Cloud Services and Support Services Terms of Agreement
1. CLOUD SERVICES AND SUPPORT
1.1 Grant of License; Scope. Subject to the terms and conditions of this Agreement and only for the Term of this Agreement, Company hereby grants to Customer a global, non-assignable, non-exclusive right to (a) access, execute, use and display the Cloud Services for the benefit of Customer, and (b) reproduce, distribute and display associated documentation to authorized Customer users. Except for the use by authorized users permitted herein, Customer understands and agrees that the license granted hereunder is unique to Customer and its named users (“Named Users”) and that such license may not be sublicensed or assigned to any third parties. Moreover, each License granted to a Named User pursuant to this Agreement may only be used by a single Named Users, and any attempt to use the login protocols assigned to a single Named Users to have multiple end users access the Cloud Services via that license granted to a Named User shall constitute a material breach of this Agreement.
1.2 Technical and Customer Support. Subject to the terms of this Agreement, Company agrees to provide Customer the Technical Support and Customer Support Services in accordance with the Service Level Terms attached hereto as Exhibit A.
1.3 Company reserves the right to refuse or cancel any renewals of this Agreement and any licenses granted to Named Users that Company deems inappropriate and in such event, Customer will not be required to pay for any cancelled renewals or licenses.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer acknowledges that the technical design, underlying code and algorithms performed by the Cloud Services are the sole intellectual property of the Company. Furthermore, Customer agrees that nothing in this Agreement shall convey any ownership rights in any Company copyrights, trademarks, patents, and trade secrets, if any, to and arising out of the Cloud Services.
2.2 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, the Phenix or any software, documentation or data related to the Services (collectively, the “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.3 Customer represents, covenants, and warrants that Customer will use the Services and Software only in compliance with Company’s standard published policies then in effect (the “Policies”), the terms of this agreement, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and lawyers’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Although Company has no obligation to monitor Customer’s use of the Software and Services, Company may do so and may prohibit any use of the Cloud Services and Support it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Cloud Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services, or any other non-public confidential information of Customer provided to Company (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 Data Protection and Personal Information. Company shall maintain the highest commercial standard for administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including without limitation, any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked with a particular Customer employee or contractor (“Customer Personal Information”). Without Customer’s written consent, Company shall not (i) modify Customer Personal Information, (ii) disclose Customer Personal Information to a third party (except as needed to perform the Services of if required to do so by law or governmental process), (iii) access Customer Personal Information except to provide the Service and prevent or address Service or technical problems, or (iv) use Customer Personal Information for any purpose otherwise than for the purpose that such information has been provided to Company.
3.5 Data Processing and Customer Obligations. Company has developed, implemented, and maintained a reasonable information security program that includes administrative, technical, and physical safeguards to prevent unauthorized or unlawful processing, accidental loss or destruction of, or damage to all Customer Data that is collects, including but not limited to, the encryption of Customer Data. Company represents, covenants, and warrants that the Software and Cloud Services do not collect, use, retain or disclose the personal information of Customer customers for any purpose, and that Company will assist Customer with meeting any compliance obligations and responding to any authority or customer in respect of customer personal information. If Company uses any subcontractors in the performance of the Cloud Services, Company shall be responsible for each such supplier subcontractor’s compliance with the data security requirements set forth herein. No Personal Information may be accessed, generated, hosted, downloaded, printed, stored, processed, transferred, or maintained outside of the United States or Canada by Company or any subcontractor through the Cloud Services or otherwise.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Cloud Services License and Technical and Support Services in accordance with the terms therein (collectively, the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Cloud Services Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email to the Customer). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
4.2 Payments for the Fees are due in advance and the Services will not start for the Customer until payment of such Fees is received by the Company. Unless otherwise agreed upon between the parties, the Company shall invoice Customer for all Fees. Customer hereby agrees to pay all undisputed invoices within thirty (30) days upon receipt. Except as expressly provided otherwise, Fees are nonrefundable. All Fees are stated as United States dollars and must be paid by Customer as United States dollars. Undisputed unpaid Fees are subject to a finance charge of 1.5% per month on any outstanding balance of Fees, or the maximum permitted by law, whichever is lower, plus all expenses of the Company in connection with the collection of such outstanding Fees, and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Customer accepts sole responsibility for the payment of any Fees, taxes, charges, or assessments imposed on Customer or Company to be paid to any foreign or domestic national, state, or local government bodies, or subdivisions thereof, and any penalties or interest.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form.
5.2 In addition to any other remedies a party may have hereunder, either party may also terminate this Agreement upon thirty (30) days’ written notice for the other party’s breach of this Agreement or immediately in the case of non-payment of Fees by the Customer. If the agreement is terminated by Company for a breach by Customer, Customer will pay in full for the Services up to and including the last day on which the Services are provided. If the agreement is terminated by Customer for a breach by Company, Customer will be entitled to a refund of all Fees paid in advance for Services not yet completed by Company at the time of termination. Upon any termination of this Agreement, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days; but, thereafter, Company may, but is not obligated to, delete stored Customer Data. All sections of this Cloud Services Agreement which by their nature should survive termination of this Cloud Services Agreement will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company represents, covenants and warrants that: (i) in connection with the performance of the Services, Company will employ a standard of care, skill and diligence consistent with the prevailing professional standards in the industry and in a manner which minimizes errors and interruptions in the Services; (ii) the Services will achieve in all material respects the performance requirements and functionality described in Exhibit A; (iii) Company will use commercially reasonable efforts to ensure that its Services do not introduce any computer viruses, malware or similar items into Customer’s computer and network environment; (iv) the Services shall not infringe upon any copyright, patent, trade secret, or other proprietary right of any third party; (v) Company will comply with all applicable laws and regulations applicable to the performance by Company of its obligations under this Agreement. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES, NOR THE SOFTWARE THAT THE COMPANY SUBLICENSES AND WHICH FORMS PART OF THE COMPANY’S SOFTWARE, WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THE SOFTWARE THAT THE COMPANY SUBLICENSES AND WHICH FORMS PART OF THE COMPANY’S SOFTWARE AND SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SOFTWARE, THE SERVICES AND THE IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS CLOUD SERVICES AGREEMENT, EXCEPT FOR BODILY INJURY OF A PERSON, A BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS, AND EXCLUDING THIRD PARTY CLAIMS SUBJECT TO INDEMNITY, NEITHER PARTY OR SUCH PARTY’S SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS CLOUD SERVICES AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS CLOUD SERVICES AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent. Neither party may transfer and assign any of its rights and obligations under this Services Agreement without consent of the other party, not to be unreasonably withheld. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover documented costs and lawyers’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by construed in accordance with the laws of the State of New York, without reference to its conflicts of law provisions. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of the state courts in and for the County of New York, State of New York or the federals courts resident therein. Each party hereby irrevocably agrees to submit to the personal and exclusive jurisdiction and venue of such courts. In the event either party issues a written notice of a dispute, controversy or claim of any kind or nature arising under or in connection with this Agreement (a “Dispute”), each party will appoint a senior manager who will meet for the purpose of endeavoring to resolve the Dispute. If the Dispute continues unresolved after ten (10) business days, then upon the written request of either party, each of the parties will appoint a designated senior business executive who will meet within ten (10) business days for the purpose of endeavoring to resolve the Dispute. During the thirty (30) day period following such initial meeting (or such other period as the parties may agree in writing), the designated executives will meet as often as the parties reasonably deem necessary in order to negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceeding relating thereto. Notwithstanding any other provision of this Agreement, if a Dispute is not resolved by the parties within ninety (90) days after the issuance of written notice under this provision, either Party may take any available at action in law or in equity. Nothing in this provision shall prevent a Party from seeking equitable relief before commencing or during the foregoing informal dispute resolution processes.
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