ThingLogix Solution Agreement
This Solution Agreement (“Agreement”) is a binding legal contract between the entity identified below (“Customer”) and ThingLogix, LLC (“Provider”).
- Term. This Agreement will become effective on the last signature date below (the “Effective Date”). The initial term (“Initial Term”) of this Agreement will begin on the Effective Date and will continue thereafter for two (2) years. Thereafter, the Agreement will automatically renew for successive one year terms (each a “Renewal Term”), unless either party gives notice to the other of its intent not to renew at least thirty (30) days prior to the expiration of the then current term. The Initial Term and any Renewal Terms are referred to, collectively, as the “Term.”
- Solution. As further described in Exhibit A and in Sections 3 and 4, Provider will provide Customer with a solution (the “Solution”) comprised of certain (i) hosted Services; (ii) Software; and (iii) third party equipment and software comprising the Third Party Items. In addition to the foregoing, Provider will furnish the installation and configuration services, if any, expressly identified in Exhibit A.
- Third Party Items. As part of the Solution, Provider will resell or lease to Customer the third party equipment and software (collectively, the “Third Party Items”) identified in Exhibit A. Third Party Items are shipped directly from their third party providers. Customer understands and acknowledges the Provider is not the manufacturer or licensor of the Third Party Items. Use of the Third Party Items will be governed by their accompanying terms and conditions, including warranty terms and return policies, if any, offered by the applicable third party manufacturer, supplier, or licensor. Customer’s use of the Third Party Items will constitute its acceptance of those terms and conditions. Customer will use the Third Party Items solely in connection with the Solution. In the event of any failure, warranty claim, support issue, product returns, or other matter regarding the Third Party Items, Customer’s sole and exclusive remedies shall be against the third party manufacturer, supplier or licensor of the Third Party Item and governed by the applicable third party terms and conditions. Provider will use reasonable efforts to facilitate overall support services for the Solution, as further described in Section 12. Customer is responsible for maintaining the Third Party Items in good working order and free from abuse or neglect. PROVIDER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO THE THIRD PARTY ITEMS. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY ITEMS. VENDOR SHOULD CONSULT THE RESPECTIVE VENDORS OR MANUFACTURERS OF THE THIRD PARTY ITEMS FOR WARRANTY AND PERFORMANCE INFORMATION. CUSTOMER WAIVES ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT IT MAY HAVE AGAINST PROVIDER RELATING TO THE THIRD PARTY ITEMS.
- Services. Subject to the terms and conditions of this Agreement and Customer’s payment of all relevant fees, Provider grants Customer and its End Users (as defined below) a non-exclusive, non-transferable license to access and use Provider’s hosted services identified on Exhibit A (the “Services”) solely for Customer’s internal business purposes in connection with Solution. To the extent any Provider software (the “Software”) is provided to Customer for installation on its systems for use in connection with the Services, the Software will be included in the definition of Services and subject to the foregoing license. All Software may only be used in support of Customer’s use of the Services and for no other purpose. If any Software is provided as firmware, embedded in hardware, the Software may not be used separate from that hardware. For purposes of this Agreement, “End Users” means Customer’s employees, contractors and representatives who are authorized to access the Services on Customer’s behalf.
- Restrictions. Customer and its End Users may only use the Services as described in this Agreement and in the then current documentation made generally available by Provider to its customers regarding the Services (the “Documentation”). Customer is responsible for ensuring its End Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any End User or other third party to, (i) permit any third party to access or use the Services other than an End User; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, except to the extent expressly permitted by applicable law; (iii) use the Services or any Provider Confidential Information to develop a competing product or service; (iv) use any Service, or allow the transfer, transmission, export, or re-export of any Service or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; or (v) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Service, including any screen displays, etc., or any other products or materials provided by Provider hereunder. Under no circumstances will Provider be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by Provider. All such use will be at Customer’s sole risk and liability.
- Availability. The hosted elements of the Services will be available for remote access 99.5% of the time each calendar month of the Term, excluding Excused Outages (as defined below) (“Availability”). Downtime as a result of any causes beyond the control of Provider or that are not reasonably foreseeable by Provider, including, without limitation by any of the events noted below are excluded from the Availability calculations (collectively, “Excused Outages”):
- Customer environment issues affecting connectivity or interfering with the Services, including without limitation, Customer’s telecommunications connection or any other Customer software or equipment, Customer’s firewall software, hardware or security settings, Customer’s configuration of anti-virus software or anti-spyware or malware software, or operator error of Customer;
- any third party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
- force majeure events, including, without limitation fire, flood, earthquake, elements of nature or acts of God; third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond the reasonable control of Provider;
- issues related to third party domain name system (DNS) errors or failures;
- scheduled maintenance of the Services, conducted on a regular basis, of which Provider will give Customer a minimum of twenty-four (24) hours advanced notice by email or other pre-approved notification; and
- emergency maintenance of the Services, not to exceed four (4) hours in any month, for which Customer may not receive advanced notice.
In the event Provider fails to achieve the Availability requirement, Provider will use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event Provider fails to achieve the Availability requirement in two consecutive months during the term of this Agreement, Customer may terminate this Agreement within thirty (30) days of the end of the second consecutive month, without further obligation and receive a prorated refund of any pre-paid, unused recurring fees. The refund will constitute Customer’s sole and exclusive remedy and Provider’s sole and exclusive liability for failure to achieve the Availability requirement.
- Information Security. Consistent with any law or regulation applicable to the Services and Provider’s then current practices and procedures, Provider will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Customer’s Confidential Information and the Customer Data. Provider will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Data.
- Connectivity. Customer and End Users are solely responsible for all telecommunication or Internet connections required to access the Services, as well as all hardware and software at Customer’s site. In addition to other third party costs that may apply, Customer agrees to pay for all telecommunications costs, fees and services required for and dedicated to Customer’s access to the Services.
- Proprietary Rights. Customer acknowledges and agrees that (i) all Services are protected by intellectual property rights, as applicable, of Provider and its vendors/licensors and that Customer has no right to transfer or reproduce any Services or any software provided with the Services or prepare any derivative works with respect to, or disclose Confidential Information (as defined in Section 17 (Confidentiality)) pertaining to, any Services or any part of them and (ii) that Provider owns all right, title, and interest in and to the Services, including any changes or modifications made to the Services performed in connection with this Agreement, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services. Under no circumstances will Customer be deemed to receive title to any portion of the Services, title to which at all times will vest exclusively in Provider. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. Customer will preserve all Services from any liens, encumbrances, and claims of any individual or entity. Customer will not use any Confidential Information disclosed by Provider to Customer in connection with this Agreement to contest the validity of any intellectual property rights of Provider or its licensors. Any such use of Provider’s Confidential Information will constitute a material, non-curable breach of this Agreement.
- Customer Data. Customer grants Provider a non-exclusive, world-wide, royalty-free license to use the documents, information, graphics, data, content, and other materials input by Customer into the Services (the “Customer Data”) for purposes of performing this Agreement. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Provider for use as contemplated under this Agreement. Except for the license granted in this Section, nothing contained in this Agreement will be construed as granting Provider any right, title, or interest in the Customer Data. Customer grants Provider a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from Customer’s use of Services (the “Aggregated Data”) for Provider’s business purposes, including the provision of products and services to Provider’s customers; provided the Aggregated Data is combined with similar data from Provider’s other customers and does not include (directly or by inference) any information identifying Customer or any identifiable individual. The Aggregated Data will not be considered Customer’s Confidential Information.
- Feedback. Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) to Provider with respect to its products and services, including the Services. Feedback is voluntary. Provider may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants Provider an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Provider’s business, including the enhancement of the Services.
- Support and Maintenance. During the Term, Provider will provide Customer with reasonable telephone support during Provider’s then current business hours. Provider will provide Customer Service updates and bug fixes that Provider in its sole discretion makes generally available to its other similarly situated licensees at no charge. However, Customer shall not be entitled to receive updates or new releases that include new or different functionality for which Provider imposes an additional charge to its customers. Such new or different functionality may be purchased by Customer, in its discretion, at Provider’s then current pricing. Provider will use commercially reasonable efforts to correct reproducible failures of the Service to perform in substantial accordance with their then current Documentation.
- In general. Customer will pay Provider the fees set forth in Exhibit A. Except as provided in Sections 14.2, and 19, all fees are non-refundable (except as provided herein). If Customer terminates this Agreement for any reason other than breach by Provider during the initial year of the Term, Customer shall not be entitle to a refund of any fees paid. Thereafter, Customer shall be entitled to a prorated refund over the remainder of the then pending term. Customer will pay all invoices within thirty (30) days of invoice date. Payments not made within that time period will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more days from the invoice date, Provider may, in its discretion, suspend the Services until the invoice is paid in full. Following the initial year of the Term, on sixty (60) days prior notice to Customer, Provider may, at its discretion, adjust any or all fees due hereunder. Customer may terminate this Agreement on written notice to Provider within thirty (30) days of its receipt of notice from Provider to adjust the fees; provided, however, that if Customer fails to object to such adjustment in writing within the foregoing thirty (30) days then Customer will be deemed to have agreed to the adjustment.
- Taxes. In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify and hold Provider harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against Provider.
- Customer Warranty. Customer represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth in Section 10 (Customer Data); (b) any Customer Data provided by Customer to Provider for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including but not limited to applicable policies and laws related to spamming, privacy, and consumer protection) (collectively, “Applicable Law”); and (c) its use of the Services will be in compliance with all Applicable Law.
- Provider Warranty. During the Term, Provider represents and warrants (i) the Services will substantially comply with the Documentation; (ii) it shall use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (iii) it shall comply with Applicable Law in performing this Agreement. In the event of a breach of the warranty in Section 14.2(i), Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy will be to perform the defective Service again. In the event Provider is unable through reasonable efforts to correct the defective Service within thirty (30) days from receipt of notice from Customer of the breach, Customer may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services.
- Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 14.2 (PROVIDER WARRANTY), THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. PROVIDER AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF PROVIDER’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. PROVIDER WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
- Provider Indemnity. Provider will defend and indemnify Customer and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party that Customer’s licensed use of the Services infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of Provider is contingent upon Customer promptly notifying Provider in writing of such claim, permitting Provider sole authority to control the defense or settlement of such claim and providing Provider reasonable assistance (at Provider’s sole expense) in connection therewith. If a claim of infringement under this Section 15 (Indemnity) occurs, or if Provider determines a claim is likely to occur, Provider will have the right, in its sole discretion, to either (i) procure for Customer the right or license to continue to use the Services free of the infringement claim, or (ii) modify the Services to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Provider, Provider may, in its sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant Services. Notwithstanding the foregoing, Provider will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Services with any hardware, software, products, data, or other materials not provided by Provider, (ii) modification or alteration of the Services by anyone other than Provider, (iii) use of Services in excess of the rights granted in this Agreement, or (iv) any specifications or other intellectual property provided by Customer, including the Customer Data (collectively, the “Excluded Claims”). The provisions of this Section 15 (Indemnity) state the sole and exclusive obligations and liability of Provider and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Services or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
- Customer Indemnity. Customer will defend and indemnify Provider and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by Provider as a result of any claim by a third party arising from (i) Customer’s use of the Services in breach of this Agreement or (ii) the Excluded Claims. The foregoing indemnification obligation of Customer is contingent upon Provider promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
- Definition of Confidential Information. Each party agrees that all information supplied by one party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”) including, without limitation: (a) source and object code, prices, trade secrets, mask works, databases, hardware, software, designs and techniques, programs, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials, and (b) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins, will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”). For the avoidance of doubt, the Services and Documentation are the Confidential Information of Provider and the Customer Data is the Confidential Information of Customer.
- Exclusions. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.
- Treatment of Confidential Information. Each party recognizes the importance of the other’s Confidential Information. In particular, each party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section and elsewhere in this Agreement. Accordingly, each party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance; (c) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (d) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (e) the Receiving Party expressly will instruct its employees and agents not to disclose Confidential Information to third parties, including, without limitation, customers, subcontractors, or consultants, without the Disclosing Party’s prior written consent; and (f) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.
- Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
- Return of Confidential Information. On termination or expiration of this Agreement, Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.
- Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity before an arbitrator in accordance with the arbitration provision of this Agreement. Any breach of this Section 17 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.
- Limitation of Liability and Damages. NEITHER PROVIDER NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES. THE TOTAL LIABILITY OF PROVIDER AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
- Termination. This Agreement will terminate (a) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; or (b) upon written notice by either party, immediately, if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.
- Suspension of Services. Notwithstanding any other provision of this Agreement, Provider may, in its sole discretion, suspend Customer’s access to the Services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Provider from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date. Provider will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. Provider will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Provider to monitor use of the Services.
- Effect of Termination. Upon termination of this Agreement or termination of a particular Service for any reason: (a) Customer’s and all End User’s access to and use of the Services will cease as of the effective date of termination; (b) Customer will pay to Provider all undisputed sums due to Provider for Services through the effective date of such expiration or termination (prorated as appropriate); and (c) at Provider’s standard time and materials rates, Provider will reasonably cooperate with Customer in transitioning the Customer Data back to Customer.
- Affiliates, Subcontractors and Vendors. Some or all of the Services, including support, may be provided by Provider’s affiliates, agents, subcontractors and information system vendors. The rights and obligations of Provider may be, in whole or in part, exercised or fulfilled by the foregoing entities. Provider shall ensure such entities comply with all relevant terms of this Agreement and any failure to do so shall constitute a breach by Provider.
- Publicity. Provider may identify Customer as a customer in its customer listings, Web sites, and other promotional materials. In addition, Provider may issue a press release regarding the parties’ new relationship under this Agreement.
- USA Patriot Act Notice. The U.S. federal USA Patriot Act (“USA Patriot Act”) provides generally for the operator of a communication host and law enforcement to be able to monitor any content, upon request of the operator. Provider anticipates fully complying with all its obligations, and availing itself of all its rights, under the USA Patriot Act.
- Force Majeure. Except for the payment of money as described in Section 13 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
- Entire Agreement; Amendment. This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein.
- Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of California, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in San Francisco, California. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section. No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.
- No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
- Relationship of the Parties. The parties agree that Provider will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Provider who perform duties related to this Agreement will remain under the supervision, management, and control of Provider.
- Assignment. Customer may not assign this Agreement without the prior written consent of Provider.
- Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
- Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
- Survival. The following provisions will survive termination or expiration of this Agreement: 9 (Proprietary Rights), 14.3 (Disclaimer of Warranties), 15 (Provider Indemnity) (for claims accruing prior to termination), 16 (Customer Indemnity) (for claims accruing prior to termination), 17 (Confidentiality), 18 (Limitation of Liability and Damages), 19 (Termination), and 20 (General Provisions).
- Notices. Any written notice or demand required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.
- Electronic Execution. This Agreement may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and Customer’s acceptance will be deemed binding between the parties. Customer acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.