The customer identified on the Order Form in which these General Terms and Conditions (the “GTCs”) are referenced (the “Customer”), and either (i) IDS Software Inc., a North Carolina corporation, if Customer is located in the United States of America, or (ii) IDS Software, a division of Perseus Group Software Corp., an Ontario corporation, if the Customer is located in Canada (the “Supplier”) each of whom may be referred to herein as a “Party” and collectively as the “Parties,” hereby agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement have the meaning ascribed to them below:
(a) “Affiliate” means with respect to a person or entity, any other person or entity now or hereafter that (i) directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with such person or entity, and (ii) is under common management with such person or entity.
(b) “Agreement” means these GTCs, including any schedules or appendices attached hereto, as they exist on the date that they are incorporated, by reference or otherwise, into any fully executed Order Form, and as these GTCs may be modified in accordance with Section 15(g), together with the additional terms and conditions set forth in any Order Form or addenda which incorporates the GTCs by reference. The Parties agree that upon execution of an Order Form in which these GTCs are expressly referenced, these GTCs shall also be deemed to be incorporated into any and all Order Forms previously entered into by the Parties and, to the extent such prior Order Forms were subject to other terms and conditions, these GTCs shall amend and replace any such terms and conditions.
(c) “Authorized User” means those individuals or entities who are authorized by Customer to access and use the Software, including any third-parties that are authorized pursuant to Section 2(a)(ii) below, subject to the limitations and obligations of Customer under the Agreement. An individual cannot be an Authorized User if that individual, or class of individuals to which it belongs, is otherwise ineligible per the terms of the Agreement.
(d) “Cloud Services” means any on-demand, subscription-based solution that is hosted, supported, and operated by Supplier and provided to Customer pursuant to an Order Form, along with any related Documentation and Embedded Third-Party Content. Cloud Services does not include Third-Party Content.
(e) “Customer Data” means all information, data, and other content that is provided by Customer or its Authorized Users to Supplier, or Supplier’s Affiliates or Personnel, through Customer’s or its Authorized Users’ use of the Software as well as all information, data, and other content that results from processing the same through the Software, but only to the extent that any such information, data, and other content does not contain any Supplier Materials.
(f) “Documentation” means the technical and functional documentation that Supplier distributes in connection with is Products, as revised by Supplier from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Products.
(g) “Hosting Services” means any service or combination of services provided by Supplier to Customer that involves the use of facilities or computer systems owned or leased by Supplier to host Customer Data or applications, which may be Products, third-party applications, or otherwise, purchased separately therefrom by Customer.
(h) “Hardware” means the equipment, hardware and accessories supplied or sold by Supplier pursuant to an Order Form.
(i) “IP 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.
(j) “Maintenance Services” means the maintenance services that are provided to Customer by Supplier in support of its Products pursuant to the Agreement.
(k) “Order Form” means (i) an ordering document, quotation, statement of work, or any online order, entered into by the Parties, which incorporates these GTCs by reference or otherwise, together with (ii) all other ordering documents, quotations, statements of work or online orders previously entered into by the Parties that specify any Products to be provided by Supplier. To the extent that any such ordering document, quotation, statement of work, or online order incorporates any addenda or supplements thereto (“Product Specific Terms” or “PSTs”), any such PSTs shall be included in this definition of Order Form.
(l) “Personnel” means any employee, director, officer, or subcontractor for a given Party or Affiliate.
(m) “Professional Services” means the implementation, integration, configuration, installation, training, and other professional services performed by Supplier as described in an Order Form.
(n) “Products” means, collectively, the Cloud Services, Software, Services, and Hardware.
(o) “Services” means, collectively, the Professional Services, Support Services, Maintenance Services and Hosting Services.
(p) “Software” means the object code version of a computer program that is developed by or for Supplier and/or one of its Affiliates, and delivered to Customer pursuant to an Order Form, along with any related Documentation, Embedded Third-Party Content, and any Updates made available to Customer via Support Services. Software does not include Third-Party Content.
(q) “Supplier Materials” means all information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any technical or functional descriptions, requirements, plans, or reports, that are developed, provided, or used by Supplier or any Personnel in connection with the Products or otherwise comprise or relate to the Products. Supplier Materials include Usage Data and Deliverables, but do not include Customer Data or Third-Party Content.
(r) “Support Services” means customer support services that are provided to Customer by Supplier in support of its Products pursuant to the Agreement.
(s) “Territory” means the geographic area in which Customer is permitted to use the Products, as may be specified in an Order Form, or if no such geographic area is specified in an Order Form, then Territory means the country where Supplier is domiciled.
(t) “Update” means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that Licensor may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software.
(u) “Usage Data” means data created by Supplier or its Products utilizing information derived from Customer’s use of the Products, including, but not limited to, any end user profile, visit, session, impression, clickthrough or clickstream data, and any statistical or other analysis, information, or data based on or derived from any of the foregoing. The aforementioned data shall be deidentified to the extent that it contains attributes that can be used to identify a natural person.
(v) “Usage Metric” means the standard of measurement and quantity for determining the permitted use and calculating the Fees due for the Software or Cloud Services.
2. USAGE RIGHTS; LICENSE.
(a) Rights Granted & Permitted Use.
(i) Cloud Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of the Agreement, including but not limited to payment of any Fees set forth on the applicable Order Form, Supplier hereby grants to Customer, for use in connection with its ordinary course business purposes, a limited, non-exclusive, non-transferable (except in compliance with Section 12) right to access and use the Cloud Services set forth in the applicable Order Form, during the Term, solely for use by Authorized Users in the Territory and in a manner that does not exceed the Usage Metrics stated in an Order Form. All rights not expressly granted to Customer hereunder are reserved by Supplier. Customer acknowledges that internal controls in the Cloud Services do not necessarily restrict usage and deployment of the Cloud Services to comply with the Usage Metrics set forth in an Order Form.
(ii) Software. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of the Agreement, including but not limited to payment of any Fees set forth on the applicable Order Form, Supplier hereby grants to Customer, for use in connection with its internal business purposes, a limited, non-exclusive, non-transferable (except in compliance with Section 12) license to use the compiled or object-code version (not source code) of the Software set forth in the applicable Order Form, during the Term, unless expressly identified as a perpetual license on the applicable Order Form, solely for use by Authorized Users in the Territory and in a manner that does not exceed the Usage Metrics stated in an Order Form. Customer may make no more than one (1) copy of the Software for internal testing and/or back-up purposes. All other duplication and reproduction of the Software is expressly prohibited without Supplier’s prior written authorization. All rights not expressly granted to Customer hereunder are reserved by Supplier. Customer acknowledges that the Software may require activation by way of an activation key on initial installation and from time to time based on certain events, including, without limitation, Updates and changes to hardware on which the Software is installed. Customer acknowledges that the activation keys and internal controls in the Software do not necessarily restrict usage and deployment of the Software to comply with the Usage Metrics set forth in an Order Form.
(iii) Third-Party Authorized Users.
(A) Affiliate Use. Customer shall not authorize its Affiliates to use the Software except as and to the extent specified in an Order Form. Any authorized use of the Software by Customer Affiliates is subject to the following: (i) Customer warrants that it has the authority to, and by executing an Order Form with permitted Customer Affiliate use does, bind such Affiliates and their Authorized Users to the terms of the Agreement, including, where reasonably appropriate, those terms that do not expressly identify Affiliates as obligors; (ii) Customer must be appropriately licensed for any and all increased usage of the Software or attributable to its Affiliates and their Authorized Users; (iii) Customer and its Affiliates shall remain jointly and severally liable to Supplier for Customer’s Affiliates’ and their Authorized Users’ use of the Software; (iv) a breach of the Agreement terms by an Affiliate or its Authorized Users shall be considered a breach by Customer hereunder; and (v) use by any Affiliate that is in market competition with Supplier is prohibited. The Affiliate use rights set forth herein may only be exercised pursuant to a valid Order Form executed by Customer for only as long as that Order Form is in effect. In instances where Supplier has permitted Customer Affiliate use of the Software, Customer must request additional prior written approval to expand any such Affiliate use beyond the originally defined Territory.
(B) Service Provider Use. Customer may authorize its third-party service providers and contractors (collectively “Service Providers”) to use the Software, but only to the extent necessary for Customer to make use of the Software as intended by and in accordance with the Agreement. Any authorized use of the Software by Service Providers is subject to the following: (i) these rights will continue only while Customer and Service Providers have in place a written agreement that gives Customer the authority to compel any such Service Providers’ compliance with terms that are not materially different than those portions of the Agreement that govern the use of the Software, including without limitation license grants and restrictions, and non-disclosure of Supplier Confidential Information; (ii) Customer must be appropriately licensed for any and all increased usage of the Software attributable to Service Providers; (iii) Customer shall remain jointly and severally liable to Supplier for its Service Providers’ use of the Software; (iv) a breach of the Agreement terms by a Service Provider shall be considered a breach by Customer hereunder; and (v) under no circumstances may Service Providers use the Software to operate or provide services to any other party, or in connection with Service Providers’ own business operations.
(b) Restrictions. Customer shall not, and shall not permit any other person to, access or use the Software or Cloud Services except as expressly permitted by the Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as the Agreement expressly permits: (a) subject to any non-waivable rights Customer may enjoy under applicable law, decompile, disassemble, reverse engineer, or otherwise attempt to derive the Software’s or Cloud Services’ source code; (b) modify, enhance, change the data structures for or create derivative works from, the Software or Cloud Services, (c) rent, lease, sell, sublicense or otherwise transfer the Software or Cloud Services to third parties; (d) make the Software or Cloud Services or any part thereof available or accessible in any form to any person other than Authorized Users who require such access (including without limitation any third party integrations); (e) input, upload, transmit, or otherwise provide to or through the Software or Cloud Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, worm, malware, ransomware, or other malicious computer code (“Harmful Code”); (f) access or use the Software or Cloud Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any IP Rights or other right of any third party, or that violates any applicable law; and (g) access or use the Software or Cloud Services for purposes of competitive analysis of the Software or Cloud Services.
(c) Software Updates. For those Customers that are current on their Fees, Supplier may provide Updates to the Software and Documentation. Customer agrees to install all Updates to the Software made available by Supplier within ninety (90) days following such availability. If Customer fails to install any such Update, Supplier reserves the right to suspend all implementation, training, and Support Services until Customer installs such Update. Supplier is not liable to Customer for any damages that result from, or could have been avoided but for, Customer’s failure to install Updates. Supplier may offer to Customer for license, either under or separately from the Agreement, programs which provide new functionality or materially expand the function of the Software (“New Products”). New Products are not Upgrades and may be subject to additional Fees. Supplier shall, in its sole discretion, resolve any ambiguity with regard to whether any given program is an Upgrade or a New Product.
(d) Changes. Supplier reserves the right, in its sole discretion, to make any changes to the Software or Cloud Services it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Supplier’s services to its customers; (ii) the competitive strength of or market for Supplier’s Products; or (iii) the cost efficiency or performance of the Software or Cloud Services; or (b) to comply with applicable law.
(e) Evaluation Licenses. During the Term, Supplier may provide Software or Cloud Services to Customer on a free trial or evaluation basis (an “Evaluation License”), as indicated either in (i) an Order Form, or (ii) some other communication to Customer which incorporates these GTCs by Reference, in which case the Customer’s use of the Evaluation License shall be deemed acceptance of these GTCs. Evaluation Licenses are subject to the terms and conditions of the Agreement, except, notwithstanding any other provision in the Agreement, ALL EVALUATION LICENSES ARE PROVIDED BY SUPPLIER AS IS WITHOUT ANY INDEMNIFICATION, SUPPORT, OR WARRANTY OF ANY KIND, AND WITHOUT ANY LIABLITY TO CUSTOMER WHATSOEVER OR ANY LIMITATIONS ON CUSTOMER’S LIABILITY TO SUPPLIER. At the end of the Evaluation License Term, the Evaluation License will convert to a prospective twelve (12) month Initial Term for the Software or Cloud Services, subject to the same Usage Metrics allotted during the Evaluation License and at Supplier’s then-current list Fees for the Software or Cloud Services, which shall be invoiced immediately, unless, prior to the end of the Evaluation Term, Customer either (i) enters into a different arrangement with Supplier, as memorialized in an Order Form, or (ii) notifies Supplier of its intent to opt out of any such Evaluation License conversion.
(f) Texting Service Subscription. If the Cloud Services or Software includes SMS or text message capabilities, as specified in an Order Form or Documentation, then subject to the terms and conditions of this Agreement, Supplier hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable, and limited right to send and receive text messages via the Software or Cloud Services (the “Texting Services,” which are part of the “Services” and “Products” for purposes of this Agreement) for the limited purpose of communicating with Customer’s customers in connection with Customer’s provision of services to such customers. The Texting Services are provided by Supplier through a third-party integration. Supplier may change this third party integration at any time in its sole discretion. Customer agrees to use the Texting Services in strict conformance with any other use policy made available to it, and all applicable industry guidelines and federal, state and local laws and regulations including, without limitation any communications and telemarketing laws, including without limitation the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227, and its implementing regulations, 47 C.F.R. § 64.1200 et seq., the Telemarketing Sales Rule, and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 (collectively, “Applicable Law”). Customer further agrees that Supplier shall not be responsible for ensuring that Customer’s use of the Texting Services complies with Applicable Law. Customer agrees that it and not Supplier shall be the “maker,” “initiator” and “sender” of all messages ultimately sent using the Texting Services and further acknowledges that Supplier does not control the content any messages, the timing or sending of the message, the recipient list, or the design of any messaging campaign. Customer further represents and warrants that it will not use the Texting Services to transmit any material that (i) may infringe upon or violate the rights of any third party (including, without limitation, trademarks, copyrights, and right of publicity), (ii) is harmful, unlawful, racist, harassing, defamatory, abusive, threatening, obscene, or pornographic, or (iii) misleads others as to the identity of the sender, or (iv) contains viruses, Trojan horses, worms, time bombs, cancel-bots, or any other harmful or deleterious program.
(a) Support Services and Maintenance Services.
(i) Supplier, through its Personnel, will provide the Support Services and Maintenance Services as set forth in an Order Form. The Support Services and Maintenance Services shall also be provided as specified in the applicable Documentation, subject to any other terms and conditions set forth in the applicable Order Form. Customer acknowledges and agrees that Support Services are intended to address specific problems experienced by Customer relating to the Software or Cloud Services, and are not intended to train Customer’s employees or to support third party products. Unless otherwise set forth on an Order Form or Documentation, minor updates are included as part of the Maintenance Services. The Support Services and Maintenance Services shall, subject to the terms and conditions set forth in the Agreement, continue during the Term. For the avoidance of doubt, Customer’s (1) right to access and use the Cloud Services and (2) license to use the Software, each as set forth in Section 2(a) above, shall immediately terminate upon termination of the Support Services and Maintenance Services for any reason.
(ii) Supplier shall not be obligated to provide Support Services or Maintenance Services to the extent a particular request arises from any of the following conditions: (i) Customer’s failure to use the Software or Cloud Services in accordance with the terms and conditions of the Agreement, including but not limited to any applicable Documentation; (ii) Customer’s modification or alteration of the Software or Cloud Services, except where expressly permitted by Supplier; (iii) Customer’s use of any third party components to interface with the Software or Cloud Services, whether by Application Programming Interface (API) or otherwise, without the express prior written consent of Supplier; (iv) Customer’s failure to maintain any equipment on which the Software is operated in accordance with the Documentation; (v) Customer’s failure to implement all available Updates and any updates to third party programs that are necessary for the proper operation of the Software; (vi) Customer’s failure to provide reasonable access to its systems as Supplier deems necessary to provide the Support Services and Maintenance Services, including, but not limited to, by way of telecommunications, internet or other remote access to the server environment in which the Software resides, (vii) any negligence or misuse by the Customer or a third party, or (viii) unreasonable environmental causes, including but not limited to extreme temperature, dust, humidity, or exposure to water or physical or electrical stress. All time and materials expended by Supplier resulting from Customer’s breach of such conditions shall be billed to Customer at Supplier’s standard time and materials rates. Support provided pursuant to this Section relates to the Software and Cloud Services only. Unless, and only to the extent that, Supplier and Customer have expressly agreed for Supplier to provide Maintenance Services or other support pursuant to the Order Form, should the problems that arise be the result of hardware malfunction or misconfiguration, Supplier will advise Customer to have the hardware/network repaired and any Maintenance Services resulting from such hardware/network problems will be billed to Customer at Supplier’s then-current hourly rates.
(iii) On at least one hundred twenty (120) days prior written notice to Customer, Supplier may declare any Software, Hardware, or any particular version or component of Software “End of Life” or obsolete. Upon such a declaration, Supplier may, in its sole discretion, either decline to offer Support Services and/or Maintenance Services for such obsolete Software or Hardware (as applicable) or continue offering End of Life Support Services and/or Maintenance Services on a limited basis. Supplier reserves the right to charge additional Fees for any End of Life Support Services and/or Maintenance Services and offer any length of term that it sees fit.
(b) Professional Services.
(i) Scope. Supplier, through its Personnel, will provide the Professional Services to Customer as specified in an Order Form, subject to the terms of the Agreement.
(ii) Project Change Requests. Either Party may request a modification to any material provision of the Order Form by submitting a Project Change Request (“PCR”). Upon receipt of a PCR, Supplier will determine whether such modifications are in its sole discretion commercially feasible and, if so, estimate its financial and schedule impacts, if any. The Parties will review these estimates to determine whether the PCR would be mutually acceptable. Supplier may not unreasonably refuse to accept a PCR initiated by Customer, if Customer agrees to bear the pricing and schedule impacts. If the Parties agree on the PCR, the Parties will execute the PCR. If the Parties are unable to agree within five (5) business days after the PCR is submitted, then the submitting Party may either withdraw the PCR or terminate the Order Form for convenience in accordance with Section 11(d). Additional services that are required as a result of Customer’s action, inaction or failure to meet its obligations, including delays or wait time caused by issues related to hardware or software not provided by Supplier, shall be billable to Customer and will be invoiced at Supplier’s then-current rates.
(iii) Deliverables and Acceptance. As part of the Professional Services, some Order Forms may specify particular “Deliverables” which shall mean all documents, work product, and other materials, expressly identified as Deliverables in an Order Form, that are prepared by or on behalf of Supplier specifically for Customer. Supplier hereby grants to Customer a nonexclusive, irrevocable, transferrable, sublicensable, perpetual license to use any such Deliverable to the extent necessary for Customer to make use of the Deliverable for its own internal business purposes. For the sake of clarity, the aforementioned license does not permit the use of any Supplier Materials that constitute a given Deliverable independent of the Deliverable as a whole. If Customer reasonably believes that Supplier did not perform the Deliverables in material conformance with the Order Form, Customer will notify Supplier, in writing, within ten (10) business days of delivery of the Deliverable (the “Acceptance Period”). Customer’s notice must specifically identify and explain each alleged non-conformance. For those Deliverables that do not conform to the Order Form, Supplier will use commercially reasonable efforts to correct the non-conformity at no cost to Customer. If Supplier does not receive Customer’s acceptance or rejection within the Acceptance Period, the Deliverables will be deemed accepted by Customer.
(iv) Personnel. Supplier will determine the Personnel assigned to perform the Professional Services. Supplier shall remain fully responsible for the performance of all Personnel and for their compliance with all of the terms and conditions of the Agreement, regardless of whether the Personnel in question is an employee of Supplier or otherwise. Nothing contained in the Agreement shall create any contractual relationship between Customer and any Personnel. Booking of Professional Services shall be subject to the availability of Personnel. Should Customer require rescheduling of booked Professional Services, Supplier will make commercially reasonable efforts to accommodate Customer’s request, which may be subject to additional cost to Customer.
(v) Custom Development and Enhancement Requests. Any programming services for new software development or software modifications shall be considered “Products” and “Services” hereunder unless, and to the extent, the parties enter into a separate agreement for such development services. conditions or a separate agreement for development services between the parties. Supplier has the right, and sole discretion, to reject any request for enhancement or modification to the Software by Customer.
(c) Hosting Services. Hosting Services are subject to the Agreement and shall be provided in accordance with the Hosting Services Addendum attached to an Order Form for Hosting Services.
(a) Fees. Customer will pay all fees for Products as set out in an Order Form (the “Fees”) in accordance with the Agreement and any additional terms set out in, and in the currency specified in, an Order Form. Except as otherwise expressly permitted by the Agreement, payment obligations are non-cancellable and not subject to any setoff, and Fees paid are non-refundable. Fees shall remain fixed for the Initial Term, unless Customer (i) exceeds the quantities licensed in the Order Form, (ii) upgrades or requests additional Products, or (iii) otherwise agrees to Fee fluctuations in an Order Form. Quantities purchased cannot be decreased during any given Initial Term or Renewal Term unless otherwise expressly set forth on an Order Form. Supplier may adjust the Fees prior to the start of any Renewal Term, provided that Fee adjustments shall be no more frequent than once each year.
(b) Expenses. All travel and expenses necessitated by the provision of any Product by Supplier hereunder will, unless otherwise already included in the applicable Fees, be reimbursed by Customer to Supplier.
(c) Invoicing and Payment. Fees will be invoiced as set forth in the Order Form. All invoices are due within thirty (30) days of receipt by Customer with no right to set-off, and overdue accounts will be subject to interest at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If Supplier offers to accept payment by Credit Card, as indicated in an invoice or Order Form then Customer hereby authorizes Supplier to use a third party to process payments, and consents to the disclosure of Customer payment information to such third party.
(d) Taxes. Each Party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that Party upon or with respect to the transactions and payments under the Agreement. All Fees payable by Customer are exclusive of taxes or duties that Supplier is required to collect and pay on Customer’s behalf, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions, and gross receipts tax (“Indirect Taxes”), except where applicable law requires otherwise. Supplier may charge and Customer will pay applicable Indirect Taxes that Supplier is legally obligated or authorized to collect from Customer. Customer will provide such information to Supplier as reasonably required to determine whether Supplier is obligated to collect Indirect Taxes from Customer. Supplier will not collect, and Customer will not pay, any Indirect Tax for which Customer furnishes Supplier a properly completed exemption certificate or a direct payment permit certificate for which Supplier may claim an available exemption from such Indirect Tax, which must be provided to Supplier at least five (5) business days prior to the due date of the applicable Supplier invoice. All payments made by Customer to Supplier under the Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Supplier is equal to the amount then due and payable under the Order Form. Supplier will provide Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under the Agreement. If Supplier pays any costs or expenses incurred in relation to any import duties, customs, formalities, permissions or other requirements, then Customer shall promptly reimburse Supplier for all such amounts in full.
(e) Disputes. Any invoice disputes must be initiated by Customer in good faith and in writing within thirty (30) days following the date of the applicable invoice. Failure to dispute an invoice within the time allotted shall be deemed acceptance. If Customer initiates a dispute with regard to a particular invoice, any undisputed amounts charged on such invoice will continue to be due and payable. Supplier and Customer agree to use reasonable efforts to address and attempt to resolve any invoice dispute within thirty (30) days after Supplier’s receipt of Customer’s notice to Supplier regarding such dispute.
5. THIRD PARTY CONTENT.
(a) Third parties, or Supplier on behalf of third parties, may make available to Customer software, documents, data, content, specifications, products, equipment, components, websites, or professional services licensed by third parties that are (i) interoperable with or accessible through the Software or Cloud Services, and (ii) not embedded in nor inseparable from the Software and Cloud Services (“Third-Party Content”) for use in conjunction with or support of the Software or Cloud Services. Except as otherwise specified in an Order Form, Supplier shall have no responsibility for the licensing, implementation, or operation of Third-Party Content.
(b) Third-Party Content does not include any third-party software, libraries, or code that (i) are embedded in or form an inseparable part of the Software or Cloud Services, and (ii) have been licensed by Supplier for use in Software or Cloud Services (“Embedded Third-Party Content”). Embedded Third-Party Content may be subject to additional terms and conditions which are required to be flowed down from Embedded Third-Party Content providers from time to time (“Flow Down Terms”). Customer shall comply in all respects with any such Flow Down Terms of which it is made aware and further understands and acknowledges that its use of any Third-Party Content is subject to Customer’s acceptance of any such Flow Down Terms. Without limiting the foregoing, Customer acknowledges and agrees that the use of any Products with IDS Smart Systems is subject to compliance with the third party terms and conditions available at: https://www.formed.ai/FAITermsandConditions/ as may be updated from time to time. To the extent that Embedded Third-Party Content is open source software, any such open source software is made available under the applicable open source licenses specified in the applicable PSTs.
6. INTELLECTUAL PROPERTY
(a) Ownership of Products and Supplier Materials. Subject to any rights expressly granted by the Agreement, as between Supplier and Customer, Supplier retains all right, title, and interest, including but not limited to IP Rights, in the Products and Supplier Materials, including all enhancements and modifications thereto. Customer acknowledges and agrees that it is only licensing the right to use the Products and Supplier Materials and that no sale or other transfer of any title or ownership or any proprietary interest of any kind to such Products and Supplier Materials is contemplated hereunder, other than the grant of the limited licenses as expressly set forth herein. Customer covenants, on behalf of itself and its successors and assigns, not to assert against Supplier, its Affiliates, or licensors, any rights, or any claims of any rights, in any Products and Supplier Materials.
(b) Ownership of Customer Data. Subject to any rights expressly granted by the Agreement, as between Supplier and Customer, Customer retains any and all right, title, and interest, including but not limited to IP Rights, in the Customer Data.
(c) Consent to Use Customer Data. Customer grants to Supplier a non-exclusive, world-wide, royalty-free, fully paid up, perpetual and irrevocable license to access and use Customer Data as necessary for Supplier, its Affiliates, and their respective Personnel, to (i) enforce the Agreement, (ii) exercise their respective rights under the Agreement, (iii) perform their respective obligations under the Agreement, and (iv) as otherwise directed by Customer. Customer further grants Supplier, and its Personnel working in an official capacity on behalf of Supplier, a non-exclusive, world-wide, royalty-free, fully paid up, irrevocable license to use Customer Data to create Usage Data. Usage Data, once created, shall be Supplier Materials. In the event that Usage Data, or any portion thereof, is ever deemed Customer Data, Customer shall grant to Supplier a nonexclusive, irrevocable, transferrable, sublicensable, perpetual license to use Customer Data to the extent necessary for Supplier to make use of any such Usage Data in any manner it sees fit. Customer may grant to Supplier additional rights to use Customer Data as set forth in an Order Form, including without limitation requesting that Customer Data be exported to a third party. Supplier shall not use Customer Data except as permitted by this Section 6(c). Without limiting the foregoing, Customer specifically consents to Supplier transferring and/or disclosing any Customer Data to its third-party vendors or suppliers for the purpose of satisfying their contractual obligations to Supplier in connection with the Products, including without limitation providing maintenance and support services to Customer.
(d) Customer Feedback. Supplier shall own all right, title, and interest to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer to Supplier relating to the improvement of the Products (“Customer Feedback”). Supplier shall have no obligation to Customer with regard to the Customer Feedback. Customer shall have no obligation to provide Customer Feedback.
(e) Use of Branding. Unless indicated otherwise in the applicable Order Form, Customer provides Supplier with permission to use its trademark, logo and trade name (“Branding”) in Supplier’s promotional and marketing materials. Supplier is granted no other right to the Branding and acknowledges that it shall not have any proprietary interest in the same. Supplier is not obligated to use or to compensate Customer for its use of the Branding. Supplier shall be the exclusive owner of all right, title, and interest, including copyright in its promotional and marketing materials. The permission to use the Branding may be terminated at any time by Customer by providing thirty (30) days’ written notice to Supplier. Upon such termination, Supplier shall refrain from future use of the Branding; however, Supplier may continue to distribute and use the promotional and marketing materials where Customer’s Branding has been previously printed prior to the notice of termination and where such placements cannot reasonably be discontinued or altered.
7. CONFIDENTIALITY; DATA PRIVACY
(a) Customer Responsibilities. Customer agrees to comply with all applicable anti-spam and data privacy laws and regulations. Customer shall be responsible for securing all rights and permissions to use the Customer Data, or to instruct Supplier to use the Customer Data on Customer’s behalf, in conjunction with the Products, including all the necessary rights and permissions to license the Customer Data to Supplier as set forth in the Agreement. Furthermore, Customer shall be responsible for (i) the integrity of the Customer Data, (ii) the selection and implementation of controls to restrict access and use of the Software and Cloud Services to only Authorized Users, and (iii) implementing all commercially reasonable measures to secure and protect the Customer Data from unauthorized access and loss, to the extent that it is possible for Customer to do so based on a given Product’s available features, functionality, configuration settings, or implementations methods. The responsibilities of Customer set forth in this Section 7(a) are not shared with Supplier unless, and only to the extent that, any such responsibilities are expressly borne by Supplier pursuant to the Agreement.
(b) Supplier Responsibilities. Supplier will comply in all material respects with all applicable anti-spam and privacy laws in its performance of the Agreement and will provide assistance as may be reasonably requested by Customer to meet its obligations under any such laws in connection with the Agreement; provided, however, such assistance may be subject to additional Fees for applicable professional services provided by Supplier if such assistance is not needed in relation to a breach of the Agreement by Supplier. The terms of the CCPA Addendum set forth on Schedule A attached hereto shall apply to the extent that any Customer Data is governed by the CCPA (as defined in the CCPA Addendum) or any other applicable law that is substantially similar to the CCPA.
(c) Mutual Nondisclosure Obligations.
(i) By virtue of the Agreement, the parties may have access to the other Party’s “Confidential Information”, which shall mean any information disclosed under the Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by discloser at the time of disclosure and confirmed in writing to recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by recipient to be confidential (including, without limitation, pricing, non-public Personal Data, Products and Supplier Materials). Confidential Information does not include any portion of the information that recipient can prove (a) was rightfully known to recipient before receipt from discloser; (b) was generally known to the public on the Effective Date of the Agreement; (c) becomes generally known to the public after the Effective Date of the Agreement, through no fault of recipient; (d) was received by recipient from a third party without breach of any obligation owed to discloser; or (e) was independently developed by recipient without breach of the Agreement.
(ii) The Parties will hold each other’s Confidential Information in confidence and will treat it with the same degree of care with which it would treat its own Confidential Information of a like nature, and in no case less than a reasonable degree of care. With respect to all Confidential Information other than Products and Supplier Materials provided by Supplier, such obligation shall terminate three (3) years after termination of the Agreement. With respect to the Products and Documentation provided by Supplier, such obligation is perpetual.
(iii) Except as otherwise expressly stated in the Agreement, Confidential Information may only be disclosed to the receiving Party’s and its Affiliates’ employees, subcontractors, consultants, agents, and other representatives who are required to access it to carry out the obligations or exercise the rights of the receiving Party and its Affiliates under the Agreement, provided that those to whom the receiving Party and its Affiliates disclose the Confidential Information are contractually obligated to protect such Confidential Information in a manner that is no less restrictive than the requirements set forth in the Agreement. Each Party shall be responsible for any acts or omissions of its or its Affiliates’ employees, subcontractors, consultants, agents, and other representatives which, if they were acts or omissions of that Party, would be deemed a breach of that Party’s obligations of this Section 7. Supplier may also disclose Customer’s Confidential Information to a Third-Party Content provider to the extent necessary to facilitate Customer’s relationship with that Third-Party Content provider.
(i) It shall not be a breach of this Section 7(c) if Confidential Information is disclosed pursuant to subpoena or other compulsory judicial or administrative process, provided that the Party served with such process promptly notifies, to the extent legally permissible, the other Party and provides reasonable assistance so that the other Party may seek, at its own cost and expense, a protective order against disclosure.
(ii) The parties recognize and agree that monetary damages are an inadequate remedy for breach of the obligations set forth in this Section 7(c) and further recognize that any breach would result in irreparable harm to the non-breaching Party. In the event of such a breach, the non-breaching Party may seek injunctive relief from a court of competent jurisdiction to pursue those remedies available to it.
(d) Sensitive Personal Information. “Sensitive Personal Information” means an individual’s financial information, sexual preferences, medical, or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child data protection laws (such as the personal information defined under the US Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal data” or “special categories of personal information”) as used in applicable data protection or privacy laws. Customer shall not collect, process, or store any Sensitive Personal Information using the Software or Cloud Services unless permitted by an Order Form, or otherwise without prior written consent of Supplier, provided that the execution of any agreement or addendum to an agreement which governs the use of any such Sensitive Personal Information (e.g. a Business Associate Addendum or Data Processing Agreement which expressly covers Sensitive Personal Information) shall be deemed consent.
(e) Return and Destruction of Confidential Information. Except to the extent that the continued use of a Party’s Confidential Information is necessary for the other Party to exercise rights that are intended to survive the Agreement as expressly granted hereunder, upon the termination or expiration of the Agreement: (i) all rights granted by the disclosing Party with respect to its Confidential Information will automatically terminate and the receiving Party shall immediately cease (and cause its and its Affiliates employees, subcontractors, consultants, agents, and other representatives to cease) any access to and use of the disclosing Party’s Confidential Information; and (ii) the receiving Party shall securely destroy the disclosing Party’s Confidential Information in a manner consistent with the sensitivity of the Confidential Information. Upon request of the disclosing Party, an officer of receiving Party shall certify to all such destruction in writing. Notwithstanding the foregoing, the receiving Party may retain a copy of Confidential Information only for archival purposes if required by law or in accordance with receiving Party’s bona fide records retention policies, provided that the receiving Party continues to abide by the restrictions set forth in this Section 7 for as long it retains such Confidential Information. Supplier is under no obligation to retain data for more than thirty (30) days beyond the expiration or termination of the Agreement or any given Order Form.
(a) By Supplier. Supplier will, at its expense, defend Customer against any claim, demand, suit, or proceeding made or brought against Customer, or any Affiliates authorized to use the Products pursuant to Section 2(a)(iii)(A) of these GTCs, by a third party alleging that Customer’s use of a Product within the scope of the Agreement infringes or misappropriates the IP Rights of such a third party (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Supplier in writing of, a Claim Against Customer; provided that Customer notifies Supplier promptly in writing of the Claim Against Customer, provides Supplier with the sole control and authority to defend or settle the Claim Against Customer, and gives Supplier the authority, information and assistance necessary to settle or defend the Claim Against Customer. If any of the Products are, or in Supplier’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party IP Rights, Supplier may in its discretion and at no cost to Customer (i) modify or replace the Products, in whole or in part, to make the Products (as so modified or replaced) non-infringing, while providing materially similar features and functionality, (ii) obtain the right for Customer to continue to use the Products as contemplated by the Agreement, or (iii) by written notice to Customer, terminate the Agreement with respect to all or part of the Products, and require Customer to immediately cease any use of the Products, or any specified part or feature thereof, provided that Customer shall be entitled to a Pro Rata Refund (defined below) for any Products that are terminated pursuant hereto. Notwithstanding the foregoing, Supplier shall have no obligation to defend against or indemnify for any Claims Against Customer to the extent they arise from: (A) use of a version of the Software that was not, at the time that the Claim Against Customer arose, the current unaltered version of the Software made available by Supplier hereunder; (B) combination, operation, integration (other than performed by Supplier hereunder) or interfacing of the Software or Cloud Services with Third-Party Content, if such Claim Against Customer would not have arisen but for such combination, operation, integration (other than performed by Supplier hereunder) or interfacing; (C) use of the Products in a manner other than as authorized by the Agreement; (D) Supplier’s use of Customer Data in conjunction with the Products; or (E) modifications to the Software or Cloud Services by any person other than Supplier or its authorized agents or subcontractors. As used in this section, “Pro Rata Refund” means a refund of the amounts pre-paid to Supplier by Customer for the portion of a Product, or any related costs or expenses, that will not be provided or consumed by Supplier as of the date that Customer is entitled to receive any such refund, calculated (i) for any subscription-based Fees, based on the number of whole months that remain on the portion of the Term to which the pre-paid Fees applied, (ii) for any fixed Fees, based on the amount that can be reasonably attributed to the portion of the Product that was pre-paid but not delivered, and (iii) for any costs or expenses, a refund of the amounts pre-paid by Customer for anticipated costs or expenses which were not actually incurred by Supplier as of the date that Customer is entitled to receive any such refund.
(b) By Customer. Customer will, at its expense, defend Supplier against any claim, demand, suit, or proceeding made or brought against Supplier or any of its Affiliates or Personnel by a third party (i) arising from or related to Customer’s failure to use the Products in accordance with the terms of the Agreement or any applicable laws, or (ii) alleging that any Customer Data, use of Customer Data by Supplier within the scope of the Agreement, or Customer action or inaction described in the final sentence of Section 8(a), infringes or misappropriates the IP Rights of such a third party, or arising from Customer’s use of the Products in an unlawful manner or in violation of the Agreement (a “Claim Against Supplier”), and will indemnify Supplier from any damages, attorney fees and costs finally awarded against Supplier, or for amounts paid by Supplier under a settlement approved by Customer in writing, as a result of a Claim Against Supplier; provided that Supplier notifies Customer promptly in writing of the Claim Against Supplier, provides Customer with the sole control and authority to defend or settle the Claim Against Supplier, and gives Customer the authority, information and assistance necessary to settle or defend the Claim Against Supplier.
(c) THE FOREGOING STATES THE INDEMNIFYING PARTY’S SOLE AND EXCLUSIVE LIABILITY TO, AND THE INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS DESCRIBED IN SECTIONS 8(a) AND 8(b).
9. WARRANTY & WARRANTY DISCLAIMER
(a) Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) 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; (ii) 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 the Agreement; (iii) the execution of the Agreement by its representative whose signature is set forth at the end of the Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (iv) when executed and delivered by both parties, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
(b) Additional Supplier Representations, Warranties, and Covenants.
(i) Software and Cloud Services. Supplier warrants that the Software and Cloud Services will perform in material conformance with the Documentation. As Customer’s sole remedy for any breach of this warranty, if Customer provides notice to Supplier of any reproducible incidence of non-conformance within thirty (30) days of discovering any such non-conformance, Supplier will use commercially reasonable efforts to correct such non-conformance, provided such non-conformance is not caused by: (A) negligence, gross negligence, or intentional misconduct on the part of Customer or any of its Authorized Users, (B) Customer’s failure to use of the Software or Cloud Services in accordance with the terms of the Agreement, (C) Third Party Content or any other product or service not provided by Supplier its Affiliates, or its Personnel, or (D) Harmful Code, to the extent that such Harmful Code was not introduced as a result of Supplier’s negligence, gross negligence, or intentional misconduct. If Supplier cannot correct a non-conformity within ninety (90) days from the date Customer provided notice of the non-conformity (the “Remedy Period”), then Customer may terminate the license for the non-conforming Software or Cloud Service and receive a Pro Rata Refund for the non-conforming Software or Cloud Service. If Customer fails to exercise this right to terminate within fifteen (15) days after the end of the Remedy Period, Customer shall be deemed to have waived this right.
(ii) Services. Supplier warrants that the Services will be performed in a professional manner consistent with generally accepted industry standards for the Services. As Customer’s sole remedy for any breach of this warranty, if Customer provides notice to Supplier of any documented incidence of non-conformance within thirty (30) days of discovering any such non-conformance, Supplier will use commercially reasonable efforts to correct such non-conformance, provided such non-conformance is not caused by: (A) Customer’s failure to adhere to its obligations under the Agreement, including but not limited to any assumptions set forth in an Order Form, or (B) Third-Party Content or any other product or service not provided by Supplier, its Affiliates, or its Personnel.
(i) Service Level Agreements. Service Level Agreements, to the extent that there are any, are those terms which are clearly identified as such in an Order Form, or the PSTs for a particular Product (“SLA”). Supplier’s failure to meet a particular SLA shall not be a breach of warranty under Section 9(b)(i), unless and only to the extent that the SLAs expressly state otherwise. Supplier’s sole and exclusive remedy for Supplier’s failure to meet a particular SLA will be as set forth in the SLAs.
(c) Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Supplier that Customer (i) has complied with all applicable laws and regulations, including but not limited to those applicable to the collection and use of Customer Data in connection with this Agreement, and (ii) owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Supplier and processed in accordance with the Agreement, including any DPA, they do not and will not infringe, misappropriate, or otherwise violate any IP Rights, or any privacy or other rights of any third party or violate any applicable law or regulation. To the extent that any Customer Data was collected first by a third-party, such as a data broker, Customer further represents, warrants, and covenants to Supplier that it has a written agreement with any such third-party which requires that third-party to comply with all applicable laws and regulations, including but not limited to those applicable to the collection and use of the data obtained from that third-party.
(d) DISCLAIMERS. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 9 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS, AND THIRD-PARTY CONTENT (INCLUDING WITHOUT LIMITATION ANY THIRD PARTY INTEGRATIONS) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE USE OF REASONABLE SKILL AND CARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUPPLIER DOES NOT WARRANT THAT THE PRODUCTS WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. SUPPLIER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY THIRD-PARTY CONTENT PROVIDED WITH OR AS PART OF THE PRODUCTS. SUPPLIER’S LIMITED WARRANTIES DO NOT APPLY TO ANY PRODUCTS WHICH HAVE BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN SUPPLIER, ITS AFFILIATES, OR ITS PERSONNEL. Some jurisdictions may not allow the exclusion of certain or any express or implied warranties, representations, guarantees, or conditions, so the above disclaimers many not apply to Customer. Nothing in the Agreement excludes, restricts, or modifies any right or remedy, or any guarantee, representation, warranty, condition or other term, implied or imposed by any applicable law which cannot lawfully be excluded or limited. The Parties agree that it is Customer’s responsibility to determine if the Products are suitable for Customer’s requirements. No other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of the Agreement or have any legal effect whatsoever.
10. LIMITATION OF LIABILITY. SUPPLIER’S ENTIRE LIABILITY UNDER THE AGREEMENT OR IN ANY WAY RELATED TO THE PRODUCTS WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO SUPPLIER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. SUPPLIER WILL NOT BE LIABLE FOR (I) ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT OR IN ANY WAY RELATED TO THE PRODUCTS, OR (II) ANY LOSS OF REVENUE, PROFITS, GOODWILL OR DATA (INCLUDING DUE TO A VIRUS OR OTHERWISE), BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS, CORRUPTION OF DATA, OR CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF SUPPLIER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OTHER THAN AS SET OUT IN SECTION 8 (IN EACH CASE WHETHER DIRECT OR INDIRECT),. THESE LIMITATIONS WILL APPLY REGARDLESS OF HOW THE CLAIM ARISES, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, AND WILL APPLY TO ALL ORDER FORMS AND ANY OTHER DOCUMENT RELATED TO THE AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN SUPPLIER AND CUSTOMER AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. SUPPLIER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
11. TERM AND TERMINATION
(e) Term. The initial term of an Order Form will commence on the effective date set forth in the Order Form (the “Effective Date”) and will continue thereafter for the period as set out in the Order Form (“Initial Term”), unless terminated earlier by Supplier or Customer in accordance with the terms of the Agreement. If no effective date is specified in an Order Form, the effective date of such Order Form shall be the date of final signature. Unless otherwise specified in an Order Form, an Order Form will automatically renew at the then-current Usage Metrics for additional recurring periods equal to the lesser of (i) the length of the Initial Term, or (ii) one (1) year (each being a “Renewal Term” and, collectively, with the Initial Term, the “Term”), unless either Party provides the other Party with ninety (90) days written notice prior to the conclusion of an Initial Term or any Renewal Term, as applicable, that is one (1) year or greater, or with thirty (30) days written notice prior to the conclusion of an Initial Term or any Renewal Term, as applicable, that is less than one (1) year. All terms and conditions hereof shall remain in effect during any Renewal Term, except as otherwise stated in the Agreement or expressly agreed to by the Parties in writing. The term of these GTCs and the Agreement shall align with the Term of the Order Form which incorporates these GTCs.
(i) Failure to Pay Fees. Upon fifteen (15) days prior written notice to Customer (including without limitation any notice of late or past due payment), Supplier may suspend (A) Customer’s right to use of any Software or Cloud Services, including any Updates thereto, and/or (B) the provision of any Services, for as long as any undisputed Fees are delinquent and remain unpaid. An invoice which indicates a past due amount shall satisfy the notice requirements of this Section 11(b)(i).
(ii) Misuse. Upon fifteen (15) days prior written notice to Customer, Supplier may suspend Customer’s right to use any Product which is not being used in conformance with the terms of the Agreement for as long as any such nonconformity remains uncured. Notwithstanding the foregoing, if any such nonconformity is, in Supplier’s sole discretion, likely to cause material harm or risk of harm to Supplier, its Affiliates, its Personnel, or the Products, Supplier may suspend Customer’s right to use the Product immediately without notice to Customer.
(iii) Additional Terms. In the event of any suspension under this Section 11(b), (A) Supplier shall not be precluded from exercising any additional remedies that might be available to it under the terms of the Agreement or otherwise, (B) the Term will not be extended and no Fees will be refunded to account for any period of suspension, and (C) Customer forfeits all right to use the Products and any Supplier Materials, including without limitation Supplier’s Confidential Information, during the period of suspension, except to the extent that Supplier gives Customer its prior written consent to use any of the foregoing to cure the default that led to the suspension. Any written notice provided under this Section 11(b) shall also satisfy the written notice requirements of Section 11(c) below. Any choice by Supplier to forego suspension under this Section 11(b) shall not be construed as a waiver of any rights under the Agreement or otherwise.
(b) Termination by Supplier. Supplier has the right to terminate the Agreement or any portion thereof, if Customer is in default of any material term or condition of the Agreement, and fails to cure such default within thirty (30) days after receipt of written notice of such default. Without limitation, it will be deemed a Customer default under the Agreement if Customer fails to pay any amount when due hereunder. Supplier may terminate the Agreement immediately if: (i) Customer uses a Product in a way that violates any law or is causing, or is reasonably expected to cause, material harm to Supplier, its Affiliates, its Personnel, or the Products; or (ii) Customer becomes insolvent, a receiver, administrator, controller or a liquidator is appointed to Customer, Customer assigns any of its property for the benefit of creditors or any class of them or any proceedings have been commenced by or against Customer under any bankruptcy, insolvency or similar laws.
(c) Termination by Customer. Customer has the right to terminate the Agreement, or any portion thereof, if Supplier is in default of any material term or condition herein, and fails to cure such default within thirty (30) days after receipt of written notice of such default or if Supplier becomes insolvent or any proceedings are to be commenced by or against Supplier under any bankruptcy, insolvency or similar laws.
(d) Effect of Termination and Expiration. Upon termination or expiration of the Agreement, or any portion thereof, for any reason, any and all amounts owed to Supplier pursuant to the Agreement, or the portion of the Agreement which has terminated or expired, will be immediately due and payable, and all rights, or those rights attributable the portion of the Agreement which has terminated or expired, granted to Customer hereunder will be immediately revoked and terminated. The obligations of the Parties and the provisions of the Agreement which are expressly stated to survive, or may be reasonable expected to survive, shall survive the expiration or termination of the Agreement, including without limitation Sections 6, 7(c), 8, 10, 13 and 14 of the Agreement.
12. ASSIGNMENT. Customer may not assign (including by operation of law) its rights or obligations hereunder without the prior written consent of Supplier, which consent may be withheld in Supplier’s sole discretion and/or conditioned upon the payment of additional fees. The Agreement will bind and inure to the benefit of any Supplier successor or assignee. If Customer undergoes a change of control, then Supplier may terminate the Agreement with immediate effect upon written notice.
13. GOVERNING LAW
(a) The law that will apply to any question of interpretation regarding the Agreement, any question of the existence of the Agreement, or a lawsuit arising out of or in connection with the Agreement, and which courts have jurisdiction over any such lawsuit, depend on the country of incorporation or organization, as applicable, of Customer, and will be determined as follows:
|Customer Country of Incorporation:||Governing Law:||Courts Having Jurisdiction:|
|The United States of America, Mexico or a Country in Central or South America or the Caribbean||The laws of the State of Maryland and the federal laws of the United States applicable in that state.||(a) The United States District Court for the District of Maryland (to the extent it has subject matter jurisdiction), or (b) the courts of the State of Maryland in Baltimore County)|
|Canada||The laws of the Province of Ontario and the laws of Canada applicable in that province.||Toronto, Ontario|
|The United Kingdom or Another Country in Europe, the Middle East or Africa||The laws of England and Wales.||England and Wales|
|Australia or a Country in Asia or the Pacific Region||The laws of the State of New South Wales and the laws of the Commonwealth of Australia applicable in that state.||Sydney, Australia|
(b) Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and, subject to the availability of injunctive relief pursuant to Section 5(c) (Confidentiality) and to Section 12 (Dispute Resolution), to the jurisdiction of the applicable courts above. The parties exclude the operation of the United Nations Convention on Contracts for the International Sale of Goods.
14. DISPUTES. Upon any dispute, controversy or claim between the parties, each of the parties will designate a representative from senior management to attempt to resolve such dispute. The designated representatives will negotiate in good faith in an effort to resolve the dispute over a period of thirty (30) days. If the dispute is not resolved in this 30 day period, the parties will submit the dispute to binding arbitration in the appropriate jurisdiction listed in Section 13(a), by a single arbitrator independent of both parties who is skilled in the legal and business aspects of the software industry. The parties agree that the arbitrator’s fee shall be shared equally between the parties and that each Party shall be responsible for its costs, legal and otherwise, in relation to the arbitration, unless the arbitrator decides that the circumstances justify an award of costs. The arbitration shall be conducted in the English language and shall take place in accordance with arbitration rules and in the location set forth in the below chart, depending on the country of incorporation or organization, as applicable, of Customer. Nothing in this Section 14 shall limit the ability of a Party to seek injunctive relief.
|Customer Country of Incorporation:||Applicable Arbitration Rules:||Location of Arbitration:|
|The United States of America, Mexico or a Country in Central or South America or the Caribbean||Commercial Arbitration Rules of the American Arbitration Association||Baltimore County, Maryland|
|Canada||Canadian Arbitration Association||Toronto, Ontario|
|The United Kingdom or Another Country in Europe, the Middle East or Africa||London Court of International Arbitration||London, England|
|Australia or a Country in Asia or the Pacific Region||Australian Centre for Commercial Arbitration||Sydney, Australia|
(a) Export Compliance. The Products, and derivatives thereof, may be subject to export laws and regulations. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access or use of the Products in a U.S.-embargoed country, EU- embargoed country, or United Nations-embargoed country or in violation of any other applicable embargo, export law or regulation.
(b) Anti-Corruption. Customer represents to Supplier that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Supplier’s employees or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Supplier.
(c) Subcontractors. Supplier reserves the right to make use of subcontractors to provide or develop any of the Products and to use such means as Supplier, in its sole discretion, considers appropriate. Supplier’s use of subcontractors shall not relieve Supplier of its obligations under the Agreement.
(d) Non-Solicitation. During the Term of the Agreement and for a period of one (1) year following the termination of the Agreement, Customer agrees not to solicit, recruit or employ any employee of Supplier without the prior written consent of an authorized representative of the Supplier. For purposes of this section, the term “employee,” shall include any person with such status at any time during the six (6) months preceding any solicitation in question. For the avoidance of doubt, the foregoing restriction shall not apply to the following forms of solicitation (and resulting employment): (i) using general bona fide solicitations directed at the public or industry participation in general in publications or internet resources not specifically targeted at employees of the other Party, or employing any person who responds to such solicitations; (ii) using search firms, or hiring any persons solicited by such search firms, so long as such firms are not advised to solicit employees of the other Party; or (iii) soliciting any person who has left the employment of Supplier prior to the date of the Agreement.
(e) Notices. All notices will be in writing, and will be deemed to be delivered upon (i) personal delivery; (ii) one business day after being delivered by reputable international shipping service to the address of the applicable Party set forth on the most recent Order Form, or if no such address exists, the last known address available to the Party providing notice; or (iii) when delivered by electronic mail (with confirmation of delivery) the Parties at the email addresses shown on the most recent Order Form, or if no such email address exists, the last known email address available to the Party providing notice, except for notices of termination or an indemnifiable claim (“Legal Notices”) which cannot be delivered electronically. Each Party may modify its recipient of notices by providing notice pursuant to this Section 15(e).
(f) Entire Agreement; Order of Precedence; Severability. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter of the Agreement and supersedes all proposals, oral and written, and all previous negotiations and communications between the Parties and their representatives with respect to the subject matter of the Agreement, including for the avoidance of doubt any prior Supplier terms and conditions governing the supply of any Products by Supplier for any existing Order Form. Each Party acknowledges that, in entering into the Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a Party to the Agreement or not) other than as expressly set out in the Agreement. The Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if Supplier accepts or does not otherwise reject the purchase order. In the event of conflict between these GTCs and an Order Form, the terms of the Order Form shall control, but only as to that Order Form. In the event of a conflict between the DPA and any other component of the Agreement, the DPA shall control. If any provision contained herein or part thereof is determined to be void or unenforceable in whole or in part by a court of competent jurisdiction, such invalid provision or part thereof shall be deemed not to affect or impair the validity or enforceability of any other provision or part thereof contained herein, all of which remaining provisions or parts thereof shall be and remain in full force and effect.
(g) Amendment. Customer acknowledges and agrees that Supplier may, in its sole discretion, modify these GTCs from time to time, and that any such modifications become effective thirty (30) days after the date that Supplier provides the updated GTCs to Customer, which may be done by providing Customer with a URL that hosts the updated GTCs along with a clear message that these GTCs have been updated. Customer is responsible for reviewing and becoming familiar with the updated GTCs. If, prior to the effective date of the updated GTCs, Customer notifies Supplier of its objection to a modification of the GTCs which would result in a material degradation of Customer’s rights or Supplier’s obligations to Customer under the GTCs, then Supplier shall either conduct good faith negotiations of only those modifications which would result in such a material degradation, or, upon thirty (30) days notice to Customer, terminate the Agreement. Notwithstanding anything in the Agreement to the contrary, the termination right set forth in this Section shall be in addition to any other termination right Supplier may otherwise have under the Agreement. If Supplier exercises its right to terminate pursuant to the terms of this Section, Customer shall be entitled to a Pro-Rata Refund of any Fees already paid by Customer for the affected Products, calculated from the effective date of any such termination. Customer’s failure to object prior to the effective date of the updated GTCs shall be deemed acceptance of the updated GTCs. Except for Supplier’s right to update these GTCs pursuant to this Section, and except as otherwise agreed to in an Order From, the Agreement may only be modified by written amendment signed by the Parties.
(h) Non-Waiver. Except as expressly stated in the Agreement, no term of the Agreement will be deemed waived, and no breach of a term excused, unless the waiver or excuse is provided in writing and signed by the Party issuing it.
(i) Force Majeure. Neither Party will be liable for any delay or failure to perform its obligations under the Agreement, except for Customer’s payment obligations, due to any cause beyond the Party’s reasonable control, which may include labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature, pandemic, embargoes, riots, acts or orders of government, acts of terrorism, or war (each a “Force Majeure Event”). The affected Party shall be excused from performance for as long as the Force Majeure Event continues, provided that the affected Party uses commercially reasonable efforts to mitigate the effect of the Force Majeure Event and resume performance.
(j) Audit. Supplier may audit Customer’s use of the Products (e.g., through use of software tools or otherwise) to assess whether Customer’s use of the Products is in accordance with the terms of the Agreement. Customer agrees to cooperate with Supplier’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer’s normal business operations. Customer agrees to pay, within thirty (30) days of written notification to Customer, any fees applicable to Customer’s use of the Products in excess of the applicable Usage Metrics. Supplier shall bear all costs of the Audit, except for any of Customer’s costs incurred in cooperating with the audit.
(k) Independent Contractors. The relationship of the Parties established by the Agreement is that of independent contractors. The Agreement does not establish an agency, joint venture or partnership relationship between Supplier and Customer. Supplier and its Personnel, and other entities which represent Supplier, are acting as independent contractors and not as employees or agents of Customer. Nothing in the Agreement will be construed to permit either Party to bind the other or to enter into obligations on behalf of the other Party.
This CCPA Addendum (the “Addendum”) supplements the GTCs to which it is attached. Unless otherwise specified, capitalized terms in this Addendum have the same meaning as defined in the Agreement, and those definitions are incorporated by reference. In the event of conflict between the Agreement and this Addendum, the terms of this Addendum shall take precedence only with regard to Customer Data that is governed by the CCPA.
1. Definitions. The following definitions and rules of interpretation apply in this Addendum:
(a) CCPA means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), the CCPA Regulations (Cal. Code Regs. tit. 11, §§ 999.300 to 999.337), and any related regulations or guidance provided by the California Attorney General. Terms defined in the CCPA, including personal information and business purposes, carry the same meaning in this Addendum.
(b) Contracted Business Purposes means the services performed on behalf of the Customer, as more fully described in the Agreement, for which the Supplier receives or accesses personal information.
2. Supplier’s CCPA Obligations
(a) Supplier will only collect, use, retain, or disclose personal information for the Contracted Business Purposes for which Customer provides or permits personal information access.
(b) Supplier will not collect, use, retain, disclose, sell, or otherwise make personal information available for Supplier’s own commercial purposes or in a way that does not comply with the CCPA. If a law requires the Supplier to disclose personal information for a purpose unrelated to the Contracted Business Purpose, the Supplier must first inform the Customer of the legal requirement and give the Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
(c) Supplier will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another compatible operational purpose.
(d) Supplier must promptly comply with any Customer request or instruction requiring the Supplier to provide, amend, transfer, or delete the personal information, or to stop, mitigate, or remedy any unauthorized processing.
(e) If the Contracted Business Purposes require the collection of personal information from individuals on the Customer’s behalf, Supplier will always provide a CCPA-compliant notice at collection that the Customer specifically pre-approves in writing. Supplier will not modify or alter the notice in any way without the Customer’s prior written consent.
(f) To the extent permitted by the CCPA, Supplier may aggregate, deidentify, or anonymize personal information so it no longer meets the personal information definition, and may use such aggregated, deidentified, or anonymized data as it sees fit. Supplier will not attempt to or actually re-identify any previously aggregated, deidentified, or anonymized data and will contractually prohibit downstream data recipients from attempting to or actually re-identifying such data.
3. Assistance with Customer’s CCPA Obligations
(a) Supplier will reasonably cooperate and assist Customer with meeting the Customer’s CCPA compliance obligations and responding to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account the nature of the Supplier’s processing and the information available to the Supplier.
(b) Supplier must notify Customer immediately if it receives any complaint, notice, or communication that directly or indirectly relates either party’s compliance with the CCPA. Specifically, the Supplier must notify the Customer within seven (7) business days if it receives a verifiable consumer request under the CCPA.
(a) Supplier may use subcontractors to provide the Contracted Business Services. Any subcontractor used must qualify as a service provider under the CCPA and Supplier cannot make any disclosures to the subcontractor that the CCPA would treat as a sale.
5. CCPA Warranties and Certification
(a) Both parties will comply with all applicable requirements of the CCPA when collecting, using, retaining, or disclosing personal information.
(b) Supplier certifies that it understands this Addendum’s and the CCPA’s restrictions and prohibitions on selling personal information and retaining, using, or disclosing personal information outside of the parties’ direct business relationship, and it will comply with them.
(c) Supplier warrants that it has no reason to believe any CCPA requirements or restrictions prevent it from providing any of the Contracted Business Purposes or otherwise performing under this Addendum. Supplier must promptly notify the Customer of any changes to the CCPA’s requirements that may adversely affect its performance under the Addendum.