LLaaS END USER LICENSE AGREEMENT
BY ACCEPTING THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) THROUGH AN ORDERING DOCUMENT WITH DECISIVEDGE, LLC, A DELAWARE LIMITED LIABILITY COMPANY (“DECISIVEDGE”) THAT INCORPORATES THIS AGREEMENT (THE “ORDERING DOCUMENT”), THE SUBSCRIBER (THE “SUBSCRIBER,” AND TOGETHER WITH DECISIVEDGE, THE “PARTIES”) AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
THE TERMS OF ANY ORDERING DOCUMENT SHALL CONTROL OVER ANY CONFLICTING TERMS OF THIS AGREEMENT.
1. USE OF SERVICES
1.1 Use of Services. For so long as Subscriber is current with its payment of the fees specified in the Ordering Document, DecisivEdge will use reasonable efforts to provide the Services (as defined in the Ordering Document) to the Subscriber. DecisivEdge grants to Subscriber a limited, non-exclusive, non¬transferable (except as permitted in Section 8.2) right during the Term (as defined in the Ordering Document) to use the Services solely in connection with Subscriber’s internal business operations. DecisivEdge reserves the right to add, modify or discontinue the Services, or any plan, feature or functionality thereof, in whole or in part, at any time; provided, however, in the event that DecisivEdge discontinues the Services, or any plan, feature or functionality thereof, DecisivEdge shall provide Subscriber with 90-days prior notice of such discontinuation. For the avoidance of doubt, no action taken by DecisivEdge pursuant to the preceding sentence shall constitute a breach of this Agreement.
1.2 Use Restrictions. Except as otherwise expressly provided in this Agreement or as may be expressly required by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease or otherwise permit third parties (other than designated users set forth in the Ordering Document) to use the Services, (b) use the Services to provide services to third parties (e.g., as a service bureau), (c) breach, circumvent, tamper with or disable any security or other technological features or measures of the Services or (d) reverse engineer, modify, adapt, hack or otherwise attempt to discover the underlying structure of the Services. 24-hour prior notification and DecisivEdge’s prior, written approval is required before Subscriber attempts to probe, scan or test the vulnerability of the systems related to the Services, including penetration or load tests. Subscriber is responsible for all activity that occurs under its Services account(s).
1.3 Compliance with Laws. Each of the Parties will comply with all applicable laws and regulations in the performance of their obligations under this Agreement and in connection with the use or provision of the Services.
1.4 Protection Against Unauthorized Use. Subscriber shall be responsible for maintaining the security of its equipment and the Services account access passwords, and will use reasonable efforts to prevent any unauthorized use of the Services and immediately notify DecisivEdge in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by DecisivEdge to prevent or terminate unauthorized use of the Services. In the event of any such unauthorized use, Subscriber shall indemnify and hold harmless DecisivEdge for any and all damages caused by such unauthorized use, and such indemnification shall be in addition to the indemnification provisions set forth in Section 6.
1.5 Reservation of Rights. DecisivEdge reserves to itself all rights in and to the Services not expressly granted to Subscriber under this Agreement.
1.6 Feedback. If Subscriber provides any feedback to DecisivEdge concerning the functionality or performance of the Services (including identifying potential errors and improvements), Subscriber hereby assigns to DecisivEdge all right, title, and interest in and to the feedback, and DecisivEdge is free to use such feedback without payment or restriction.
2. FEES AND PAYMENT
2.1 Fees, Invoicing and Payment Terms. Subscriber will pay DecisivEdge the fees specified in the Ordering Document. Subscriber will pay all amounts due within 15 days of the applicable invoice. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. Any payment (or portion thereof) not received from the Subscriber by the due date shall accrue interest at a rate equal to the lower of 1.5% per month or the maximum rate permitted by law on the outstanding balance. DecisivEdge reserves the right to suspend services until all past due balances are paid in full. Subscriber will be responsible for all taxes associated with the DecisivEdge Services, other than U.S. taxes based on DecisivEdge’s net income. Except as set forth in Section 4.2, all fees are non¬refundable.
3. TERM AND TERMINATION
3.1 Term. This Agreement will commence upon the Effective Date and continue for the Term, unless this Agreement is terminated earlier in accordance with the terms of this Agreement.
3.2 Termination. If either Party breaches a material term of this Agreement and fails to correct the breach within 30 days of written notice thereof, then the breaching party is in default and the non-breaching party may terminate this Agreement. If DecisivEdge ends this Agreement as specified in the preceding sentence, Subscriber shall pay within 30 days all amounts that have accrued prior to such end, as well as all sums remaining unpaid for Services ordered and/or Services received for the specific ordering document(s) under this Agreement, plus related taxes and expenses. Except for non-payment of fees, the non-breaching party may agree, in its sole and absolute discretion, to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach. Subscriber agrees that if Subscriber is in default under this Agreement (including but not limited to a failure to pay all amounts due pursuant to Section 2.1), Subscriber may not use those Services ordered and DecisivEdge shall be permitted to deny or otherwise limit access to the Services.
3.3 Post-Termination Obligations. If this Agreement is terminated for any reason or otherwise expires (a) DecisivEdge will, within 30 days, delete all information uploaded by Subscriber or its users to the Services from its (and its subcontractors’) active and passive instances of the Services, which shall include any archived information, backups and log files (it being expressly agreed, acknowledged and understood that this information cannot be retrieved by Subscriber after such termination or expiration), (b) each Party will remove all of the other party’s Confidential Information (as defined below) from its (and its subcontractors’) systems. For the avoidance of doubt, DecisivEdge shall have no obligation whatsoever to preserve any of Subscriber’s information after the expiration of the 30-day period set forth in the preceding sentence. The provisions of Sections 2.1, 3.3, 4.2, 5, 6, 7 and 8.5 shall survive any termination or expiration of this Agreement.
4. WARRANTIES AND DISCLAIMER
4.1 Warranties. Each Party represents and warrants to the other Party that this Agreement has been duly executed and delivered and constitutes a valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED AS¬ IS AND DECISIVEDGE MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. DECISIVEDGE EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON¬INFRINGEMENT, ACCURACY AND TITLE.
DECISIVEDGE DOES NOT WARRANT THAT THE SERVICES ARE ERROR -FREE OR THAT OPERATION OF THE DECISIVEDGE SERVICES WILL BE UNINTERRUPTED.
FOR ANY BREACH OF THE ABOVE, SUBSCRIBER’S EXCLUSIVE REMEDY, AND DECISIVEDGE’S ENTIRE LIABILITY, SHALL BE: (A) THE CORRECTION OF PROGRAM ERRORS THAT CAUSE BREACH OF THE WARRANTY, OR (B) IF DECISIVEDGE CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, SUBSCRIBER MAY END ITS SUBSCRIPTION. IN NO EVENT SHALL SUBSCRIBER BE ENTITLED TO RECOUP PAYMENTS PREVIOUSLY MADE FOR THE SERVICES.
4.3 Third Party Services. The software and hosting provided as part of the Services are sourced from third parties with whom it has a commercial relationship (each, “Third Party Service Provider”). DecisivEdge cannot warrant that the software and hosting services will be free of errors or service interruptions. DecisivEdge will make commercially reasonable efforts to resolve any issues that may arise from the provider. Subscriber acknowledges and agrees that DecisivEdge is not responsible for any changes to functionality or defect of the software application and its interoperability with the Subscriber’s legacy software or the Services.
5.1 Subscriber Confidential Information. Prior to and during the Term, Subscriber may disclose to DecisivEdge or DecisivEdge may obtain access to, develop or create, proprietary or confidential information, data or material (in whatever form maintained, whether documentary, computerized, electronic, oral or otherwise) concerning or relating to Subscriber’s or its affiliates’, or their respective vendors’, clients’, customers’, consultants’ and/or other third parties’, processes, inventions, know-how, trade secrets, services, products, business plans, marketing, forecasts, financial analyses, methods, information systems, software (including source code, object code and architecture), applications, documentation, designs, databases, data, sales, costs, profits, pricing methods, organization, employees, customers, system accounts, user IDs, passwords, information security, data security and/or general business operations (“Subscriber Confidential Information”).
5.2 DecisivEdge Confidential Information. Pursuant to this Agreement, DecisivEdge may disclose to Subscriber or Subscriber may obtain access to information or material (in whatever form maintained, whether documentary, computerized, electronic, oral or otherwise) concerning or relating to DecisivEdge’s tools, methodologies, algorithms and/or processes, which is identified as “Confidential” or “Proprietary” in writing by DecisivEdge (“DecisivEdge Confidential Information”). Subscriber Confidential Information and DecisivEdge Confidential Information may be referred to collectively or individually herein as “Confidential Information.”
5.3 Non-Use and Non-Disclosure. For purposes of this Agreement, the term “Receiving Party” means a Party that has received, accessed, developed or created Confidential Information of the other Party (a “Disclosing Party”). Except as permitted by this Agreement, a Receiving Party shall not use the Confidential Information of the Disclosing Party except for the purpose of performing its obligations under this Agreement or exercising the rights granted under this Agreement (the “Purpose”). A Receiving Party shall protect all Confidential Information of the Disclosing Party from disclosure and unauthorized use in the same manner that it protects its own proprietary and confidential information of like nature, but in no event shall such standard of care be less than reasonable care. A Receiving Party may disclose Confidential Information of the Disclosing Party but only to its Third Party Service Providers, employees, subcontractors, contractors, directors, advisors, auditors, attorneys and consultants (collectively, “Representatives”) who require such information for the Purpose and who are subject to confidentiality obligations at least as protective as those set forth herein. Except as expressly authorized hereunder, a Receiving Party shall not copy the Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent. A Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of such Disclosing Party’s Confidential Information. In the event that the Disclosing Party’s Confidential Information is required to be disclosed by the Receiving Party pursuant to law, regulation or valid court order, the Receiving Party shall be permitted to make such disclosure; provided, however, that (i) it shall promptly notify the Disclosing Party of that fact in writing to permit the Disclosing Party the reasonable opportunity to appear in any judicial proceeding involved or otherwise act to preserve its rights and (ii) such disclosure is not greater than what was required to be complaint with such law, regulation or order. The foregoing obligations in this Section shall not apply to information which (a) is already in the public domain at the time of the disclosure or later becomes available to the public through no breach of this Agreement by the Receiving Party or its Representatives, (b) is already lawfully in the Receiving Party’s possession at the time of disclosure, without an obligation of confidentiality, as evidenced by the Receiving Party’s business records, (c) is received independently by the Receiving Party from a third party who was free to lawfully disclose such information to the Receiving Party or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as evidenced by the Receiving Party’s business records. Each Party further agrees not to disclose the terms of the Ordering Document to any third party except to the extent that disclosure is necessary to a Party’s directors, advisors, auditors or attorneys.
6.1 Indemnification. Except as otherwise provided for in Section 6.2, each Party shall indemnify, defend and hold harmless the other Party and its affiliates and each of their respective officers, directors, employees, agents and customers (collectively, the “Indemnitees”) from and against any and all claims, losses, damages, costs, expenses (including reasonable attorneys’ fees) and liabilities (collectively, “Claims”), including but not limited to liability as a result of injury to or death of any person or damage to or loss or destruction of any property, resulting in any way from, or arising out of, any negligent act or omission of, or breach of this Agreement by, the indemnifying party. If both parties are negligent or otherwise at fault, then the obligations of indemnification under this Section shall continue, but the indemnifying party shall indemnify the Indemnitees only for the percentage of responsibility for the damage or injury attributable to the action(s) or omission(s) of the indemnifying party. Subject to the foregoing, each Party will have the right to participate in the defense of any Claim at its own expense and with counsel of its own choosing.
6.2 Intellectual Property Indemnification. In addition to the general indemnification obligations set forth in Section 6.1:
(a) DecisivEdge will, at its expense, either defend Subscriber from or settle any Claim alleging that Subscriber’s use of the Services infringes or misappropriates any third party patent, copyright, trade secret, trademark, or other intellectual property right during the Term, and will indemnify and hold harmless Subscriber from all damages and costs finally awarded against Subscriber in any Claim and all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim (other than attorneys’ fees and costs incurred without DecisivEdge’s prior, express written consent); provided that: (x) Subscriber gives DecisivEdge prompt written notice of the Claim; (y) Subscriber grants DecisivEdge full and complete control over the defense and settlement of the Claim; and (z) Subscriber provides assistance in connection with the defense and settlement of the Claim as DecisivEdge may reasonably request. This Section sets forth DecisivEdge’s entire obligations and Subscriber’s exclusive remedy with respect to any infringement, misappropriation or other violation hereunder.
(b) Subscriber will, at its expense, either defend DecisivEdge from or settle any Claim brought against DecisivEdge in connection with Subscriber’s (x) use of the Services by Subscriber for purposes outside the scope of the license granted to Subscriber, (y) Subscriber’s failure to use the Services in accordance with this Agreement or any Other Agreement (as defined below) or (z) modification of the Services not made or authorized in writing by DecisivEdge. For the avoidance of doubt, DecisivEdge shall have no obligation to indemnify Subscriber for any action taken by Subscriber in connection with subsections (x)-(z) of the precedent sentence.
7. LIMITATIONS OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY SUBSCRIBER TO DECISIVEDGE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY.
THE LIMITATIONS HEREUNDER APPLY WITH RESPECT TO ALL LEGAL THEORIES, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THE PROVISIONS OF THIS SECTION REASONABLY ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8.1 Relationship. No agency, partnership, or joint venture is created as a result of this Agreement and neither Party has any authority of any kind to bind the other Party. DecisivEdge may use Subscriber’s name and logo as a reference for marketing or promotional purposes on its website and in other communication with existing or potential customers.
8.2 Assignability; Subcontracting. Neither Party may assign its right, duties and obligations under this Agreement without the other Party’s prior written consent, except that DecisivEdge may assign this Agreement to a successor to all or substantially all of DecisivEdge’s related assets or business. DecisivEdge may utilize a subcontractor other third party to perform its duties under this Agreement so long as DecisivEdge remains responsible for all of its obligations under this Agreement, and DecisivEdge shall have no duty to inform Subscriber of any subcontracting or other third party performance hereunder.
8.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement, with the appropriate postage prepaid. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given 2 business days following the date of mailing or 1 business day following delivery to a courier.
8.4 Force Majeure. Neither Party will be liable for, nor be considered to be in breach of or in default under this Agreement (other than with respect to payment obligations) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including but not limited to denial ¬of ¬service attacks, strikes, shortages, widespread security breaches (e.g., Heartbleed Bug), riots, fires, flood, storm, earthquakes, explosions, acts of God, war, terrorism, or governmental action, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
8.5 Governing Law; Exclusive Jurisdiction. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A. Both parties agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Wilmington, Delaware for the purpose of resolving any dispute relating to this Agreement or the relationship between the parties. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
8.6 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
8.7 Entire Agreement. In the event that DecisivEdge and the Subscriber have entered into any other agreements, including but not limited to any Master Services Agreements or Statements of Work, but expressly excluding any Ordering Document (each, an “Other Agreement”), this Agreement is intended to supersede and replace such Other Agreements, but only in connection with the Services. This Agreement is not intended to, and does not, supersede and replace any other provisions set forth in any Other Agreements. All waivers and modifications to this Agreement must be in a written agreement signed by an authorized agent of both Parties. DecisivEdge will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless DecisivEdge specifically agrees to such provision in writing and signed by an authorized agent of DecisivEdge.