STANDARD TERMS & CONDITIONS
(Revised August 2019)
SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Provider will use commercially reasonable efforts to provide Subscriber the Services in accordance with the Description of Services. As part of the registration process, Subscriber will identify an administrative user name and password for Subscriber’s Provider account. Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Provider will provide Subscriber with reasonable technical support services in accordance with the terms set forth in the Service & Support Policy.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Subscriber 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 Provider 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.
2.2 Further, Subscriber 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 Subscriber represents, covenants, and warrants that Subscriber will use the Services only in compliance with Provider’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Subscriber hereby agrees to indemnify and hold harmless Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber’s use of Services. Although Provider has no obligation to monitor Subscriber’s use of the Services, Provider 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 Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber account or the Equipment with or without Subscriber’s knowledge or consent.
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 Provider includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Subscriber includes non-public data provided by Subscriber to Provider to enable the provision of the Services (“Subscriber 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 Subscriber shall own all right, title and interest in and to the Subscriber Data. Provider 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, Provider shall have the right to 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 Subscriber Data and data derived therefrom), and Provider 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 Provider 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.
PAYMENT OF FEES
4.1 Subscriber will pay Provider the then applicable fees described in the Order Form for the Services Term and Implementation Services in accordance with the terms therein (the “Fees”). If Subscriber’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Subscriber shall be billed for such usage and Subscriber agrees to pay the additional fees in the manner provided herein. Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Subscriber (which may be sent by email). If Subscriber believes that Provider has billed Subscriber incorrectly, Subscriber must contact Provider no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Provider’s customer support department, as referenced within the Service & Support Policy .
4.2 Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Provider thirty (30) days after the emailing date of the invoice. 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. Subscriber shall be responsible for all taxes associated with Services other than U.S. taxes based on Provider’s net income.
TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form. At the conclusion of the Initial Service Term, the Agreement, shall be automatically renewed for additional periods of one year, (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Subscriber will pay in full for the Services up to and including the last day on which the Services are provided. 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.
WARRANTY AND DISCLAIMER
6.1 Provider 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 maintenance, either by Provider or by third-party providers, or because of other causes beyond Provider’s reasonable control, but Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, PROVIDER 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 PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.2 Subscriber represents and warrants to Provider that any and all Subscriber Data will not: (i) violate any foreign, federal, state, local or provincial law or regulation; (ii) infringe any copyright, trademark or other proprietary right of any third party; or (iii) in any way violate or infringe upon any party’s privacy right, right of publicity or any other right of any person or entity.
7.1 Provider shall hold Subscriber 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 Provider 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; Provider 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 Provider, (ii) made in whole or in part in accordance with Subscriber specifications, (iii) that are modified after delivery by Provider, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Subscriber continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Subscriber’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 Provider to be infringing, Provider 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 Subscriber a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Subscriber’s rights hereunder and provide Subscriber a refund of any prepaid, unused fees for the Service.
7.2 Except for claims subject to Section 7.1, Subscriber shall defend or settle any claim brought against Provider, its parent, divisions, subsidiaries, and affiliates and their respective officers, directors, employees, agents, licensors, representatives and contractors, at Subscriber’s expense, resulting from, arising out of, or related to Subscriber’s and its users’ breach of the warranties and representations of Section 6, or use of the Services, including without limitation any claim for personal injury, death or damage to property, breach or loss of data and shall pay any final judgments awarded or settlements entered into. Provider will provide the Subscriber with prompt notice of such claims, and provide Subscriber the sole right to defend or settle any such claim. Provider may not settle or compromise such claim, except with prior written consent of Subscriber. At Subscriber’s cost, Provider shall provide such reasonable assistance and information as Subscriber may reasonably require with such claims.
LIMITATION OF LIABILITY
8.1 PROVIDER’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THE SOFTWARE, ALL SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM, ACTION OR PROCEEDING, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY SHALL NOT EXCEED THE AGGREGATE SERVICES FEES OR OTHER FEES PAID BY SUBSCRIBER TO PROVIDER FOR THE SERVICE DURING THE THREE (3) MONTHS PRIOR TO PROVIDER RECEIVING NOTICE OF THE CLAIM. IN NO EVENT SHALL PROVIDER, ITS LICENSORS OR CONTRACTORS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOST PROFITS, LOST OPPORTUNITY COSTS, LOSS OF DATA, BREACH OF DATA SECURITY, ETC., EVEN IF THE PARTY HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE. THE ALLOCATIONS OF LIABILITY REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES AND PROVIDER’S COMPENSATION FOR THE SERVICES REFLECTS SUCH ALLOCATIONS.
9.1 Either Party may disclose that Subscriber is a customer of Provider, so long as Provider does not disclose any Subscriber Proprietary Information and Provider may list Subscriber (and use Subscriber’s name and logos) to indicate Subscriber as being a customer and describe the nonconfidential nature of the relationship in Provider’s press releases, marketing and promotional material. The parties agree to keep the financial and other terms of this Agreement confidential (subject to any disclosures required by law under Section 3.1). This Section 9.1 shall survive any termination or expiration of this Agreement.
9.2 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.
9.3 This Agreement is not assignable, transferable or sublicensable by Subscriber except with Provider’s prior written consent. Provider may transfer and assign any of its rights and obligations under this Agreement upon written notice to the Subscriber.
9.4 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.
9.5 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Subscriber does not have any authority of any kind to bind Provider in any respect whatsoever.
9.6 Subscriber shall not contract for related services with any current of former Provider employees or subcontractors without express written permission from Provider.
9.7 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
98 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.
9.9 This Agreement shall be governed by the laws of the State of Indiana without regard to its conflict of law provisions.