Vendor and Customer may be referred throughout the Agreement individually as “Party” or together as “Parties”.
In consideration of the promises and mutual covenants herein, the Parties agree as follows:
Capitalized terms within this Agreement shall have the meanings set forth below.
1.1“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract, or otherwise.
1.2“Customer Data” means data furnished by Customer, whether created in-house or sourced from one or more third-parties, to be used in conjunction with or collected by the Service.
1.3“Documentation” means user documentation covering usage of the Service created or otherwise made available by Vendor.
1.4“User” means any individual who uses the Service on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
1.5“Service” means Vendor’s Service Management service, provided as a Software as a Service (“SaaS”) per the terms of this Agreement. The Service shall function in all material respects in accordance with the then current Documentation.
1.6“Website” means Vendor’s public websites, including without limitation those found at the following URLs: http://www.dragonflySM.com. The term “Website” does not include the Vendor’s Services (as defined above) regardless of the domain name used to access such Services.
2.1 SaaS. Vendor shall host the Service on servers owned or otherwise controlled by Vendor. Customer shall have remote access to the Service via the internet per the terms of this Agreement. The underlying software making the Service functional shall in no case be provided to or otherwise made available to Customer.
2.2 Use of the Service.During the Term, Customer may access and use the Service, solely in accordance with this Agreement, and in no instance in any manner not originally contemplated by this Agreement. Customer shall at all times adhere to any acceptable use policies published and/or modified by Vendor from time to time. Failure to adhere to such policies by Customer shall be considered a breach of this Agreement.
2.3 Service Levels.Vendor will provide the remedies listed in the Service Level Agreement, which is hereby incorporated by reference herein, for any failure of the Service listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the Service, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. Vendor is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
2.4 Use of Documentation. Customer may reproduce and use the Documentation solely as necessary to support Customer’s use of the Services.
2.5 Service Revisions.Vendor may revise Service features and functions, or the SLA, at any time, including without limitation by removing such features and functions or reducing service levels. In no case shall Vendor be liable to Customer for making such changes. If any such revision to the Service materially changes the Service, Vendor shall provide Customer with conspicuous and clear notice thereof prior to enacting such revision.
2.6 Customer Data.Customer warrants that it possesses all ownership rights and/or license grants necessary to make use of the Customer Data as contemplated by this Agreement. Customer shall indemnify Vendor and its Affiliates against any action or claim that Customer’s use of the Customer Data infringes the intellectual property rights of any third-party.
2.7 Other Services. Certain other services (“Other Services”) such as integrations, apps, and custom Apps are made available to Customer through the Website. Such Other Services may include, without limitation, electronic signature and credit card payment services. Customer has the option to enable these Other Services and integrate them into Vendor’s Service. These Other Services are governed by their own terms and privacy policies and Customer agrees that Vendor is not responsible for Customer’s use of these Other Services. By enabling the Other Services, Customer understands and agrees that Vendor does not provide any warranties whatsoever for Other Services and Vendor is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access, or use of any such Other Services, or Customer’s reliance on the privacy practices, data security processes, or other policies of such Other Services. Customer understands that Vendor is not responsible for providing technical support for Other Services and that Vendor is not responsible for the data hosting and data transfer practices followed by providers of such Other Services. To this extent, Customer shall address any comments, queries, complaints or feedback about such Other Services to their respective developers or publishers. The Agreement and any terms incorporated by reference shall apply only to the Service and do not apply to any third-party website or service linked to the Service or recommended or referred to through the Service or by Vendor’s staff.
2.8 You, as an Individual.All Users, including you, as an individual, must be 18 years or older to access or use the Websites and the Service. If you are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to Vendor that you have the authority to bind such Entity and its Affiliates to this Agreement. If you do not have such authority, you must not accept this Agreement and may not access or use the Service or Website.
3.1 Ownership. Vendor owns all worldwide right, title and interest in and to the Service and the Documentation all derivatives thereof, including without limitation all software used to provide the Service and all the graphics, user interfaces, logos, and trademarks reproduced through the Service, and all worldwide intellectual property rights therein. This Agreement does not grant Customer any intellectual property license or rights in or to the Service or any of its components. Customer recognizes that the Service and its components are protected by copyright and other laws.
4.2 Risk of Exposure.Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.3 Data Accuracy.Vendor will have no responsibility or liability for the accuracy of data uploaded to the Service by Customer, including without limitation Customer Data and any other data uploaded by third-parties.
4.4 Data Deletion.Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
4.5 Excluded Data.Customer represents and warrants that Customer Data does not and will not include, and Customer has not and will not upload or transmit to Vendor's computers or other media, any data (“Excluded Data”) in violation of any applicable laws or regulations (the “Excluded Data Laws”). CUSTOMER RECOGNIZES AND AGREES THAT: a.) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND b.) VENDOR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
4.6 Aggregate & Anonymized Data. Notwithstanding the provisions above, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)
5.1 Acceptable Use.Customer will comply with this Agreement and any acceptable use policies published or otherwise made available by Vendor. Customer will not: a.) use the Service for service bureau or time-sharing purposes or in any other way allow third-parties to exploit the Service; b.) provide Service passwords or other login information to any third-party; c.) share non-public Service features or content with any third-party; or d.) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service. In the event that it suspects any breach of the requirements of this Section 5.1, Vendor may suspend Customer’s access to the Service without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor any acceptable use policies requires that Vendor take any action against Customer or any other third-party for a violation thereof, but Vendor is free to take any such action it sees fit. If Customer is an individual, Customer’s use of the Services shall be solely for Customer’s personal, internal purposes.
5.2 Unauthorized Access.Customer will take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other login information. Customer will notify Vendor immediately of any known or suspected unauthorized use of the Service or breach of its security and will use best efforts to stop said breach.
5.3 Compliance with Laws.In its use of the Service, Customer will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4 Users & Service Access. Customer is responsible and liable for: a.) Users’ use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate any acceptable use policies or the requirements of this Agreement applicable to Customer; and b.) any use of the Service through Customer’s account, whether authorized or unauthorized.
5.5 Use By or On Behalf of Competitors. Customer warrants that it is not a competitor of Vendor. Customer shall not use the Services on behalf of, or otherwise for the benefit of, any such competitor.
6.1 Infringement/Ownership.Vendor warrants that it is the owner of the Service and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property and other rights granted in this Agreement without the further consent of any third-party. Vendor’s representations and warranties in the preceding sentence do not apply to use of the Service in combination with hardware or software not provided by Vendor. In the event of a breach of the warranty in this Section 6.1, Vendor, at its own expense, will promptly take the following actions: a.) secure for Customer the right to continue using the Service; b.) replace or modify the Service to make it non-infringing; or c.) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 6.1 and for potential or actual intellectual property infringement by the Service.
6.2 Right to Do Business.Each Party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
6.3 Disclaimer. Customer assumes sole responsibility and liability arising from the use of the Service and for conclusions drawn therefrom. Vendor shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Vendor by Customer in connection with the Service or any actions taken by Vendor at Customer’s direction.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, VENDOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE. WITHOUT LIMITING THE FOREGOING, VENDOR DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. VENDOR FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, OR FITNESS FOR A PARTICULAR PURPOSE. VENDOR FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VENDOR OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
XCEPT FOR LIABILITY ARISING FROM A BREACH CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, NOR SHALL VENDOR’S LICENSORS BE LIABLE TO CUSTOMER, FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
Notwithstanding any other provisions of this Agreement, in no event shall VENDOR’S OR ITS LICENSOR’S aggregate liability to Customer and any Third-party in connection with this Agreement, ITS EXHIBIT(S), OR CUSTOMER’S ACCESS TO AND USE OF THE SERVICE, exceed FIVE HUNDRED U.S. DOLLARS ($500 USD), regardless of the form OR THEORY of THE claim or action.
7.2 Acknowledgment.The Parties acknowledge that the limitations and exclusions contained in this Section 7 and elsewhere in this Agreement have been the subject of negotiation between the Parties and represent the Parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the Parties acknowledge and agree that a.) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and b.) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
8.1 Confidential Information. By virtue of this Agreement, the Parties may have access to each other’s Confidential Information. “Confidential Information” means all information or knowledge provided by one Party, including such Party’s agents or contractors, to the other relating to this Agreement and the subject matter hereof, whether in physical or electronic form or pursuant to visits to premises and in any form or medium in which such information may be recorded or kept which: a.) if disclosed in writing, is marked as “confidential” or “proprietary”; b.) if disclosed orally, is summarized in writing by the disclosing Party and sent to the receiving Party within thirty (30) days of the initial disclosure; or c.) that given the nature of the information or the circumstances surrounding its disclosure should reasonably be considered as confidential. Confidential Information shall include, but not be limited to, trade secrets; documentation, reports and manuals, algorithms, ideas, concepts, methodologies, test data, test results, testing procedures and processes; technologies and software; techniques; business information; financial information; business plans; customer lists; marketing information; sales plans; and/or sales projections. The terms and conditions of this Agreement shall be deemed the Confidential Information of both Parties and neither Party shall disclose such information except to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a bona fide need to know such information, provided that any such third-parties shall, before they may access such information, either a.) execute a binding agreement to keep such information confidential or b.) be subject to a professional obligation to maintain the confidentiality of such information.
8.2 Exclusions.Confidential Information shall not include information that: a.) is or becomes publicly known through no act or omission of the receiving Party; b.) was in the receiving Party’s lawful possession prior to the disclosure; c.) is rightfully disclosed to the receiving Party by a third-party without restriction on disclosure; or d.) is independently developed by the receiving Party, which independent development can be shown by written evidence. Notwithstanding anything to the contrary herein, Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of this Section 8, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)
8.3 Use and Nondisclosure.During the term of this Agreement, and for a period of five (5) years after expiration or termination thereafter, neither Party shall make the other’s Confidential Information available to any third-party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with confidentiality obligations that are at least as restrictive as the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
9.1 Fees. Customer will pay Vendor the fees for the Service or the selected portion thereof as set forth on the Website (the “Fee”). Vendor will not be required to refund the Fee under any circumstances.
9.2 Invoices; Payment; Late Payment.All invoices issued per the terms herein shall be paid within fifteen (15) days of their issue. If Vendor has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Vendor. Customer shall reimburse Vendor for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
10.1 Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue until Customer ceases its use of the Service or the Agreement is terminated earlier per the terms below.
10.2 Termination for Breach.Either Party may terminate this Agreement should the other Party fail to cure a material breach of its terms within fifteen (15) days of receiving written notice thereof.
10.3 Refund of Fees.Upon any termination due to a material breach of the Agreement by Customer, fees already paid to Vendor shall not be refunded. Upon any such termination due to a material breach of the Agreement by Vendor, a prorated portion of any prepaid fees shall be returned to Customer. For the avoidance of doubt, fees expressly delineated as non-refundable shall not be subject to the foregoing.
10.4 Effect of Termination.Upon termination of this Agreement, Customer will cease all use of the Service and delete, destroy, or return all copies of the Documentation in its possession or control.
10.5 Survival.The following sections shall survive the termination of this Agreement for any reason: 2.6, 2.7, 2.8, 3, 4, 6.3, 7, 8, 9, 10.3, 10.4, 10.5, 11, and 12. Further any provisions that must survive to fulfill their essential purpose shall do so.
11.1 Indemnity.Customer will defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Service, including without limitation: a.) claims by Users or by Customer's employees, as well as by Customer’s own customers; b.) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; and c.) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through Customer’s account, including without limitation by Customer Data. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Section 11.1 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
11.2 Exclusions.Neither Party will have any indemnification obligations under this Agreement as to any claim, suit or proceeding unless: a.) the Party to be indemnified promptly notifies the indemnifying Party in writing of such claim, suit or proceeding (except that the indemnified Party’s failure to provide the indemnifying Party with prompt notice of any such claim only shall relieve the indemnifying Party of its indemnification obligations to the extent that its ability to defend the indemnified Party against such claim is materially prejudiced by such failure); b.) the indemnifying Party has sole control of its defense and settlement; and c.) the indemnified Party, upon request of the indemnifying Party, cooperates in all reasonable respects; provided, however, that the indemnified Party may, at its own cost, participate in such claim, suit or proceeding. No settlement of a claim, investigation, suit, or other proceeding that involves a remedy other than the payment of money will be entered into by the indemnifying Party without the consent of the indemnified Party, which consent will not be unreasonably withheld.
12.1 Governing Law.This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the [HOME JURISDICTION], without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the county of [HOME COUNTY]. Vendor and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
12.2 Waiver.The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
12.3 Notices.Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to [NOTICE E-MAIL ADDRESS].
12.4 Severability. In the event any provision of this Agreement or its exhibit(s) is held to be invalid or unenforceable, the remaining provisions thereof shall remain in full force and effect.
12.5 Force Majeure.Neither the Parties nor Vendor’s third-party licensors shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
12.6 Compliance with Laws.Each Party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States. To the extent any such export laws, rules or regulations prohibit Vendor from complying with any of its obligations hereunder, such failure shall be excused and shall not constitute a breach of this Agreement.
12.7 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
12.8 Assignment/Successors.Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that Vendor may assign this Agreement to an Affiliate, to the surviving party in a merger of Vendor into another entity, or to an acquirer of all or substantially all of that Vendor’s business assets. This Agreement will be binding upon and inure to the benefit of the respective permitted successors and assigns of the Parties.
12.9 Entire Agreement.This Agreement constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party.
12.10 Non-Exclusive Remedies.Unless expressly set forth as an exclusive and/or sole remedy, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
12.11 Equitable Relief.Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
12.12 Third-Party Beneficiaries.This Agreement is intended for the benefit of the signatories and is not intended to benefit any third-party except as expressly stated herein.
12.13 Headings.The headings in this Agreement are for the convenience of reference only and have no legal effect.
12.14 Export Compliance.The Service and other software or components of the Service which Vendor may provide or make available to Customer or Users may be subject to U.S. (or other territories) export control and economic sanctions laws. Customer agrees to comply with all such laws and regulations as they relate to access to and use of the Service, software, and such other components. Customer shall not access or use the Service if Customer is located in any jurisdiction in which the provision of the Service, software, or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants, and covenants that (i) Customer is not named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) Customer is not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) Customer shall not permit Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and Users are located. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Customer with only those rights as provided under this Agreement.
12.14 Amendment.Vendor may amend this Agreement from time to time by posting an amended version at its Website. Should said amendment materially affect Customer’s rights, Vendor shall either send Customer e-mail notice thereof or post conspicuous notice thereof on the Website, not less than fifteen (15) days prior to the effective date of said amendment. Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 12.14, Vendor may revise the privacy and acceptable use policies, and any Documentation at any time by posting a new version at the website, and such new version will become effective on the date it is posted.
This Service Level Agreement (“SLA”) is made part of and incorporated into the SaaS Agreement above (the Agreement). Unless otherwise defined herein, capitalized terms shall have the meanings prescribed to them within the Agreement.
1.1 Target Availability Level.The Service shall have a Monthly Uptime Percentage (as defined below) of at least 99.5% (the “Target Uptime Percentage”) during any full calendar month of service. In the event the Service does not meet this Monthly Uptime Percentage, Customer will be eligible to receive service credits to be applied solely against future, unpaid Service fees (“Service Credits”).
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Service was not accessible from the internet. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Exclusion.
“Exclusion” means any issues: a.) that result from an access suspension per the terms herein; b.) that are caused by Customer or Customer’s telecommunications and internet services; c.) that are caused by software or hardware not provided and controlled by Vendor; d.) that are caused by Force Majeure events; or e.) that are caused by planned or unplanned maintenance, so long as Customer is provided not less than three (3) days advance written notice (e-mail notice is acceptable).
1.2 Service Credits Calculation.Service Credits shall be calculated as five percent (5%) of one month’s worth of Service Fees.
1.3 Sole Remedy.The receipt of Service Credits shall be Customer sole and exclusive remedy for any failure of Vendor to meet the service levels agreed to herein.
1.4 Telecommunications and Internet Services.Customer acknowledges and agrees that Customer’s use of the Services is dependent upon access to telecommunications and internet services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Vendor shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and internet services.
2.1 Resolution of Conflicting Terms.In the event of a conflict between the terms of this exhibit and the Agreement, the terms of Agreement shall take precedence.
2.2 Survival.Sections 1.2, 1.3, 1.4, and 2.1 above shall survive the termination of this exhibit for any reason.