SAAS SERVICES AGREEMENT
THIS SAAS SERVICES AGREEMENT (THIS “Agreement”) IS MADE BY AND BETWEEN IFOODDECISIONSCIENCES, INC., A WASHINGTON CORPORATION (“Provider”), AND THE PARTY IDENTIFIED AS CUSTOMER ON THE WORK ORDER (WHICH MAY CONSIST OF AN ONLINE ENROLLMENT FORM) REFERENCING THIS AGREEMENT (“Customer”). THIS AGREEMENT IS A BINDING AND ENFORCEABLE AGREEMENT BETWEEN THE PARTIES. CUSTOMER’s USE OF THE SERVICES (DEFINED BELOW) CONSTITUTES CUSTOMER’S ACCEPTANCE OF THESE TERMS. SIGNING OR CLICKING A BOX (OR OTHER ELECTRONIC MEANS OF AFFIRMATION) INDICATING ACCEPTANCE INDICATES THAT THE PERSON SIGNING, CLICKING OR ACCEPTING ON BEHALF OF CUSTOMER HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF SUCH ACCEPTANCE OR EXECUTION (“Effective Date”).
This Agreement permits Customer to purchase the Services from Provider pursuant to Work Orders (which may consist of an online enrollment form) executed by Customer (and accepted by Provider) and sets forth terms and conditions under which Services referenced therein will be delivered and used. This Agreement shall govern Customer’s purchases as set forth in Work Orders in effect on the Effective Date as well as any future purchases made by Customer pursuant to subsequent Work Orders. Customer acknowledges that a Service may be provided on a “per location” or “per facility” basis, and in such event, Customer would need to execute additional Work Order(s) in order to be able to use such Service for any such additional locations or facilities.
TERMS AND CONDITIONS
DEFINITIONS
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services that is issued by Provider for an Authorized User to be able to access and use the Services.
“Access Rights” means the grant of third party access to Customer Data by Customer through execution of a signed Third Party Access Authorization.
“Affiliate” means, with respect to an entity, any other entity that, directly, or indirectly through one or more intermediaries, is under the control of such entity, controls such entity, or is under common control with such entity, where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. For the avoidance of doubt, an entity shall be considered an “Affiliate” only so long as such entity remains an affiliate as defined in the immediately preceding sentence.
“Authorized User” means each of the individuals authorized to use the Services pursuant to Section 1 and the other terms and conditions of this Agreement.
“Customer Data” means any business information or other data of any type that is input by or on behalf of Customer into a Service, including without limitation information manually input by Authorized Users, submitted to a Service via Provider data interfaces, or imported via a third party product or service.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third party services.
“Equipment” means products needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and other reasonable out-of-pocket costs of enforcing any right to indemnification hereunder and the reasonable out-of-pockets cost of pursuing claims against any insurance providers.
“Permitted Use” means the use of the Services by an Authorized User as an end user of the Services for the benefit of Customer solely in or for Customer’s business operations and in accordance with this Agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, analyze, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Provider Materials” means the Service Software, Specifications, and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor (as defined in Section 9.11) in connection with the Services or otherwise comprise or relate to the Services or Provider Systems, including any of the foregoing that Provider provides or makes available to Customer, in any form or medium, that describe the functionality, components, features or requirements of the Services.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third party services.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, consultants, agents, and independent contractors.
“Scheduled Downtime” means periodic downtime for the routine maintenance of Provider Systems, which downtime renders the Services unusable to Customer.
“Service Software” means the Provider software application or applications and any third party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.
“Services” means the services and the products as defined and described in a Work Order.
“Services Access Date” means the date that Provider has notified Customer’s Representative by email that Customer may access the applicable Service(s).
“Specifications” means the specifications for the Services set forth in any Work Order, as may be amended by the parties from time to time.
“Support and Training” means the obligations of Provider to support Customer in their use of the Services, as defined in any Work Order.
“Third Party Access Authorization” means an agreement between Provider and Customer authorizing Provider to grant third party access to Customer Data and to otherwise permit such third party to be an Authorized User.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider or Customer.
“Work Order” means any agreement, quotation, change order, statement of work, order form or proposal between Provider and Customer outlining the specific Services to be provided, and the fees associated therewith, that is (a) signed by Provider and Customer and (b) by its terms, expressly made a part of (and subject to) this Agreement.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to and conditioned on Customer’s timely payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, solely during the applicable Subscription Term (defined in Section 5.1), the Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and, other than as may be expressly set forth in Section 9.2, non-transferable. Authorized Users may consist only of (x) employees of Customer and (y) third parties whose access has been approved by Provider through the execution of a Third Party Access Authorization. Customer may make reasonable requests for the addition of Authorized Users through written requests submitted to Provider’s Service Manager. Provider shall authorize the requested Authorized Users and issue Access Credentials within a reasonable period of time after written notice is received and, in the case of third parties for which Customer wishes to have such access, within a reasonable period of time following Provider’s approval of such access via the Third Party Access Authorization process described elsewhere in this Agreement. To the extent that Provider enables Customer to utilize administrator-level privileges to Customer so that Customer may manage its Authorized Users in a “self service” fashion, and for the avoidance of doubt, Customer may not enable a third party’s access to the Services without first obtaining a Third Party Access Authorization from Provider before enabling such access for such person. Without limiting the generality of its third party access approval rights, Provider may refuse access to the Services and Provider Materials to independent contractors, consultants and other vendors of Customer that are competitors of Provider. Customer remains responsible for each Authorized User’s compliance with all of the terms and conditions of this Agreement and to ensure that any use of the Services by an Authorized User is for the sole benefit of Customer.
1.2 Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.
1.3 Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the applicable Subscription Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Services in accordance with the Specifications and terms and conditions hereof, including hosting, managing, operating and maintaining the Service Software for remote electronic access and use by Customer and its Authorized Users in substantial conformity with the service level terms, attached hereto as Exhibit A, as may be modified or supplemented in a Work Order (the “Service Level Terms”).
1.4 Each party shall, throughout the Term, maintain within its organization a person (each a “Service Manager”) to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each Service Manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its Service Manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity.
1.5 Provider shall at all times comply with the data backup and security policies set forth in the Service Level Terms.
1.6 Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement and any Work Order, Provider agrees to provide Support and Training services as provided in any Work Order.
1.7 If the Work Order states that Services referenced therein are being provided as a “Pilot”, “Pilot Program”, “Proof of Concept”, “Trial Program” or words to similar effect (hereinafter, a “Pilot Program”), then Customer may use the applicable Services in accordance with the terms and conditions of this Agreement for the period designated in such Work Order (the “Pilot Period”), except that the provisions of Section 5.1 shall not apply to such Services under the Pilot Program. Pilot Programs are permitted solely for Customer’s use to determine whether to purchase a full subscription to the Service and Customer may not use a Pilot Program for any other purpose, including without limitation for competitive analysis. At the end of the Pilot Period, the Pilot Program will expire, and Customer will have the option to purchase the Services at the pricing set forth in the applicable Work Order. Provider reserves the right to terminate the Pilot Program at any time for any reason, but in the event of termination shall refund to Customer any unused or unearned, prepaid Recurring Fees (as defined below) applicable to such Pilot Program. The Pilot Program Services may have a mechanism that limits access during the Pilot Period and Provider may otherwise restrict certain product functionality during the Pilot Period. Customer shall not attempt to circumvent any such mechanism or restriction. Provider shall have no obligation to retain Customer Data used with a Pilot Program during or after the Pilot Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE PILOT PERIOD THE SERVICE IS PROVIDED “AS IS” AND PROVIDER SHALL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO THE PILOT PROGRAM UNLESS OTHERWISE SPECIFIED IN THE WORK ORDER.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the Services or Provider Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person (except Authorized Users), including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (e) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law; (f) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to Provider’s detriment or commercial disadvantage; or (g) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 1 or for any fraudulent purposes.
2.2 Customer represents, covenants, and warrants that (a) Customer and its Authorized Users will use the Services only in compliance with the Terms and Conditions and all applicable laws and regulations; (b) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed or otherwise used by Provider in accordance with and as permitted by this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law; (c) Customer is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation; and (d) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party. Although Provider has no obligation to monitor Customer’s and its Authorized Users’ use of the Services, Provider may do so and may prohibit any use of the Services it reasonably believes may be (or alleged to be) in violation of Section 2.1 or clauses (a) or (b) of this Section 2.2.
2.3 Customer shall be responsible for obtaining and maintaining any Equipment and ancillary services needed to connect to, access or otherwise use the Services. Customer acknowledges that Customer’s internet service coverage, bandwidth and speed may affect the performance of the Services and are beyond the control of Provider. Access to the Services requires an internet compatible device such as a PC or tablet computer. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. If Customer becomes aware of any actual or threatened activity prohibited by this Section 2, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Provider of any such actual or threatened activity.
2.4 Customer shall promptly and in good faith cooperate with Provider in connection with Provider’s implementation, configuration and provisioning of the Services. Such cooperation shall include the provision of information and documentation reasonably requested by Provider as soon as practicable following Provider’s request for same (but in any event within fourteen (14) days of Provider’s request) and meeting with Provider’s Representatives to review and accept the Services.
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, including Provider Materials, the terms and conditions of this Agreement and any Work Order, and Customer Data (hereinafter collectively referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except in performance of the Services) or, subject to Section 3.4, divulge to any third person any such Confidential Information. The Receiving Party agrees to promptly notify the Disclosing Party of any request for Confidential Information made by a third party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (except that trade secrets shall remain subject to the confidentiality obligations and use restrictions set forth herein for as long as such information remains a trade secret), nor shall the foregoing apply to any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of, or reference to, any Confidential Information of the Disclosing Party; or (e) is required to be disclosed by Law, so long as the Receiving Party (i) notifies the Disclosing Party of such requirement prior to disclosure (except to the extent that it is legally prohibited from providing such notification); and (ii) provides reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in obtaining or opposing a protective order. Should the Receiving Party remain required by Law to disclose such Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.
3.2 As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 3.1, Section 3.4 and Section 3.5, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 3; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section. In the event Confidential Information is disclosed in violation of this Section 3, the Receiving Party shall promptly notify the Disclosing Party of such disclosure.
3.3 Subject to Section 3.4, Customer shall own all right, title and interest in and to the Customer Data. Provider shall own and retain all right, title and interest in and to (a) the Services and Service 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. To the extent that Customer or any of its Authorized Users provides any feedback to Provider regarding any of the Services (which may include suggestions for improvements, modifications or enhancements to the Services (or any ideas or suggestions regarding new or different services)), Provider shall have a nonexclusive, perpetual, irrevocable, worldwide, royalty-free license to incorporate any such feedback into the Services or otherwise use any such feedback.
3.4 Notwithstanding anything to the contrary herein, Customer agrees that during and after the Term, Provider and its Affiliates may use, process, manipulate, modify, copy, publicly perform and display, compile, and create derivative works from Customer Data and any other data related to the Service(s), including, but not limited to, using such data for any internal business purpose, and for the improvement, support, and operation of the Service(s), and/or the development, improvement, support and operation of other products or services. Customer hereby acknowledges and agrees that Provider and its Affiliates may disclose to third parties aggregate data derived from Customer Data or from any other data related to the Service(s), so long as such aggregate data is anonymized (i.e., not personally identifiable with respect to Customer). Further, all service data, usage data, and other data that does not identify Customer and any data that is derived from the Customer Data and all data, reports, derivative works, compilations, modifications and other materials created by Provider from or with use of such data will be, in each case, the sole and exclusive property of Provider; and Customer, on Customer’s behalf and on behalf of all applicable Affiliates, hereby assigns all of Customer’s, title and interest, if any, in and to such items to Provider without any fees and without rights to future royalties.
3.5 Subject to this Section 3, Customer shall have the right to grant Access Rights to Customer Data in any third party; provided, however, that such third party may use such access solely for the purpose of enabling such third party to provide services directly to Customer (and in no event may such access be used as a form of data interface between any of the Services, on the one hand, and a third party computer system, on the other hand). Any grant of Access Rights shall be made for each third party granted such Access Rights pursuant to a signed Third Party Access Authorization. Subject to the terms and conditions of this Agreement, in the absence of a signed Third Party Access Authorization, no third party shall be granted Access Rights to Customer Data (and Customer shall not enable or permit any third party to have such access). Customer acknowledges that execution of a Third Party Access Authorization permits Provider to grant such third party access to Customer Data as is contained in the Third Party Access Authorization during the term specified therein. Provider shall not be liable to Customer or any third party for the actions taken by third parties granted access to Customer Data by Customer.
3.6 Neither party shall use the other party’s logos, trademarks, trade name, service marks and domain name (collectively, the “Marks”) or refer to the other party directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement without the prior written consent of the other party.
4. PAYMENT OF FEES
4.1 Unless otherwise set forth in the applicable Work Order, Customer shall pay Provider the fees specified in each Work Order (“Fees”) in accordance with this Section 4. Provider may invoice Customer for “Initial”, “Set Up”, or “One Time” fees as set forth in each Work Order upon Customer’s execution of such Work Order. Unless otherwise set forth in the applicable Work Order, Provider may begin invoicing Customer for annual or other periodic, recurring Fees as set forth in the Work Order (“Recurring Fees”) in advance of each such period on the earlier of (a) the Services Access Date or (b) the ninetieth (90th) day following the effective date of the applicable Work Order. If the Services Access Date for a Service is more than five (5) days after the effective date of the Work Order for such Service, the Recurring Fee for the first period for which it is due shall be prorated to account for the period from the effective date of the applicable Work Order to the earlier of the occurrence described in clauses (a) or (b) of the preceding sentence. Thereafter, all Recurring Fees may be invoiced to Customer in advance of the period for which the applicable Services are being provided, unless this Agreement and/or the applicable Work Order(s) has been terminated as provided herein. (By way of example, if the Work Order provides for Recurring Fees to be paid annually, each annual Recurring Fee may be invoiced in advance upon the renewal of the annual Subscription Term.) All invoiced Fees shall be payable within thirty (30) days of invoice date. All out-of-pocket expenses incurred by Provider at Customer’s request and pre-approved by Customer in connection with performing the Services (such as travel for on-site training) (the “Reimbursable Expenses”) shall be payable within thirty (30) days of the date of an itemized invoice, together with reasonable documentation of each itemized expense, for the same from Provider. Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the then current Subscription Term for the applicable Service upon sixty (60) days’ written notice to Customer (which may be delivered by email).
4.2 Customer shall make payments to the address or account specified by Provider in the Work Order(s) or otherwise in writing. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes, including sales taxes, associated with Services other than applicable taxes legally required by Provider.
4.3 In the event Customer terminates a Service or elects not to renew a Service pursuant to this Agreement and desires Provider to transfer files containing related Customer Data to Customer, unless otherwise set forth in the applicable Work Order, Customer shall notify Provider in writing within sixty (60) days of termination of its request to transfer files containing such Customer Data, in which case, Provider will provide a flat file and Customer will pay Provider at is then-current hourly rate for such services; provided, however, that if Provider makes data export tools (or other feature/functionality) that would enable Customer to transfer such files in “self-service” fashion, Provider may direct Customer to use such tools (or other feature/functionality) instead.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, the term (“Term”) of this Agreement shall commence on the Effective Date and shall remain in effect so long as any Work Order remains in effect. Unless otherwise set forth in a Work Order, each Service shall have an initial twelve (12) month term commencing on the effective date of the applicable Work Order (such initial twelve (12) month (or other) initial term, the “Initial Subscription Term”), and thereafter, the term of such Service shall automatically renew for additional periods of twelve (12) months each (each a “Renewal Term” and together with the Initial Subscription Term, the “Subscription Term”), unless by written notice either party provides notice of non-renewal to the other party at least sixty (60) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement and any Work Orders upon thirty (30) days’ notice (or immediately without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and/or any Work Order, and such material breach is incapable of cure or, being capable of cure, remains uncured thirty (30) days after the non-breaching party provides written notice of such breach. Notwithstanding the foregoing, Provider may terminate this Agreement and/or any Work Orders following ten (10) days written notice if Customer has not paid any undisputed fees or amounts due and payable under this Agreement or any Work Order. In addition, the Parties shall have the termination rights set forth in Exhibit A hereto.
5.3 Upon any expiration or termination of this Agreement and/or a Work Order, and except as expressly otherwise provided in this Agreement or a Work Order: (a) all rights, licenses, consents and authorizations granted by either party to the other hereunder and thereunder will immediately terminate, and Provider may disable all Customer and Authorized User access to the terminated Services and related Provider Materials; (b) Provider shall immediately cease all use of Customer’s Confidential Information and (i) within thirty (30) days, destroy all documents and tangible materials containing, reflecting, incorporating or based on Customer’s Confidential Information (and, at Customer’s request, certify such destruction), or promptly following Customer’s written request, return such Confidential Information to Customer; and (ii) permanently erase all Confidential Information from all systems Provider directly or indirectly controls, provided that Provider’s obligations under this Section 5.3 do not apply to Customer Data (which shall instead be governed by Section 4.3); (c) Customer shall immediately cease all use of any terminated Services and related Provider Materials and (i) within thirty (30) days return to Provider, or promptly following Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider’s Confidential Information; and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls; (d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information to the extent and for so long as required by applicable Law; (ii) the Receiving Party may also retain the Disclosing Party’s Confidential Information in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course of Provider’s business; and (iii) all information and materials described in this Section 5.3 will remain subject to all confidentiality, security and other applicable requirements of this Agreement; (e) if Customer terminates this Agreement and/or a Work Order pursuant to Section 5.2, Customer will be relieved of any obligation to pay any Fees attributable to the terminated Services for the period after the effective date of such termination and Provider will: (i) refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination; and (ii) pay to Customer any unpaid service credits to which Customer is entitled; and (f) if Provider terminates this Agreement pursuant to Section 5.2, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, within thirty (30) days of the date of Provider’s invoice therefor.
5.4 The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 2 (Restrictions and Responsibilities), Section 3 (Confidentiality; Proprietary Rights), Section 5 (Term and Termination), Section 7 (Indemnity), Section 8 (Indemnification), and Section 9 (Miscellaneous).
6. WARRANTY AND DISCLAIMER
Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Provider or by third party providers, or because of other causes beyond Provider’s reasonable control, but Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Provider does not warrant that the Services 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND PROVIDER, FOR ITSELF AND ON BEHALF OF ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS, DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. INDEMNITY
7.1 Subject to Section 8, Provider shall indemnify, defend and hold harmless Customer and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee in connection with any action by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise out of or relate to: (a) infringement by any Service of any United States patent or copyright or any misappropriation by Provider of any trade secret; or (b) Provider’s breach of any of its obligations under Sections 3.1 and 3.2. The foregoing obligations do not apply to any action or losses arising out of or relating to any: (i) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by Provider; (ii) modification of the Services or Provider Materials other than: (A) by or on behalf of Provider; or (B) with Provider’s written approval in accordance with Provider’s written specification; (iii) failure to timely implement any modifications, upgrades, replacements or enhancements to the Services or other Provider Materials made available to Customer by or on behalf of Provider; or (iv) act, omission or other matter described in clauses (a) or (b) of Section 7.2, whether or not the same results in any action against or Losses by any Provider Indemnitee. If, due to a claim of infringement, one or more of the Services are held by a court of competent jurisdiction to be or are believed by Provider to be infringing, Provider may, at its option and expense (a) replace or modify the affected Service(s) to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer a license to continue using the affected Service(s); (c) if neither of the foregoing is commercially practicable, terminate this Agreement and/or the related Work Order(s) and Customer’s rights hereunder and thereunder, and provide Customer a refund of any prepaid, unused fees for the terminated Service(s).
7.2 Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee in connection with any action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or relate to any: (a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement or any claim that Customer Data infringes or misappropriates a third party’s Intellectual Property Rights; or (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider.
7.3 In the event of an indemnification obligation, (i) the indemnified party (the “Indemnified Party”) shall give the indemnifying party (the “Indemnifying Party”) prompt written notice of any such damage, liability, cost, claim or allegation; provided, however, that the Indemnifying Party’s obligations under this Section 7 shall continue even if the Indemnified Party does not provide Indemnifying Party with such prompt notice of any such liability, cost, damage, claim or allegation so long as such failure does not materially prejudice the Indemnifying Party; (i) the Indemnifying Party shall have the right to control the defense and negotiation of all claims or allegations; provided, however, that the Indemnifying Party may not settle any claim or allegation without the consent of the Indemnified Party if such settlement admits liability on the part of the Indemnified Party or imposes any liability or obligation upon the Indemnified Party, in each instance without the Indemnified Party’s prior written consent; (iiii) the Indemnified Party may, at its expense, retain counsel to assist and observe the Indemnifying Party’s defense of such claim; and (iv) the Indemnified Party shall cooperate fully with the Indemnifying Party in connection with such claim, allegation or suit at the Indemnifying Party’s expense.
7.4 SECTION 7.1 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
8. LIMITATION OF LIABILITY
8.1 IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR OTHER SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY (EXCEPT TO THE EXTENT SUCH LOSS, DAMAGE, CORRUPTION OR BREACH AROSE FROM PROVIDER’S FAILURE TO EMPLOY COMMERCIALLY REASONABLE DATA SECURITY MEASURES), OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.8.2 IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER FOR ALL CLAIMS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, INDEMNIFICATION OBLIGATION, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER PURSUANT TO THIS AGREEMENT FOR THE SERVICE(S) GIVING RISE TO THE CLAIM OVER THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE MOST RECENT SUCH CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9. MISCELLANEOUS
9.1 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.
9.2 This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the prohibition contained in this Section, either party may assign its interest in this Agreement without first obtaining the other party’s written consent, in the event of (and in connection with) the assigning party’s merger, sale of assets or sale of stock (or in connection with a party’s internal corporate reorganization) provided that, if the merger or sale is to a direct competitor of the other party, such other party may terminate this Agreement and/or any Work Orders upon written notice at any time within ninety (90) days following receipt of notice of the merger or sale. If Provider terminates this Agreement and/or any Work Orders pursuant to this Section, Customer will receive a pro rata refund of any prepaid, unused fees for the terminated Services.
9.3 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. This Agreement shall not be modified in any way except to the extent set forth in a writing signed by both parties. No failure to exercise a right, remedy or privilege shall be construed as a waiver thereof. In the event of any inconsistency between these Terms and Conditions and the terms of any Work Order, the terms of the Work Order shall govern. Whenever a provision of this Agreement uses the term “include” or “including”, that term shall not be limiting but shall be construed as illustrative.
9.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Provider in any respect whatsoever.
9.5 In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including strikes, embargoes, shortages of labor or materials, governmental regulations, acts of God, war, terrorism, pandemic or other strife. Either party may terminate this Agreement if a Force Majeure Event affecting the other party’s ability to perform its obligations or exercise its rights hereunder continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
9.6 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable, out-of-pocket costs and attorneys’ fees.
9.7 Except as provided for in Section 1.4, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 9.7):
If to Provider: P.O. Box 82475
Kenmore, WA 98028
E-mail: [email protected]
Attention: VP – Corporate Administration
If to Customer: As set forth on the Work Order.
9.8 This Agreement shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. IN ADDITION, RESOLUTION OF ALL CLAIMS AND DISPUTES HEREUNDER SHALL BE CONDUCTED AND RESOLVED ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS-WIDE, MULTIPLE PLAINTIFF, CONSOLIDATED OR SIMILAR BASIS, AND CUSTOMER WAIVES ANY RIGHT TO PARTICIPATE IN ANY WAY IN A CLASS ACTION LAWSUIT AGAINST PROVIDER, OR TO ACT IN ANY ARBITRATION, LAWSUIT, ACTION OR OTHER LEGAL PROCEEDING AGAINST PROVIDER IN THE INTEREST OF THE PUBLIC OR IN ANY PRIVATE ATTORNEY GENERAL CAPACITY.
9.9 Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 3 or, in the case of Customer, Section 2.1, would cause the other party irreparable harm for which monetary damages may not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek any equitable relief permitted by law. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
9.10 This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
9.11 Provider may from time to time in its discretion engage third parties to perform Services or portions thereof (each, a “Subcontractor”). Provider shall at all times remain responsible for (i) compliance of any such Subcontractor with the terms of this Agreement, including obligations with respect to Confidential Information, and (ii) for the overall performance of the Services as required under this Agreement.
9.12 This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
EXHIBIT A
SERVICE LEVEL TERMS; DATA SECURITY; DATA STORAGE
- Unless otherwise provided in a Work Order, if there is a verified failure of the Service to maintain Target Availability (defined below) more than three (3) times in two (2) consecutive calendar months in a rolling twelve (12) calendar month period during the Term, then Customer shall have the right to immediately terminate this Agreement and/or any applicable Work Orders upon written notice delivered to Provider within thirty (30) days of such failure, which termination right shall not be subject to a right to cure by Provider (and which shall be Cusotmer’s sole remedy). The term “Target Availability” means an uptime of 99% of each calendar month except for: (a) Scheduled Downtime; (b) Service downtime or degradation due to a Force Majeure Event; (c) downtime caused by Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and (d) any suspension or termination of Customer’s or any Authorized User’s access to or use of the Services as permitted by this Agreement.
- Except as otherwise expressly provided in this Agreement, as between the parties: (a) Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) location(s) where any of the Services are performed; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support and Training services and Service maintenance, upgrades, corrections and repairs; and (b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.
- Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider’s services to its customers; or (ii) the competitive strength of the market for Provider’s services; or (b) to comply with applicable Law. In addition, Provider may provide product upgrades/modifications/changes to the Services and associated products. Upgrades/modifications/changes may be made as part of Provider’s regularly scheduled product release cycle or based on Customer requests. Upgrades/modifications/changes made according to Provider’s regularly-scheduled general product plan and release cycle will be made available to Customer without additional charge. Upgrades/modifications/changes requested by Customer outside of Provider’s regularly-scheduled general product plan and release cycle will be provided to Customer on a time and materials basis as set forth in a change order (or equivalent Work Order document) executed by Provider and Customer. In addition, Provider may terminate all applicable Work Orders for a Service in the event that Provider elects to “sunset” such Service (i.e., to cease providing such Service on a general basis, and not solely with respect to Customer) without offering or providing a replacement for such Service; provided, however, that Provider shall provide a minimum of one hundred eighty (180) days prior written notice to Customer before discontinuing the availability of such Service, whereupon Customer shall have the right to terminate the Work Order(s) for such discontinued Service immediately upon written notice to Provider (and Provider shall refund to Customer any unused or unearned, prepaid Recurring Fees attributable to the period following such termination). If Customer does not provide such termination notice, the applicable Work Order(s) shall nevertheless terminate as to the Services upon their discontinuation.
- The Provider Systems are programmed to perform routine data backups. Provider will deliver to Customer (in flat file format) its then most current back-ups of Customer Data promptly following Customer’s request for same at Provider’s then-current hourly rates for such services. In the event of any loss, destruction, damage or corruption of Customer Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Data from Provider’s then most current backup of such Customer Data.
- Provider will employ commercially reasonable data security measures in accordance with then-prevailing industry practices and standards. Provider’s data privacy and security policy may be amended by Provider from time to time.
- Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
- Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services (including firewall protection and appropriate security software on individual devices); and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services. In the event of the termination of an employee who is an Authorized Users or such other circumstances warranting changes to access to the Services by Authorized Users, Customer shall promptly notify Provider for account deactivation and/or password changes.
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