Software Subscription Terms
These Software Subscription Terms (“Terms”) and the order form to which they are attached or incorporated (the “Order Form”, and collectively with the Terms this “Agreement”) are effective as of the date that the Order Form is fully executed (the “Effective Date”). This Agreement is by and between Fynancial, LLC (“Provider”) and the customer described and identified on the Order Form (“Customer”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
The Parties agree as follows:
1. Definitions.
(a) “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
(b) “Authorized End User” means Customer’s end-users that access or use end-user facing portions of the Software Services (i) who are configured by Customer to be an end-user of the Software Services and (ii) for whom access to the Services has been purchased hereunder.
(c) “Customer Data” means, other than Platform Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or a User through the Services.
(d) “Documentation” means Provider’s end user documentation relating to the Services and made available by Provider from time to time.
(e) “Implementation Services” means Provider’s additional support beyond the Support Services, and may include professional services related to training and use of the Software Services, implementation of the Software Services with Customer’s existing technology, configuration and customization of the Software Services, and other services as set forth in an Order Form.
(f) “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Platform Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
(g) “Services” means the Software Services, Support Services, and Implementation Services set forth in one or more Order Forms.
(h) “Software Services” means the software-as-a-service offering described in an Order Form.
(i) “Support Services” means Provider’s standard troubleshooting and support as set forth in Section 4.
(j) “Third-Party Products” means any third-party products provided with, used with, or incorporated into the Services.
(k) “Users” means Authorized Users and Authorized End Users.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Software Services during the Term, solely for use by Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use and ordinary business purposes. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Software Services. The total number of Authorized End Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Software Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Users to: (i) copy, modify, or create derivative works of the Software Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software Services or Documentation, except where expressly permitted by an Order Form; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software Services, in whole or in part; (iv) remove any proprietary notices from the Software Services or Documentation; or (v) use the Software Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer or any User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) any undisputed fees owed to Provider remain unpaid more than 30 days past when due (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Service Suspension.
(f) Platform Data. Notwithstanding anything to the contrary in this Agreement, Provider may collect and compile technical information related to the provision and operation of the Software Services, aggregated statistics, anonymized data, de-identified data, and other similarly obfuscated data (“Platform Data”) related to or arising from Customer’s use of the Services. As between Provider and Customer, all right, title, and interest in Platform Data, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Platform Data based on Customer Data provided to the Services. Customer agrees that Provider may (i) make Platform Data publicly available in compliance with applicable law, and (ii) use Platform Data to the extent and in the manner permitted under applicable law, including for commercial, research, and other business purposes; provided that such Platform Data does not identify Customer or Customer’s Confidential Information and cannot be reasonably combined with or viewed in context of other data in order to identify Customer or Customer’s Confidential Information.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Software Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Users aware of this Agreement’s provisions as applicable to such User’s use of the Services, and shall cause Users to comply with such provisions.
(b) Additional Terms. Use of the Software Services by Users is subject to additional terms and conditions that apply to Users individually (“Terms of Use”), and such Terms of Use will not in any way limit Customer’s obligations or liabilities in this Section 3 or elsewhere in this Agreement. Use of the Software Services by Customer’s Authorized Users is subject to Terms of Use between Provider and such Authorized Users, and such Terms of Use are viewable and available via the Authorized User facing portions of the Software Services, and may be provided to Customer upon request. Use of the Software Services by Customer’s Authorized End Users is subject to Terms of Use between Provider and such Authorized End User (“End User Terms”), and Customer agrees that such End User Terms will (i) include at least the the minimum end-user terms attached hereto as Exhibit A (“Minimum Terms”), and (ii) will be accepted by each Authorized End User prior to their use of the Software Services. Customer shall ensure that all Users are aware of (a) this Agreement’s provisions as applicable to Users of the Software Services, and (b) the Terms of Use and their applicability to Users of the Software Services, and shall ensure that Users comply with such provisions of this Agreement and the Terms of Use.
(c) Third-Party Products. Provider may from time to time make Third-Party Products available to Customer, or may permit integration or use of the Software Services with Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. Use of the Software Services with Third-Party Products is at Customer’s sole liability and risk. For purposes of integration or use with Third-Party Products the Software Services are provided “AS IS” and Provider disclaims any and all warranty, responsibility, and liability for Customer’s use or integration of the Software Services with any Third-Party Products.
(d) Compliance. Customer acknowledges and agrees that it is Customer’s responsibility to ensure that Customer’s and its Users’ use of the Software Services, as well as any related practices, complies with all applicable law and with industry standards generally applicable to companies and service providers within Customer’s industry, including at least any regulatory compliance standards or levels, record keeping requirements, data retention requirements. Provider does not and cannot warrant that the Software Services will at all times comply with all applicable law and standards, and Provider expressly disclaims any such warranty or liability for the same. Should Customer determine that its use of the Software Services is not in compliance with any such requirements, Customer will promptly notify Provider in writing, including a description of the non-compliance. Where Provider determines, in its sole discretion, that changes to the Software Services will address such non-compliance, Provider will use commercially reasonable efforts to modify the Software Services at no additional cost to Customer.
4. Availability and Support.
(a) Availability. Subject to the terms and conditions of this Agreement, Provider shall use all commercially reasonable efforts to make the Software Services available to Customer at all times, subject to (i) planned unavailability for maintenance or due to a Service Suspension, and (ii) unavailability due to events or circumstances beyond Provider’s reasonable control. Since the Software Services operate using computer equipment, computer software programs, and the internet, Provider shall not be responsible for delays or service interruptions attributable to causes beyond its reasonable control, including, without limitation, limitations on the availability of telephone transmission lines and facilities, failures of other communications equipment, Internet access delays or failures, failures or deficiencies of Customer’s equipment including Customer’s virtual machine, or Customer’s failure to meet its responsibilities under this Agreement. Provider will maintain adequate back-up arrangements and equipment in order to maintain Customer Data stored on or through the Software Services in the event of the failure of any of Provider’s equipment. Service interruptions for maintenance and system upgrades will be scheduled, to the extent reasonably practicable, to minimize interference with Customer’s daytime business activities. For unscheduled service interruptions attributable to causes within Provider’s reasonable control, as Provider’s sole obligation and Customer’s exclusive remedy, Provider shall make all commercially reasonable efforts to restore the Software Services.
(b) Support Services. The access rights granted hereunder entitle Customer to the following Support Services described in this Section. Customer will receive a dedicated Client Success Manager (“CSM”) that will serve the Customer as the main point of contact. The CSM will be available Monday – Friday from 9:00 AM ET through 5:00 PM ET, excluding federal and other holidays. CSM response time goal is to provide a response within 24 hours of customer support request. Customer may request live support via phone or video conference and, where Provider determines in its sole discretion that live support is appropriate, Provider will coordinate with Customer to schedule live support at a mutually agreeable time. Any trouble shooting/diligence request can also be brought to the CSM, and once evaluated, CSM will submit service ticket to Provider’s Development Team.
(c) Implementation Services. Customer may request additional support in the form of Implementation Services in writing. Provider may, at its sole discretion, provide Implementation Services to Customer on a time and materials basis, or as otherwise provided in an Order Form. Provider will have no obligation to provide Implementation Services requested by Customer unless documented in an Order Form.
(d) Transition Support. In the event of the termination or expiration of an Order Form under which Customer is receiving Software Services, Provider may immediately disable or limit certain features of the Software Services. Provider will preserve Customer Data stored by the Software Services for a period of up to 90 days (the “Transition Period”), and during that Transition Period will provide Customer commercially reasonable assistance in accessing, downloading or receiving copies of the Customer Data. If the applicable Order Form is terminated by Provider as a result of Customer’s material breach, the length of the Transition Period shall be reduced to 15 days.
5. Fees and Payment.
(a) Fees. Customer shall pay Provider the fees (“Fees”) as set forth in the Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. Unless otherwise provided in an Order Form, all Fees will be due and paid to Provider within 15 days of the date that they become due. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend Customer’s and its Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
(c) Payment Method. Where an Order Form includes Software Services, Customer may provide a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through a third party (a “Payment Method”). Customer hereby grants Provider the permission to use Customer’s Payment Method for completion of any payments associated with the Software Services, and to provide Customer’s Payment Method to a third-party for completion of any payments associated with the Software Services as may be needed. Customer agrees that Provider and its third-party payment processors may use Customer’s Payment Method both for any current Software Services, as well as for any subsequent addition or renewal term of any Software Services. The fees and any other charges Customer may incur in connection with Customer’s use of the Software Services, such as taxes and possible transaction fees, will be charged to Customer’s Payment Method on the date(s) indicated on the Order Form. If Customer’s Payment Method is provided through a third party, additional details related to Customer’s Payment Method and the payment of fees may be available from the applicable third party. Customer authorizes Provider to charge any Payment Method associated with Customer’s account. Customer can update Customer’s Payment Methods by contacting Provider. Following any update to Customer’s Payment Methods, Customer authorizes Provider to continue to charge any newly added or modified Payment Methods.
6. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer.
(c) Feedback and Additional Rights. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback. Further, Customer hereby grants to Provider a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Platform Data.
8. Limited Warranty and Warranty Disclaimer.
(a) Software Services Warranty. Provider warrants that the Software Services will conform in all material respects to the specifications, Documentation, and availability obligations set forth herein when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Software Services except as expressly provided. As Customer’s sole remedy and Provider’s sole liability for any non-conformity with the preceding warranty, Provider will use all commercially reasonably efforts, at no additional cost to Customer, to promptly restore availability of the Software Services or correct other deficiencies of the Software Services. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. PROVIDER EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL COMPLY WITH ANY APPLICABLE LAW, REGULATION, OR INDUSTRY STANDARD.
(b) Implementation Services Warranty. Provider warrants that the Implementation Services will be performed using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. As Customer’s sole remedy and Provider’s sole liability for any non-conformity with the preceding warranty, Provider will use all commercially reasonably efforts, at no additional cost to Customer, to promptly repair or reperform the Implementation Services at no additional cost to Customer.
(c) Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS SECTION 8, THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software Services, or any use of the Software Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Software Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 9 (a) will not apply to the extent that the alleged infringement arises from: (A) use of the Software Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Software Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, as well as any Third-Party Claims based on Customer’s or any User’s (i) negligence or willful misconduct; (ii) use of the Software Services in a manner not authorized by this Agreement; (iii) use of the Software Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (iv) modifications to the Software Services not made by Provider or at Provider’s instruction; or (v) use of the Software Services not in accordance with applicable law, regulation, or industry standard, as well as any Third-Party Claim arising from any Authorized End User. Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) COST OF REPLACEMENT GOODS OR SERVICES; OR (f) NON-CONFORMITY OF THE SOFTWARE SERVICES WITH ANY APPLICABLE LAW, REGULATION, OR INDUSTRY STANDARD; IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 6 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination.
(a) Term. The term of this Agreement begins on the Effective Date and will continue in effect for as long as the Order Form is active and unexpired (the “Term”). The term of the Order Form will be as set forth on that Order Form (“Order Form Term”). Unless provided otherwise in an Order Form, the Order Form Term will automatically renew for additional successive terms of the same length unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 90 days prior to the expiration of the then-current Order Form Term.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; and
(ii) Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 11(d) and 1, 5, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs:
(i) the Order Form;
(ii) these Terms; and
(iii) any Exhibits or attachments to the Order Form as of the Effective Date.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the commonwealth of Kentucky without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the commonwealth of Kentucky. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of Kentucky in each case located in or near Kenton County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Software Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Software Services 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 such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Software Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
