1. SERVICES AND SUPPORT
1.1 In consideration of (and subject to) payment of the fees listed on the applicable Order Form and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Service Provider account (“Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form. Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the applicable General Service Level Support Terms (Exhibit A), Service Provider will use reasonable commercial efforts to provide Customer with support services and maintenance.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Subject to all terms of this Agreement, Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use, reproduce and distribute internally within Customer’s business, and for Customer’s internal use only (and only in accordance with the accompanying documentation), the software, documentation and data provided to Customer by Service Provider via the Services. Customer will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Except for the limited rights and licenses expressly granted to Customer hereunder, no other license is granted, no other use is permitted and Service Provider (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Services and any underlying intellectual property.
2.2 Customer represents, covenants, and warrants that Customer will access and use the Services only in compliance with Service Provider’s standard access and security policies then in effect. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”).
2.3 Customer is solely responsible for the security, accuracy, content and legality of all data that it submits to the Service (“Customer Data”) and agrees to comply with all applicable laws in its use of the Service. Customer represents and warrants to Service Provider that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement, without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any laws, or (iii) any terms of service, privacy policies or other agreement governing the Customer. Customer specifically agrees not to use the Service to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Service Provider is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Service is neither HIPAA nor PCI DSS compliant. Service Provider shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein. “Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) any information deemed to be “special categories of data” of an EU citizen (as such term is defined in EU Data Protection Directive 95/46/EC) or (iv) any other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act, California Consumer Privacy Act or other laws.
2.4 Customer shall not, and shall not permit any third party to, directly or indirectly (a) use any of Service Provider’s Confidential Information (defined below) to create any service, software, documentation or data that is similar to or competes with any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or object code of the Services, or the underlying structure, ideas, algorithms or trade secrets therein (provided that reverse engineering is prohibited only to the extent such prohibition is not expressly prohibited by applicable statutory law), (c) use the Documentation for any reason other than in connection with the Services, (d) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (e) copy, modify, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (f) remove or modify any proprietary marking or restrictive legends placed on the Services (g) introduce into the Services any software, virus, worm, “back door”, Trojan horse or similar harmful code, (h) merge or interface any third party software (including source code or open source software) with the Services, or (i) proxy, modify, obscure, hire or circumvent the identity, location or other identifiable information about any end user.
2.5 Customer shall indemnify, defend and hold harmless Service Provider from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 2.3. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Service Provider at Customer’s expense.
3. CONFIDENTIALITY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and algorithm and information embodied therein, which is considered the Proprietary Information of Service Provider) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure.
3.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except for any Software which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law. In any event, Service Provider may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
4. PAYMENT OF FEES
4.1 Customer will pay Service Provider the fees for the Services within the Service Capacity, as listed on the applicable Order Form (the “Fees”). If Customer use of the Services exceeds the Service Capacity set forth on the applicable Order Form, Customer shall be billed for the excess usage over the Service Capacity, in accordance with Service Provider’s then current rates and Customer agrees to pay the additional fees in the manner provided herein. Fees will be payable annually upfront, due upon the beginning of the applicable Service Term.
4.2 If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (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 Service Provider’s customer support department.
4.3 Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices 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. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Service Provider’s net income.
4.4 Except for a termination of this Agreement by Customer for Service Provider’s uncured material breach in accordance with Section 5.2 herein, there shall be no refunds of any Fees paid hereunder.
5. TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the initial Service Term as specified in the applicable Order Form, and shall be automatically renewed for additional periods of the same duration as the initial Service Term, unless either party requests termination at least ninety (90) days prior to the end of the then current term. The Fees for any renewal period shall be increased by 5% over the Fees from the prior Service Term.
5.2 Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). In the event of a termination of this Agreement by Customer for Service Provider’s uncured material breach, Service Provider shall provide Customer with a pro-rated refund of any prepaid Fees for Services not yet provided by the termination effective date.
5.3 Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service (including any and all related Service Provider technology) and delete (or, at Service Provider’s request, return) any and all copies of the Documentation, any Service Provider passwords or access codes and any other Service Provider Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Service, and that Service Provider may delete any such data as may have been stored by Service Provider at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
5.4 Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any order form. Upon any termination, Customer will destroy all copies of any Software provided or licensed hereunder.
5.5 The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 11 (“Miscellaneous”) shall survive termination.
6. INDEMNIFICATION
6.1 Service Provider agrees, at its own expense, to indemnify, defend Customer and hold Customer harmless against any suit, claim, or proceeding brought against Customer by a third party alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, U.S. trademark, U.S. patent or any trade secrets of any third parties, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance to Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
6.2 Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding by a third party that arises from an alleged violation of Section 2 (“Restrictions and Responsibilities”) or otherwise from Customer’s use of Services excluded from Service Provider’s aforementioned indemnity obligations.
7. SUPPORT, WARRANTY AND DISCLAIMER
Service Provider shall use reasonable commercial efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services in accordance with Exhibit A. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES OR USE OF ANY SOFTWARE WILL BE UNINTERRUPTED, ACCURATE, TIMELY, OR VIRUS AND ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR SOFTWARE. THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” “WITH ALL FAULTS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NONE OF SERVICE PROVIDER OR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND PROPERTY SUPPLIERS), LICENSORS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS OR EMPLOYEES SHALL 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 LEGAL OR EQUITABLE THEORY: (A) 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, GOODWILL, OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SERVICE PROVIDER’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.
9. U.S. GOVERNMENT MATTERS
Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof, including but not limited to Software, 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 Software is a “commercial item” and according to DFAR section 252.227-7014(a)(1) and (5) is 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.
10. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Service Provider may freely transfer and assign this Agreement and any of its rights and obligations hereunder without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. 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 or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 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 parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in additional to any other relief to which the owner of such Proprietary Information may be entitled. Customer agrees to participate in reasonable marketing activities that promote the benefits of the Service to other potential customers and to use of Customer’s name and logo on Service Provider’s web site and in Service Provider’s promotional materials. Service Provider is permitted to use data related to Customer in a non-identifiable way for the purpose of promotion, including, but not limited to, press releases, award entries, case studies, whitepapers, ebooks, sharing with media, analysts, or press. Customer agrees that Service Provider may disclose Customer as a customer of Service Provider through channels such as its online and offline portfolio, advertising, sales materials, social media, and exhibitions. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Except to the extent otherwise determined by Service Provider, any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Middle District of Florida or in state court in Manatee County, Florida, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Exhibit A
General Service Level Support Terms
1. Up-Time and Reliability. Service Provider will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 99.95% of all Scheduled Availability Time. “Scheduled Availability Time” shall be defined as twenty-four (24) hours a day, seven (7) days a week, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Service Provider (such as internet outages, flood, hurricane, earthquake, riots, sabotage, or outages with respect to Customer’s network or internet access). Service Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
2. Maintenance. Service Provider will make available to Customer all generally available, as part of the Services, enhancements, updates and bug fixes to the Services. Should Customer’s requirements mean that installation of a given update takes more than five hours, Service Provider reserves the right to bill Customer for the incremental installation time. Service Provider reserves the right to charge Customer for troubleshooting or fixing problems caused by Customer’s misuse of the Service. Service Provider reserves the right to change the features of the Services from time to time, provided that such changes will not materially degrade its functionality.
3. Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of the vendor profile data. Additionally, Customer will be responsible for communicating and managing the vendor registration, vendor training and change management process.
4. Support. Service Provider is available to receive product support inquiries via email 24 hours per day. Service Provider Standard Support Hours are 09 :00 to 5 :0 0 Eastern Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
5. Customer Support List. Customer shall provide to Service Provider, and keep current, a list of designated contacts and contact information (“Support List”) for Service Provider to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
6. Classification of Problems. Service Provider shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem.
