These Services Terms (“Services Terms”) govern the use of the subscription and/or related services of Amber Road, Inc., a wholly-owned subsidiary of E2open, LLC (“Vendor”), with an office at 9600 Great Hills Trail, Suite 300E, Austin, Texas 78759, and the client identified on the Order Form (“Client”). In consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are acknowledged, Vendor and Client agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein have the meanings ascribed to them below:
“Application” means the software specified on the Order Form table, “Applications,” including any Updates thereto. Applications do not include source code.
“Authorized Users” means Client, its Authorized Affiliates, and their respective employees, agents or contractors who are specifically authorized by Client to access and use the Licensed Materials on behalf of Client, all pursuant to and in accordance with these Services Terms.
“Authorized Affiliates” means any entity that is controlled by Client or under common control with Client and is authorized by Client to use the Licensed Materials.
“Client Data” means the proprietary data of Client and its Authorized Affiliates that is uploaded on to the Data Center or otherwise inputted by Authorized Users for use with the Applications.
“Computer Systems” means (i) the computer hardware, (ii) any peripherals, communication devices, wires and cabling, and any equipment related to any of the foregoing, and (iii) software, firmware, system software, and/or operating system owned or used by Authorized Users in any way relating to or interacting with the Licensed Materials.
“Content” means each third-party trade data including, without limitation, restricted party lists, harmonized commodity codes, tariffs, and trade regulations which are sourced by Vendor for use with the Applications.
“Data Center” means the databases, computing servers, and related technology, software, and hardware owned or licensed by Vendor which support the Applications.
“Downtime” means the minutes in a calendar month in which Client suffers a complete loss of access to or use of an Application or experiences a sustained and material degradation to normal system performance, which adversely impacts Client’s business in a substantial manner. Downtime does not include any error or outage caused by (i) the Internet or other telecommunication errors occurring outside of the Service Demarcation Point, (ii) failures attributed to Computer Systems, (iii) forces outside of Vendor’s reasonable control, or (iv) the System Maintenance Period ((i), (ii), (iii) and (iv) are collectively “Downtime Exclusions”), or Downtime resulting from or relating to any other Maintenance Exclusions.
“Licensed Materials” means Applications (in object code form), Content, and licensed supporting materials and the then-current documentation that Vendor makes generally distributes or makes available to its customers.
“Maintenance” means that Vendor will use commercially reasonable efforts to correct defects in Applications occurring in the production environment that constitute a breach of the warranty under Section 6(b) (Performance) within a reasonable period of time, and provide service level agreement credits, if applicable (all as described herein and Section 11 (Availability & Service Level Agreement)). Maintenance includes using commercially reasonable efforts to respond to production-related operator messages, restart jobs, monitor system performance, perform backups, provide Updates to the Application, develop and maintain a disaster recovery plan for Vendor, Vendor’s computer system and install new versions of the operating system, middleware, and database.
“Maintenance Exclusions” means (i) the Application is not used by Client in accordance with Vendor’s applicable specifications, manuals or instructions, (ii) the Licensed Materials were altered, modified, tampered with, or damaged by Client or any other Person (except Vendor), (iii) any changes, enhancements, modifications or updates to, or installation of, any component of Client’s Computer Systems that adversely effects the Application, (iv) causes external to the Application including, but not limited to, accident, negligence, abuse, misuse, or any failure, malfunction or defect in Client’s Computer Systems or other hardware affecting the operation of the Application, or fluctuations in electrical power, (v) failures or defects in Applications caused by or related to viruses, worms, time bombs, backdoors, logic bombs, Trojan horses, trap doors or other malicious computer instructions not introduced by Vendor, or (vi) Downtime Exclusions.
“Order Form” means each separate, written document signed by the parties which details the Application(s) and/or Services to be provided by Vendor to Client, including duration and fees. Each Order Form is governed by these Services Terms.
“Person” means any natural person, corporation, division of a corporation, partnership, proprietorship, trust, joint venture, association, firm, company, limited liability company, estate, foundation, or any other entity, whether or not incorporated, and any governmental authority, unit or agency.
“Service Demarcation Point” means Vendor’s border router, which is used to establish connectivity from the Data Center to the public Internet.
“Update” means each new release or version of the Application that is made commercially available by Vendor, and that may include bug fixes, patches, corrections, workarounds, or other modifications to the Application, including, without limitation, additional capabilities or functionalities or improvements to the relevant Application.
2. License. Subject to the terms and conditions of these Services Terms, Vendor grants to Client, and Client accepts, a revocable (per the Services Terms), worldwide, non-exclusive and non-transferable license for Authorized Users to use the Licensed Materials throughout the applicable Subscription Term (as defined below).
3. Scope of Use. Client is responsible for ensuring that only Authorized Users have access to and use the Licensed Materials and that the Licensed Materials are only used to process the data of Client and its Authorized Affiliates or to provide support services for Client or Authorized Affiliates. Client is responsible for Authorized Users’ compliance with these Services Terms. Accordingly, any breach of these Services Terms by Authorized Users constitutes a breach by Client. In addition, Authorized Affiliates have no right to bring any action or claim against Vendor which arises from these Services Terms. Any such action or claim against Vendor may only be brought by Client. Vendor reserves the right to revoke any entity’s status as an Authorized Affiliate under these Services Terms if Vendor determines that such entity has breached any of the provisions of these Services Terms. An Authorized Affiliate has no general right or license in or to the Licensed Materials and is only an Authorized Affiliate under Client’s license, subject to the provisions of these Services Terms. Client is responsible for configuring its systems to protect its data and the Licensed Materials from intrusion or unauthorized access. Client may not copy or otherwise reproduce Licensed Materials. Client will not (i) create derivative works of or otherwise modify the Licensed Materials, (ii) remove or alter any proprietary rights notice or trademark and/or service mark rights notice on or in Licensed Materials, or (iii) sublicense or rent the Licensed Materials or provide any third parties with access to Licensed Materials for any reason.
4. Delivery and Payment.
(a) Delivery. With respect to any Application ordered by Client, delivery of such Application occurs upon Vendor’s provision of a user identification and password for access to such Application.
(b) General Payment Terms. The license granted to Client under these Services Terms is subject to Vendor’s receipt of all annual subscription fee specified on the Order Form (“Annual Subscription Fee”), transaction fees (if any), and any and all other fees specified in these Services Terms when due without offset or deduction of any kind. All fees referred to in these Services Terms are designated and payable in U.S. Dollars and are due and payable 30 days of receipt of Vendor’s invoice and do not include any sales, use, excise and/or other taxes, duties and governmental charges imposed on or with respect to the Licensed Materials, Services, or the transactions contemplated hereunder. All such duties, sales and use taxes and handling fees, whenever imposed, are payable by Client.
(c) Annual Subscription Fee. The first Annual Subscription Fee will be invoiced in full upon execution of the Order Form. All subsequent payments of Annual Subscription Fee are due upon the anniversary of each applicable Subscription Start Date.
(d) Transaction Fees. Client agrees to pay a transaction fee for transactions processed by the Applications during the year that are in excess of the Licensed Transaction Count (designated on the Order Form in the Transaction Fees Table). Such transaction fees are calculated on an annual basis, beginning from the Subscription Start Date for the relevant Application. Transactions in excess of the Licensed Transaction Count during such year will incur additional transaction fees according to the fee per transaction as designated in the Transaction Fees Table. All excess transaction fees will be billed on the last day of each year and are due according to Section 4(b) (General Payment Terms) above.
(e) Services Fees; Expenses. Service billing rates are available only in accordance with the terms specified in any Statement of Work. In addition, Client will reimburse Vendor for all reasonable living and travel expenses and out-of-pocket expenses associated with the provision of such Services incurred in connection with providing Services under these Services Terms, but only if pre-approved in writing by Client. Expenses for local commuting (meaning within reasonable driving distance to Vendor’s offices), local meals, and telephone charges are included in the price for Services and will not be considered for reimbursement. Unless otherwise specified in a mutually agreed document describing the work and associated fees (“Statement of Work”), Vendor will invoice Client monthly, with a detailed accounting for approved expenses incurred.
(f) Overdue Fees. If Client’s account is overdue (except with respect to fees or charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies available to Vendor hereunder or at law or equity, Vendor reserves the right to suspend the Services, without liability to Client, until such undisputed amounts are paid in full, provided that Vendor gives Client 15 days prior written notice of its intention to suspend the Services and Client has failed to bring its account current during such period.
5. Content Support. Client may notify Vendor of any errors or omissions discovered by Client in the Content made available to Client through the Application. Upon notification by Client, Vendor will use commercially reasonable efforts to identify and remedy any such errors or omissions with Content that are verified by Vendor within a reasonable period. Vendor will regularly update Content in accordance with Vendor’s applicable content update matrix, utilizing Vendor’s ISO 9001 certified process. Because Content is sourced from third parties, Vendor does not warrant at any given time that the Content will be up-to-date, accurate, complete, or sufficient to meet Client’s requirements.
(a) Services. Professional services offered by Vendor, such as implementation of Applications, training, computer programming, or retro-fitting any customizations made prior to release of any Updates (“Services”) will be provided to Client on a time and expense basis, subject to this Section and the Statement of Work attached to the Order Form.
(b) Performance. Vendor will use commercially reasonable means to render the Services set forth in the Statement of Work. Subject to the provisions and qualifications in these Services Terms, upon completion of all the Services outlined in the applicable Statement of Work, Vendor warrants that on such date, such finalized Services will have been performed in a skillful manner. Client’s sole and exclusive rights and remedies in connection with the limited warranty contained herein is limited to Vendor correcting the defective Services. It is expressly understood and agreed that there are no warranties which extend beyond the description of the express terms in this Section. The foregoing warranties are exclusive and in lieu of all other warranties, express, implied, or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and any warranties arising from course of performance, course of dealing and usage of trade.
(c) Client Obligations. Client acknowledges that Client’s timely satisfaction of the following responsibilities and tasks, if required, is essential to the performance of the Services:
(i) Client will make available to Vendor sufficient personnel of Client who are suitably trained in the operation and use of the Computer Systems and Applications. This includes designating a Client Coordinator to interface with Vendor during the course of the Services, allocating and engaging additional resources as may be required to assist Vendor in performing the Services, and providing all necessary review and approval of Services performed and items delivered by Vendor (“Deliverable Items”) under a Statement of Work as required hereunder; and
(ii) Client will provide Vendor with reasonable assistance, cooperation and complete and accurate information and data to enable Vendor to perform and satisfy its obligations and the Services hereunder.
(d) Personnel. Vendor will assign employees with suitable qualifications to perform the Services. While on Client’s premises, Vendor’s employees will comply with all reasonable security practices and procedures generally prescribed by Client, provided Client provides copies of such practices and procedures to Vendor in advance of performance of the Services.
(a) Mutual Warranty. Each party represents and warrants that it has the right and authority to enter into these Services Terms and to perform its obligations hereunder.
(b) Licensed Materials Warranty. Vendor warrants that it is the owner or authorized licensee of the Licensed Materials and has the authority to license the Licensed Materials subject to these Services Terms. Subject to the provisions and qualifications of these Services Terms, Vendor warrants to Client that the Application is designed to operate in substantial conformance with the functionality expressly described in Vendor’s applicable user manuals made available to its customers.
If a defect is discovered from which it is reasonable to conclude that damage, either personal, property, or economic, may result, the continued use of the suspect Application by Client will constitute an assumption of risk and a bar to any recovery against Vendor.
Vendor has no liability on account of any Maintenance Exclusions.
Client’s sole and exclusive rights and remedies in connection with the limited warranty contained in this Section 7(b) (Licensed Materials Warranty) are limited to the rights and remedies expressly set forth in Section 7(c) (Limitation of Remedies). It is expressly understood and agreed that there are no warranties which extend beyond the description of the express terms of Section 7(b) and, with respect to intellectual property Infringement, Section 8. The express warranties set forth in Section 7(b) and Section 8 (Infringement) are exclusive and in lieu of all other warranties, express, implied, or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and any warranties arising from course of performance, course of dealing and usage of trade.
Unless a statement is specifically identified in these Services Terms as a warranty, the statements herein relating to the Licensed Materials are not express warranties and do not form a part of the basis of the bargain but are merely Vendor’s opinion or commendation of the Licensed Materials. Any description of the Licensed Materials contained in any and all brochures, pamphlets or other literature of Vendor, including, without limitation, on Vendor’s website, whether delivered before or after the date hereof, are not intended to be warranties.
(c) Limitation of Remedies. Vendor’s sole and exclusive obligation and liability with respect to (i) any breach of warranty, express or implied, (ii) defects in Licensed Materials, non-conformities of the Licensed Materials, and/or (iii) other breaches of any obligation or duty owed by Vendor hereunder or under applicable law, and Client’s sole and exclusive rights and remedies with respect thereto, are limited to the provision of Maintenance by Vendor of any Application licensed to Client which may prove to be defective within the warranty period, Vendor will provide such Maintenance free of charge to Client during the warranty period.
If after a reasonable number of attempts by Vendor to remedy a breach of warranty and such remedy fails of its essential purpose, or if Maintenance is not appropriate or practical as determined by Vendor using its current support guidelines, Client will, at its option, receive either a credit or refund of the unused pro-rata portion of the most recent Annual Subscription Fee paid by Client and received by Vendor for the defective Application, measured from the date the breach of warranty was reported to Vendor by Client. The foregoing remedies are Client’s sole and exclusive remedies.
(a) All Applications licensed to Client pursuant hereto are free of any claim that such Application infringes a registered proprietary right of a third party.
(b) Subject to the provisions of Section 14 (Limitation of Liability), during the applicable Subscription Term, Vendor will defend and indemnify Client against a third party claim that an Application licensed pursuant hereto infringes a registered proprietary right, provided (i) Client promptly notifies Vendor in writing after the claim is asserted and provides Vendor with all pleadings, evidence and other documents in Client’s possession or control relating to such claim, (ii) Vendor has sole control of the defense and settlement negotiations and the unilateral right to settle such claim on terms satisfactory to Vendor as long as no liability is admitted on behalf of Client, and (iii) Client provides Vendor with reasonable assistance, information and authority necessary for Vendor to perform its obligations and exercise its rights under this Section. Included in the foregoing, Vendor’s obligations are deemed to be satisfied if Vendor, at its option (i) obtains a license for Client to continue to use the infringing Application, (ii) replaces or modifies the infringing Application with a functionally similar application that is non-infringing, or (iii) refunds the most recent Annual Subscription Fee paid by Client to Vendor for such infringing Application, and accordingly, these Services Terms will automatically terminate.
(c) Vendor has no liability under this Section for infringements or alleged infringements resulting from (i) the combination by Client of any Licensed Material with any other product not supplied by Vendor, (ii) the use of Licensed Materials in a manner for which they were not programmed or designed, or (iii) modifications made to Licensed Materials by any Person other than Vendor.
This Section states the entire liability of Vendor and Client’s sole and exclusive right and remedy for any type of infringement and breach of representation or warranties specified in this Section and is in lieu of all other intellectual property warranties and obligations, express or implied.
9. Maintenance Plan.
(a) General. During the applicable Subscription Term for an Application, Client will automatically be enrolled in Vendor’s maintenance plan which entitles Client to Maintenance, Updates for Applications and the other services stated in this Section (collectively, the “Maintenance Plan”), all subject to the provisions hereof. The Maintenance Plan will only apply to an Application during the applicable Subscription Term for that Application.
(b) Client Designated Staff. Client agrees to establish its own central support location for its end users’ Level One support, through which it will channel all communication and information and update exchanges with Vendor regarding the Applications. “Level One” means the initial support level responsible for basic Client issues relating to logon problems, application questions, data inquiries related to system integrations, and basic functional use. Vendor will provide support under these Services Terms solely through the Client’s Designated Contact for Level Two support. “Level Two” means in-depth technical support requiring product expertise for complex issues that cannot be resolved by Client’s Level One support team. Client is entitled to 1 Designated Contact to contact Vendor for Level Two support. Each Designated Contact is entitled to a Login for the Customer Support Portal. Additional Customer Support Portal seats may be purchased for $95 annually to be pro-rated at the time of the request to the current annual subscription date.
(c) Telephone Support. As part of the Maintenance Plan, during Vendor’s support hours designated below, Vendor will provide to Designated Contact, reasonable telephone consultation relating to the operation and use of Applications for production environments. Off-hours support is available via a call center, with call back response to emergencies.
(d) Customer Support Contact Information and Support Hours. Client will contact Vendor for issues classified as Severity One, Severity Two or Severity Three (defined in subsection (f) below) as follows:
(i) For Severity One issues, support is available 24 x 7 x 365 via telephone support at the telephone numbers published by Vendor at https://www.e2open.com/support; and
(ii) For Severity Two and Severity Three issues, support is available Monday 12:00 AM (Sunday Midnight) through Friday 9:00 PM (Eastern Time Zone) via telephone (link to numbers listed above) or via e-mail to email@example.com.
(e) System Maintenance Period. The time designated for the System Maintenance is from Saturday at 9:00 am until Saturday at 10:00 pm (Eastern Time Zone). “System Maintenance Period” means the time period designated above, during which time access to the Licensed Materials may not be available due to Maintenance, Upgrades, and other Data Center operating requirements. The set times for the System Maintenance Period identified herein may be changed by Vendor with 2 days prior notice to Client, but in no event will such System Maintenance Period be changed to a business day without Client’s prior consent.
(f) Response Goals.
(i) Client should only contact Vendor customer support after initially applying a reasonable internal help process. The Vendor priority assignment guideline classifications and response goals are outlined below:
(A) Severity One (Critical). Issues classified as Severity One are those in which a material function of the Application is either (i) inoperable, (ii) subject to intermittent failures occurring so frequently as to render a material function of the Application as practically inoperable, or (iii) of such a nature that it is having a substantial adverse effect on Client’s business operations, with no workaround available. Severity One issues will be assigned the highest priority within Vendor.
(B) Severity Two (High). Severity Two issues are ones that do not have an immediate impact on Client’s business operations because a workaround is available. The workaround may be labor-intensive or cost-prohibitive over a long period of time and only acceptable for a short term (total duration of 30 days).
(C) Severity Three (Moderate). Severity Three issues are all other issues. Qualified Vendor personnel will initiate a diagnostic process within the next business week following notification by the Designated Contact. After the issue has been diagnosed, Vendor will schedule a resolution for delivery under a new release of the Application based on a maintenance plan. Client will be kept informed of Vendor’s efforts as reasonably requested.
(ii) Vendor’s customer support group acts as a shared service for all of Vendor’s customers. Vendor will assign the level of resources that are reasonably required to meet the resolution plans set forth above. Additionally, Vendor will use commercially reasonable efforts to achieve the response goals as outlined below:
(A) Severity One (Critical). Qualified Vendor personnel will initiate a diagnostic process within 1 hour and will work continuously on the issue until a resolution is developed that is designed to produce either a temporary or permanent fix. A Designated Contact will be kept informed of Vendor’s efforts with routine updates. Reasonable efforts will be made to respond to Severity One service requests within 1 hour. Vendor will work continuously until the issue is resolved or until a work-around is identified. The goal is to resolve Severity One cases within 8 hours.
(B) Severity Two (High). Qualified Vendor personnel will initiate a diagnostic process within the next business day and will work during normal business hours on this issue until a resolution is developed that is designed to produce either a temporary or permanent fix. The Designated Contact will be kept informed of Vendor’s efforts as reasonably requested. The goal is to resolve Severity Two cases within 14 days, either via a temporary workaround or permanent solution.
(C) Severity Three (Moderate). Qualified Vendor personnel will initiate a diagnostic process within the next business week. After the issue has been diagnosed, Vendor’s Product Manager will consider the resolution for delivery under a new Update of the Application based on a maintenance plan. Client will be kept informed of Vendor’s efforts as reasonably requested.
(g) Implementation Updates. Implementing Updates is not included in the Annual Subscription Fee. If Client requires assistance in implementing any Updates, or to retrofit the Update for any customizations made to a prior release or to Vendor’s older versions of the Application, such assistance will be provided by Vendor under a Statement of Work.
(h) Waiver of Vendor’s Obligations. Notwithstanding anything to the contrary contained herein, Vendor has no obligation to provide Maintenance, Updates, telephone support, or Content support under Section 5 (Content Support) for an Application that is subject to any Maintenance Exclusions.
10. Client Data, Data Center & Security.
(a) Client will provide the Client Data to Vendor in computer-readable media per Vendor’s instructions so that Vendor can load the Client Data to the Data Center. Client is responsible for configuration of the Application, user and password administration, data migration, training, and other implementation activities unless Client engages Vendor to perform any of these services under a Statement of Work. All telecommunication connections and Computer Systems on Client’s side of the Service Demarcation Point will be the responsibility of Client.
(b) Vendor will install the Application, loading of Content, and loading of Client Data in the Data Center. The Data Center will also include a high-speed connection to the Internet with sufficient capacity to meet the needs of Client using the Application under normal conditions.
(c) Vendor will maintain a comprehensive data security and business continuity plan which summarizes the physical, technical, and organizational security measures taken by Vendor, that are designed to protect against the destruction, loss, unauthorized access, or alteration of information and data in the possession of Vendor. The security and continuity plan has been designed to comply in all material respects with all laws and regulations applicable to Vendor. The processes and systems used by Vendor to perform its obligations under these Services Terms will be independently assessed at least every 18 months under SSAE 16 SOC 2 Type 2 and under penetration testing.
11. Availability & Service Level Agreement. Vendor will use commercially reasonable efforts to provide System Availability for such Application to Client in accordance with this Section. “System Availability” means the availability of the Licensed Materials at the Service Demarcation Point during a calendar month for 1,440 minutes per day for each day in such calendar month. Vendor will provide Client with System Availability for Applications in production environments, which is equal to or greater than the availability target of 99%. Should such System Availability fall below 99% in any given calendar month, then Client’s sole and exclusive remedy is a service level agreement credit (“SLA Credit”) relating to the portion of the Annual Subscription Fee for the affected Application for that calendar month. This SLA Credit will be calculated, issued, and applied to the Client invoice covering the affected calendar month as follows:
The SLA Credit equals the portion of the Annual Subscription Fee for the affected Application for that particular month multiplied by the Applicable Credit Percentage as listed in the following table:
|Equal to or Above Availability Target of 99%:
||Due as Invoiced
|Below Availability Target
|Actual Availability Percentage
||Applicable Credit Percentage
|97.0% to Availability Target
|95.0% to 96.99%
|90.0% to 94.99%
|85.0% to 89.99%
(a) Confidential Information. As used in these Services Terms, “Confidential Information” means: (i) all information furnished or made available in tangible form or electronic record directly or indirectly by one party (each, a “Disclosing Party”) to the other party (each, a “Receiving Party”), in connection with these Services Terms, which is marked confidential, restricted, proprietary, or with a similar designation, (ii) the specific business terms of these Services Terms, (iii) all Applications, Content, Licensed Materials, specifications, designs, documentation, and other similar materials and work products provided by either party to the other during the Term, and (iv) other information or data communicated orally or visually by the Disclosing Party to the Receiving Party or stored in electronic form which is transmitted by the Disclosing Party to or accessed by the Receiving Party in connection with these Services Terms that the Receiving Party should reasonably know is restricted, proprietary or confidential, including information concerning the operations, affairs, and businesses of the Disclosing Party.
(b) Obligations. The Receiving Party will use the Disclosing Party’s Confidential Information only in accordance with the Receiving Party’s rights and obligations under these Services Terms. The Receiving Party will use at least the same degree of care as it employs to avoid unauthorized use or disclosure of its own information of a similar nature, but in any event no less than reasonable care, to prevent unauthorized use or disclosure of the Confidential Information of the Disclosing Party. The Receiving Party may disclose such Confidential Information to its employees, affiliates, consultants, auditors, attorneys, authorized agents, or subcontractors (collectively, “Representatives”) on a need to know basis subject to the provisions of this Section. Receiving Party will inform such Representatives of the confidential nature of the Confidential Information, and the obligations assumed hereunder, and the Receiving Party’s Representatives will only be given access to same if they consent to abide by such obligations. Each Receiving Party is responsible for ensuring that its employees and other Representatives comply with these confidentiality provisions.
(c) Exclusions. The provisions of this Section will not apply to any particular information of the Disclosing Party which the Receiving Party can prove (i) was, at the time of disclosure to it, known to the general public other than as a result of the improper act, omission, or fault of the Receiving Party or its Representatives, (ii) after disclosure to it, is published or otherwise becomes known to the general public other than as a result of the improper act, omission, or fault of the Receiving Party or its Representatives, (iii) was in the possession of the Receiving Party at the time of disclosure to it and not subject to a duty of confidentiality, (iv) was received after disclosure to it from a third party who had a lawful right to disclose such information to it without any obligation to restrict its further use or disclosure, or (v) was independently developed by the Receiving Party or its Representatives without reference or access to any Confidential Information of the Disclosing Party. For purposes of the immediately preceding sentence, aggregated information is not “known to the general public” merely because the individual elements of such aggregated information are known to the general public. In addition, the Receiving Party will not be considered to have breached its obligations by disclosing Confidential Information of the Disclosing Party as required to satisfy any legal requirement of a court of competent jurisdiction, provided that promptly upon receiving any such judicial request and to the extent that it may legally do so, such Receiving Party provides prompt written notice of such judicial request to the Disclosing Party prior to making such disclosure, so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Section. If such protective order or remedy is not obtained, or the Disclosing Party waives compliance with this Section, the Receiving Party agrees to furnish only the minimum portion of the Confidential Information legally required.
(d) Return or Destruction. As requested by a Disclosing Party during the term of these Services Terms, and immediately upon expiration or any termination of these Services Terms, the Receiving Party will cease using the Confidential Information of the Disclosing Party and at the Disclosing Party’s option will return or destroy Disclosing Party’s Confidential Information, and the Receiving Party will provide Disclosing Party with a written certification certifying the destruction of such Confidential Information.
(e) No Implied Rights. Nothing contained in this Section will be construed as obligating a party to disclose its Confidential Information to the other, or as granting to or conferring on a party, expressly or impliedly, any right, license, title or interest in and to the Confidential Information of the other party or any products or processes encompassed thereby or improvements or developments thereof or intellectual property rights thereto. The Receiving Party acknowledges and agrees that the Confidential Information of the Disclosing Party is proprietary to and is the sole and exclusive property of the Disclosing Party.
(f) Trade Secrets. Client acknowledges that the Licensed Materials are trade secrets and are not readily accessible to competitors of Vendor and that such Licensed Materials have been acquired and assembled at significant expenditures of time and other resources. Client additionally acknowledges Vendor has taken and is taking all reasonable precautions to protect its secrecy using reasonable security measures. All trade secrets of Vendor are deemed Confidential Information.
13. Proprietary Rights.
(a) As used herein, “Proprietary Rights” means all right, title or interest of a party in and to inventions, discoveries, patents, trademarks, domain names, design rights, copyrights, database rights, know-how, trade or business names, trade secrets, goodwill, and other similar intellectual property rights (in each case whether or not registered or registerable and including all applications for any registerable rights) throughout the world, for the full duration of such rights. Except for the explicit license granted under Section 2 (License) of these Services Terms, (i) Vendor owns and retains ownership in the entire right, title and interest in and to the Licensed Materials and all Proprietary Rights embodied therein or any products or processes encompassed thereby or improvements or developments thereof, conceived, created and/or developed, alone or with Client or others, and (ii) nothing in these Services Terms will explicitly or implicitly restrict, impair, transfer, license, convey or otherwise alter or deprive Vendor of any of its Proprietary Rights, or the rights, title, or interest in or to any Application, Content, data, information or any other materials or rights, tangible or intangible, including, but not limited to, the Licensed Materials. Client will not, directly or through any third party, use any Confidential Information to create, modify or enhance any computer software, program or user documentation that is substantially similar to any computer software, program or user documentation or any other Licensed Material or service provided by Vendor. Client will not copy or reverse-engineer, reverse-compile, or unlock any of the Licensed Materials without the prior written consent of Vendor.
(b) Work Product. Client agrees that all Work Product (as defined below) are the exclusive property of Vendor, and Client assigns all its rights in and to the Work Product and in all related patents, patent applications, copyrights, mask work rights, trademarks, trade secrets, rights of priority and other Proprietary Rights to Vendor. As used herein, the term “Work Product” means all materials, software, tools, data (excluding confidential and proprietary data of Client), inventions, works of authorship and other innovations of any kind, including, without limitation, any Deliverable Items and any improvements or modifications to Vendor proprietary computer software programs and related materials, that Vendor, or personnel working for or through Vendor, may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing the Services or as a result of such Services.
(c) License of Work Product. Subject to Client’s performance of its obligations hereunder (including full payment of all undisputed billed amounts hereunder) and upon completion of the entire Statement of Work, Vendor will grant to Client a worldwide, non-exclusive, non-transferable license to use, within Client’s enterprise only, the Work Product subject to such Statement of Work, solely for Client’s internal business purposes during the Subscription Term. Client will not, without the written consent of Vendor, (i) decompile, disassemble or otherwise reverse engineer the Work Product or any portion thereof, (ii) rent, lease, sublicense, sell, transfer or otherwise grant rights in or to the Work Product (in whole or in part) to any third party in any form, or (iii) use the Work Product for third-party training, commercial time-sharing or service bureau use. This license will terminate when the applicable Subscription Term expires or terminates.
(d) Reservation of Rights. Except as otherwise provided herein, nothing in these Services Terms is deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other Proprietary Rights, and each party retains all right, title and interest in and to their respective technologies and other Proprietary Rights.
14. Limitation of Liability. Neither party is liable to the other or any other person for any consequential, exemplary, incidental, indirect, punitive, or special damages, cover damages or lost profits, or damages relating to or resulting from business interruption, downtime, lack of system availability, loss of goodwill, lost or compromised data, or other cause, directly or indirectly resulting from, relating to, or arising out of these Services Terms, or the transactions contemplated hereby, regardless of whether the liability resulted from any general or particular requirement or need which a party knew or should have known of and regardless of whether the claim in question is based on warranty, contract, negligence, strict product liability, tort or otherwise. If any term of these Services Terms is found unconscionable or unenforceable for any reason, or any exclusive remedy fails of its essential purpose, this provision of waiver by agreement of consequential damages will nevertheless continue in full force and effect. The foregoing limitation of damages contained in this Section will not apply to any claims arising out of, relating to, or resulting from the violation of the Confidentiality (Section 12) or Proprietary Rights (Section 13) of a party or Client’s obligation to pay Vendor the fees specified in these Services Terms.
The maximum aggregate liability of Vendor arising out of or relating to these Services Terms, or the transactions contemplated hereby, will not exceed the fees set out in the relevant Order Form actually collected by Vendor, regardless if the claim in question is based on warranty, contract, negligence, strict product liability, tort or otherwise.
15. Term and Termination.
(a) Term. Unless earlier terminated pursuant to Section 15(d) (Termination for Breach), the term of these Services Terms will commence on the earliest Subscription Start Date and will expire on the termination of the last Subscription Term pursuant to Section 15(c) (Termination).
(b) Subscription Term. With respect to each Licensed Material, the “Subscription Term” will commence on the Subscription Start Date for the Licensed Material in question and continue for the duration of the Initial Term; thereafter, the term of each such subscription will renew as set forth in the Order Form (each a “Renewal Term”) unless terminated pursuant to Section 15(c) or 15(d).
(c) Termination. Each Subscription Term may be terminated at the end of the applicable Initial Term or any then-current Renewal Term by either party by providing written notice of termination to the other party at least 90 days prior to the end of the applicable Initial Term or any then-current Renewal Term. If a Statement of Work is terminated, Client is liable to and will pay Vendor for all fees owing for all work and Services performed pursuant to such Statement of Work and for all reimbursable costs and expenses incurred through the date of termination. Client’s payment obligations accruing prior to termination of these Services Terms will survive termination of these Services Terms.
(d) Termination for Breach. If a material breach of these Services Terms is not cured by the breaching party within 30 days of breaching party’s receipt of written notice from the non-breaching party, the non-breaching party may, in its sole discretion, terminate these Services Terms. A termination under this Section 15(d) will terminate all Subscription Terms under these Services Terms. If such termination occurs due to a material breach by Client, Client agrees to pay all fees which would otherwise be due through the applicable Subscription Terms.
(e) Immediate Termination. Either party may terminate these Services Terms, effective immediately upon delivery of written notice to the other party, if the other party (i) is unable to pay its debts as they mature or admits in writing its inability to pay its debts as they mature, (ii) makes a general assignment for the benefit of creditors, (iii) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy, (iv) applies for the appointment of a receiver or trustee for substantially all of its assets or permits the assignment of any such receiver or trustee who is not discharged within a period of 30 days after such appointment, or (v) otherwise ceases to actively conduct its business. If any of the above events occurs with regards to a party, that party will immediately notify the other party in writing of its occurrence.
(f) Return of Client Data. Upon termination of these Services Terms, Vendor will backup Client Data from the Data Center onto computer-readable media in a non-proprietary table or delimited format determined by Vendor, and upon Client’s full payment of all fees and expenses due under these Services Terms, Vendor will promptly deliver the backup to Client.
(a) Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Texas, USA, without regard to its conflicts of laws principles. These Services Terms will not be governed by the provisions of the U.N. Convention on Contracts for the International Sale of Goods. To the extent a dispute arises from the interpretation or enforcement of Vendor’s or its licensors’ patents, trademarks, copyrights, confidential information, or other proprietary rights, U.S. federal law will apply.
(b) Dispute Resolution. The parties will attempt to settle any dispute between them amicably and agree to exercise reasonable commercial efforts to resolve the controversy or dispute prior to seeking resolution by arbitration. To invoke the dispute resolution process, the invoking party will give to the other party written notice of its decision to do so (“Dispute Notice”), including a description of the issues subject to the controversy or dispute and a proposed resolution thereof. Designated representatives of both parties with the closest responsibility for implementing the Licensed Materials will attempt to resolve the controversy or dispute within 30 days after delivery of the Dispute Notice.
If despite the good faith efforts of the parties, the dispute has not been resolved within 30 days after delivery of the applicable Dispute Notice, the dispute will, in lieu of having such dispute decided in a court of law, be settled by binding arbitration in accordance with the United States Arbitration Act and administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Unless otherwise mutually agreed, the arbitration proceedings will be heard by 1 arbitrator to be selected in accordance with the rules in New York County, New York. The place of the arbitration will be in New York, New York. Subject to Section 14 (Limitation of Liability), the successful party will be entitled to be awarded all costs, including reasonable attorney’s fees, paid or incurred by such prevailing party during the arbitration proceedings. In any arbitration initiated hereunder, the arbitrator’s award will not include damages precluded, in type and amount, by Section 14, except as may be required by applicable statute and then only to the extent such requirement cannot, as a matter of law, be waived. However, the limitation of damages stated in the immediately preceding sentence will not apply to an award of damages for breach of Sections 12 (Confidentiality) or 13 (Proprietary Rights). Except as required by law, neither party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of Vendor and Client.
Notwithstanding anything to the contrary contained herein, neither party is required to mediate or arbitrate and may seek immediate judicial resolution for all disputes involving a party’s breach of any of the provisions of Sections 12 (Confidentiality) or 13 (Proprietary Rights). Any such action may be brought in a federal or state court located in the State of New York, County of New York. This Section will not be construed to prevent a party from instituting, at any time, including before or during the dispute resolution process, (i) formal proceedings to avoid the expiration of any applicable statute of limitations period, (ii) claims for injunctive relief, or (iii) proceedings to preserve a superior position with respect to other creditors.
(c) Foreign Trade Restrictions. Client will not directly or indirectly remove or export from the United States, any information or items, including without limitation the Licensed Materials and Vendor’s Confidential Information, except in compliance with, and with all licenses and approvals required under, applicable United States and foreign export laws and regulations, including, without limitation, those of the U.S. Department of Commerce.
(d) Assignment. Neither party will assign any of its rights or delegate any of its duties under these Services Terms (by operation of law or otherwise) without the prior written consent of the other party. Any attempted assignment, transfer or delegation without such consent is null and void and without legal force and effect. Vendor will, in its sole discretion, have the right to assign all or part of its rights and obligations to (i) any entity controlling, controlled by, or under common control with Vendor, or (ii) a successor or purchaser in the event of a future disposition by Vendor (whether direct or indirect, by sale of assets or stock, merger, consolidation, or otherwise) of all or substantially all of Vendor’s business or assets.
(e) Notices. Any notice, request, demand or other communication permitted or required to be given under these Services Terms will be in writing and is deemed to have been duly given, made and received 1 day following the day when deposited for overnight delivery to the intended party with a reputable, established overnight courier service that regularly maintains records of its pick-ups and deliveries, or 3 days following the date when deposited with the United States Postal Service as registered or certified mail, postage prepaid, return receipt requested, in each case to the address of such party as set forth above. Either party may from time to time change its address for receipt of notices and other communications by giving the other party notice of the change pursuant to this Section.
(f) Severability. Any provision of these Services Terms that is held to be invalid by a court of competent jurisdiction will be severed from these Services Terms, and the remaining provisions will remain in full force and effect.
(g) Force Majeure. Except for the payment of monies due hereunder, neither party is liable to the other party for failure or delay in fulfilling its obligations under these Services Terms to the extent that such failure or delay is due to a force majeure event, whether foreseen or unforeseen, including, without limitation, interruption of transportation, delays in delivery, governmental regulation, labor disputes, strikes, acts of God, wars, terrorism, acts of public enemy, civil disturbance, interfacing with Computer Systems, telecommunication errors occurring outside of the Service Demarcation Point, or any other causes beyond its reasonable control. However, the delayed party will use its commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must (i) notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section 16(g) and (ii) inform the other party of its plans to resume performance.
(h) Waiver. Failure or delay by either party to enforce compliance with any term or condition of these Services Terms will not constitute a waiver of such term or condition.
(i) Entire Agreement. These Services Terms and all exhibits thereto constitutes the entire agreement between the parties about the subject matter of these Services Terms and supersedes all previous oral or written agreements, amendments, understandings and communications between the parties with respect to such subject matter. Neither the course of conduct between the parties nor trade usage will modify or alter these Services Terms. If Client issues a purchase order or other similar writing addressing the subject matter of these Services Terms, but which contains terms that conflict with or are in addition to these Services Terms, such purchase order or writing is for Client’s internal purposes only and will have no legal force or effect.
(j) Modification. No waiver or modification of any of the provisions hereof is binding unless in writing and signed by duly authorized representatives of the party against whom enforcement is sought.
(k) Independent Contractors. Nothing in these Services Terms is construed to constitute either party as a partner, employee, agent or joint venture of the other: Vendor and Client are contractors independent of one another and each is responsible for the supervision and control of its operations, including without limitation, supervising and controlling its own personnel.
(l) Compliance with Law. Each party will comply with all international, national, state, regional, and local laws and regulations applicable to it in performing its obligations and/or services hereunder.
(m) Costs and Expenses. Except as is expressly provided herein or agreed to in writing by the parties, Client will pay all costs and expenses incurred in the performance of Client’s obligations under these Services Terms. Client will pay all costs (including reasonable attorneys’ fees and expenses and court costs) incurred by Vendor in enforcing the payment obligations of Client hereunder, and Vendor may charge interest on late payments of 1% per month or the maximum permitted by law, whichever is less.
(n) Publicity. Neither party will issue any press release or engage in any other promotional activities making reference to the other party without obtaining such other party’s prior written approval, provided, that either party may at any time reiterate any information contained in any jointly issued or previously approved press release or promotional material.
(p) Headings. Headings and captions used in these Services Terms are for convenience of reference only and will not be used in the interpretation of these Services Terms. Words used in the singular may import the plural and vice versa.
(q) Survival. Rights and obligations accruing prior to termination of these Services Terms will survive termination of these Services Terms. Sections 12 (Confidentiality), 13 (Proprietary Rights, 15(c) (Termination), and 16 (General) will survive the termination or expiration of these Services Terms for any reason. Without granting any right or license, the obligations of Section 12 will continue with respect to any Confidential Information disclosed pursuant to these Services Terms during any Subscription Term hereunder, and, notwithstanding any expiration or termination of these Services Terms, the obligations of Section 12 will survive and continue with respect to Confidential Information disclosed by the Disclosing Party until at least one of the exclusions of Section 12(c) (Exclusions) are applicable with respect to such Confidential Information.