These License Terms constitute a binding agreement by and between Transition Overwatch, LLC (“Licensor”) and the customer (“Customer”) signing up via any order form, purchase order or other similar document mutually agreed by the parties (e.g., when signed if a physical document, or when entered into online via a Licensor controlled website or app online) (collectively, each, an “Order Form”), and is effective as of the date on the initial Order Form between the parties (the “Effective Date”). These License Terms, together with any Order Form(s) (including any Statement of Work (SOW) executed in connection therewith), are collectively referred to herein as, the “Agreement”.
WHEREAS, Licensor develops and licenses access to the hosted software application subscription service(s) as described on the applicable Order Form and as further described more fully herein (collectively, the “Service”); and
WHEREAS, Customer would like to subscribe to and access the Service.
NOW THEREFORE, in consideration of the foregoing premises and the mutual undertakings of the parties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1.1 Service License Grant. Subject to the terms and conditions of the Agreement, Licensor hereby grants to Customer a limited, non-exclusive, non-transferable license and right to access and use the Service during the Term, solely for use by the Authorized Users in accordance with the terms and conditions herein, and solely for internal and non-commercial purposes. Customer shall comply with all official documentation, technical manuals, functional manuals, operator and user guides and manuals (collectively, the “Documentation”). Subject to the terms and conditions contained in the Agreement, Licensor hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer’s internal and non-commercial purposes in connection with its use of the Service. As used herein, “Authorized User” shall mean the Customer’s employees, consultants, contractors and agents who are authorized by Customer to access and use the Service under the rights granted to Customer pursuant to the Agreement.
1.2 Consulting Service. If and as mutually agreed by the parties on any Order Form or in a subsequent written and executed Statement of Work (“SOW”) attached thereto and made a part thereof, Licensor may also provide certain consulting services or other similar professional services (“Consulting Service”) in addition to the subscription Service. Consulting Services may include, without limitation, management services and/or training. Unless otherwise mutually agreed in the applicable SOW or Order Form, all Consulting Service will be paid for and performed on a time and materials basis, at Licensor’s standard hourly rates. Customer shall reimburse Licensor for actual and reasonable travel and travel-related expenses incurred by Licensor in connection with the Service or any Consulting Service provided hereunder or thereunder.
2. Proprietary Rights.
2.1 Customer Data. Licensor acknowledges and agrees that Customer shall own all title to and ownership of the Customer Data (defined below) and that Licensor shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection with Licensor’s performance hereunder and as otherwise expressly permitted herein. As used herein, “Customer Data” shall mean any proprietary raw data owned by Customer independent of the Agreement, which Customer may provide or otherwise input into the Service. Customer Data expressly excludes any data to the extent processed by, or resulting as an output of, the Service, which shall be considered Licensor Data (defined below). Customer hereby grants to Licensor a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license during the Term, to reproduce, distribute, modify, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Licensor in order to perform its obligations herein or as is necessary for operation of the Service by Customer, and during and after the Term, a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Licensor Data.
2.2 Licensor Technology. Customer acknowledges and agrees that, subject only to the limited rights expressly granted to Customer under Section 1, Licensor owns and shall at all times retain all rights in and to the Service, including without limitation, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Service, software and the Documentation, and all Licensor Data (defined below), and in the technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, translations, reformulations or developments of the foregoing) (collectively, “Licensor Technology”). Subject only to Section 2.1 above, Licensor shall own all rights to (i) any data input into the Service by or on behalf of Licensor and (ii) any aggregated and anonymized data extracted or derived from the Service, including all aggregated and anonymized usage data, statistical data, transactional data, metadata, market data and other aggregated and anonymized data collected from user data and files (collectively, “Licensor Data”). Without limiting the generality of the foregoing, Licensor reserves the right to create and market public indexes, analysis or insights created from such data. Nothing contained in the Agreement or in the parties’ performance or failure to perform hereunder, or in any Service provided by Licensor, shall be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any such rights in or to any Licensor Technology. For the avoidance of doubt, Licensor Technology includes Licensor Data and any information, data, or other content derived from Licensor’s monitoring of Customer’s access to or use of the Service, but does not include Customer Data.
2.3 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Licensor by mail, email, telephone or otherwise, suggesting or recommending changes to the Licensor Technology, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions or the like (“Feedback”), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Licensor on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques or other intellectual property rights contained in the Feedback, for any purpose whatsoever. Notwithstanding the foregoing, Licensor is not required to use any Feedback.
2.4 Reservation of Rights; Suspension. Licensor reserves all rights not expressly granted to Customer in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Licensor Technology. Notwithstanding anything to the contrary in the Agreement, Licensor may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Licensor reasonably determines that (A) there is a threat or attack on any of the Licensor Technology; (B) Customer’s or any Authorized User’s use of the Licensor Technology disrupts or poses a security risk to the Licensor Technology or to any other customer or vendor of Licensor; (C) Customer, or any Authorized User, is using the Licensor Technology for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Licensor’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Licensor has suspended or terminated Licensor ‘s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 3 (any such suspension described in subclauses (i), (ii), or (iii), a “Service Suspension”). Licensor shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. Licensor shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Licensor will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Customer hereby grants to the Licensor the express right and license to use Customer’s company name, logo and/or trademark in marketing, sales, financial, and public relations materials and other communications or promotional materials that Licensor may disseminate to the public solely to identify Customer as a client. Such materials may include, but are not limited to, brochures, video tape, internet website, press releases, advertising in newspaper and/or other periodicals, lucites, and any other materials relating the fact that Licensor has a business relationship with Customer and such materials may be developed, disseminated and used without Customer’s review. Nothing herein obligates Licensor to use Customer’s name, logo and/or trademark in any promotional materials of Licensor or otherwise. Other than as expressly stated herein, Licensor shall not use Customer’s name, logo and/or trademark without Customer’s prior written permission.
3. Fees; Payment Terms. Customer shall pay to Licensor in immediately available United States dollars, the applicable subscription fees (if any) and other fees, in the amounts and pursuant to the timing as specified in any Order Form or SOW (the “Fees”), in each case without offset or deduction. If no payment schedule is specified in the applicable Order Form or SOW, then all amounts are due and payable upon Customer’s execution of the Agreement. The Fees, and any fees for any additional services, equipment or subscription extensions which may be purchased or otherwise granted hereunder, are exclusive of all applicable taxes, duties or other governmental assessments, which are the responsibility of Customer. Unless otherwise stated in the Agreement, invoices will be stated in United States dollars and shall be due and payable within thirty (30) days following invoice date unless otherwise specified herein or agreed upon in writing by the parties. Late payments shall be subject to a service charge equal to the lesser of (i) 1.5% per month, calculated daily and compounded monthly, or (ii) the maximum amount allowed by law, in each case with respect to the overdue amount. Licensor may not raise the Fees during the Initial Term unless otherwise mutually agreed (or if the Customer elects to subscribe to additional services or purchase additional equipment or consulting), but does reserve the right to increase the Fees at the end of the Initial Term or during any Renewal Term, by delivering written notice to Customer. During any free trial period, if any, Customer will still be responsible for any purchases and surcharges incurred using its account. Additionally, if Customer fails to make any payment when due, without limiting Licensor’s other rights and remedies, Customer shall reimburse Licensor for all costs incurred by Licensor in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees, and if such failure continues for thirty (30) days or more, Licensor may suspend Customer’s and its Authorized Users’ access to any portion or all of the Service until such amounts are paid in full. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
4. Term; Termination. The initial term length shall be as specified the initial Order Form or SOW; provided that if no initial term length is specified in any Order Form or SOW then the initial term shall be one year (the “Initial Term”). After such Initial Term, the Agreement shall automatically be renewed for successive one-year renewal terms (each, a “Renewal Term” and, together with the Initial Term, collectively the “Term”), unless either party opts out by giving written notice to the other party at least thirty (30) days prior to the end of the then current term. Either party may terminate the Agreement (a) upon 30 days prior written notice if the other party has materially breached the Agreement and has not cured the same within the thirty (30) day notice period, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against the other party or the dissolution or liquidation of the other party. Licensor may terminate the Agreement, effective upon written notice to Customer, if Customer (i) fails to pay any amount when due hereunder or under any Order Form, and such failure continues more than ten (10) days after Licensor’s delivery of written notice thereof to Customer; or (ii) breaches any of its obligations under Section 8 or Section 9.1. Notwithstanding the foregoing, Licensor may terminate the Agreement upon five (5) days’ written notice to Customer for any reason or no reason in its absolute discretion. Upon any termination of the Agreement, (x) Customer shall immediately: (i) discontinue all use of the Licensor Technology; (ii) erase, delete or destroy any and all electronic copies or partial copies of the Licensor Technology, and return to Licensor or, at Licensor’s sole option, destroy any and all tangible copies or partial copies of the Licensor Technology, in its possession or control; and (iii) certify in writing to Licensor that Customer has complied with these requirements; (y) Licensor shall disengage Customer’s access to the Licensor Technology, and (z) both parties shall promptly return to the other or destroy the other party’s Confidential Information. Any payment obligations of Customer, provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of the Agreement, shall so survive, including without limitation Section 2 and Sections 5 – 10.
5. Limited Warranty and Warranty Disclaimer. Licensor warrants to Customer that during the Term, the Service shall operate in substantial conformity with the Documentation when accessed and used in accordance therewith, and that the Consulting Service, if any, will be performed in a professional and workmanlike manner. The foregoing limited warranty shall not apply if the non-conformance is not replicable or results from third party systems or components used by Customer to access the Service, including any lack of interoperability with such third-party systems or components. Licensor does not warrant that operation of or access to the Service will be uninterrupted or error-free, or that all reported defects will be corrected. Licensor’s sole liability and Customer’s sole and exclusive remedy for any breach of the limited warranty set forth above shall be, in Licensor’s sole discretion, to (i) use commercially reasonable efforts to provide an error-correction or work-around for the reported non-conformity, or (ii) terminate the Agreement and refund to Customer that portion of any prepaid subscription Fee (if any) associated with any unused balance of the Term. Licensor shall have no obligation with respect to a warranty claim unless notified of such claim promptly and within the Term. Customer is solely responsible for maintaining its own connectivity, access and connection to the internet and the Service and for obtaining and maintaining any necessary hardware, software, equipment, modems, servers, operating systems, networking, web servers, telecommunications and internet connections and the like, and other ancillary services needed to connect to, access or otherwise use the Service, at its own cost and expense, and to maintain the security thereof, and Licensor is not responsible for any interruptions thereto. Customer expressly agrees that Licensor shall not be liable in any manner for any interruption in or failure of access to the Service, nor shall any such interruption or failure of access be deemed a breach of the terms of the Agreement. Without limiting the generality of the foregoing, Licensor is not responsible for end user error, errors in inputs or for errors in any Customer Data, and Licensor does not independently verify the truthfulness or accuracy of any data or content input into the Service and is not responsible for the fraud, misrepresentation, negligence or misconduct of any end user or other third party. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Licensor or by third-party providers, or because of other causes beyond Licensor’s reasonable control. Licensor does not make any representations or guarantees regarding uptime or availability of the Service, nor does Licensor make any warranty as to the results that may be obtained from use of the Service. This Agreement does not entitle Customer to any support for the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, THE SERVICE IS PROVIDED “AS IS”. LICENSOR HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM OR IMPLIED BY USAGE, TRADE PRACTICE OR COURSE OF DEALING, AND DOES NOT REPRESENT OR WARRANT THAT THE LICENSOR TECHNOLOGY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL BE SECURE, TIMELY, OPERATE WITHOUT INTERRUPTION, BE ERROR-FREE OR VIRUS FREE, FREE OF HARMFUL CODE, OR OPERATE IN COMBINATION WITH OR BE COMPATIBLE WITH OR WORK WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, DATA OR OTHER SERVICES, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS OR EXPECTATIONS, WILL ACHIEVE AN INTENDED RESULT, OR WILL BE ACCURATE OR COMPLETE.
6. Third Party Claim Defense and Indemnification.
6.1 Intellectual Property Infringement. Licensor shall (a) indemnify and hold harmless Customer from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case resulting from any third-party claim that the Service infringes a United States patent, copyright, trademark, or other US intellectual property right of such third party, and (b) pay directly or indemnify Customer with respect to any judgment or settlement amount awarded in connection with such claim. The foregoing obligations are contingent upon Customer cooperating with Licensor in connection with any such claim and providing Licensor with: (i) prompt written notice of such claim (and in any event notice in sufficient time for Licensor to respond without prejudice); (ii) the exclusive right to control, direct, and perform the investigation, defense, or settlement of such claim; and (iii) such assistance as may be reasonably requested by Licensor at Licensor’s expense. If Customer’s use of the Service is, or in Licensor’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Licensor may: (x) substitute for the infringing element of the Service functionally similar software; (y) procure for Customer the right to continue using the Service; or (z) terminate the Agreement and refund to Customer that portion of any prepaid Service Fee associated with any unused portion of the Term. The foregoing defense and indemnification obligations of Licensor shall not apply to the extent the alleged infringement arises out of the alteration or modification of the Service, use or combination of the Service with other non-Licensor products, services, hardware, software or processes, any unauthorized use of the Service, or Customer Data. In addition, Licensor’s obligations and liabilities under this Section shall be governed by the limitations on liability set forth in Section 7 below and shall be capped at and included within any calculation of direct damages under that Section. THIS SECTION 6 SETS FORTH LICENSOR’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE LICENSOR TECHNOLOGY, OR ANY CONSULTING SERVICES.
6.2 Customer Indemnification Obligations. Customer shall indemnify and hold Licensor harmless from, and at Licensor’s option, defend Licensor from and against, any and all costs, expenses, claims, liabilities, judgments, damages or losses (including attorneys’ fees and court costs), in each case arising out of (i) any breach by Customer of the Agreement, including any representation, warranty or obligation herein; (ii) the Customer Data or any other content, data or other materials input into the Service, or otherwise provided by or on behalf of Customer, and any use thereof in accordance with this Agreement; (iii) any actual or alleged non-compliance by Customer with applicable laws, rules and regulations; (iv) Customer’s actual or alleged violation of third party privacy rights, including without limitation any breach of the scope of the license and/or rights granted herein; (v) Customer’s violation of Licensor’s intellectual property rights, including without limitation any violation of Sections 2, 8 or 9.1; or (vi) any third-party claims based on Customer’s or any Authorized User’s: (a) negligence or willful misconduct; (b) use of the Service in a manner not authorized by the Agreement; (c) use of the Service in combination with data, software, hardware, equipment, or technology not provided by Licensor or authorized by Licensor in writing; or (d) modifications to the Service not made by Licensor. Customer may not settle any claim against Licensor unless Licensor consents to such settlement in advance in writing, and Licensor will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE TO CUSTOMER, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, ENHANCED, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, DIMUNITION IN VALUE, LOST BUSINESS, LOST PRODUCTION, INCREASED COSTS OR COSTS OF COVER, LOSS OF GOODWILL OR REPUTATION, OR BASED ON USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE IN CONNECTION WITH THIS AGREEMENT, EVEN IF LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. LICENSOR’S TOTAL LIABILITY UNDER THIS AGREEMENT OF ANY KIND, WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE SUBSCRIPTION FEES (IF ANY) PAID BY CUSTOMER WITH RESPECT TO THE APPLICABLE ORDER FORM OR SOW DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE EVENT GIVING RISE TO THE SAME. ALTHOUGH INFORMATION THAT USERS SUBMIT MAY BE PASSWORD PROTECTED, LICENSOR DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SERVICE AND CUSTOMER AGREES TO ASSUME THE SECURITY RISK FOR ANY INFORMATION, DATA OR CONTENT IT PROVIDES THROUGH THE SERVICE. CUSTOMER IS RESPONSIBLE FOR ALL USE OF THE SERVICE AND BY ALL END USERS, INCLUDING, WITHOUT LIMITATION, AS APPLICABLE, ANY EMPLOYEES, AGENTS AND CUSTOMERS. CUSTOMER IS RESPONSIBLE FOR COMMUNICATING THE TERMS AND LIMITATIONS IN THE AGREEMENT TO ANY AND ALL SUCH END USERS, INCLUDING WITHOUT LIMITATION, ANY WARRANTY LIMITATIONS AND ANY LIMITS ON LICENSOR’S LIABILITY. CUSTOMER MAY USE THE SERVICE FOR INFORMATIONAL PURPOSES ONLY, AS AN AID, BUT ONLY AS ONE INFORMATION SOURCE AMONG MANY, AND NOT AS THE SOLE BASIS FOR MAKING ANY DECISIONS. CUSTOMER MUST USE PROPER DUE DILIGENCE AND USE ITS OWN BUSINESS JUDGMENT WHEN MAKING ANY DECISIONS BASED ON ANY INFORMATION, ANALYTICS OR REPORTS DERIVED FROM THE SERVICE.
8.1 Confidential Information. Each party acknowledges that by reason of the relationship created between the parties by the Agreement, it may have access to certain non-public information of substantial value concerning the other party’s business, operations, strategic plans, products, confidential intellectual property, trade secrets, third party confidential information, customers, suppliers, technology, competition, employees and other sensitive or proprietary information, whether delivered or otherwise made available orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for the avoidance of doubt, the terms of the Agreement, and any performance, warranty and like information relating to the Service (by whomsoever generated or communicated) will be considered Confidential Information of Licensor. Accordingly, each party agrees (a) to maintain all Confidential Information of the other party, in whatever form disclosed or made available, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to or use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after giving prompt written notice of the requirement to the disclosing party.
8.2 Return of Confidential Information. Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of the Agreement, the receiving party shall (a) immediately return to the disclosing party or, at disclosing party’s option, destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance with the terms of this Section 8.2.
8.3 Remedies. Each party acknowledges that any breach of any of its obligations with respect to the other party’s Confidential Information or with respect to Customer’s obligations set forth in Section 9 may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.
9. License Restrictions.
9.1 General Restrictions. Customer shall not, and shall not attempt to (and shall not authorize or allow any third party to or attempt to): (a) download or otherwise obtain a copy of the Service software or any software in any form; (b) reverse engineer or otherwise derive the source code of the Service or software or otherwise modify, copy, reverse compile, disassemble, decompile, decode, adapt, translate or otherwise attempt to derive or gain access to any software component of the Service, or create any derivative works thereof, in whole or in part; or (c) use the Service on behalf of any third party or for any purpose other than as described in the Agreement; (d) rent, sell, lease, lend, license, sublicense, assign, distribute, publish, transfer or otherwise make available, in whole or in part, the Service or Documentation, or use it as a service bureau; (e) post, send, process or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material violating of third party rights; (f) post, send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Service or attempt to gain unauthorized access to the Service or related systems or networks; (h) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the intellectual property rights and/or Licensor’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to the Service, or Documentation, or on any copies made in accordance with the Agreement; (i) use, or authorize or permit the use of, the Service, except as expressly permitted herein; (j) use the Service to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity which breaches the rights of any third party; (k) remove any proprietary notices from the Service or Documentation; or (l) use the Service or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. The Service may be used only by Customer (i) for its internal business purposes and only for the direct benefit of Customer; (ii) and by only those persons using the Service for the benefit of Customer in the course and scope of their employment, in each case subject to the terms hereof; (iii) and only in its original form without alteration or combination with other products, services or software except as expressly authorized in any applicable Documentation; and (iv) in compliance with all applicable laws, rules, regulations and industry standards, and in compliance with all Documentation and instructions provided by Licensor. In order to access some features of the Service, Customer may have to register or create an account. Customer may never use another’s account without permission. Customer is solely responsible for the activity that occurs on its account, for keeping its account password secure, and for notifying Licensor immediately of any breach of security or unauthorized use of its account. Customer agrees not to circumvent, disable or otherwise interfere with security-related features of the Service, or features that prevent or restrict use or copying of any content or enforce limitations on use of the Service, or the content therein. To the extent the Service allows uploading or posting of content or data, Customer will ensure that any content or data posted by or on behalf of Customer is not inappropriate, illegal, or in violation of any third-party rights.
9.2. Evaluation License. If the Service is licensed or leased on an evaluation trial basis, the term of such license or lease is thirty (30) days from the earlier of installation (if applicable) or first use unless a longer period is specified in writing, after which time the evaluation license ceases. Evaluation use of the Service is intended solely for Customer to determine the compatibility of the Service with Customer’s business needs, and only to be used in a non-production test environment. Licensor has no obligation to provide support, maintenance, upgrades, modifications or new releases during the evaluation period and no service level shall apply, and any Service provided for beta and/or evaluation purposes is provided “as is” and without any warranties, notwithstanding anything to the contrary herein.
9.4. Customer Responsibilities. Customer is responsible and liable for all uses of the Service and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Customer will be deemed a breach of the Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the Agreement’s provisions as applicable to such Authorized User’s use of the Service, and shall cause Authorized Users to comply with such provisions.
10.1 Notices. All notices required or permitted under the Agreement shall be in writing and shall be sent by hand, overnight courier or by facsimile or electronic mail (in each case with confirmation of receipt). Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours, or on the next business day if delivery occurs outside of normal business hours. All communications to the Licensor will be sent to 149 New Montgomery St 4th Floor, San Francisco, CA 94105, and to the Customer at its address set forth on the applicable Order Form or SOW, or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 10.1. Except as otherwise provided in the Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section 10.1.
10.2 Assignment. Customer may not assign the Agreement or any of its licenses, rights or duties under the Agreement, whether by operation of law or otherwise, without the prior written consent of Licensor. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assigns. The Service shall at all times be hosted by or on behalf of Licensor on a server environment of its’ choosing. Licensor reserves the right to change the server environment from time to time as it may deem fit, or outsource hosting or other aspects of the Service in its sole discretion, so long as the Service continues to comply with the express requirements of the Agreement.
10.3 Publicity. Customer expressly grants Licensor the right to include Customer in a list of customers on Licensor’s website or other promotional material in relation to the Service for marketing purposes. Customer can deny Licensor this right at any time by submitting a written notice to Licensor, requesting to be excluded from promotional material.
10.4 Waiver. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.
10.5 Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, pandemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action. The delayed party shall: (i) give the other party written notice of such cause promptly; and (ii) use its reasonable efforts to correct such failure or delay.
10.6 Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Service or any Customer Data outside the United States.
10.7 Entire Agreement; Severability; Construction. This Agreement constitutes the entire understanding between the parties, and supersedes all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of the Agreement. If any provision of the Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in the Agreement are for convenience only, and shall not affect the interpretation of the provisions of the Agreement. The word “including” shall be construed non-exclusively, to mean “including but not limited to.” The word “or” shall be construed inclusively, to mean that one or more of the options may occur.
10.8 Independent Contractors. The relationship of Licensor and Customer established by the Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.
10.9 Non-Solicitation. During the Term of the Agreement and for a period of one (1) year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Licensor or (ii) hire or engage for any services any person employed by Licensor. In the event of a breach of this non-solicitation clause, Customer agrees to pay Licensor compensation equal to Licensor’s employee’s annual salary as liquidated damages, and not a penalty, which Customer agrees is fair and reasonable compensation for Licensor.
10.10 Governing Law and Jurisdiction; Attorneys’ Fees. This Agreement shall be governed by and construed under the laws of the State of Maryland without regard to conflict of laws provisions. The federal and state courts sitting in Maryland shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of the Agreement, and each party hereto expressly consents to the personal jurisdiction of such courts and waives any objection to venue, including the objection of forum non conveniens. The prevailing party in any action to enforce the Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
10.11 Modifications to Software, Products, Service & Terms. Licensor reserves the right to modify or discontinue the Service or any other software, products or services at any time with or without notice to Customer, including without limitation by adding or subtracting features and functionality, third party content, etc. In the event of such modification or discontinuation, Customer’s sole remedy shall be to terminate the Agreement as set forth herein. Continued use of any software, products or services following any such changes will indicate Customer’s acknowledgement and acceptance of such changes and satisfaction with the software, products and/or services as so modified. Licensor may change the terms of the Agreement from time to time, by updating these terms as posted online and/or in the applicable software. Any such changes will become effective when notice is received or when so posted, whichever first occurs. If Customer objects to any such changes, Customer’s sole recourse will be to terminate the Agreement. Continued use of the software, products or services following such changes will indicate Customer’s acknowledgement of such changes and agreement to be bound by such changes.
Last Updated January 26, 2022. Licensor reserves the right to update these terms from time to time in its sole discretion.