condensation or expansion of any Provider IP, including but not limited to any
developments created by Provider for Customer under a Service Addenda.
- “Fees” means those sums as set forth in the applicable Order Form and Service
Addenda without offset or deduction.
- “Hosted Services” means software as a service and hosted services made available by
Provider to Customer under this Agreement on a recurring basis, as specified in an Order Form.
Hosted Services may include SaaS services, hosted services, and other cloud-based services. .
- “License Term” means the license period for Customer’s use of the On-Premises Software set forth in
an Order Form. The License Term may include a perpetual license period that continues until
terminated.
- “Non-Identifiable Aggregated Data” shall have the meaning set forth in Section 2(e)
herein.
- “On-Premises Software” means the software product(s) delivered and installed on
Customer’s premises or equipment and licensed by Provider to Customer under this Agreement, as
specified in an Order Form.
- “Order Form” means each order form entered into by the Parties and referencing this
Agreement. Order Forms may be submitted and accepted electronically or in writing
- “Professional Services” means engineering requests, implementation, installation, configuration,
project management, training or consulting services that Provider may perform as described in a
statement of work executed by the Parties.
- “Provider IP” means the On-Premises Software, Hosted Services, and any and all
intellectual property provided to Customer or any Authorized User in connection with the foregoing.
For the avoidance of doubt, Provider IP includes any information, data, or other content derived
from Provider’s monitoring of Customer’s access to or use of the On-Premises Software and Hosted
Services, but does not include Customer Data.
- “SaaS” means Software-as-a-Service offerings, as generally known in the industry.
- “Services” shall mean those services as agreed to between the Parties and set forth
in the Service Addenda.
- “Service Addenda” shall mean, individually or collectively, the attached
Professional Services Addendum, Maintenance and Support Services Addendum, statements of work, order
forms, and other addenda made a part of this Agreement from time to time.
- “Service Suspension” means Provider’s ability to suspend service as provided for in
Section 2(d) of this Agreement.
- “Subscription Term” means, with respect to each item of Hosted Services or
On-Premises Software (if by subscription) included in each Order Form, the term specified in that
Order Form for that item of Hosted Services or On-Premises Software (if by subscription).
- “Support Period” means the period of time set forth on an Order Form for which
Provider is providing Support Services to the Customer.
- “Support Services” means the support and maintenance services offered by Provider and purchased by
Customer separately pursuant to an Order Form.
- License, Access and Use.
- License Grant; Provision of Access.
- On-Premises Software License. If Customer orders On-Premises Software under an Order
Form, then, subject to and conditioned on Customer’s payment of the Fees and compliance with
all other terms and conditions of this Agreement, Provider hereby grants to Customer and its
Authorized Users a limited, revocable, non-exclusive, non-sublicensable, and
non-transferable (except in compliance with Section 12(g)) license to use the current
version of Provider’s On-Premises Software as elected and described in the applicable Order
Form on the devices and at the location specified in the Order Form, during the License Term
or Subscription Term (as applicable) set forth in the Order Form, solely for use by
Authorized Users in accordance with the terms and conditions herein. Such use is limited to
Customer’s internal use. If Customer purchases a perpetual license as specified in the
applicable Order Form, then such license will continue until terminated. The On-Premises
Software is licensed to Customer, not sold.
- Subject to the terms and conditions contained in this Agreement, Customer may
purchase licenses for Authorized Users to use the On-Premises Software pursuant to
Order Forms. Unless otherwise specified in the applicable Order Form, On-Premises
Software may be used by no more than the number of Authorized Users specified in the
applicable Order Form. Authorized User licenses are for designated Authorized
Users only and cannot be shared or used by more than one Authorized User,
but may be reassigned to new Authorized Users replacing former Authorized Users who
no longer require ongoing use of the On-Premises Software.
- Customer agrees that its purchases hereunder are neither contingent on the delivery
of any future functionality or features nor dependent on any oral or written public
comments made by Provider regarding any future functionality or features.
- Hosted Services. If Customer orders Hosted Services under an Order Form, then,
subject to and conditioned on Customer’s payment of Fees and compliance with all other terms
and conditions of this Agreement, Provider hereby grants Customer’s Authorized Users a
revocable, non-exclusive, non-sublicensable, and non-transferable (except in compliance with
Section 12(g)) right to access and use the Hosted Services elected and specified in the
applicable Order Form, during the Subscription Term set forth in the Order Form, solely for
use by Authorized Users in accordance with the terms and conditions herein. Such use is
limited to Customer’s internal use.
- Provider will provide Authorized Users necessary credentials to allow Authorized
Users customer-level access the Hosted Services set forth on the Order Form. The
total number of Authorized Users will not exceed the number set forth in the Order
Form, except as expressly agreed to in writing by the Parties and subject to any
appropriate adjustment of the Fees payable hereunder. Authorized User
credentials cannot be shared or used by more than one Authorized User; no user
credential sharing is allowed.
- Provider shall use commercially reasonable efforts to ensure the availability and
functionality of the Software. In the event of an outage, and the cause of the
outage being within the Provider’s direct control, including but not limited to
software defects, server failures, or maintenance errors (“Internal Outage”), the
Provider will promptly work to restore the Software to normal operation. Provider
will provide notice of such interruption within a reasonable time following the
occurrence of an internal outage and will make reasonable efforts to prevent future
occurrences, including the implementation of necessary fixes or enhancements. Hosted
Services may rely on third-party services and infrastructure for which Provider is
not responsible and any such interruption, failure in availability or performance to
the extent such issues are caused by third-party services (“Third-Party Outage”).
Provider shall not be liable for any unavailability or failure of the Hosted
Services to the extent that such unavailability or failure is attributable to a
Third-Party Outage. Outages which are caused by the Customer’s system(s) resulting
from the actions of Customer which may cause a system outage within Provider’s
Software (“Customer Outages”) shall be the sole responsibility of Customer to
address and resolve.
- If applicable, Customer shall provide (and continue to update) the legal entity name(s) of
any Affiliates that are likely to have Authorized Users under this Agreement.
- Customer acknowledges that Provider reserves the right, at any time and without notice, to
monitor compliance with the terms of this Agreement and to otherwise protect its rights in
and to the On-Premises Software and Hosted Services by incorporating license management
technology into the On-Premises Software and Hosted Services and monitoring usage,
including, without limitation, time, date, internet protocol address, access or other
controls, counters, serial numbers and/or other security devices.
- Use Restrictions.
- Customer shall require that its Authorized Users comply with all relevant terms of this
Agreement and any failure to comply with a material term or repeated failures to comply will
constitute a breach by Customer. Customer shall not use the On-Premises Software or Hosted
Services for any purposes beyond the scope of the license or access granted in this
Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any
Authorized Users or third party to: (i) copy, modify, or create derivative works of the
On-Premises Software or Hosted Services, in whole or in part in any manner except in
furtherance of its legitimate business interests and such use by Customer is not done to
permit or allow the Customer or any third party the ability to reverse engineer or utilize
the On-Premises Software or Hosted Services that is or could be detrimental or adverse to
the interests (including financial interests) of Provider; (ii) rent, lease, lend, sell,
license, sublicense, assign, distribute, publish, transfer, or otherwise make available the
On-Premises Software or Hosted Services; (iii) reverse engineer, disassemble, decompile,
decode, adapt, or otherwise attempt to derive or gain access to any software component of
the On-Premises Software or Hosted Services, in whole or in part; (iv) remove any
proprietary notices from the On-Premises Software or Hosted Services; (v) permit any third
party to access or use the On-Premises Software or Hosted Services other than an Authorized
User; (vi) use the On-Premises Software or Hosted Services in any manner or for any purpose
that infringes, misappropriates, or otherwise violates any intellectual property right or
other right of any person, or that violates any applicable law; or (vii) use any On-Premises
Software or Hosted Services, or allow the transfer, transmission, export, or re-export of
the On-Premises Software or Hosted Services or portion thereof, in violation of any
applicable law or regulation, including any export control laws or regulations administered
by the U.S. Commerce Department or any other government agency.
- Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this
Agreement. Except for the limited rights and licenses expressly granted under this Agreement,
nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any
third party any intellectual property rights or other right, title, or interest in or to the
Provider IP. Without limiting the foregoing, Provider and its licensors retain all right, title and
interest in the On-Premises Software and Hosted Services, all copies and derivatives, modifications,
and improvements thereof, and all proprietary rights in the On-Premises Software and Hosted
Services, including copyrights, patents, trademarks and trade secret rights.
- Suspension.
- Notwithstanding anything to the contrary in this Agreement, Provider may, in its sole
discretion, suspend Customer’s and any Authorized User’s access to any portion or all of the
On-Premises Software and/or Hosted Services if: (i) Provider reasonably determines that (A)
there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized
User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any
other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the
Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer
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; (E) Provider’s
provision of the On-Premises Software and/or Hosted Services to Customer or any Authorized
User is prohibited by applicable law or such suspension is necessary to comply with any law,
regulation, court order, or other governmental request or to otherwise protect Provider from
potential legal liability; or (F) a user of the Provider IP is suspected to not be an
Authorized User or if an Authorized User has shared credentials or allowed access to the
system by a non-Authorized User; (ii) any vendor of Provider has suspended or terminated
Provider’s access to or use of any third-party services or products required to enable
Customer to access the On-Premises Software and/or Hosted Services and any suspension or
termination as result of an Internal Outage as seen in 2(a)(ii)(C) above ; or (iii) in
accordance with Section 5(b)(iii) (any such suspension described in subclause (i), (ii), or
(iii), a “Service Suspension”). Provider shall use commercially reasonable
efforts to provide written notice of any Service Suspension to Customer and to provide
updates regarding resumption of access to the On-Premises Software and/or Hosted Services
(as applicable) following any Service Suspension. Provider shall use commercially reasonable
efforts to resume providing access to the On-Premises Software and/or Hosted Services (as
applicable) as soon as reasonably possible after the event giving rise to the Service
Suspension is cured by the Customer. Provider shall have the option to charge a reactivation
fee upon the curing of the event giving rise to the Service Suspension. Provider will have
no liability for any damage, liabilities, losses (including any loss of data or profits), or
any other consequences that Customer or any Authorized User may incur as a result of a
Service Suspension.
- Service Suspensions in accordance with 2(d)(i),(ii), and (iii) for On-Premises
Software shall mean suspended access to Support Services
- Service Suspension in accordance with 2(d)(i),(ii), and (iii) for Hosted Services
means removal of access to licensed services as well as suspension of Support
Services.
- Support Services may be placed on hold for the reasons enumerated in Section 2(d)(i),(ii),
and (iii) as well as for non-payment of fees according to the Order Form. Hosted Services,
suspension would mean a loss of access to SaaS, Services, and Support Services while
On-Premises Services will lose access to Services and Support Services. Such suspension will
remain in effect until such a time when the cause for suspension has been cured. For
On-Premises.
- Use of Non-Identifiable Aggregated Data. Provider has the right to collect and use anonymized
generic information derived from Customer Data processed by the On-Premises Software and Hosted
Services or to aggregate it with anonymized generic information from other customers
(“Non-Identifiable Aggregated Data”) for Provider’s reasonable business purposes,
including without limitation for analyzing customer needs and improving the On-Premises Software and
Hosted Services. Customer agrees that Provider may (i) make Non-Identifiable Aggregated Data
publicly available in compliance with applicable law, and (ii) use Non-Identifiable Aggregated Data
to the extent and in the manner permitted under applicable law.
- Third-Party Software. Customer acknowledges that the Services may contain software licensed
to Provider from third parties (“Third Party Software”), and that the Third-Party Software is not
owned by Provider and may be subject to additional restrictions imposed by the Third-Party Software
licensor. Customer agrees to abide by such additional restrictions. Certain items of independent,
third-party code may be included in the On-Premises Software and Hosted Services that are subject to
the GNU General Public License (“GPL”) or other Open-source licenses (“Open-Source Software”). Such
Open-Source Software is licensed under the terms of the license that accompanies such Open-Source
Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that
supersede, the terms and conditions of any applicable end user license for such Open-Source
Software. For a list of Open Software and Third-Party Software used in the On-Premises Software
and/or Hosted Services please see Schedule B (Open Source and Third-Party Software Licenses).
- Professional Services. From time to time, Customer may request that Provider provide certain
Professional Services with respect to Customer’s use of the On-Premises Software or Hosted
Services. Subject to the payment of all applicable fees for such Professional Services, Provider
will provide Professional Services in accordance with the terms and conditions of the Professional
Services Addendum attached to this Agreement and incorporated herein by this reference as well as
the applicable statement of work.
- Customer Responsibilities.
- System and Equipment. Customer and Authorized Users are solely responsible for (i)
obtaining, deploying and maintaining all hardware, software, modems, routers,
telecommunication or Internet connections, and other communications equipment required for
Customer and its Authorized Users to access and use the On-Premises Software and Hosted
Services; and (ii) paying all third party fees and access charges incurred in connection
with the foregoing. Except as specifically set forth in this Agreement, an Order Form or a
Service Addenda, Provider shall not be responsible for supplying any hardware, software or
other equipment to Customer or Authorized Users under this Agreement. Customer will be
responsible for all timely payments despite any delays caused by its failure to timely
obtain any necessary Customer Equipment.
- Access and Use. Customer is responsible and liable for all uses of the On-Premises
Software and Hosted Services resulting from access provided by Customer or provided to
parties at Customer’s direction, directly or indirectly, whether such access or use is
permitted by or in violation of this Agreement. Without limiting the generality of the
foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any
act or omission by an Authorized User that would constitute a breach of this Agreement if
taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use
reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as
applicable to such Authorized User’s use of the On-Premises Software and Hosted Services (as
applicable), and shall cause Authorized Users to comply with such provisions.
- General. Customer is solely responsible for the accuracy, quality, integrity,
legality, reliability and appropriateness of all Customer Data. Customer shall comply with
all applicable laws, rules and regulations in using the On-Premises Software and Hosted
Services.
- Support.
- Support. The license and access rights granted hereunder may entitle Customer to the
Support Services described in the Service Addenda for so long as Customer is licensing the
On-Premises Software or subscribing to the Hosted Services (as applicable) pursuant to this
Agreement and so long as Customer is not in breach of this Agreement. To the extent
specified in an Order Form, Provider will provide Support Services for the period set forth
in the Order Form (the “Support Period”) for the support fee set forth in
such Order Form and in accordance with the terms of the Service Addenda. Following the
initial Support Period, Support Services will automatically renew for successive three-year
terms or for the term indicated in the Order Form when applicable, unless Customer gives
Provider written notice at least ninety (90) days prior to the end of the then-current
Support Period. If Customer terminates Support Services, but later desires to reinstate
Support Services, Customer and Provider will mutually agree on the cost of those reinstated
Support Services, which may include, in Provider’s discretion, a reinstatement fee.
Provider may terminate Support Services on no less than ninety (90) days written notice
prior to the then current support period to Customer.
- Updates and Upgrades. Provider may update or enhance the On-Premises Software and/or
Hosted Services from time to time. Unless otherwise specified in an applicable Order Form,
Provider will include in the On-Premises Software or Hosted Services (as applicable) any
such updates or enhancements that Provider generally makes available in the ordinary course
to all of its customers of the On-Premises Software or Hosted Services (as applicable);
provided, however, that nothing in this Agreement will obligate Provider to provide
On-Premises Software or Hosted Services that include any upgrades (i.e., revisions to the
On-Premises Software or Hosted Services that include new features or substantial increases
in functionality). All updates, upgrades, or other modified or updated versions of the
On-Premises Software and Hosted Services provided to Customer are subject to the terms of
this Agreement.
- Fees and Payment.
- Fees. Customer shall pay Provider the fees (“Fees”) as set forth in
the applicable Order Form and Service Addenda without offset or deduction. Provider reserves
the right to change pricing levels, discounts or fee structures subject to providing
reasonable advance notice to Customer, email acceptable, prior to the price change taking
effect. All charges will be made in advance, either annually or in accordance with any
different billing frequency stated in the applicable Order Form. Provider will invoice
Customer in advance and otherwise in accordance with the relevant Order Form. Unless
otherwise stated in an Order Form, invoiced fees are due net 30 days from the invoice date.
- Customer may register with Provider to process invoice payments through an automatic
payment system (“Autopayment”). Upon enrolling in Autopayment, all invoices shall be
drafted from the Customer’s account via Autopayment on the payment due date.
Provider may charge an additional administrative fee for all payments not made
through Autopayment.
- Customer shall make all payments hereunder in US dollars on or before the due date. If
Customer fails to make any payment when due, without limiting Provider’s other rights and
remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per
month calculated daily and compounded monthly or, if lower, the highest rate permitted under
applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by
Provider in collecting any late payments or interest, including attorneys’ fees, court
costs, and collection agency fees; and (iii) if such failure continues for five (5) days or
more Provider may suspend Customer’s and its Authorized Users’ access to any portion or all
of the On-Premises Software and/or Hosted Services until such amounts are paid in full.
- In the event of a material breach of this Agreement by Customer, including, but not
limited to, failure to pay any amounts due hereunder or violation of the use
restrictions set forth in this Agreement, all remaining unpaid fees for the
then-current subscription Term will become immediately due and payable upon written
notice from Provider (an “Acceleration Event”). Provider’s right to accelerate
payment obligations under this section is in addition to, and not in lieu of, any
other rights or remedies available to Provider under this Agreement or applicable
law.
- Notwithstanding the foregoing, if an Acceleration Event occurs due to a material
breach by the Customer that is curable as defined in Section 11(b)(ii), and the
Customer has commenced efforts to cure such breach, Provider may in its sole
discretion defer the acceleration of payments for a reasonable period to allow
Customer to cure the breach.
- Taxes. All Fees and other amounts payable by Customer under this Agreement are
exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and
excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any
federal, state, or local governmental or regulatory authority on any amounts payable by
Customer hereunder, other than any taxes imposed on Provider’s income.
- Auditing Rights and Required Records. Customer agrees to maintain complete and
accurate records of Customer’s use during the Term of this Agreement and for a period of one
year after the termination or expiration of this Agreement with respect to matters necessary
for accurately determining amounts due hereunder as it pertains to actively deployed
licenses of the On-Premises Software and Authorized Users license counts for Hosted
Services. Provider may, at its own expense, on reasonable prior notice, annually inspect and
audit Customer’s records with respect to matters covered by this Agreement, provided that if
such inspection and audit reveals that Customer has underpaid Provider with respect to any
amounts due and payable during the License Term or Subscription Term, Customer shall
promptly pay the amounts necessary to rectify such underpayment, together with interest in
accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit
determines that Customer’s underpayment equals or exceeds ten percent (10%) for any year.
Such inspection and auditing rights will extend throughout the Term of this Agreement and
for a period of one year after the termination or expiration of this Agreement.
- Confidential Information.
- Definition of Confidential Information. From time to time during the Term of this Agreement,
either Party (“Disclosing Party”) may disclose or make available to the other Party (“Receiving Party“)
information about its business affairs, products, confidential intellectual property, trade secrets,
third-party confidential information, and other sensitive or proprietary information, whether orally or in
written, electronic, or other form or media, that is marked, designated or otherwise identified as
“confidential” (collectively, “Confidential Information”). Confidential Information does
not include information that the Receiving Party, at the time of disclosure is: (a) in the public domain
through no fault of the Receiving Party; (b) known to the Receiving Party at the time of disclosure; (c)
rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (d)
independently developed by the Receiving Party without any use of the Disclosing Party’s Confidential
Information.
- Protection of Confidential Information. With respect to any Confidential Information disclosed
under this Agreement by the Disclosing Party, the Receiving Party will treat such Confidential Information
as confidential and will handle it using at least the same procedures and degree of care which it uses to
prevent the misuse and disclosure of its own confidential information of like importance, but in no event
less than reasonable care. The Receiving Party shall not disclose the Disclosing Party’s Confidential
Information to any person or entity, except to the Receiving Party’s employees who have a need to know the
Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder
and subject to confidentiality and nonuse obligations at least as protective of the Disclosing Party as
those set forth in this Agreement (in which case the Receiving Party will remain responsible for any
noncompliance by such employees or other individuals or entities). Notwithstanding the foregoing, each Party
may disclose Confidential Information to the limited extent required (i) in order to comply with the order
of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided
that the Party making the disclosure pursuant to the order shall first have given written notice to the
other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights
under this Agreement, including to make required court filings. On the expiration or termination of this
Agreement, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written,
electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such
copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.
Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the
Effective Date and will expire five years from the date first disclosed to the Receiving Party; provided,
however, with respect to any Confidential Information that constitutes a trade secret (as determined under
applicable law), such obligations of non-disclosure will survive the termination or expiration of this
Agreement for as long as such Confidential Information remains subject to trade secret protection under
applicable law.
- Protection of Customer Data. Without limiting the above, to the extent Provider is in possession
of Customer Data, Provider will use commercially reasonable efforts to protect Customer Data through use of
administrative, physical, and technical safeguards for protection of the security, confidentiality and
integrity of Customer Data consistent with prevailing industry practices. Provider will not (i) modify
Customer Data, (ii) disclose Customer Data except as compelled by law in accordance with Section 6(b) or as
expressly permitted in writing by Customer or otherwise under this Agreement, or (iii) access Customer Data
except to provide the On-Premises Software and Hosted Services or prevent or address service or technical
problems, improve the functionality of Provider’s Services, to generate Non-Identifiable Aggregated Data as
defined in section 2(e), or at Customer request in connection with customer support matters.The Services are not intended for the processing of “personal data,” and Customer shall not upload personal
data to the On-Premises Software and Hosted Services. If the Parties agree that Customer may upload
“personal data”, as defined under applicable law, to the On-Premises Software and Hosted Services, then, to
the extent Provider is acting as a service provider or a processor under applicable law, Provider shall use
such personal data for the purpose of providing the Services to Customer. Except as otherwise required by
applicable law, Provider shall not retain, use, or disclose personal data uploaded to the On-Premises
Software and Hosted Services: (i) for any purpose (including, but not limited to, any commercial purpose)
other than to perform the Services for Customer or (ii) outside of the direct business relationship between
Customer and Provider. Provider shall not sell, rent, release, disclose, disseminate, make available,
transfer or otherwise communicate personal data uploaded to the On-Premises Software and Hosted Services to
any third party for monetary or other valuable consideration. Customer shall provide advance notification to
Provider if any data to be uploaded to the On-Premises Software and Hosted Services includes personal data
subject to the California Consumer Privacy Act, the European Union General Data Protection Regulation or
United Kingdom General Data Protection Regulation. Upon such notification and request, and where required by
applicable law, the Parties will execute the appropriate Standard Contractual Clauses to address any
processing and transfer of such personal data. Customer acknowledges that it has full access to all data
that it submits to the platform and that it has sufficient access to respond to data subject requests.
- Intellectual Property Ownership; Feedback.
- Provider IP. Customer acknowledges that, as between Customer and Provider, Provider
owns all right, title, and interest, including all intellectual property rights, in and to
the Provider IP, Non-Identifiable Aggregated Data and Provider’s Confidential Information.
For purposes of this Agreement, all Provider IP shall be deemed to be Confidential
Information of Provider. Provider shall be the owner of any and all right, title and
interest (including without limitation, all Provider IP) in, of and to any Derivative Works.
- Customer Data. While Provider does not agree to handle or process personal or
sensitive data from Customer or any its customers, Provider acknowledges that, as between
Provider and Customer, Customer owns all right, title, and interest, including all
intellectual property rights, in and to the Customer Data and Customer’s Confidential
Information. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide
license to reproduce, distribute, and otherwise use and display the Customer Data and
perform all acts with respect to the Customer Data as may be necessary for Provider to
provide the On-Premises Software and Hosted Services to Customer, and a non-exclusive,
perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify,
and otherwise use and display Customer Data incorporated within the Non-Identifiable
Aggregated Data for any purpose, including benchmarking.
- Feedback. If Customer, its Authorized Users or any of its other employees or
contractors sends or transmits any communications or materials to Provider by mail, email,
telephone, or otherwise, suggesting or recommending changes to the Provider IP, including
without limitation, new features, corrections, modifications or functionality relating
thereto, or any comments, questions, suggestions, or the like (collectively,
“Feedback”), Provider is free to use such Feedback irrespective of any
other obligation or limitation between the Parties governing such Feedback. Customer
acknowledges that Provider has an interest in protecting Provider‘s IP, and thus hereby
assigns to Provider, on Customer’s behalf, and on behalf of its Authorized Users and its
other employees, contractors and/or agents, all right, title, and interest in, and Provider
is free to use, without any attribution or compensation to any party, any ideas, know-how,
concepts, techniques, or other intellectual property rights contained in the Feedback, for
any purpose whatsoever, although Provider is not required to use any Feedback.
- Further Assurances. To the extent any of the rights, title and interest in and to
Feedback or intellectual property rights therein cannot be assigned by Customer to Provider,
Customer hereby grants to Provider an exclusive, royalty-free, transferable, irrevocable,
worldwide, fully paid-up license (with rights to sublicense through multiple tiers of
sublicensees) to fully use, practice and exploit those non-assignable rights, title and
interest. If the foregoing assignment and license are not enforceable, Customer agrees to
waive and never assert against Provider those non-assignable and non-licensable rights,
title and interest. Customer agrees to execute any documents or take any actions as may
reasonably be necessary, or as Provider may reasonably request, to perfect ownership of the
Feedback. If Customer is unable or unwilling to execute any such document or take any such
action, Provider may execute such document and take such action on Customer’s behalf as
Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled
with an interest and is irrevocable.
- Customer Trademark License. Customer hereby grants to Provider a non-exclusive,
worldwide, non-transferable, royalty-free license to use, reproduce and display Customer’s
name, logo and trademarks (collectively, the “Customer Marks”) as necessary
for the use of certain features and functionality of On-Premises Software and/or Hosted
Services that utilize Customer Marks, and as necessary for Provider’s to fulfill obligations
under this Agreement. Provider will comply with Customer’s trademark usage guidelines as
Customer provides to Provider in writing from time to time.
- Warranty; Disclaimer.
- Warranty. Unless otherwise set forth in the applicable Order Form, Provider warrants
that (i) during the period of ninety (90) days after the Delivery Date (the
“Software Warranty Period”), the On-Premises Software and/or Hosted
Services will function in conformance with the Documentation, and (ii) during the period of
thirty (30) days after performance (the “Service Warranty Period”), the
Support Services and Professional Services will materially conform with the applicable
specifications. If Customer becomes aware of the On-Premises Software or Hosted Services
not functioning in material conformance with the Documentation or the Support Services or
Professional Services not materially conforming with the applicable specifications (a
“Defect”), Customer must provide Provider with written notice that includes
a reasonably detailed explanation of the Defect within the Software Warranty Period or
Service Warranty Period, as applicable. If Provider is able to reproduce the Defect in
Provider’s own operating environment, Provider will use commercially reasonable efforts to
promptly correct the Defect or work in good faith with Customer to provide software product
or service to Customer with substantially similar functionality. THE FOREGOING SETS FORTH
PROVIDER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECTIVE ON-PREMISES SOFTWARE, HOSTED
SERVICES, SUPPORT SERVICES AND PROFESSIONAL SERVICES.
- Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE PROVIDER IP,
PROFESSIONAL SERVICES AND SUPPORT SERVICES ARE PROVIDED “AS IS”. CUSTOMER’S USE OF THE
PROVIDER IP, PROFESSIONAL SERVICES AND SUPPORT SERVICES IS AT ITS OWN RISK. PROVIDER DOES
NOT MAKE, AND PROVIDER HEREBY DISCLAIMS, ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NON-INFRINGEMENT (EXCLUDING INDEMNIFICATION OBLIGATIONS), QUALITY, SUITABILITY, OPERABILITY,
CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR
ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ALL
WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO
WARRANTY OF ANY KIND THAT THE PROVIDER IP, PROFESSIONAL SERVICES OR ANY PRODUCTS OR RESULTS
OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT
INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM
OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
THE EXPRESS WARRANTIES MADE BY PROVIDER IN SECTION 8 ARE FOR THE BENEFIT OF THE CUSTOMER
ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY.NO AGENT OF PROVIDER IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF PROVIDER AS SET FORTH HEREIN.
PROVIDER DOES NOT WARRANT THAT: (I) THE USE OF THE PROVIDER IP OR PROFESSIONAL SERVICES WILL BE SECURE,
TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR
DATA; (II) THE PROVIDER IP, PROFESSIONAL SERVICES OR SUPPORT SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR
EXPECTATIONS; OR (III) THE PROVIDER IP OR PROFESSIONAL SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS
IN THE PROVIDER IP WILL BE CORRECTED.
- Indemnification.
- Provider Indemnification.
- Provider shall indemnify, defend, and hold harmless Customer from and against direct
damages ordered by a court of competent jurisdiction to the extent they result from
any third-party claim, suit, action, or proceeding (“Third-Party
Claim”) that: (A) is a result of Provider’s gross negligence or willful
misconduct; or (B) the On-Premises Software or Hosted Services (as applicable), or
any use of the On-Premises Software or Hosted Services (as applicable) in accordance
with this Agreement, infringes or misappropriates such third party’s copyright,
patent or trade secret rights in the country(ies) of Customer’s locations as
licensed under the applicable Order Form, provided that Customer promptly notifies
Provider in writing of the claim, cooperates with Provider, and allows Provider sole
authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Customer agrees to permit Provider, at
Provider’s sole discretion, to (A) modify or replace the On-Premises Software or
Hosted Services (as applicable), or component or part thereof, to make it
non-infringing, or (B) obtain the right for Customer to continue use. If Provider
determines that neither alternative is reasonably available, Provider may terminate
this Agreement, in its entirety or with respect to the affected component or part,
effective immediately on written notice to Customer.
- This Section 9(a) will not apply to the extent that the alleged infringement arises
from: (A) use of the Services in combination with any data, software, hardware,
equipment, network, system or technology not provided by Provider or authorized by
Provider in writing; (B) modifications or alterations to the On-Premises Software or
Hosted Services (as applicable) not made by Provider; (C) Customer’s continued use
of the On-Premises Software or Hosted Services (as applicable) after Provider
notifies Customer to discontinue use because of an infringement claim; or (D)
Customer Data.
- THE FOREGOING STATES THE ENTIRE LIABILITY OF PROVIDER WITH RESPECT TO THE
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE ON-PREMISES
SOFTWARE, HOSTED SERVICES OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY
OTHER LIABILITIES OR OBLIGATIONS OF PROVIDER WITH RESPECT THERETO.
- Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s
option, defend Provider from and against direct damages ordered by a court of competent
jurisdiction to the extent they result from any Third-Party Claim that the Customer Data, or
any use of the Customer Data in accordance with this Agreement, infringes or misappropriates
such third party’s intellectual property rights or other rights and any Third-Party Claims
based on Customer’s or any Authorized User’s (i) gross negligence or willful misconduct;
(ii) use of the On-Premises Software or Hosted Services in a manner not authorized by this
Agreement; (iii) use of the On-Premises Software or Hosted Services in combination with
data, software, hardware, equipment, network, systems or technology not provided by Provider
or authorized by Provider in writing; or (iv) modifications to the On-Premises Software or
Hosted Services not made by Provider, provided that Customer may not settle any Third-Party
Claim against Provider unless Provider consents to such settlement, and further provided
that Provider will have the right, at its option, to defend itself against any such
Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Limitations of Liability.
- IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY
LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,
SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST
BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE,
INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR
SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF
WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR
DAMAGES WERE OTHERWISE FORESEEABLE.
- EXCEPT FOR DAMAGES CAUSED BY PROVIDER’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, IN
NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT
UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING INDEMNIFICATION OBLIGATIONS, BREACH OF
CONTRACT, TORT (INCLUDING GROSS NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED AT ANY
POINT IN TIME THE AMOUNT PAID BY CUSTOMER TO PROVIDER IN THE PRIOR TWELVE MONTH PERIOD UNDER
THE APPLICABLE ORDER FORM GIVING RISE TO THE CLAIM.
- CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 10 (LIMITATIONS OF LIABILITY) SHALL
APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE
OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
- Term and Termination.
- Term.The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this
Agreement’s express provisions, will continue in effect until terminated as provided in Section 11(b) below
(the “Term”). Each Order Form or other Service Addenda shall specify the specific duration
for authorized use of the Hosted Services or On-Premises Software, as applicable.
- Termination. In addition to any other express termination right set forth in this Agreement:
- Provider may terminate this Agreement, effective on written notice to Customer, if Customer:
(A) fails to pay any amount when due hereunder, and such failure continues more than three
(3) days after Provider’s delivery of written notice thereof; or (B) breaches any of its
obligations under Section 2(b) or Section 6;
- either Party may terminate this Agreement, effective on written notice to the other Party,
if the other Party materially breaches this Agreement, and such breach: (A) is incapable of
cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching
Party provides the breaching Party with written notice of such breach;
- either Party may terminate this Agreement, effective immediately upon written notice to the
other Party, if the other Party: (A) files or has filed against it, a petition for voluntary
or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any
proceeding under any domestic or foreign bankruptcy or insolvency law; (B) makes or seeks to
make a general assignment for the benefit of its creditors; or (C) applies for or has
appointed a receiver, trustee, custodian, or similar agent appointed by order of any court
of competent jurisdiction to take charge of or sell any material portion of its property or
business; or
- the Parties mutually agree to terminate this Agreement.
- After termination or expiration of this Agreement, should Customer wish to reactivate a
license granted under this Agreement, Provider may agree to such reinstatement subject to a
reinstatement fee, however if more than (5) years have passed since the expiration, Customer
shall purchase a new license.
- Effect of Expiration or Termination. Unless the Parties agree otherwise, termination of this
Agreement will terminate each of the Order Forms and other Service Addenda, even if the Order Form
or other Service Addenda specifies an expiration date after the effective termination date of this
Agreement. No expiration or termination will affect Customer’s obligation to pay all Fees that may
have become due before such expiration or termination, or entitle Customer to any refund. Upon
expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of
the Provider IP (inclusive of On-Premises Software and/or Hosted Services, and Documentation) and,
without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return
all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been
deleted or destroyed. Customer acknowledges Provider shall have the right to destroy or dispose of
any Customer data after ninety (90) days of contract termination or expiration.
- Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, 11(c) and 12 survive any
termination or expiration of this Agreement. No other provisions of this Agreement survive the
expiration or earlier termination of this Agreement.
- Miscellaneous.
- Entire Agreement. This Agreement, together with any other documents incorporated
herein by reference and all related schedules and exhibits, constitutes the sole and entire
agreement of the Parties with respect to the subject matter of this Agreement and supersedes
all prior and contemporaneous understandings, agreements, and representations and
warranties, both written and oral, with respect to such subject matter. If there is a
conflict between the terms of this Master Software and Services Agreement and the terms of
any of its attachments, then this Master Software and Services Agreement will prevail unless
the conflicting attachment explicitly specifies the attachment to prevail in case of such a
conflict. In the event Customer provides a purchase order, any terms and conditions in said
purchase order will have no effect, even if this Agreement is silent as to those terms.
- Notices. All notices, requests, consents, claims, demands, waivers, and other
communications hereunder (each, a “Notice”) must be in writing and
addressed to the Parties at the addresses set forth on the first page of this Agreement (or
to such other address that may be designated by the Party giving Notice from time to time in
accordance with this Section). All Notices must be delivered by personal delivery,
nationally recognized overnight courier (with all fees pre-paid), or certified or registered
mail (in each case, return receipt requested, postage pre-paid). Except as otherwise
provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving
Party; and (ii) if the Party giving the Notice has complied with the requirements of this
Section.
- Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have
breached this Agreement, for any failure or delay in performing its obligations under this
Agreement, if and to the extent such failure or delay is caused by any circumstances beyond
Provider’s reasonable control, including but not limited to acts of God, flood, fire,
earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, epidemic or
pandemic, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage
of law or any action taken by a governmental or public authority, including imposing an
embargo. Provider shall notify Customer of such force majeure within ten (10) days after
such occurrence by giving written notice to Customer stating the nature of the event, its
anticipated duration, and any action being taken to avoid or minimize its effect. The
suspension of performance shall be of no greater scope and no longer duration than is
necessary and Provider shall use commercially reasonable efforts to remedy its inability to
perform. Notwithstanding the foregoing, nothing in this section shall negate or excuse
Customer’s payment obligations under this Agreement.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement
is effective unless it is in writing and signed by an authorized representative of each
Party. No waiver by any Party of any of the provisions hereof will be effective unless
explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set
forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights,
remedy, power, or privilege arising from this Agreement will operate or be construed as a
waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or
privilege hereunder will preclude any other or further exercise thereof or the exercise of
any other right, remedy, power, or privilege.
- Severability. If any provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not
affect any other term or provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction. Upon such determination that any term or
other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good
faith to modify this Agreement so as to effect their original intent as closely as possible
in a mutually acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
- Disputes; Mediation; Binding Arbitration; Governing Law; Emergency Relief. All claims
and disputes arising under or relating to this Agreement between the Parties shall first be
resolved by mediation with written notice to the other Party of its intent to mediate. In
the event that mediation does not resolve the dispute within forty-five (45) days of said
notice, all claims and disputes arising under or relating to this Agreement in:
- The United States of America, Mexico. Claims within the United States of
America and Mexico are to be settled by binding arbitration under Delaware law with
venue being proper in Kent County, Delaware unless another location is mutually
agreeable to the Parties; provided, however, that a Party may seek any available
legal or equitable remedies from a court of competent jurisdiction with respect to
any disputes regarding intellectual property rights or breaches of confidentiality
obligations. The arbitration shall be conducted on a confidential basis pursuant to
the Commercial Arbitration Rules of the American Arbitration Association (AAA);
- Australia, New Zealand, and Thailand. Claims within Australia, New Zealand,
and Thailand are to be settled by binding arbitration under Delaware law with venue
being proper in Kent County, Delaware unless another location is mutually agreeable
to the Parties; provided, however, that a Party may seek any available legal or
equitable remedies from a court of competent jurisdiction with respect to any
disputes regarding intellectual property rights or breaches of confidentiality
obligations. The arbitration shall be conducted on a confidential basis pursuant to
the Commercial Arbitration Rules of the American Arbitration Association (AAA);
- The United Kingdom and European Union, Claims within the United Kingdom and
European Union are to be settled by binding arbitration under the laws of England
with venue being proper in London, England. The arbitration shall be conducted on a
confidential basis pursuant to the rules of the London Court of International
Arbitration (LCIA);
- Central and South America. Claims within Central and South America are to be
settled by binding arbitration under Delaware law with venue being proper in Kent
County, Delaware. The arbitration shall be conducted on a confidential basis
pursuant to the rules of the Inter-American Commercial Arbitration Commission;
- India. Claims within India are to be settled by binding arbitration under the
law of India with venue being proper in India. The arbitration shall be conducted on
a confidential basis pursuant to the rules of the Mumbai Centre for International
Arbitration; and
- China. Claims within China are to be settled by binding arbitration under the
laws of Singapore with venue being proper in Singapore. The arbitration shall be
conducted on a confidential basis pursuant to the rules of the Singapore
International Arbitration Centre
- Assignment. Customer may not assign any of its rights or delegate any of its
obligations hereunder, in each case whether voluntarily, involuntarily, by merger, sale of
assets, operation of law or otherwise, without the prior written consent of Provider, which
consent may be conditioned on Customer paying any remaining payments due hereunder in full.
Any purported assignment or delegation in violation of this Section will be null and void.
No assignment or delegation will relieve the assigning or delegating Party of any of its
obligations hereunder. This Agreement is binding upon and inures to the benefit of the
Parties and their respective permitted successors and assigns. In the event that Customer or
its business using the Hosted Services or On-Premises Software is acquired by a third party
that is also a customer of Provider, Customer shall continue to pay the Fees in accordance
with this Agreement and any applicable Order Form and other Service Addenda unless the
Parties mutually agree in writing otherwise, even if the other customer may have more
favorable terms than those offered to Customer hereunder.
- Export Regulation. The Services utilize software and technology that may be subject to US
export control laws, including the US Export Administration Act and its associated
regulations. Customer shall not, directly or indirectly, export, re-export, or release the
On-Premises Software or Hosted Services or the underlying software or technology to, or make
the On-Premises Software or Hosted Services or the underlying software or technology
accessible from, any jurisdiction or country to which export, re-export, or release is
prohibited by law, rule, or regulation. Customer shall comply with all applicable federal
laws, regulations, and rules, and complete all required undertakings (including obtaining
any necessary export license or other governmental approval), prior to exporting,
re-exporting, releasing, or otherwise making the On-Premises Software or Hosted Services or
the underlying software or technology available outside the US.
- US Government Rights. Each of the software components that constitute the On-Premises
Software and Hosted Services is a “commercial item” as that term is defined at 48 C.F.R. §
2.101, consisting of “commercial computer software” as such term is used in 48 C.F.R. §
12.212. Accordingly, if Customer is an agency of the US Government or any contractor
therefor, Customer only receives those rights with respect to the On-Premises Software and
Hosted Services as are granted to all other end users, in accordance with (a) 48 C.F.R. §
227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their
contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and
their contractors.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened
breach by such Party of any of its obligations under Section 6 or, in the case of Customer,
Section 2(b), would cause the other Party irreparable harm for which monetary damages would
not be an adequate remedy and agrees that, in the event of such breach or threatened breach,
the other Party will be entitled to equitable relief, including a restraining order, an
injunction, specific performance and any other relief that may be available from any court,
without any requirement to post a bond or other security, or to prove actual damages or that
monetary damages are not an adequate remedy. Such remedies are not exclusive and are in
addition to all other remedies that may be available at law, in equity or otherwise.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed
an original, but all of which together are deemed to be one and the same agreement.
- Expenses All costs and expenses incurred in connection with this Agreement and each other
agreement, document and instrument contemplated by this Agreement and the transactions
contemplated hereby and thereby shall be paid by the Party incurring such costs and
expenses.
- Attorneys’ Fees and Costs. In the event of a dispute arising under this
Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall
be entitled to recover its reasonable attorneys’ fees and costs, including attorneys’ fees
and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in
determining or quantifying the amount of recoverable attorneys’ fees and costs. The
reasonable costs to which the prevailing party is entitled shall include costs that are
taxable under any applicable statute, rule, or guideline, as well as non-taxable costs,
including, but not limited to, costs of investigation, copying costs, electronic discovery
costs, telephone charges, mailing and delivery charges, information technology support
charges, consultant and expert witness fees, travel expenses, court reporter fees, and
mediator fees, regardless of whether such costs are otherwise taxable.
- Publicity. Provider may, with Customer’s consent, (i) issue a press release
announcing the relationship between the parties within thirty (30) days after the Effective
Date and (ii) use Customer’s name or logo in Provider’s advertising, promotion, and similar
public disclosures with respect to the On-Premises Software and Hosted Services.
- Internal Disclosures. Provider may disclose the terms of this Agreement or any aspect
of the On-Premises Software and Hosted Services (i) as is required to be disclosed by
applicable law or for purposes of enforcing the Agreement, (iii) to Provider’s business,
financial advisers who have a need to know, provided that such business and financial
advisers are subject to a written confidentiality agreement reasonably acceptable to
Customer, (iii) to legal advisers, such legal advisers to agree to maintain the
confidentiality of this Agreement, and (iv) to prospective investors and prospective
acquirors of Provider’s business, assets or stock solely for such purposes provided that any
such investor or acquirer is subject to a written confidentiality agreement.
- Non-Solicitation of Employees. Customer agrees that, during the Term of this
Agreement, and for a period of one (1) year following the Term, it will not employ, solicit
for or offer employment, or enter into any contract for services with the employees, agents
or representatives of Provider with which there was direct contact without Supplier’s prior
written consent; provided, however, that the foregoing prohibition shall not preclude the
hiring by Customer of any individual who responds to a general solicitation or
advertisement, whether in print or electronic form, on job postings and social networking
sites. In the event that any of Provider’s employees, agents or representatives are employed
by or enter into a contract for services (whether as an employee or an independent
contractor) with Customer or any Affiliate of Customer in breach of the foregoing sentence,
Customer shall, upon demand, pay to Provider a sum equal to six months’ basic salary or the
fee that was payable by Provider to that employee, agent or representative plus the
recruitment costs incurred by Provider in replacing such person by way of compensation for
the cost and inconvenience incurred by Provider. The above payment shall not be in lieu of
Provider’s other remedies at law and in equity.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date. BY SIGNING
BELOW, THE SIGNATORY REPRESENTS AND WARRANTS THAT THEY HAVE THE CORPORATE POWER AND AUTHORITY TO BIND SUCH
ADDITIONAL ENTITIES.
| ADVANTIVE, LLC
|
[Customer Name],
on behalf of itself and its Affiliates |
|
| Signature: _______________________
Name: ________________________
Title: ___________________________
Date: ___________________________
|
Signature: _______________________
Name: ________________________
Title: ________________________
Date: ________________________ |
Schedule A: Open Source and Third Party Licenses
The below list contains the Open Software and Third-Party Software used in the On-Premises Software and/or
Hosted Services.
| Licenses |
| GPL |
libtiff |
| Commercial License |
Zlib |
| MIT-Style License |
WTFPL |
| MIT |
PDFNet commercial license |
| MS-PL |
CC0-1.0 |
| BSD-3-Clause |
Kendo UI commercial license |
| Apache-2.0 |
Unlicense |
| ISC |
Microsoft Visual Studio Code License |
| BSD-2-Clause |
Open Software License |
| Microsoft .NET Library License |
Mozilla Public v2.0 |
| CC-BY-3.0 |
Quick OPC by OPC Labs (OPC UA SDK) |
| GPL-3.0+ |
Kendo UI developer license |
| Grapecity commercial license |
CPOL |
| Infragistics Commercial License |
Libpng |
| BSD-Style License |
IJG |
PROFESSIONAL SERVICES ADDENDUM
This Professional Services Addendum (“Professional Services Addendum”) is by and between the Customer and
Provider pursuant to the attached Master Software and Services Agreement by and between the parties
(“Agreement”). This Professional Services Addendum is effective as of the Effective Date and is governed by
the terms and conditions of the Agreement. Capitalized terms used but not defined herein shall have the
meanings accorded to them in the Agreement.
- Professional Services. Provider shall use commercially reasonable efforts to perform the
Professional Services as set forth in applicable mutually executed statements of work. Each
statement of work will include, at a minimum: (i) a description of the scope of Professional
Services, (ii) any work product or other deliverables to be provided to Customer (each a
“Deliverable”), (iii) the schedule for the provision of Professional Services, and (iv) the
applicable fees and payment terms for such Professional Services. All statements of work shall be
deemed part of and subject to this Agreement. If there is any inconsistency between a statement of
work and this Agreement, the statement of work shall control. Provider is responsible for
delivering and performing only those Professional Services specifically identified in the statements
of work. In addition, Customer shall perform any Customer obligations specified in each statement of
work. In the event the Professional Services are not performed in accordance with the terms of the
applicable statement of work, Customer shall notify Provider in writing no later than thirty (30)
calendar days after performance of the affected Professional Services by Provider, Customer’s notice
shall specify the basis for non-compliance with the statement of work and if Provider agrees with
the basis for non-compliance, then at Provider’s sole option, Provider shall re-perform the
Professional Services at no additional charge to Customer or refund to Customer the applicable fees
for the affected Deliverable or Professional Service. THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND
EXCLUSIVE REMEDY AND PROVIDER’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR
NON-PERFORMANCE OF THE PROFESSIONAL SERVICES.
- Period of Performance. The Statement of Work (“SOW”) will detail duration
commencing on the date of the kickoff meeting. This includes any hold periods where Customer
requires a pause in the project to address internal issues, discussions or decisions. The contract
period for these services commences on the date of signature of the Order Form for Professional
Services. All services must be delivered within this period. If an extension is required, a Change
Order will be executed and may incur additional cost.
- Offsite project hours are scheduled at a maximum of 40 hours per week, Monday to Friday at a
maximum of 8 hours per day per resource. Onsite project hours are scheduled at a maximum of 40 hours
per week, Monday to Friday at a maximum of 8 hours per day per resource. All scheduled time shall be
based on designated facility’s time zone and shall be invoiced at 8 hours per resource, per day. All
time onsite at Customer’s facility or designated site, shall be scheduled based on the designated
facility’s time zone and shall be invoiced in eight (8) hour increments per resource, per
day. Time scheduled outside or beyond the designated work hours must be approved by the
Project Manager. Travel Expenses incurred will be billed as a “Fixed Fee”, and will include airfare,
meals, lodging, and mileage, as applicable, and incurred per Team Member. Additional time for
extended resources can be purchased with a new Order Form, and resources will be scheduled
accordingly. In the performance of its obligations hereunder, Provider shall have the right, in its
sole discretion, to engage temporary resources to perform any portion of its obligations hereunder,
provided that Provider shall remain responsible for the performance of any such third party.
- Change Control Procedure. If either Customer or Provider requests a change to the scope of
Professional Services described in a statement of work, the Party seeking the change shall propose
such change by written notice. Promptly following the other Party’s receipt of the written notice,
the Parties shall discuss and agree upon the proposed changes. Provider will prepare a Project
Change Request (a “PCR”) describing the agreed changes to the statement of work and
any applicable change in fees and expenses. Change Orders are not binding unless and until executed
by both Parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement.
Provider and Customer shall cooperate to enable Provider to perform the Professional Services
according to the dates of performance and delivery terms set forth in each statement of work.
- Provider Developments. All inventions, works of authorship and developments conceived,
created, written, or generated by or on behalf of Provider, whether solely or jointly, including
without limitation, in connection with Provider’s performance of the Professional Services
hereunder, including (unless otherwise expressly set forth in an applicable statement of work) all
Deliverables (“Provider Developments”) and all intellectual property rights
therein, shall be the sole and exclusive property of Provider. Customer agrees that, except for
Customer Confidential Information, to the extent that the ownership of any contribution by Customer
or its Authorized Users or other employees to the creation of the Provider Developments is not, by
operation of law or otherwise, vested in Provider, Customer hereby assigns and agrees to assign to
Provider all right, title and interest in and to such Provider Developments, including without
limitation all the intellectual property rights therein, without the necessity of any further
consideration.
- Further Assurances. To the extent any of the rights, title and interest in and to Provider
Developments or intellectual property rights therein cannot be assigned by Customer to Provider,
Customer hereby grants to Provider an exclusive, royalty-free, transferable, irrevocable, worldwide,
fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully
use, practice and exploit those non-assignable rights, title and interest. If the foregoing
assignment and license are not enforceable, Customer agrees to waive and never assert against
Provider those non-assignable and non-licensable rights, title and interest. Customer agrees to
execute any documents or take any actions as may reasonably be necessary, or as Provider may
reasonably request, to perfect ownership of the Provider Developments. If Customer is unable or
unwilling to execute any such document or take any such action, Provider may execute such document
and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing
appointment is deemed a power coupled with an interest and is irrevocable.
- License to Deliverables. Subject to Customer’s compliance with this Agreement, Provider
hereby grants Customer a limited, non-exclusive, non-transferable license during the License Term or
Subscription Term (as applicable) to use the Deliverables solely in connection with Customer’s
authorized use of the On-Premises Software or Hosted Services. Notwithstanding any other provision
of the Agreement, including without limitation this Professional Services Addendum: (i) nothing
herein shall be construed to assign or transfer to Customer any intellectual property rights in the
proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise
(“Tools”) used by Provider to develop the Deliverables, and to the extent such Tools are delivered
with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms
as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.
IN WITNESS WHEREOF, the Parties hereto have executed this Professional Services Addendum to be coterminous
with the underlying Master Software and Services Agreement. BY SIGNING BELOW, THE SIGNATORY REPRESENTS AND
WARRANTS THAT THEY HAVE THE CORPORATE POWER AND AUTHORITY TO BIND SUCH ADDITIONAL ENTITIES.
| ADVANTIVE, LLC |
[Customer Name],
on behalf of itself and its Affiliates |
|
Signature: _______________________
Name: __________________________
Title: ___________________________
Date: _______________________ |
Signature: _______________________
Name: _________________________
Title: __________________________
Date:___________________________ |
MAINTENANCE AND SUPPORT SERVICES ADDENDUM
This Maintenance and Support Services Addendum (“Maintenance and Support Services Addendum”) is by and
between the Customer and Provider pursuant to the attached Master Software and Services Agreement by and
between the parties (“Agreement”). This Maintenance and Support Services Addendum is effective as of the
Effective Date and is governed by the terms and conditions of the Agreement. Capitalized terms used but not
defined herein shall have the meanings accorded to them in the Agreement.
- SUPPORT SERVICES: Provider shall provide the Support Services as described in an Order Form,
Statement of Work, as updated from time to time or as otherwise indicated by Provider. Such Support
Services may include, but are not limited to, such items as:
- Access to Advantive’s online customer portal shall be available twenty-four (24) hours a
day/ seven (7) days a week excluding scheduled downtime at https://support.advantive.com. Customer is
responsible for submitting a case to Provider noting error details, troubleshooting efforts
undertaken, and any other details relevant to resolving Customer’s service issues; and
- Provide telephone support during the regular support hours of 8:00 a.m. to 7:00 p.m. EST
Monday through Friday, excluding holiday days.
Support Services do not include additional products, add-ons, training or other features, as mentioned above
in Section 4(b) of the Agreement. Additionally, Provider shall have no liability or responsibility for a
Customer’s network, security, and network support where a Customer self-hosts its environment either on its
own or through its vendor.
- FEES: Customer shall pay fees based on the Order Form signed by both Parties. All fees are due in
accordance with Section 5(a) of the Agreement.
- SUPPORT PROCESS: Prior to submitting a case to Provider via Customer Support Portal, Customer should
follow all prerequisites set forth in the Advantive Customer
Support Policy which may be amended from time to time.
- REQUIRED ACCESS: Customer must grant Provider remote access to their systems including, but not
limited to, application and database servers. Access to the Customer system may be granted by either
attended or unattended access at Customer’s sole discretion. Such access may be granted to for each
support ticket submission, as required. Provider shall deliver all support services remotely through
the use of a remote desktop sharing software. Provider may not access Customer’s environment without
Customer’s explicit acceptance of the remote desktop sharing session invitation and only for such
duration as Customer permits.
- TARGET ASSIGNMENT TIMES: Provider commits to the following case assignment schedule as indicated in
the table below when cases are submitted via the Customer Portal. Cases submitted via email shall be
assigned within 5 Business Days.
| Issue Priority |
Target Assignment Time |
| Critical |
< 2 Business Hours when submitted by Portal
|
| High
|
< 6 Business Hours when submitted by Portal
|
| Medium |
< 2 Business Days when submitted by Portal
|
| Low |
< 3 Business Days when submitted by Portal
|
- SEVERITY & PRIORITY Provider will establish priority for case response and reaction based on a
combination of customer reported inputs. These inputs include the severity of the issue, the
affected environment(s), and the business impact, as detailed below. Provider will strive to react
to prioritized cases within a designated time period (the “Anticipated Reaction
Time”) as noted below. If a customer submits multiple requests for support, each
request will be prioritized. If the cases are assigned the same priority level, Provider Support
will address the issues in order of severity (Urgent to Low).
| Severity Scale |
| Urgent (S1) |
Used to indicate an issue of grave importance for the Customer but may not meet
all the criteria for a true Production Down. A typical example would be an issue that is
visible to Customer’s client base. Customers can use the Urgent designation to identify
those P2 issues that might require an emergency patch. |
| High (S2) |
Used to indicate this is high importance to the customer. A work-around may be
available, but that resolution is not optimal. |
| Medium (S3) |
Used to indicate an issue of medium importance to the customer. A work-around is
available and may be sufficient for a limited time. |
| Low (S4) |
Used to indicate something at the customer site that does not impact their
current workflow processes. |
- EXCLUSIONS FROM SUPPORT SERVICES:
- Support does not cover: (i) third-party products and services, including those third-party products
Customer may be using in conjunction with our Provider Software, unless otherwise specified in the
Documentation; (ii) any use of outside of recommendations described in the Documentation; or (3) any
modification, customizations or enhancements of the Software by any person or entity other than
Provider, including such modifications, customization, and enhancements that are effected by
subsequent Provider updates and upgrades to Software.
- Excluded from Support are installation services, implementation services, consulting services,
training services and other professional services, including configurations that are outside of the
then-standard product configuration, onsite assistance or troubleshooting after the Service Warranty
has expired, custom report creation; technical and/or functional user training, database schema
changes, modifications to data feed, on-site services, translation services, writing custom SQL or
resolving issues with custom SQL and any and all other requirements and/or services not specifically
described in this Support Policy. Professional Services are available for a fee, at Customer’s
option.
- ADDITIONAL TERMS AND CONDITIONS: Customer is responsible for compliance by its Authorized Users with
the terms and conditions of the Agreement and agrees to make each Authorized User aware of the
restrictions set forth in the Agreement and this Maintenance and Support Services Addendum.
IN WITNESS WHEREOF, the Parties hereto have executed this Maintenance and Support Services Addendum to be
coterminous with the underlying Master Software and Services Agreement. BY SIGNING BELOW, THE SIGNATORY
REPRESENTS AND WARRANTS THAT THEY HAVE THE CORPORATE POWER AND AUTHORITY TO BIND SUCH ADDITIONAL ENTITIES.
| ADVANTIVE, LLC |
[Customer Name],
on behalf of itself and its Affiliates |
| Signature: ________________
Name: ___________________
Title: ____________________
Date: ____________________ |
Signature: _______________________
Name: _________________________
Title: __________________________
Date: __________________________ |