"Affiliate" means an entity or entities directly or indirectly controlling, controlled by, or under common control with a party to this Agreement. For purposes of this definition,"control" (including, with correlative meanings, the terms "controlling", "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such controlled entity, whether through the ownership of voting securities, by contract or otherwise.
"Confidential Information" means any information disclosed by a party to the other party, including but not limited to business plans, business methods, financial information, products, services, technical data, designs, drawings, specifications, computer code, algorithms, formulas, documentation, inventions, processes, trade secrets, know-how, data or customers, that are confidential information. Vendor's Confidential Information includes the Passwords and System and Customer's Confidential Information includes all Customer Information. Confidential Information does not include information which: (a) was rightfully in the possession of the recipient prior to receiving it from the disclosing party; (b) is independently developed by the recipient without use of or reliance upon the Confidential Information of the disclosing party; (c) was in the public domain at or subsequent to the time of disclosure (through no breach of the recipient); or (d) is obtained in good faith from a third party not under any obligation of confidentiality.
"Customer Information" means all information, drawings, and data provided by Customer or any User or created and stored in the System by Customer or any User.
"Documentation" means any user manuals that exist and are generally provided by Vendor to its customers, either online or in electronic or hard copy format.
"Password(s)" means the confidential passwords or other means provided by Vendor to Customer to permit a User to access the System and use the Services.
"Services" means the provision of access to and use of the System by Customer and its Users in connection with this agreement.
"System" means the software applications and web pages developed and hosted by Vendor or its contractors and any upgrades and improvements that may be provided by Vendor under this Agreement.
"User" means a single person or entity authorized by Customer to access and use the System.
"Vendor Information" means all information, including any web pages and application software, created or otherwise owned or licensed by Vendor from third parties related to the System and the Services.
Services
Vendor Obligations. Subject to the terms and conditions of this Agreement, Vendor will provide the Services to Customer. Vendor is not obligated to provide any upgrades, releases, improvements or additional products or services for which Vendor generally charges a separate fee.
Availability. Vendor will use commercially reasonable efforts to make the System available to Customer and its Users at least ninety nine percent (99%) of the time in any calendar month during the term of this Agreement, excluding (a) any scheduled system downtime, provided that Vendor provides Customer reasonable notice of such downtime, and (b) downtime resulting from the failure of any component or system due to causes beyond Vendor's reasonable control, including without limitation, power outages, failure of public network or communications components, failure of Customer's or any User's hardware, software, modems, internet connections or other equipment, errors in any Customer Information or the electronic files or other media on which it is provided, or unauthorized use or misuse by Users or any other third party using any Passwords. If availability falls below this level, then Customer's sole and exclusive remedy shall be a reduction in the subscription fees payable in connection with such System by one (1) day for each two (2) hour period in which there is no availability, up to a maximum of thirty (30) days reduction; provided, however, that if availability falls below fifty percent (50%) during any month, Customer may terminate this Agreement in accordance with Section 7 and receive a refund of any prepaid fees for services not performed due to such termination.
Support Services. Vendor will provide the following support services to Customer: telephone support during the hours of 8:00 am to 5:00 pm Pacific Standard Time on weekdays (excluding holidays).
Consulting Services. Customer may purchase and Vendor may provide consulting, or training services under the terms of a separate written agreement.
License Grant. Subject to the terms and conditions of this Agreement, Vendor grants Customer a limited, nontransferable, nonexclusive license during the term of this Agreement to: (a) access, perform and display the System, (b) upload Customer Information onto the System; and (c) download, copy to computer and/or media storage, otherwise reproduce and distribute Customer Information and other information generated through Customer's use of the System in accordance with the terms of this Agreement, all solely for Customer's own internal business purposes.
Restrictions on Use. The System (and all content, including without limitation, images, animation, object or font files and all other items) and the accompanying printed or written materials are protected by applicable national copyright laws and are also subject to trade secret laws. Unauthorized copying of the System or any related materials, including those instances where any aspects of the System or related material have been modified, merged, or included with other data, code or software for any reason, is expressly forbidden. You will be liable for copyright infringement and all damages that result from any such unauthorized copying. Customer and each User shall not, directly or indirectly:
Sublicense, sell, lease or otherwise transfer the Vendor Information or Services;
Alter or permit a third party to alter any part of the System;
Rent, lease, loan resell distribute, network or use or permit the use of the System in the operation of a service bureau;
Modify, copy or make derivative works based on the System, Documentation, Vendor Information or Vendor's web site;
Disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the System, Documentation, Vendor Information, or Vendor's web site;
Frame or mirror any of Vendor's web site pages or other content which is accessed as, or forms part of, the System;
Use the System to knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs;
Knowingly interfere with or disrupt the integrity or performance of the System or the data contained therein; or
Attempt to gain unauthorized access to the System.
Use or permit the use of the System for any unlawful purpose.
Customer Obligations
Equipment. Customer is responsible for obtaining and maintaining at its expense all necessary hardware, software, modems, internet connections and other items necessary for Customer and its Users to access and use the System.
Use and Back-up of Data. Customer agrees that it is solely responsible for collecting, inputting and updating all Customer Information related to Customer's use of the Services. Customer Information shall not include anything that actually or potentially infringes or violates the copyright, trade secret, trademark or other intellectual property or other proprietary right of any third party. Customer is responsible and liable for the accuracy, completeness, quality, integrity, legality, reliability and appropriateness of all Customer Information and any third party claims regarding same.
Users. Any third party User or Affiliate of Customer must agree to the terms of this Agreement in writing before Vendor will provide a Password or grant access to the System to such User or Affiliate. Customer agrees that it is solely responsible for the selection of Users that Customer will allow to access, use and benefit from the Services by making available Passwords. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the System and Services, and shall promptly notify Vendor of any such unauthorized access or use of which it becomes aware. Notwithstanding such efforts and notice, Customer is responsible and liable for the acts and omissions of all Users as well as those of Customer and its Affiliates in connection with this Agreement, the System and Services, and for all activities of any person or entity that occur under any Password. Any failure by a User or Affiliate of Customer to comply with the terms and conditions applicable to Customer herein shall constitute a breach hereof by Customer, giving rise to such remedies as are herein provided to Vendor. Vendor reserves the right to require a list of all original and any additional User names, addresses, telephone numbers and contact personnel.
Passwords. Customer is responsible for all use of, and maintaining the confidentiality of, all Passwords. Sharing of Passwords and Customer Information is at Customer's own risk.
License Grant. Customer, for Customer and on behalf and with the authority of all Users, grants Vendor the non-exclusive license to use, reproduce, modify, store, perform, publish, display and distribute, to Customer and Users the Customer Information and otherwise use Customer Information as permitted in this Agreement or as necessary to provide the Services. This license shall expire upon expiration or termination of this Agreement.
Fees / Payment
Fees. The Service is billed in advance on a monthly basis (NET30) and is non-refundable. Customer shall pay to Vendor the fees set forth on the Fee Schedule in accordance with the payment terms set forth in the Fee Schedule. Vendor reserves the right to change the fees under the Fee Schedule any time after the initial one year term of this Agreement by providing thirty (30) days prior written notice to Customer. All fees are payable solely in United States dollars.
Late Payment. Any overdue payment will accrue interest at a rate of one and one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. Customer's failure to fully pay any fees within thirty (30) days after the applicable due date shall be deemed a material breach of this Agreement justifying, at Vendor's discretion, suspension of the performance of the Services and/or termination of this Agreement under Section 7.
Taxes. All fees are exclusive of taxes and similar fees, all of which Customer is responsible for, except for taxes based on Vendor's income.
Expenses. Customer shall pay or promptly reimburse Vendor for any out-of-pocket expenses, including without limitation travel and travel-related expenses, incurred by Vendor in connection with performing the Services, provided that such expenses have been authorized in advance in writing by Customer.
Representations and Warranties; Disclaimer
Customer Warranty. Customer represents and warrants that (a) it has the full power and authority to enter into this Agreement; (b) Customer owns the rights to the Customer Information or otherwise has the rights to use and allow Vendor to use and exercise other rights licensed herein regarding the Customer Information, including uploading the Customer Information onto the System; (c) Customer Information does not and shall not contain any content, materials, advertising, or other items or information that infringe or violate any applicable law, regulation or right of a third party, including without limitation export laws or any proprietary, intellectual property, contract, privacy or publicity right or any other third party right.
Limited Vendor Warranty. Vendor warrants that (a) it has the full power and authority to enter into this Agreement and (b) the System is provided AS IS, without warranty. Company's sole and exclusive remedy for any material breach of this warranty is (i) for Vendor to use commercially reasonable efforts to correct the nonconformities giving rise to such breach or (ii) for Customer to terminate this Agreement in accordance with Section 7 and receive a refund of any prepaid fees for services not performed due to such termination.
DISCLAIMER. THE WARRANTY SET FORTH IN THIS SECTION IS THE SOLE AND EXCLUSIVE WARRANTY FOR ANY FAILURE BY VENDOR TO PROVIDE THE SYSTEM OR SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, VENDOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, WARRANTIES REGARDING THE USE OR THE RESULTS OF THE USE OF THE SYSTEM OR SERVICES IN TERMS OF THEIR ACCURACY, RELIABILITY OR CURRENTNESS, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. VENDOR DOES NOT WARRANT THAT THE SYSTEM OR SERVICES WILL BE PROVIDED UNINTERRUPTED OR ERROR-FREE. VENDOR MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE, PRODUCTS OR SERVICES USED IN CONNECTION WITH THE SYSTEM OR SERVICES.
Confidential Information
Acknowledgement. Customer acknowledges that the Vendor Information contains trade secrets, confidential information and other valuable proprietary information owned by Vendor or its licensors. Customer is responsible for the actions and omissions of Users with respect to Vendor Confidential Information.
Confidentiality. Each party will use commercially reasonable efforts to preserve the confidentiality of the other party's Confidential Information. The receiving party will not disclose the other party's Confidential Information to any third party (other than as necessary for Vendor's performance under this Agreement or as required by law) or use the other party's Confidential Information for its own or any third party's benefit, other than its own use as necessary to access and use or provide the Services. Notwithstanding the foregoing, Vendor shall have the right to disclose that Customer is a customer of Vendor.
Feedback. Customer or a User may from time to time provide suggestions, comments or other feedback ("Feedback") to Vendor with respect to the System or Services. All such Feedback shall be treated as Confidential Information of Vendor and Vendor shall own and be free to use and otherwise exploit the Feedback without restriction or obligation to Customer or any User.
Proprietary Rights
Vendor's Proprietary Rights. Exclusive of Customer Information, Vendor or its licensors shall retain all right, title and interest (including copyright and other intellectual property rights) relating to the System, Services and Vendor Information and all legally protectable elements or derivative works thereof.
Customer's Proprietary Rights. Customer, its Users and licensors shall retain all right, title and interest (including copyright and other intellectual property rights) in the Customer Information and all legally protectable elements or derivative works thereof.
Term / Terminiation
Term. The initial term of this Agreement shall be one year from the Effective Date. Thereafter, the term shall automatically renew for additional one year periods unless either party notifies the other in writing at least thirty (30) days prior to the end of the then-current term.
Termination.
Without Cause. Either party may terminate this Agreement without cause upon ninety (90) days written notice to the other party
For Cause. Either party may terminate this Agreement:
If the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days of written notice describing such breach; or
If the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, reorganization, or receivership, or a trustee, receiver, or liquidator is appointed for the other party or a substantial part of its assets, or if the other party becomes insolvent, unable to pay its debts as they become due, or makes any assignment for the benefit of its creditors.
Effect of Termination. Upon expiration or termination of this Agreement for any reason, (a) Vendor shall cancel all Passwords and cease providing and have no further obligation to provide the Services to Customer or any User; (b) Customer shall, and shall cause all Users to, stop using the Services; (c) all payment obligations of Customer through the effective date of termination shall immediately become due; (d) each party shall, at the other party's option, promptly return or destroy all copies of the other party's Confidential Information in its possession or control; and (e) the parties' rights and obligations under Sections 3, 4, 5, 6, 7.4, 8, 9 and 10 shall survive.
Injunctive Relief. In the event of a breach or threatened breach by Customer or a User of any of the provisions of this Agreement protecting Vendor's intellectual property rights, Vendor shall be entitled to preliminary and permanent injunctive relief to enforce the provisions hereof, but nothing herein shall preclude Vendor from pursuing any action or other remedy for any breach or threatened breach of this Agreement, all of which shall be cumulative.
Limitations of Liability
Limitation of Liability. EXCEPT FOR VENDOR'S INDEMNITY OBLIGATION UNDER SECTION 9, IN NO EVENT SHALL VENDOR, ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY AMOUNT IN EXCESS OF AMOUNTS PAID UNDER THIS AGREEMENT FOR THE APPLICABLE SYSTEM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE FIRST EVENT GIVING RISE TO SUCH LIABILITY, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
Consequential Damages. EXCEPT WITH RESPECT TO OBLIGATIONS ARISING UNDER SECTION 5 (CONFIDENTIAL INFORMATION) OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL VENDOR, ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY TYPE OF INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, COST OF REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, DATA, CUSTOMER INFORMATION, RIGHTS OR SERVICES, LOSS OF INFORMATION, OR INTERRUPTION OR LOSS OF USE OF SERVICE, INFORMATION OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
Force Majeure. VENDOR, ITS AFFILIATES AND LICENSORS SHALL NOT BE LIABLE FOR AND WILL NOT BE RESPONSIBLE TO CUSTOMER FOR ANY DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT IF SUCH DELAY OR FAILURE RESULTS FROM FIRE, EXPLOSION, LABOR DISPUTE, EARTHQUAKE, CASUALTY OR ACCIDENT, LACK OR FAILURE OF TRANSPORTATION FACILITIES AND/OR SERVICES, LACK OR FAILURE OF ELECTRICAL UTILITIES AND/OR TELECOMMUNICATIONS FACILITIES AND/OR SERVICES INCLUDING INTERNET SERVICES, EPIDEMIC, FLOOD, DROUGHT, OR BY REASON OF WAR, REVOLUTION, CIVIL COMMOTION, BLOCKADE OR EMBARGO, ACTS OF GOD, ANY INABILITY TO OBTAIN ANY REQUISITE LICENSE, PERMIT OR AUTHORIZATION, OR BY REASON OF ANY LAW, PROCLAMATION, REGULATION, ORDINANCE, DEMAND OR REQUIREMENT OF ANY GOVERNMENT OR ANY OTHER CAUSE BEYOND THE REASONABLE CONTROL OF VENDOR.
Limitation on Recourse. The parties expressly acknowledge and agree that (a) the obligations of Vendor under this Agreement are obligations solely of Vendor, (b) no Affiliate of Vendor nor any directors, officers, agents or employees of Vendor or any such Affiliate of Vendor (each such entity, a "Non-Recourse Party") shall have any obligation or liability to Customer or any User in connection with this Agreement, and (iii) Customer's and any User's recourse under this Agreement shall be limited exclusively to the assets of Vendor. The foregoing acknowledgment and agreement shall be enforceable by any Non-Recourse Party.
Acknowledgement. THE PARTIES ACKNOWLEDGE THAT VENDOR HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND BE ENFORCEABLE EVEN IF THOSE PROVISIONS ARE FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
Indemnity
By Customer. Customer shall defend, indemnify and hold harmless Vendor, its Affiliates and their officers, directors, employees and agents from and against all claims, demands, causes of action, liabilities, damages, costs and expenses (including reasonable attorneys' fees) by any third party arising out of (a) any material breach of this Agreement by Customer or any User; (b) the negligent or willful acts or omissions of Customer, any User, or their agents, employees or subcontractors; or (c) any claim alleging that the Customer Information infringes or otherwise violates any patent, trade secret, copyright, trademark, privacy, publicity or other intellectual property or proprietary right, provided that Vendor provides Customer with prompt written notice of the claim, permits Customer to control the defense, settlement, adjustment or compromise thereof, and cooperates in the defense of such claim at Customer's reasonable request and expense.
By Vendor. Vendor shall defend, indemnify and hold harmless Customer, its Affiliates and their officers, directors, employees and agents from and against all claims, demands, causes of action, liabilities, damages, costs and expenses (including reasonable attorneys' fees) by any third party arising out of (a) Vendor's material breach of this Agreement or (b) the negligent or willful acts or omissions of Vendor, its agents, employees or subcontractors, provided that Customer provides Vendor with prompt written notice of the claim, permits Vendor to control the defense, settlement, adjustment or compromise thereof, and cooperates in the defense of such claim at Vendor's reasonable request and expense.
Limited Trademark Use
Right to Use. Customer grants to Vendor a non-exclusive right to use the Customer's name and logo solely for the purpose of identifying Customer as a customer of Vendor in Vendor's marketing, advertising and promotional materials. Vendor shall not use the Customer's name and logo for any purpose or in any manner not strictly in conformance with this section 10.1 without the prior written consent of the Customer. Vendor shall identify the Customer as the sole owner of the Customer's name and logo. Except as expressly authorized in this section 10.1, Vendor shall: (i) have no right, title, or interest in the Customer's name or logo; and (ii) not use, incorporate, or juxtapose the Customer's name or logo with its products or name or those of any third party in any manner whatsoever. Vendor's right to use the Customer's name and logo shall terminate automatically upon the expiration of this Agreement.
Miscellaneous
Assignment. Customer may not assign, delegate, or otherwise transfer its rights or obligations under this Agreement, in whole or in part, including without limitation by merger or sale of substantially all of Customer's assets, without Vendor's prior written consent. Any attempt to do so shall be deemed void and a material breach of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns.
Independent Contractors. The parties are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
Notices. Any notice or communication under this Agreement shall be in writing and sent to the Vendor and Customer, or such other address as either party may provide under this Section. Notices may be delivered and shall be deemed received: (a) by hand delivery, upon receipt thereof; (b) by mail, three (3) days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested; (c) by facsimile transmission, upon electronic confirmation thereof; or (d) by next day delivery service, upon such delivery.
Governing Law; Jurisdiction. This Agreement and performance hereunder shall be governed by the laws of the State of California, without regard to its conflicts of laws provisions, and all disputes shall be resolved in courts located in the county of Placer, California, to whose jurisdiction and venue the parties hereby irrevocably consent.
Waiver. The failure by a party to exercise any rights hereunder shall not be deemed as a waiver of such party’s right or any other right in the future.
Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, that provision shall be deemed limited or omitted to the minimum extent necessary, and the balance of the Agreement shall continue in full force and effect.
Amendment. This Agreement may not be modified, altered or amended except by a written instrument duly executed by both parties.
Entire Agreement. This Agreement and all Exhibits attached hereto, which are incorporated by reference herein, constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior or contemporaneous proposals, communications, and understandings, written or oral.
Terms of Service
