Applicable to Premises Product:
UNIT Innovations LLC - -
Software as a Service (SaaS) License Agreement:
The System -, (the “Service(s)”). Service Fees: Subject to the signed invoice and/or yearly
renewals, pricing terms and software license herein. Initial System Term: Is 12 months with (1) year renewals. The
Customer or Company has the right to cancel the Services with 30 days notice from the date of initial Customer
signature acceptance or yearly renewals. If notice is not given, the Service shall automatically renew for (1)
additional year, until cancelled by either party. Customer agrees to pay the (1) year renewable Service fee per initial
renewal of Services terms.
This SaaS License Agreement (“Agreement”) and Renewals are entered the day the county Sheriff, Judge, Jail
Administrator, Chief, or authorized personnel, sign the invoice or renew the yearly Services (the “Effective Date”),
between UNIT Innovations LLC with a place of business at __7550 I-10 Suite 800, San Antonio, TX 78229__ (“Company”), and the customer listed on the signed invoice or renewal acceptance (“Customer”). This
Agreement, Terms, Invoice, and/or Renewals, incorporate software terms, pricing, as well as these license terms,
based on the invoice or renewal, among other things, warranty disclaimers, liability limitations and use limitations.
There shall be no force or effect to any different terms of any related purchase order or similar form even if signed
by the parties after the date hereof.
TERMS AND CONDITIONS:
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide
Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit B. As part of the
Services, Customer will identify administrative, manager, and user names and passwords for Customer’s Company
account. Company reserves the right to refuse registration of, or cancel usernames and passwords it deems
inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services
in accordance with the terms set forth in Exhibit C. It is the Customer's responsibility to notify Company by emails, if
any issues occur with the System.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to
discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the
Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create
derivative works based on the Services or any Software (except to the extent expressly permitted by Company or
authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or
otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is
distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a
non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection
with the Services.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the
Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or
regulations of the United States Department of Commerce, the United States Department of Treasury Office of
Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101,
the Software and documentation are “commercial items” and according to DFAR section 252.227‐7014(a)(1) and
(5) are deemed to be “commercial computer software” and “commercial computer software documentation.”
Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release,
performance, display, or disclosure of such commercial software or commercial software documentation by the U.S.
Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent
expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance
with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.
Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities,
settlements and expenses (including without limitation costs and attorneys’ fees. Although Company has no
obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the
Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any network Wi-Fi internet equipment,
upgrades, and ancillary services needed to connect to, access or otherwise use the Services, including, without
limitation, modems, routers, boosters, hardware, servers, software, operating systems, networking, web servers
and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the
Equipment, Customer username accounts, passwords (including but not limited to administrative and user
passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge
or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed
or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter
referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-
public information regarding features, functionality and performance of the Service. Proprietary Information of
Customer includes non-public data provided by Customer to Company to enable the provision of the Services
(“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary
Information, and (ii) not to use (except in performance of the Services or as otherwise 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 five (5) years following the disclosure thereof 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 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 to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Datas well as any data that is based
on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and
retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or
modifications thereto, (b) any software, applications, inventions or other technology developed in connection with
Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and
other information relating to the provision, use and performance of various aspects of the Services and related
systems and technologies (including, without limitation, information concerning Customer Data and data derived
therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to
improve and enhance the Services and for other development, diagnostic and corrective purposes in connection
with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified
form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the applicable initial and/or renewable fees described in the invoice pricing in
accordance with these terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity
set forth on the Schedule of Payment or otherwise requires the payment of additional fees (per the terms of this
Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner
provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges
and Fees at the end of the initial first year or renewable year term, upon thirty (30) days prior notice to Customer
(which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must
contact Company no later than 30 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 Company’s customer
support department.
4.2 Company will bill through an invoice, in which case, Terms and Pricing plus schedule of payment terms
apply, due upon receipt of invoice or 30 days net if applicable. Unpaid amounts are subject to a finance charge of
1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all
expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all
taxes, if necessary, associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Services Agreement is for the Initial Service Term
and/or Renewals as specified in the Invoice(s) (collectively, the “Term”), unless either party requests termination at
least thirty (30) days prior to the end of the then-initial or renew term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon
fifteen (15) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of
the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day
on which the Services are provided. Upon any termination, Company will make all Customer Data available to
Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to,
delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will
survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty
disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a
manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in
a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for
unscheduled emergency critical maintenance, either by Company or by third-party providers, or because of other
causes beyond Company’s reasonable control, but Company may or may not use reasonable efforts to provide
advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant
that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be
obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES
AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. INDEMNITY
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of
any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly
notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the
opportunity to assume sole control over defense and settlement; Company will not be responsible for any
settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or
components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer
specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or
materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly
infringing activity after being notified thereof or after being informed of modifications that would have avoided the
alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.
If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by
Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-
infringing provided that such modification or replacement contains substantially similar features and functionality, (b)
obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially
practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any
prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON,
COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY
SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT
BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR
TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY
OR OTHER THEORY: (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; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR
(D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS,
EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN
THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR
NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. 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 Company’s
prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement
without consent. 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 by both parties, 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
Company 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. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws
provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release
within 60-90 days of the Effective GO-LIVE Date, and Customer otherwise agrees to reasonably cooperate with
Company to serve as a reference account upon request.
EXHIBIT A
Scope of Work Included in Scope of Work (SOW)
UNIT System
EXHIBIT B
Service Level Terms
The Services shall be available 99.9%, measured monthly, and necessary scheduled maintenance. If Customer
requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such
maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons
beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy,
and Company's entire liability, in connection with Service availability shall be that for each period of downtime
lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more
consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall
begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and
continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify
Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right
to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total
of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a
credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in
accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels
under this Agreement.
EXHIBIT C
Support Terms
Company will provide Technical Support to Customer via both telephone and electronic mail for 24/7/365 (“Support
Hours”). Customer may initiate a help/support desk ticket during Support Hours by emailing at any time, (1)
support@unitinnovations.com, (2) calling 210-765-9650, or (3) contacting your account executive. Company will
use commercially reasonable efforts to respond to all Helpdesk support email tickets within one (1) to (6) hours for
critical issues and (1) business day for any other issues.
Applicable to JMS & RMS Product:
UNIT Innovations — JMS & RMS Software as a Service Agreement (Standard Terms)
This Software as a Service (SaaS) Agreement (the "Agreement") is by and between UNIT
Innovations LLC, a Delaware limited liability company with offices located at 7550 W IH-10,
Suite 800, San Antonio, Texas 78229 ("Provider") and the customer identified on the applicable
Quote or Invoice issued by Provider that references this Agreement ("Customer"). The
"Effective Date" is the date of Customer’s first acceptance of this Agreement as described
below.
Acceptance. Customer accepts and agrees to this Agreement by any of the following: (a)
executing a Quote referencing this Agreement; (b) paying an Invoice referencing this
Agreement; or (c) accessing or using the Services, including through a log-in screen that
references this Agreement.
WHEREAS, Customer wishes to procure from Provider the software services described herein,
and Provider wishes to provide such services to Customer, each on the terms and conditions set
forth in 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:
1. Definitions.
"Access Credentials" means any user name, identification number, password, license or
security key, security token, PIN or other security code, method, technology or device used,
alone or in combination, to verify an individual’s identity and authorization to access and use
the Hosted Services.
"Action" has the meaning set forth in Section 13.1.
"Agreement" has the meaning set forth in the preamble.
"Authorized User" means each of the individuals authorized to use the Services pursuant to
Section 3.1 and the other terms and conditions of this Agreement as identified in Schedule B.
"Availability Requirement" has the meaning set forth in Section 5.1.
"Available" has the meaning set forth in Section 5.1.
"Backup Policy" has the meaning set forth in Section 6.
"Confidential Information" has the meaning set forth in Section 10.1.
"Customer" has the meaning set forth in the preamble.
"Customer Data" means, other than Resultant Data, information, data and other content, in
any form or medium, that is collected, downloaded or otherwise received, directly or indirectly
from Customer or an Authorized User by or through the Services.
"Customer Failure" has the meaning set forth in Section 4.2.
"Customer Indemnitee" has the meaning set forth in Section 13.1.
"Customer Systems" means the Customer’s information technology infrastructure, including
computers, software, hardware, databases, electronic systems (including database management
systems) and networks, whether operated directly by Customer or through the use of third-
party services.
"Disclosing Party" has the meaning set forth in Section 10.1.
"Documentation" means any manuals, instructions or other documents or materials listed in
Schedule C that the Provider provides or makes available to Customer in any form or medium
and which describe the functionality, components, features or requirements of the Services or
Provider Materials, including any aspect of the installation, configuration, integration,
operation, use, support or maintenance thereof.
"Effective Date" has the meaning set forth in the preamble.
"Exceptions" has the meaning set forth in Section 5.1.
"Fees" has the meaning set forth in Section 8.1.
"Force Majeure Event" has the meaning set forth in Section 15.1.
"Harmful Code" means any software, hardware or other technology, device or means,
including any virus, worm, malware or other malicious computer code, the purpose or effect of
which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or
otherwise harm or impede in any manner any (i) computer, software, firmware, hardware,
system or network or (ii) any application or function of any of the foregoing or the security,
integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any
Authorized User from accessing or using the Services or Provider Systems as intended by this
Agreement. Harmful Code does not include any Provider Disabling Device.
"Hosted Services" has the meaning set forth in Section 2.1.
"Indemnitee" has the meaning set forth in Section 13.3.
"Indemnitor" has the meaning set forth in Section 13.3.
"Initial Term" has the meaning set forth in Section 11.1.
"Intellectual Property Rights" means any and all registered and unregistered rights granted,
applied for or otherwise now or hereafter in existence under or related to any patent, copyright,
trademark, trade secret, database protection or other intellectual property rights laws, and all
similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty,
common law, judgment, decree or other requirement of any federal, state, local or foreign
government or political subdivision thereof, or any arbitrator, court or tribunal of competent
jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments,
settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including
reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder
and the cost of pursuing any insurance providers.
"Permitted Use" means any use of the Services by an Authorized User for the benefit of
Customer solely in or for Customer’s internal business operations.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity,
governmental authority, unincorporated organization, trust, association or other entity.
"Personal Information" means any information that, individually or in combination, does or
can identify a specific individual or by or from which a specific individual may be identified,
contacted or located.
"Privacy and Security Policy" has the meaning set forth in Section 7.1.
"Process" means to take any action or perform any operation or set of operations that the SaaS
Services are capable of taking or performing on any data, information or other content,
including to collect, receive, input, upload, download, record, reproduce, store, organize,
compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate
or make other derivative works or improvements, process, retrieve, output, consult, use,
perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or
make available, or block, erase or destroy. "Processing" and "Processed" have correlative
meanings.
"Provider" has the meaning set forth in the preamble.
"Provider Licensor" shall mean UNIT Innovations, LLC.
"Provider Disabling Device" means any software, hardware or other technology, device or
means (including any back door, time bomb, time out, drop dead device, software routine or
other disabling device) used by Provider or its designee to disable Customer’s or any Authorized
User’s access to or use of the Services automatically with the passage of time or under the
positive control of Provider or its designee.
"Provider Indemnitee" has the meaning set forth in Section 13.2.
"Provider Materials" means the Service Software, Specifications, Documentation and Provider
Systems and any and all other information, data, documents, materials, works and other
content, devices, methods, processes, hardware, software and other technologies and
inventions, including any deliverables, technical or functional descriptions, requirements,
plans or reports, that are provided or used by Provider or any Subcontractor in connection with
the Services or otherwise comprise or relate to the Services or Provider Systems. For the
avoidance of doubt, Provider Materials include Resultant Data and any information, data or
other content derived from Provider’s monitoring of Customer’s access to or use of the Services,
but do not include Customer Data.
"Provider Personnel" means all individuals involved in the performance of Services as
employees, agents or independent contractors of Provider or any Subcontractor.
"Provider Systems" means the information technology infrastructure used by or on behalf of
Provider in performing the Services, including all computers, software, hardware, databases,
electronic systems (including database management systems) and networks, whether operated
directly by Provider or through the use of third-party services.
"Receiving Party" has the meaning set forth in Section 10.1.
"Reimbursable Expenses" has the meaning set forth in Section 8.3.
"Renewal Term" has the meaning set forth in Section 11.2.
"Representatives" means, with respect to a party, that party’s and its Affiliates’ employees,
officers, directors, consultants, agents, independent contractors, service providers, sublicensees,
subcontractors and legal advisors.
"Resultant Data" means information, data and other content that is derived by or through the
Services from Processing Customer Data and is sufficiently different from such Customer Data
that such Customer Data cannot be reverse engineered or otherwise identified from the
inspection, analysis or further Processing of such information, data or content.
"Scheduled Downtime" has the meaning set forth in Section 5.3.
"Service Allocation" has the meaning set forth in Section 3.4.
"Service Level Failure" has the meaning set forth in Section 5.1.
"Service Period" has the meaning set forth in Section 5.1.
"Service Software" means the Provider software application or applications and any third-
party or other software, and all new versions, updates, revisions, improvements and
modifications of the foregoing, that Provider provides remote access to and use of as part of the
Services.
"Services" has the meaning set forth in Section 2.1.
"Specifications" means the specifications for the Services set forth in Schedule C and, to the
extent consistent with and not limiting of the foregoing, the Documentation.
"Subcontractor" has the meaning set forth in Section 2.5.
"Support Schedule" has the meaning set forth in Section 5.4.
"Support Services" has the meaning set forth in Section 5.4.
"Term" has the meaning set forth in Section 11.2.
"Territory" means the United States.
"Third Party Materials" means materials and information, in any form or medium, including
any open-source or other software, documents, data, content, specifications, products,
equipment or components of or relating to the Services that are not proprietary to Provider.
2. Services.
1. Services. Subject to and conditioned on Customer’s and its Authorized Users’
compliance with the terms and conditions of this Agreement, during the Term,
Provider shall use commercially reasonable efforts to provide to Customer and
its Authorized Users the services described in the attached Schedule A and this
Agreement (collectively, the "Services") in accordance with the Specifications
and terms and conditions hereof, including to host, manage, operate and
maintain the Service Software for remote electronic access and use by Customer
and its Authorized Users ("Hosted Services") in substantial conformity with
the Specifications 24 hours per day, seven days per week every day of the year,
except for:
a. Scheduled Downtime in accordance with Section 5.3;
b. Service downtime or degradation due to a Force Majeure Event;
c. any other circumstances beyond Provider’s reasonable control, including
Customer’s or any Authorized User’s use of Third Party Materials, misuse
of the Hosted Services, or use of the Services other than in compliance
with the express terms of this Agreement and the Specifications; and
d. any suspension or termination of Customer’s or any Authorized Users’
access to or use of the Hosted Services as permitted by this Agreement.
2. Service and System Control. Except as otherwise expressly provided in this
Agreement, as between the parties:
a. Provider has and will retain sole control over the operation, provision,
maintenance and management of the Services and Provider Materials,
including the: (i) Provider Systems; (ii) location(s) where any of the
Services are performed; (iii)selection, deployment, modification and
replacement of the Service Software; and (iv) performance of Support
Services and Service maintenance, upgrades, corrections and repairs; and
b. Customer has and will retain sole control over the operation,
maintenance and management of, and all access to and use of, the
Customer Systems, and sole responsibility for all access to and use of the
Services and Provider Materials by any Person by or through the
Customer Systems or any other means controlled by Customer or any
Authorized User, including any: (i) information, instructions or materials
provided by any of them to the Services or Provider; (ii) results obtained
from any use of the Services or Provider Materials; and (iii) conclusions,
decisions or actions based on such use.
Notwithstanding anything to the contrary in this Agreement, all Services, including all
Processing of Customer Data by or on behalf of Provider shall be provided solely from within,
and on computers, systems, networks and other infrastructure located in, the United States.
3. Service Management. Each party shall, throughout the Term, maintain within its
organization a service manager to serve as such party’s primary point of contact for day-
to-day communications, consultation and decision-making regarding the Services. Each
service manager shall be responsible for providing all day-to-day consents and
approvals on behalf of such party under this Agreement. Each party shall ensure its
service manager has the requisite organizational authority, skill, experience and other
qualifications to perform in such capacity. The parties’ initial service managers are
identified in Schedule B. Each party shall use commercially reasonable efforts to
maintain the same service manager in place throughout the Term. If either party’s
service manager ceases to be employed by such party or such party otherwise wishes to
replace its service manager, such party shall promptly name a new service manager by
written notice to the other party.
4. Changes. Provider reserves the right, in its sole discretion, to make any changes to the
Services and Provider Materials that it deems necessary or useful to: (a) maintain or
enhance (i) the quality or delivery of Provider’s services to its customers, (ii) the
competitive strength of or market for Provider’s services or (iii) the Services’ cost
efficiency or performance; or (b) to comply with applicable Law. Without limiting the
foregoing, either party may, at any time during the Term, request in writing changes to
the Services. The parties shall evaluate and, if agreed, implement all such requested
changes in accordance with the change procedure set forth in Schedule D. No requested
changes will be effective unless and until memorialized in a written change order signed
by both parties, except that Customer may increase or decrease the number of
Authorized Users for any Services pursuant to Section 3.4.
5. Subcontractors. Provider may from time to time in its discretion engage third parties to
perform Services (each, a "Subcontractor").
6. Suspension or Termination of Services. Provider may, directly or indirectly, and by use
of a Provider Disabling Device or any other lawful means, suspend, terminate or
otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use
of all or any part of the Services or Provider Materials, without incurring any resulting
obligation or liability, if: (a) Provider receives a judicial or other governmental demand
or order, subpoena or law enforcement request that expressly or by reasonable
implication requires Provider to do so; or (b) Provider believes, in its good faith and
reasonable discretion, that: (i) Customer or any Authorized User has failed to comply
with, any term of this Agreement, or accessed or used the Services beyond the scope of
the rights granted or for a purpose not authorized under this Agreement or in any
manner that does not comply with any instruction or requirement of the Specifications;
(ii) Customer or any Authorized User is, has been, or is likely to be involved in any
fraudulent, misleading or unlawful activities relating to or in connection with any of the
Services; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit
any of Provider’s other rights or remedies, whether at law, in equity or under this
Agreement.
3. Authorization and Customer Restrictions.
1. Authorization. Subject to and conditioned on Customer’s payment of the Fees
and compliance and performance in accordance with all other terms and
conditions of this Agreement, Provider hereby authorizes Customer to access and
use, solely in the Territory and during the Term, the Services and such Provider
Materials as Provider may supply or make available to Customer solely for the
Permitted Use by and through Authorized Users in accordance with the
Specifications, and the conditions and limitations set forth in this Agreement.
This authorization is non-exclusive and other than as may be expressly set forth
in Section 16.8, non-transferable.
2. Reservation of Rights. Nothing in this Agreement grants any right, title or
interest in or to (including any license under) any Intellectual Property Rights in
or relating to, the Services, Provider Materials or Third Party Materials, whether
expressly, by implication, estoppel or otherwise. All right, title and interest in
and to the Services, the Provider Materials and the Third Party Materials are and
will remain with Provider and the respective rights holders in the Third Party
Materials.
3. Authorization Limitations and Restrictions. Customer shall not, and shall not
permit any other Person to, access or use the Services or Provider Materials
except as expressly permitted by this Agreement and, in the case of Third-Party
Materials, the applicable third-party license agreement. For purposes of clarity
and without limiting the generality of the foregoing, Customer shall not, except
as this Agreement expressly permits:
a. copy, modify or create derivative works or improvements of the Services
or Provider Materials;
b. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or
otherwise make available any Services or Provider Materials to any
Person, including on or in connection with the internet or any time-
sharing, service bureau, software as a service, cloud or other technology
or service;
c. reverse engineer, disassemble, decompile, decode, adapt or otherwise
attempt to derive or gain access to the source code of the Services or
Provider Materials, in whole or in part;
d. bypass or breach any security device or protection used by the Services or
Provider Materials or access or use the Services or Provider Materials
other than by an Authorized User through the use of his or her own then
valid Access Credentials;
e. input, upload, transmit or otherwise provide to or through the Services or
Provider Systems, any information or materials that are unlawful or
injurious, or contain, transmit or activate any Harmful Code;
f. damage, destroy, disrupt, disable, impair, interfere with or otherwise
impede or harm in any manner the Services, Provider Systems or
Provider’s provision of services to any third party, in whole or in part;
g. remove, delete, alter or obscure any trademarks, Specifications,
Documentation, EULA, warranties or disclaimers, or any copyright,
trademark, patent or other intellectual property or proprietary rights
notices from any Services or Provider Materials, including any copy
thereof;
h. access or use the Services or Provider Materials in any manner or for any
purpose that infringes, misappropriates or otherwise violates any
Intellectual Property Right or other right of any third party (including by
any unauthorized access to, misappropriation, use, alteration, destruction
or disclosure of the data of any other Provider customer), or that violates
any applicable Law;
i. access or use the Services or Provider Materials for purposes of
competitive analysis of the Services or Provider Materials, the
development, provision or use of a competing software service or product
or any other purpose that is to the Provider’s detriment or commercial
disadvantage; or
j. otherwise access or use the Services or Provider Materials beyond the
scope of the authorization granted under Section 3.1.
4. Service Use. Customer’s permitted scope of use of the Hosted Services (including
facilities, modules and user counts, as applicable) is as set forth on the applicable
Quote or Invoice.
4. Customer Obligations.
1. Customer Systems and Cooperation. Customer shall at all times during the Term:
(a) set up, maintain and operate in good repair and in accordance with the
Specifications all Customer Systems on or through which the Services are
accessed or used; (b) provide Provider Personnel with such access to Customer’s
premises and Customer Systems as is necessary for Provider to perform the
Services in accordance with the Availability Requirement and Specifications; and
(c) provide all cooperation and assistance as Provider may reasonably request to
enable Provider to exercise its rights and perform its obligations under and in
connection with this Agreement.
2. Effect of Customer Failure or Delay. Provider is not responsible or liable for any
delay or failure of performance caused in whole or in part by Customer’s delay in
performing, or failure to perform, any of its obligations under this Agreement
(each, a "Customer Failure").
3. Corrective Action and Notice. If Customer becomes aware of any actual or
threatened activity prohibited by Section 3.3, Customer shall, and shall cause its
Authorized Users to, immediately: (a) take all reasonable and lawful measures
within their respective control that are necessary to stop the activity or
threatened activity and to mitigate its effects (including, where applicable, by
discontinuing and preventing any unauthorized access to the Services and
Provider Materials and permanently erasing from their systems and destroying
any data to which any of them have gained unauthorized access); and (b) notify
Provider of any such actual or threatened activity.
4. Non-Solicitation. During the Term and for two (2) years after, Customer shall
not, and shall not assist any other Person to, directly or indirectly recruit or
solicit (other than by general advertisement not directed specifically to any
Person or Persons) for employment or engagement as an independent contractor
any Person then or within the prior six (6) months employed or engaged by
Provider or any Subcontractor and involved in any respect with the Services or
the performance of this Agreement. In the event of a violation of this Section
4.4, Provider will be entitled to liquidated damages equal to the compensation
paid by Provider to the applicable employee or contractor during the prior six
(6) months.
5. Service Levels and Credits.
1. Service Levels. Subject to the terms and conditions of this Agreement, Provider
will use commercially reasonable efforts to make the Hosted Services Available
at least ninety-nine and one half percent (99.5%) of the time as measured over
the course of each calendar month during the Term (each such calendar month,
a "Service Period"), excluding unavailability as a result of any of the Exceptions
described below in this Section 5.1 (the "Availability Requirement").
"Service Level Failure" means a material failure of the Hosted Services to meet
the Availability Requirement. "Available" means the Hosted Services are
available for access and use by Customer and its Authorized Users over the
Internet and operating in material accordance with the Specifications. For
purposes of calculating the Availability Requirement, the following are
"Exceptions" to the Availability Requirement, and neither the Hosted Services
will be considered un-Available nor any Service Level Failure be deemed to occur
in connection with any failure to meet the Availability Requirement or impaired
ability of Customer or its Authorized Users to access or use the Hosted Services
that is due, in whole or in part, to any: (a) access to or use of the Hosted Services
by Customer or any Authorized User, or using Customer’s or an Authorized
User’s Access Credentials, that does not strictly comply with this Agreement and
the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User’s
Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage
or other problem with any software, hardware, system, network, facility or other
matter not supplied by Provider pursuant to this Agreement; (f) Scheduled
Downtime; or (g) disabling, suspension or termination of the Services pursuant
to Section 2.6.
2. Service Level Failures and Remedies. In the event of a Service Level Failure,
Provider shall use commercially reasonable efforts to restore Availability of the
Hosted Services as promptly as practicable. If a Service Level Failure continues
uncured for thirty (30) consecutive days after Customer’s written notice,
Customer may terminate the affected Services on written notice to Provider and
receive a pro rata refund of prepaid Fees for the terminated Services attributable
to the period after the effective date of termination. This Section 5.2 sets forth
Provider’s sole obligation and liability and Customer’s sole remedy for any
Service Level Failure.
6. Scheduled Downtime. Provider will use commercially reasonable efforts to (a) schedule
downtime for routine maintenance of the Hosted Services between the hours of 12:00
a.m. and 6:00 a.m., Central Time; and (b) give Customer at least twenty-four (24) hours
prior notice of all scheduled outages of the Hosted Services ("Scheduled Downtime").
7. Service Support. The Services include Provider’s standard customer support services
("Support Services") in accordance with the Provider service support schedule, a
current copy of which is attached as Schedule E (the "Support Schedule"). Provider
may amend the Support Schedule from time to time in its sole discretion.
6. Data Backup. The Services do not replace the need for Customer to maintain regular
data backups or redundant data archives. The Provider Systems are programmed to
perform routine data backups as set out in Provider’s backup policy in effect from time
to time, a current copy of which is available from Provider on written request (the
"Backup Policy"). Provider will deliver to Customer its then most current back-ups of
Customer Data as and when set forth in the Backup Policy. In the event of any loss,
destruction, damage or corruption of Customer Data caused by the Provider Systems or
Services, Provider will, as its sole obligation and liability and as Customer’s sole remedy,
use commercially reasonable efforts to restore the Customer Data from Provider’s then
most current backup of such Customer Data in accordance with the then current
Backup Policy.
7. Security.
1. Provider Systems and Security Obligations. Provider will employ security
measures in accordance with Provider’s data privacy and security policy as
amended from time to time, a current copy of which is available from Provider
on written request ("Privacy and Security Policy").
2. Data Breach Procedures. Provider maintains a data breach plan in accordance
with the criteria set forth in Provider’s Privacy and Security Policy and shall
implement the procedures required under such data breach plan on the
occurrence of a "Data Breach" (as defined in such plan).
3. Prohibited Data. Customer acknowledges that the Services are not designed with
security and access management for Processing the following categories of
information: (a) personal health information under HIPAA; (b) data that is
classified and or used on the U.S. Munitions list, including software and
technical data; (c) articles, services and related technical data designated as
defense articles or defense services; and (d) ITAR (International Traffic in Arms
Regulations) related data, (each of the foregoing, "Prohibited Data"). Customer
shall not, and shall not permit any Authorized User or other Person to, provide
any Prohibited Data to, or Process any Prohibited Data through, the Services, the
Provider Systems or any Provider Personnel. Customer is solely responsible for
reviewing all Customer Data and shall ensure that no Customer Data constitutes
or contains any Prohibited Data.
4. Customer Control and Responsibility. Customer has and will retain sole
responsibility for: (a) all Customer Data, including its content and use; (b) all
information, instructions and materials provided by or on behalf of Customer or
any Authorized User in connection with the Services; (c) Customer’s information
technology infrastructure, including computers, software, databases, electronic
systems (including database management systems) and networks, whether
operated directly by Customer or through the use of third-party services
("Customer Systems"); (d) the security and use of Customer’s and its
Authorized Users’ Access Credentials; and (e) all access to and use of the Services
and Provider Materials directly or indirectly by or through the Customer
Systems or its or its Authorized Users’ Access Credentials, with or without
Customer’s knowledge or consent, including all results obtained from, and all
conclusions, decisions and actions based on, such access or use.
5. Access and Security. Customer shall employ all physical, administrative and
technical controls, screening and security procedures and other safeguards
necessary to: (a) securely administer the distribution and use of all Access
Credentials and protect against any unauthorized access to or use of the Hosted
Services; and (b) control the content and use of Customer Data, including the
uploading or other provision of Customer Data for Processing by the Hosted
Services.
8. Fees; Payment Terms.
1. Fees. Customer shall pay Provider the fees set forth in Schedule A ("Fees") in
accordance with this Section 8.
2. Fee Increases. Provider may increase Fees no more than once annually, effective
as of the commencement of any Renewal Term, by providing written notice to
Customer at least sixty (60) calendar days prior to the commencement of such
Renewal Term, and Schedule A will be deemed amended accordingly.
3. Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket
expenses incurred by Provider in connection with performing the Services
("Reimbursable Expenses").
4. 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.
5. Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to
the due date set forth in Schedule A. Customer shall make all payments by the
payment methods set forth in Schedule A. Customer shall make payments to the
address or account specified in Schedule A or such other address or account as
Provider may specify in writing from time to time.
6. Late Payment. If Customer fails to make any payment when due then, in
addition to all other remedies that may be available:
a. 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;
b. 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
c. if such failure continues for thirty (30) days following written notice
thereof, Provider may suspend performance of the Services until all past
due amounts and interest thereon have been paid, without incurring any
obligation or liability to Customer or any other Person by reason of such
suspension.
7. No Deductions or Setoffs. All amounts payable to Provider under this Agreement
shall be paid by Customer to Provider in full without any setoff, recoupment,
counterclaim, deduction, debit or withholding for any reason (other than Service
Credits issued pursuant to Section 5.2 or any deduction or withholding of tax as
may be required by applicable Law).
9. Intellectual Property Rights.
1. Services and Provider Materials. All right, title and interest in and to the Services
and Provider Materials, including all Intellectual Property Rights therein, are
and will remain with Provider, Provider Licensor, any other licensors, and the
respective rights holders in the Third-Party Materials. Customer has no right,
license or authorization with respect to any of the Services or Provider Materials
(including Third-Party Materials) except as expressly set forth in Section 3.1 or
the applicable third-party license, in each case subject to Section 3.3 All other
rights in and to the Services and Provider Materials (including Third-Party
Materials) are expressly reserved by Provider, Provider Licensor, and the
respective third-party licensors. In furtherance of the foregoing, Customer
hereby unconditionally and irrevocably grants to Provider an assignment of all
right, title and interest in and to the Resultant Data, including all Intellectual
Property Rights relating thereto.
2. Customer Data. As between Customer and Provider, Customer is and will remain
the sole and exclusive owner of all right, title and interest in and to all Customer
Data, including all Intellectual Property Rights relating thereto, subject to the
rights and permissions granted in Section 9.3.
3. Consent to Use Customer Data. Customer hereby irrevocably grants all such
rights and permissions in or relating to Customer Data: (a) to Provider, its
Subcontractors and the Provider Personnel as are necessary or useful to perform
the Services; and (b) to Provider as are necessary or useful to enforce this
Agreement and exercise its rights and perform its hereunder.
10. Confidentiality.
1. Confidential Information. In connection with this Agreement each party (as the
"Disclosing Party") may disclose or make available Confidential Information to
the other party (as the "Receiving Party"). Subject to Section 10.2,
"Confidential Information" means information in any form or medium
(whether oral, written, electronic or other) that the Disclosing Party considers
confidential or proprietary, including information consisting of or relating to the
Disclosing Party’s technology, trade secrets, know-how, business operations,
plans, strategies, customers, and pricing, and information with respect to which
the Disclosing Party has contractual or other confidentiality obligations, in each
case whether or not marked, designated or otherwise identified as "confidential".
Without limiting the foregoing: all Provider Materials are the Confidential
Information of Provider, Provider Licensor, and any other Provider licensors,
and the financial terms of this Agreement are the Confidential Information of
Provider.
2. Exclusions. Confidential Information does not include information that the
Receiving Party can demonstrate by written or other documentary records: (a)
was rightfully known to the Receiving Party without restriction on use or
disclosure prior to such information’s being disclosed or made available to the
Receiving Party in connection with this Agreement; (b) was or becomes
generally known by the public other than by the Receiving Party’s or any of its
Representatives’ noncompliance with this Agreement; (c) was or is received by
the Receiving Party on a non-confidential basis from a third party that, to the
Receiving Party’s knowledge, was not or is not, at the time of such receipt, under
any obligation to maintain its confidentiality; or (d) the Receiving Party can
demonstrate by written or other documentary records was or is independently
developed by the Receiving Party without reference to or use of any Confidential
Information.
3. Protection of Confidential Information. As a condition to being provided with
any disclosure of or access to Confidential Information, the Receiving Party
shall:
a. not access or use Confidential Information other than as necessary to
exercise its rights or perform its obligations under and in accordance
with this Agreement;
b. except as may be permitted by and subject to its compliance with Section
10.4, not disclose or permit access to Confidential Information other than
to its Representatives who: (i) need to know such Confidential
Information for purposes of the Receiving Party’s exercise of its rights or
performance of its obligations under and in accordance with this
Agreement; (ii) have been informed of the confidential nature of the
Confidential Information and the Receiving Party’s obligations under this
Section 10.3; and (iii) are bound by written confidentiality and
restricted use obligations at least as protective of the Confidential
Information as the terms set forth in this Section 10.3;
c. safeguard the Confidential Information from unauthorized use, access or
disclosure using at least the degree of care it uses to protect its similarly
sensitive information and in no event less than a reasonable degree of
care; and
d. ensure its Representatives’ compliance with, and be responsible and
liable for any of its Representatives’ non-compliance with, the terms of
this Section 10.
4. Compelled Disclosures. If the Receiving Party or any of its Representatives is
compelled by applicable Law to disclose any Confidential Information then, to
the extent permitted by applicable Law, the Receiving Party shall: (a) promptly,
and prior to such disclosure, notify the Disclosing Party in writing of such
requirement so that the Disclosing Party can seek a protective order or other
remedy or waive its rights under Section 10.3; and (b) provide reasonable
assistance to the Disclosing Party in opposing such disclosure or seeking a
protective order or other limitations on disclosure. If the Disclosing Party waives
compliance or, after providing the notice and assistance required under this
Section 10.4, the Receiving Party remains required by Law to disclose any
Confidential Information, the Receiving Party shall disclose only that portion of
the Confidential Information that, on the advice of the Receiving Party’s outside
legal counsel, the Receiving Party is legally required to disclose and, on the
Disclosing Party’s request, shall use commercially reasonable efforts to obtain
assurances from the applicable court or other presiding authority that such
Confidential Information will be afforded confidential treatment.
11. Term and Termination.
1. Initial Term. The initial term of this Agreement commences as of the Effective
Date and, unless terminated earlier pursuant to any of the Agreement’s express
provisions, will continue in effect for the license period set forth on the
applicable Quote or Invoice (the "Initial Term").
2. Renewal. This Agreement renews for successive one-year terms upon Customer’s
payment of the applicable renewal Invoice, unless either party gives the other
written notice of non-renewal at least thirty (30) days prior to the expiration of
the then-current term (each a "Renewal Term" and, together with the Initial
Term, the "Term").
3. Termination. In addition to any other express termination right set forth
elsewhere in this Agreement:
a. Provider may terminate this Agreement, effective on written notice to
Customer, if Customer: (i) fails to pay any amount when due hereunder,
and such failure continues more than thirty (30) days after Provider’s
delivery of written notice thereof; or (ii) breaches any of its obligations
under Section 3.3 (Use Limitations and Restrictions), Section 7.3
(Prohibited Data) or Section 10 (Confidentiality).
b. 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: (i) is incapable of cure; or (ii) being capable of cure,
remains uncured thirty (30) days after the non-breaching party provides
the breaching party with written notice of such breach; and
c. either party may terminate this Agreement, effective immediately upon
written notice to the other party, if the other party: (i) becomes insolvent
or is generally unable to pay, or fails to pay, its debts as they become due;
(ii) 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; (iii) makes or seeks to make a general assignment for the benefit of
its creditors; or (iv) 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.
4. Effect of Expiration or Termination. Upon any expiration or termination of this
Agreement, except as expressly otherwise provided in this Agreement:
a. all rights, licenses, consents and authorizations granted by either party to
the other hereunder will immediately terminate;
b. Provider shall immediately cease all use of any Customer Data or
Customer’s Confidential Information and (i) within thirty (30) days
return to Customer, or at Customer’s written request destroy, all
documents and tangible materials containing, reflecting, incorporating or
based on Customer Data or Customer’s Confidential Information; and (ii)
permanently erase all Customer Data and Customer’s Confidential
Information from all systems Provider directly or indirectly controls,
provided that, for clarity, Provider’s obligations under this Section
11.4(b) do not apply to any Resultant Data;
c. Customer shall immediately cease all use of any Services or Provider
Materials and (i) within thirty (30) return to Provider, or at Provider’s
written request destroy, all documents and tangible materials containing,
reflecting, incorporating or based on any Provider Materials or Provider’s
Confidential Information; (ii) permanently erase all Provider Materials
and Provider’s Confidential Information from all systems Customer
directly or indirectly controls; and (iii) certify to Provider in a signed
written instrument that it has complied with the requirements of this
Section 11.4(c);
d. notwithstanding anything to the contrary in this Agreement, with respect
to information and materials then in its possession or control: (i) the
Receiving Party may retain the Disclosing Party’s Confidential
Information; (ii) Provider may retain Customer Data; (iii) Customer may
retain Provider Materials, in the case of each of subclause (i), and (ii) and
(iii) in its then current state and solely to the extent and for so long as
required by applicable Law; (iv) Provider may also retain Customer Data
in its backups, archives and disaster recovery systems until such
Customer Data is deleted in the ordinary course; and (v) all information
and materials described in this Section 11.4(d) will remain subject to all
confidentiality, security and other applicable requirements of this
Agreement;
e. Provider may disable all Customer and Authorized User access to the
Hosted Services and Provider Materials;
f. if Customer terminates this Agreement pursuant to Section 11.3(b),
Customer will be relieved of any obligation to pay any Fees attributable to
the period after the effective date of such termination and Provider will
refund to Customer Fees paid in advance for Services that Provider has
not performed as of the effective date of termination;
g. if Provider terminates this Agreement pursuant to Section 11.3(a) or
Section 11.3(b), all Fees that would have become payable had the
Agreement remained in effect until expiration of the Term will become
immediately due and payable, and Customer shall pay such Fees, together
with all previously-accrued but not yet paid Fees and Reimbursable
Expenses, on receipt of Provider’s invoice therefor.
5. Surviving Terms. The provisions set forth in the following sections, and any
other right or obligation of the parties in this Agreement that, by its nature,
should survive termination or expiration of this Agreement, will survive any
expiration or termination of this Agreement: Section 3.3, Section 10, Section
11.4, this Section 11.5, Section 12, Section 13, Section 14 and Section 16.
12. Representations and Warranties.
1. Mutual Representations and Warranties. Each party represents and warrants to
the other party that:
a. it is duly organized, validly existing and in good standing as a corporation
or other entity under the Laws of the jurisdiction of its incorporation or
other organization;
b. it has the full right, power and authority to enter into and perform its
obligations and grant the rights, licenses, consents and authorizations it
grants or is required to grant under this Agreement;
c. the execution of this Agreement by its representative whose signature is
set forth at the end of this Agreement has been duly authorized by all
necessary corporate or organizational action of such party; and
d. when executed and delivered by both parties, this Agreement will
constitute the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms.
2. Additional Provider Representations, Warranties and Covenants. Provider
represents, warrants and covenants to Customer that Provider will perform the
Services using personnel of required skill, experience and qualifications and in a
professional and workmanlike manner in accordance with generally recognized
industry standards for similar services and will devote adequate resources to
meet its obligations under this Agreement.
3. Additional Customer Representations, Warranties and Covenants. Customer
represents, warrants and covenants to Provider that Customer owns or
otherwise has and will have the necessary rights and consents in and relating to
the Customer Data so that, as received by Provider and Processed in accordance
with this Agreement, they do not and will not infringe, misappropriate or
otherwise violate any Intellectual Property Rights, or any privacy or other rights,
of any third party or violate any applicable Law.
4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND
PROVIDER MATERIALS ARE PROVIDED "AS IS" AND PROVIDER HEREBY
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM
COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE
FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE
SERVICES OR PROVIDER MATERIALS, 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 EXCEPT IF AND TO THE EXTENT EXPRESSLY SET
FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE
OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE
PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR
CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN
CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE
THIRD-PARTY MATERIALS.
13. Indemnification.
1. Provider Indemnification. Provider shall indemnify, defend and hold harmless
Customer and Customer’s officers, directors, employees, agents, successors and
permitted assigns (each, a "Customer Indemnitee") from and against any and
all Losses incurred by such Customer Indemnitee arising out of or relating to any
claim, suit, action or proceeding (each, an "Action") by a third party (other than
an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from
any allegation in such Action that Customer’s or an Authorized User’s use of the
Services (excluding Customer Data and Third Party Materials) in compliance
with this Agreement (including the Specifications) infringes a U.S. Intellectual
Property Right. The foregoing obligation does not apply to any Action or Losses
arising out of or relating to any:
a. access to or use of the Services or Provider Materials in combination with
any hardware, system, software, network or other materials or service
not provided or authorized in the Specifications or otherwise in writing
by Provider;
b. modification of the Services or Provider Materials other than: (i) by or on
behalf of Provider; or (ii) with Provider’s written approval in accordance
with Provider’s written specification;
c. failure to timely implement any modifications, upgrades, replacements or
enhancements made available to Customer by or on behalf of Provider; or
d. act, omission or other matter described in Section 13.2(a), Section
13.2(b), Section 13.2(c) or Section 13.2(d), whether or not the same
results in any Action against or Losses by any Provider Indemnitee.
2. Customer Indemnification. Customer shall indemnify, defend and hold harmless
Provider, Provider Licensor, any other licensors, Subcontractors, and Affiliates,
and each of its and their respective officers, directors, employees, agents,
successors and assigns (each, a "Provider Indemnitee") from and against any
and all Losses incurred by such Provider Indemnitee in connection with any
Action by a third party (other than an Affiliate of a Provider Indemnitee) that
arises out of or relates to any:
a. Customer Data, including any Processing of Customer Data by or on
behalf of Provider in accordance with this Agreement;
b. any other materials or information (including any documents, data,
specifications, software, content or technology) provided by or on behalf
of Customer or any Authorized User, including Provider’s compliance
with any specifications or directions provided by or on behalf of
Customer or any Authorized User to the extent prepared without any
contribution by Provider;
c. allegation of facts that, if true, would constitute Customer’s breach of any
of its representations, warranties, covenants or obligations under this
Agreement; or
d. gross negligence or more culpable act or omission (including recklessness
or willful misconduct) by Customer, any Authorized User, or any third
party on behalf of Customer or any Authorized User, in connection with
this Agreement.
3. Indemnification Procedure. Each party shall promptly notify the other party in
writing of any Action for which such party believes it is entitled to be
indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The
party seeking indemnification (the "Indemnitee") shall cooperate with the
other party (the "Indemnitor") at the Indemnitor’s sole cost and expense. The
Indemnitor shall immediately take control of the defense and investigation of
such Action and shall employ counsel reasonably acceptable to the Indemnitee
to handle and defend the same, at the Indemnitor’s sole cost and expense. The
Indemnitee’s failure to perform any obligations under this Section 13.3 will not
relieve the Indemnitor of its obligations under this Section 13 except to the
extent that the Indemnitor can demonstrate that it has been materially
prejudiced as a result of such failure. The Indemnitee may participate in and
observe the proceedings at its own cost and expense with counsel of its own
choosing.
4. Mitigation. If any of the Services or Provider Materials are, or in Provider’s
opinion are likely to be, claimed to infringe, misappropriate or otherwise violate
any third-party Intellectual Property Right, or if Customer’s or any Authorized
User’s use of the Services or Provider Materials is enjoined or threatened to be
enjoined, Provider may, at its option and sole cost and expense:
a. obtain the right for Customer to continue to use the Services and Provider
Materials materially as contemplated by this Agreement;
b. modify or replace the Services and Provider Materials, in whole or in
part, to seek to make the Services and Provider Materials (as so modified
or replaced) non-infringing, while providing materially equivalent
features and functionality, in which case such modifications or
replacements will constitute Services and Provider Materials, as
applicable, under this Agreement; or
c. by written notice to Customer, terminate this Agreement with respect to
all or part of the Services and Provider Materials, and require Customer
to immediately cease any use of the Services and Provider Materials or
any specified part or feature thereof.
THIS SECTION 13 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE
LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT
THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND
PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY
THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
14. Limitations of Liability.
1. EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3,
IN NO EVENT WILL PROVIDER, PROVIDER LICENSOR, OR ANY OF ITS OTHER
LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY
LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a)
LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION
IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR
DELAY OF THE SERVICES, OTHER THAN AS PROVIDED IN SECTION 5.2, (c)
LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA
OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF
WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH
LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE
FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR
OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN
SECTION 14.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF
PROVIDER, PROVIDER LICENSOR, AND ITS OTHER LICENSORS, SERVICE
PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES PAID
BY CUSTOMER UNDER THIS AGREEMENT. THE FOREGOING LIMITATION
APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER
REMEDY OF ITS ESSENTIAL PURPOSE.
3. Exceptions. The exclusions and limitations in Section 14.1 and Section 14.2 do
not apply to Provider’s obligations under Section 13 (Indemnification) or
liability for Provider’s gross negligence or willful misconduct.
15. Force Majeure.
1. No Breach or Default. In no event will Provider be liable or responsible to
Customer, or be deemed to have defaulted under or breached this Agreement, for
any failure or delay in fulfilling or performing any term of this Agreement,
(except for any payment obligation), when and to the extent such failure or
delay is caused by any circumstances beyond Provider ’s reasonable control (a
"Force Majeure Event"), including acts of God, flood, fire, earthquake or
explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or
blockades in effect on or after the date of this Agreement, national or regional
emergency, strikes, labor stoppages or slowdowns or other industrial
disturbances, passage of Law or any action taken by a governmental or public
authority, including imposing an embargo, export or import restriction, quota or
other restriction or prohibition or any complete or partial government
shutdown, or national or regional shortage of adequate power or
telecommunications or transportation. Either party may terminate this
Agreement if a Force Majeure Event continues substantially uninterrupted for a
period of thirty (30) days or more.
2. Affected Party Obligations. In the event of any failure or delay caused by a Force
Majeure Event, Provider shall give prompt written notice to Customer stating the
period of time the occurrence is expected to continue and use commercially
reasonable efforts to end the failure or delay and minimize the effects of such
Force Majeure Event.
16. Miscellaneous.
1. Further Assurances. Upon a party’s reasonable request, the other party shall, at
the requesting party’s sole cost and expense, execute and deliver all such
documents and instruments, and take all such further actions, necessary to give
full effect to this Agreement.
2. Relationship of the Parties. The relationship between the parties is that of
independent contractors. Nothing contained in this Agreement shall be
construed as creating any agency, partnership, joint venture or other form of
joint enterprise, employment or fiduciary relationship between the parties, and
neither party shall have authority to contract for or bind the other party in any
manner whatsoever.
3. Public Announcements. Neither party shall issue or release any announcement,
statement, press release or other publicity or marketing materials relating to this
Agreement or otherwise use the other party’s trademarks, service marks, trade
names, logos, domain names or other indicia of source, affiliation or sponsorship,
in each case, without the prior written consent of the other party, which consent
shall not be unreasonably withheld, conditioned or delayed, provided, however,
that Provider may, without Customer’s consent, include Customer’s name in its
lists of Provider’s current or former customers of Provider in promotional and
marketing materials.
4. Notices. Except as otherwise expressly set forth in this Agreement, all notices,
requests, consents, claims, demands, waivers and other communications under
this Agreement have binding legal effect only if in writing and addressed to a
party as follows (or to such other address or such other person that such party
may designate from time to time in accordance with this Section 16.4):
If to
Provid
UNIT Innovations LLC, 7550 W IH-10, Suite 800, San Antonio, Texas 78229; e-mail:
info@unitinnovations.com |
=====================================================+ The
notice address, phone and e-mail set forth on the applicable Quote or Invoice, or
er:
If to
Custome
r:
as Customer otherwise designates in writing
Notices sent in accordance with this Section 16.4 will be deemed effectively given: (a) when
received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by
a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or
e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal
business hours, and on the next business day, if sent after the addressee’s normal business
hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return
receipt requested, postage prepaid.
5. Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and
"including" are deemed to be followed by the words "without limitation"; (b) the word
"or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and
"hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a
comparable meaning when used in the plural, and vice-versa; and (e) words denoting
any gender include all genders. Unless the context otherwise requires, references in this
Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the
sections of, and exhibits, schedules, attachments and appendices attached to, this
Agreement; (y) to an agreement, instrument or other document means such agreement,
instrument or other document as amended, supplemented and modified from time to
time to the extent permitted by the provisions thereof; and (z) to a statute means such
statute as amended from time to time and includes any successor legislation thereto and
any regulations promulgated thereunder. The parties intend this Agreement to be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting an instrument or causing any instrument to be
drafted. The exhibits, schedules, attachments and appendices referred to herein are an
integral part of this Agreement to the same extent as if they were set forth verbatim
herein.
6. Headings. The headings in this Agreement are for reference only and do not affect the
interpretation of this Agreement.
7. Entire Agreement. This Agreement, together any other documents incorporated herein
by reference, 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, representations and warranties, both written and oral,
with respect to such subject matter. In the event of any inconsistency between the
statements made in the body of this Agreement, the related exhibits, schedules,
attachments and appendices (other than an exception expressly set forth as such
therein) and any other documents incorporated herein by reference, the following order
of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules,
attachments and appendices; (b) second, the exhibits, schedules, attachments and
appendices to this Agreement as of the Effective Date; and (c) third, any other
documents incorporated herein by reference.
8. Assignment. Customer shall not assign or otherwise transfer any of its rights, or
delegate or otherwise transfer any of its obligations or performance, under this
Agreement, in each case whether voluntarily, involuntarily, by operation of law or
otherwise, without Provider’s prior written consent. For purposes of the preceding
sentence, and without limiting its generality, any merger, consolidation or
reorganization involving Customer (regardless of whether Customer is a surviving or
disappearing entity) will be deemed to be a transfer of rights, obligations or
performance under this Agreement for which Provider’s prior written consent is
required. No delegation or other transfer will relieve Customer of any of its obligations
or performance under this Agreement. Any purported assignment, delegation or
transfer in violation of this Section 16.8 is void. This Agreement is binding upon and
inures to the benefit of the parties hereto and their respective permitted successors and
assigns.
9. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto
and their respective permitted successors and permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
10. Amendment and Modification; Waiver. No amendment to or modification of or
rescission, termination or discharge of this Agreement is effective unless it is in writing,
identified as an amendment to or rescission, termination or discharge of this Agreement
and signed by an authorized representative of each party. No waiver by any party of any
of the provisions hereof shall be effective unless explicitly set forth in writing and
signed by the party so waiving. Except as otherwise set forth in this Agreement, no
failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising
from this Agreement shall operate or be construed as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, remedy, power
or privilege.
11. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall 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 hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the parties 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.
12. Governing Law; Submission to Jurisdiction. This Agreement is governed by and
construed in accordance with the internal laws of the State of Texas without giving
effect to any choice or conflict of law provision or rule that would require or permit the
application of the laws of any jurisdiction other than those of the State of Texas. Any
legal suit, action or proceeding arising out of or related to this Agreement or the licenses
granted hereunder shall be instituted exclusively in the federal courts of the United
States or the courts of the State of Texas in each case located in the city of San Antonio
and County of Bexar, and each party irrevocably submits to the exclusive jurisdiction of
such courts in any such suit, action or proceeding. Service of process, summons, notice
or other document by mail to such party’s address set forth herein shall be effective
service of process for any suit, action or other proceeding brought in any such court.
13. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it
may have to a trial by jury in respect of any legal action arising out of or relating to this
Agreement or the transactions contemplated hereby.
14. Equitable Relief. Each party acknowledges and agrees that a breach or threatened
breach by such party of any of its obligations under Section 10 or, in the case of
Customer, Section 3.3, Section 4.3 or Section 7.3, 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.
15. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative
proceeding is instituted or commenced by either party hereto against the other party
arising out of or related to this Agreement, the prevailing party shall be entitled to
recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
16. 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. A signed copy of this Agreement delivered by facsimile, e-mail or other
means of electronic transmission is deemed to have the same legal effect as delivery of
an original signed copy of this Agreement.
Acceptance; Counterparts. This Agreement does not require signature to be effective; it is
accepted as set forth in the Acceptance paragraph above. Where the parties do execute this
Agreement, it may be executed in counterparts, and a copy delivered electronically has the
same effect as an original.
SCHEDULE A
SERVICES AND FEES
1. Summary of Services: The Services, Fees, license periods, invoicing cadence and scope of use
are as set forth on the Quote(s) and Invoice(s) issued by Provider and accepted by Customer,
each of which is incorporated into and governed by this Agreement.
2. Fees and Expenses: All payments shall be in U.S. dollars and made by check or by electronic
transfer to the account specified on the applicable Invoice.
SCHEDULE B
AUTHORIZED USERS AND SERVICE MANAGERS
Authorized Users and each party’s Service Manager are as designated by Customer in writing
(including by e-mail) from time to time.
SCHEDULE C
SPECIFICATIONS
The Specifications are Provider’s published product documentation and help-center materials
for the applicable Services, as updated from time to time.
SCHEDULE D
CHANGE ORDERS
Changes to the Services or scope of use are made by a superseding or supplemental Quote or
Invoice issued by Provider and accepted by Customer.
SCHEDULE E
SERVICE SUPPORT
E.1. Support and Maintenance Services. Provider shall provide maintenance and support
services (collectively, "Support Services") for the Hosted Services in accordance with the
provisions of this Schedule E. The Support Services are included in the Services, and Provider
shall not assess any additional Fees, costs or charges for such Support Services.
E.2. The capitalized terms in this Schedule E shall have the meaning ascribed to them in the
Agreement unless defined herein or below.
(a) "Business Days" shall mean Monday through Friday, excluding U.S. federal holidays.
E.2. Support Service Responsibilities. Provider shall:
a. correct all Service Errors in accordance with the Support Service Level Requirements,
including by providing defect repair, programming corrections and remedial
programming;
b. provide unlimited telephone support during the hours of 8 a.m. to 6 p.m. Central Time
on Business Days;
c. Provide online access to technical support bulletins and other user support information
and forums, to the full extent Provider makes such resources available to its other
customers for services identical to or substantially similar to the Services; and
d. Respond to and Resolve Support Requests as specified in this Schedule E.
E.3. Service Monitoring and Management. Provider shall continuously monitor and manage the
Hosted Services to optimize Availability that meets or exceeds the Availability Requirement.
Such monitoring and management shall include:
e. proactively monitoring on a 24 hour by seven-day basis all Hosted Service functions,
servers, firewall and other components of Hosted Service security;
f. if such monitoring identifies, or Provider otherwise becomes aware of, any circumstance
that is reasonably likely to threaten the Availability of the Hosted Services, taking all
necessary and reasonable remedial measures to promptly eliminate such threat and
ensure full Availability;
g. if Provider receives knowledge that the Hosted Services or any Hosted Service function
or component is not Available (including by written notice from Customer pursuant to
the procedures set forth herein or in the applicable Service Order):
i. confirming (or disconfirming) the outage by a direct check of > the associated
facility or facilities;
ii. if Provider’s facility check in accordance with clause (i) > above confirms a
Hosted Service outage in whole or in > part: (A) notifying Customer in writing
pursuant to the > procedures set forth herein or in the applicable Service Order >
that an outage has occurred, providing such details as may be > available,
including a Provider trouble ticket number, if > appropriate, and time of outage;
and (B) working all problems > causing and caused by the outage until they are
Resolved as > Critical Service Errors in accordance with the Support Request >
Classification set forth in this Schedule E, or, if determined > to be an internet
provider problem, open a trouble ticket with > the internet provider; and
iii. notifying Customer that Provider has fully corrected the outage > and any
related problems, along with any pertinent findings > or action taken to close the
trouble ticket.
17. Service Maintenance. Provider shall continuously maintain the Hosted Services to
optimize Availability that meets or exceeds the Availability Requirement. Such
maintenance services shall include providing to Customer and its Authorized Users:
a. all updates, bug fixes, enhancements, new releases, new versions and other
improvements to the Hosted Services, including the Service Software, that
Provider provides at no additional charge to its other similarly situated
customers; and
b. all such services and repairs as are required to maintain the Hosted Services or
are ancillary, necessary or otherwise related to Customer’s or its Authorized
Users’ access to or use of the Hosted Services, so that the Hosted Services operate
properly in accordance with this Agreement and the Specifications.
18. Support Service Level Requirements. Provider shall correct all Service Errors and
respond to and Resolve all Support Requests in accordance with the required times and
other terms and conditions set forth in this Section 16.18 ("Support Service Level
Requirements"), this Agreement and the applicable Service Order.
a. Support Requests. Customer shall classify its requests for Service Error
corrections in accordance with the descriptions set forth in the chart below
(each a "Support Request"). The Customer Service Manager shall notify
Provider of Support Requests by e-mail, telephone or such other means as the
parties may hereafter agree to in writing.
Support Request Classification
Description:
Any Service Error Comprising or Causing
any of the Following Events or Effects
Critical Service Error • Issue affecting entire system > or
single critical > production function;
• System down or operating in >
materially degraded state;
• Data integrity at risk;
• Material financial impact;
• Declared a Critical Support > Request
by the Customer; or
• Widespread access > interruptions.
High Service Error • Primary component failure > that
materially impairs its > performance;
or
• Data entry or access is > materially
impaired on a > limited basis.
Medium Service Error • Hosted Service is operating > with
minor issues that can > be addressed
with a work > around.
Low Service Error • Request for assistance, > information,
or services > that are routine in
nature.
a. Response Time Service Levels. Response times will be measured from the time Provider
receives a Support Request until the time Provider has responded to the Service Request.
Provider shall respond to all Service Errors within the following times based on the
severity of the Service Error:
Support Request Classification Required Response Time
Critical Service Error Four (4) business hours
High Service Error Eight (8) business hours
Support Request Classification Required Response Time
Medium Service Error Two (2) Business Days
Low Service Error Five (5) Business Days
b. Escalation. With respect to any Critical Service Error Support Request, until such
Support Request is Resolved, Provider shall escalate that Support Request within sixty
(60) minutes of the receipt of such Support Request by the appropriate Provider support
personnel identified to Customer in writing, including, as applicable, the Provider
Service Manager and Provider’s management or engineering personnel, as appropriate,
each of whom shall be Key Personnel.
1. Support Service Level Requirement Failures. Failure to achieve any of the Support
Service Level Requirements will constitute a Service Level Failure, for which Customer’s
remedies are as set forth in Section 5.2 of the Agreement.
2. Corrective Action Plan. If two or more Critical Service Errors occur in any thirty (30) day
period during (a) the Term or (b) any additional periods during which Provider does or
is required to perform any Hosted Services, Provider shall promptly investigate the root
causes of these Service Errors and provide to Customer within five Business Days of its
receipt of notice of the second such Support Request an analysis of such root causes and
a proposed written corrective action plan for Customer’s review, comment and approval,
which, subject to and upon Customer’s written approval, shall be a part of, and by this
reference is incorporated in, this Agreement as the parties’ corrective action plan (the
"Corrective Action Plan"). The Corrective Action Plan shall include, at a minimum: (x)
Provider’s commitment to Customer to devote the appropriate time, skilled personnel,
systems support and equipment and other resources necessary to Resolve and prevent
any further occurrences of the Service Errors giving rise to such Support Requests; (y) a
strategy for developing any programming, software updates, fixes, patches, etc.
necessary to remedy, and prevent any further occurrences of, such Service Errors; and
(z) time frames for implementing the Corrective Action Plan. There will be no additional
charge for Provider’s preparation or implementation of the Corrective Action Plan in the
time frames and manner set forth therein.
EXHIBIT 1
END USER LICENSE AGREEMENT
EXHIBIT 2
BACKUP POLICY
EXHIBIT 3
PRIVACY AND SECURITY POLICY
Learn about us, our work, and what our future looks like. Watch video.