This License and Services Agreement (“Agreement”) serves as a legal agreement by and between Intigua, Inc. (“Licensor”) and the entity which executes an Order Form which incorporates the terms and conditions of this Agreement or accepts the terms and conditions of this Agreement online on Licensor’s website (“Licensee”, “You”, or “Your”) to receive certain licensed software and purchase support and maintenance services related to Licensor’s software. This Agreement describes the terms and conditions that apply to your use of Licensor’s Licensed Software and Services.
You may not access or use the Licensed Software and Services (as defined below) unless you agree to abide by all of the terms and conditions in this Agreement. This Agreement is effective as of the date you entered into an Order Form with Licensor which incorporates this Agreement or accepted this Agreement by clicking “I Agree” on Licensor’s website and accepting the terms and conditions of this Agreement (the “Effective Date”).
For good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows.
- “Confidential Information” includes all nonpublic information disclosed by the disclosing party to the receiving party, or the Parties’ respective officers, directors, employees, agents, subsidiaries, business partners, assigns, or contractors, that is designated as confidential or proprietary, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be considered confidential. At a minimum, Confidential Information shall include, without limitation, (i) the Licensed Software, (ii) information, documents, data, or materials of any type or kind, including, developments, technical data, specifications, designs, ideas, product plans, test information, research and development, personal information, financial information, customer lists, business methods, operations, and marketing programs, in any format, relating to, arising out of, or otherwise connected to any assets, operations, property, technology, inventions, developments, ideas, trade secrets, techniques, expressive works, clients, and/or past, present, and future business of the Licensor, any of its officers, directors, employees, licensees or affiliates, and; (iii) third-party information that Licensor is obligated to keep confidential. The foregoing shall not preclude a party from using or disclosing the same or similar information as the other’s Confidential Information to the extent that it can demonstrate through written documentation that such same or similar information (i) is generally known to the public on the Effective Date; (ii) becomes generally know after the Effective Date other than as a result of an act or omission of the receiving party; (iii) is rightfully known to the receiving party prior to its receipt thereof from the disclosing party; (iv) is or was disclosed by the disclosing party generally without restriction on disclosure; (v) is received by the receiving party lawfully from a third party without breach of any obligation of trust or confidentiality; or (vi) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
- “Content” means files, code, agent packaging, or patches created by third parties, which do not constitute a part of the Licensed Software, and which may be delivered to Licensee.
- “Documentation” means Licensor’s user guides and reference manuals for the Licensed Software in written or electronic format which Licensor makes available to its customers generally.
- “Enterprise Use” means use of or access to Licensed Software, by Licensee, including Licensee’s approved employees, agents, consultants, and contractors (“Users”) engaged by Licensee solely for Licensee’s internal use, or where Licensee is an MSP, solely for the use of the MSP’s end user which has been approved by Licensor. Licensee shall be responsible for ensuring that its Users’ use of the Licensed Software complies with the terms of this Agreement.
- “Hosted Software” means the Licensor’s software hosted by Licensor or Licensor’s contractors and made available to Licensee online.
- “Installed Software” means the Licensor’s software made available to Licensee for download and installation on Licensee’s computers.
- “License Fees” means those amounts specified and set forth in Section 3 of this Agreement and the applicable Order Form.
- “Licensed Software” means Licensor’s Installed Software or Hosted Software, as applicable, and Updates supplied by Licensor (solely in object code form) as specified on the Order Form.
- “Managed Service Provider” or “MSP” means a service provider licensing the Licensed Software for the purpose of providing managed services to MSP’s customers who have been approved by Licensor.
- “New Releases” means any new versions of the Licensed Software provided to Licensee hereunder that offer substantial and new functionality over the prior Licensed Software version. New Releases may be provided for additional fees. If paid for by Licensee, new Releases will become part of the Licensed Software. Notwithstanding the foregoing, New Releases do not include any new or additional software products or modules marketed and priced separately by Licensor or which Licensor does not generally make available to its customers covered under its Maintenance and Support program without additional charge.
- “Order Form” means Licensor’s form, including a quote, for placing orders hereunder, which form is entered into between Licensee and Licensor and identifies the Licensed Software to be ordered by Licensee, including the quantity and access information, as well as whether it is perpetual, subscription or term.
- “Product Specifications” means the technical and performance functions of the Licensed Software.
- “Services” means support and maintenance services with respect to the Licensed Software delivered by Licensor or its agent.
- “Subscription License” or “Term License” means the Licensed Software is licensed only for the period of time set forth in the Order Form. The Subscription or Term License is in combination with the quantity set forth in the Order Form thereby limiting the use of the Licensed Software to such applicable license type for the period of time for the applicable subscription or term. The Subscription or Term License begins on the date the Licensed Software is delivered and continues for the subscription or term specified in the Order Form. The Subscription or Term License will terminate if Licensee fails to comply with any term or condition in this Agreement and Licensee fails to cure the term or condition within thirty (30) days. Licensed Software with a Subscription or Term License may contain a Licensed Software feature that limits Licensed Software usage in accordance with the license.
- “Update” means a set of procedures, service packs, bug fixes, new programming code or patches implemented by Licensor to correct problems in the Licensed Software, or to provide and improve functionality of the Licensed Software, including, but not limited to, any upgrades, modifications, enhancements or fixes to the Licensed Software that Licensor makes generally available to its customers covered under its Maintenance and Support program without additional charge. Updates provided to Licensee will automatically become part of the Licensed Software.
2. LICENSE AND DELIVERY
- Grant of License. Subject to Licensee’s payment of all applicable fees, Licensor hereby grants Licensee a non-transferable, non-exclusive, non-sublicensable (provided that MSPs may sublicense to its customers which have been approved by Licensor), worldwide, limited (in accordance with the license limitations identified as a Term License or Subscription License on the applicable Order Form), license to use the Licensed Software (collectively, “Scope of Use”), solely for Licensee’s Enterprise Use, subject to the license type provided in the Order Form. Licensee may install and use or access the Licensed Software solely as permitted by the license type purchased, which license type is specified in the applicable Order Form and is described in this Agreement. Provided Licensee has paid the annual support and maintenance fees, the rights granted herein include, without any additional payment or increases to the fees paid herein, all Updates. New Releases may be subject to additional fees. In the event that Licensor issues any such Updates or New Releases and Licensee has paid the annual support and maintenance fees, Licensor will provide Licensee with such Updates under the same Scope of Use granted in this Section. Any terms and conditions contained within the Licensed Software shall be null and void. This Agreement confers no title or ownership and is not a sale of any rights in the Licensed Software. All rights not expressly granted to Licensee are reserved solely to Licensor and/or its licensors. Nothing herein should be construed as granting Licensee, by implication, estoppel or otherwise, a license relating to the Licensed Software other than as expressly stated in this Agreement.
- License Restrictions. Licensee shall not: (a) disassemble, reverse engineer, reverse compile, decode, decrypt, or in any way derive source code from the Licensed Software; (b) modify, translate, adapt, alter, or create derivative works from the Licensed Software; or (c) copy, distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Licensed Software; or (d) except as otherwise permitted to MSPs in accordance with Section 2.1, sublicense the Licensed Software to any third party and shall only use the Licensed Software as permitted under this Agreement for its own internal Enterprise Use. Licensee shall not remove or alter any copyright or other proprietary notices affixed to or embedded therein, and shall include such in all copies made by Licensee. Licensee may not use the Licensed Software if this license has been terminated by Licensor.
- Licensor will deliver or grant Licensee with access to the applicable Licensed Software, Updates, New Releases and Documentation in the following methods:
- Installed Software. Licensor will deliver the Installed Software by making it available for download. Licensee may first need to provide Licensor with certain identifying information about Licensee’s system administrator and Licensee may be required to confirm availability or installation of the Installed Software.
- Hosted Software. Licensor will deliver the Hosted Software by providing Licensee online access to it.
- Authorization Codes. During the term of the license, Licensor will provide any passwords, keys and other authorization codes that Licensee needs to access or use the Licensed Software.
- Third Party Products. Licensee acknowledges that the Licensed Software may contain or be accompanied by certain third-party software products (“Third Party Products”), including those detailed either in a “NOTICES” file (or similar file) installed in the Licensed Software’s installation directory, or in such documentation separately conveyed to Licensee. To the extent so stipulated by the license that governs the use of a Third Party Product (“Third Party EULA”), such Third Party Product is subject to its own Third Party EULA, not this Agreement. If, and to the extent, a Third Party EULA requires that this Agreement effectively impose, or incorporate by reference, certain disclaimers, certain provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into this Agreement, as required (and Licensee shall thereby be deemed to have reviewed and agreed to said terms and their according imposition and incorporation), and shall (solely if necessary) supersede any conflicting provision of this Agreement, solely with respect to the corresponding Third Party Product which is governed by such Third Party EULA. If, and to the extent, a Third Party EULA requires that the source code of the Third Party Product it governs, be made available to Licensee, and such source code was not delivered to Licensee with the product, Licensor hereby extends to Licensee a written offer, valid for the period specified in such Third Party EULA, to obtain a copy of the source code of the Third Party Product, from Licensor, to take up this offer, or to request information on Third Party Product, contact Licensor through one of the channels indicated on Licensor’s website. If Licensee does not so choose to take up such offer, Licensee shall be deemed to have received all such information as well as a copy of said source code, as required.
- Audit Rights. For the purpose of verifying compliance with this Agreement and the licenses granted herein, during the term of this Agreement and for one (1) year thereafter, Licensor (and Licensor’s authorized representatives) shall have the right, during normal business hours upon reasonable advance notice, to audit and inspect from time to time Licensee’s offices, books and records relevant to its use and access to the Licensed Software and to observe the use made of the Licensed Software and the manner in which it accessed the Licensed Software. If Licensor’s records pursuant to this Section or otherwise indicate that more Users are accessing the Licensed Software than Licensee has paid for, Licensee shall pay Licensor the shortfall in fees retrospectively to the date of the applicable increase. If such underpayment exceeds five percent (5%) of the fees due during the relevant period, Licensee shall reimburse Licensor for Licensor’s reasonable costs associated with such audit or inspection.
- All License Fees or other fees or amounts, due to the Licensor, shall be payable in full in U.S. dollars within thirty (30) days from receipt of invoice, unless otherwise specified in the Order Form. Licensee shall have no right of offset or withholding under this Agreement.
- Interest on Late Payments. Licensor has the right to charge the Licensee interest on all fees and amounts due to Licensor, after the date such amounts are due and payable according to Licensor’s Order Form. Such amounts shall bear interest at the lesser of one and one half percent (1.5%) per month or the maximum rate of interest allowable by law.
- Licensor’s pricing excludes all applicable federal, state and local sales, use, excise or other taxes or assessments, however designated or levied, relating to this Agreement. Licensee shall be responsible for, and shall promptly pay or reimburse Licensor for, the payment of all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Licensor that is in accordance with the direction or request of Licensee) that are based on or with respect to any Licensed Software or Services or goods provided by Licensor to Licensee, or the amounts payable to Licensor therefore .
- Obligation to Protect Confidential Information. The receiving party shall not (i) disclose any Confidential Information to any third party; (ii) make any use of Confidential Information except to perform its obligations or exercise its rights under this Agreement or any applicable Order Form; or (iii) make Confidential Information available to any of its employees or consultants except those that have signed an agreement containing disclosure and use provisions similar to those set forth herein and have a “need to know” in order to carry out the purpose set forth above. The receiving party shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable care. A party receiving Confidential Information of the other shall protect it as such for three (3) years after the termination of this Agreement, except for Confidential Information that constitute a trade secret, which shall remain confidential indefinitely. A party does not violate its obligations under Section 4 if it provides Confidential Information in response to a court order or other governmental body or is otherwise required to do so by operation of law; provided, however, that the party required to disclose Confidential Information of the other party shall notify the other party as soon as possible after learning of the disclosure obligation and shall cooperate with the other party, at the other party’s expense, in seeking to limit or prevent such disclosure.
- Except as required by law as relates to public and private offerings of securities and compliance with securities law, neither party shall make any press release or other public announcements or disclosures regarding the existence or contents of this Agreement without the express written consent of the other party. If Licensor is required to disclose the Agreement to the government, then before making such disclosure, it shall provide a draft of the proposed disclosure to Licensee with an opinion of counsel as to the need to make the disclosure.
5. LIMITED WARRANTY
- Limited Warranty. DURING THE TERM OF THE AGREEMENT, LICENSOR WARRANTS THAT THE LICENSED SOFTWARE, IN UNMODIFIED FORM AND WHEN USED AS AUTHORIZED BY THIS AGREEMENT, WILL SUBSTANTIALLY CONFORM TO THE PRODUCT SPECIFICATIONS. LICENSOR MAKES NO OTHER WARRANTIES OR REPRESENTATIONS RELATING TO THE LICENSED SOFTWARE, THE SERVICES, OR ITS PERFORMANCE OR WITH RESPECT TO THE DOCUMENTATION. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
- Licensor’s Warranty Obligations; Limitations of Limited Warranty. In the event of breach of the Limited Warranty provided in Section 5.1 of this Agreement, Licensor’s entire liability and Licensee’s exclusive remedy will be, at Licensor’s sole discretion, to either: (i) repair, replace or provide a reasonable workaround for the defective and/or non-conforming portion of the Licensed Software within thirty (30) days after receiving written notice of the breach of the warranty which describes in detail the specific nature of the defect and/or non-conformity or (ii) refund the License Fees paid by Licensee for such Licensed Software on a pro rata basis (after deducting amounts paid for actual use of the Licensed Software by Licensee). The Limited Warranty provided in Section 5.1 of the Agreement does not apply to problems resulting from: (a) improper installation of the Licensed Software by Licensee, or any other party other than the Licensor, or the installation of the Licensed Software on improper hardware; (b) modification of the Licensed Software not undertaken or performed by Licensor; (c) malfunctions in any computer hardware or software or systems files not provided by Licensor; (d) accident of Licensee or at the Licensee’s premises; (e) negligence of Licensee; (f) misuse of the Licensed Software by Licensee; or (g) use of the Licensed Software with data of any entity other than Licensee.
- Services. Licensor covenants that any Services performed for Licensee under this Agreement shall be performed in a professional manner with at least reasonable care.
- Disclaimer. Licensor does not warrant (i) that the Licensed Software will meet Licensee’s requirements; (ii) that operation of the Licensed Software will be uninterrupted; (iii) that the Licensed Software is error free; (iv) that all defects in the Licensed Software will be corrected; or (v) any change or modification of the Licensed Software made by Licensee; provided, however, any change or modification properly made by Licensee in accordance with instructions contained in the Documentation for the Licensed Software shall not void the warranty provided by Licensor herein. Licensor expressly disclaims all warranties with respect to the Content.
6.1 Licensor Indemnity. Licensor shall defend, indemnify, and hold Licensee, and Licensee’s directors, employees, agents, consultants contractors, vendors, and third-party business partners harmless against any third party liabilities, claims, demands, suits (and any costs, reasonable attorney fees, expert fees, judgments and settlement amounts associated therewith) that the use or disposition of the Licensed Software in accordance with this Agreement and the Documentation misappropriates a trade secret or infringes a U.S. patent, copyright, trademark, or other intellectual property right. Licensee will provide Licensor with (i) prompt notice in writing of such claim (but late notice shall not void Licensor’s obligations in this Section unless the lateness itself prejudiced Licensor’s ability to fulfill its obligations); (ii) sole control over the defense and settlement thereof; and (iii) reasonable cooperation from Licensee, as applicable, in response to a Licensor’s reasonable request for assistance. When settling or compromising any claim, Licensor shall not, without Licensee’s written approval, make any admission of facts that expose Licensee to the imposition of punitive damages or other claims that are not covered by this indemnification. Should the Licensed Software become, or in Licensor’s opinion is likely to become, the subject of such a claim, Licensor shall, at its option and expense, (a) procure for Licensee the right to continue using the Licensed Software or Services, as applicable, in accordance with this Agreement; (b) replace or modify the Licensed Software or Services so that it becomes non-infringing but with substantially equivalent functionality and performance; or (c) if neither (a) nor (b) are reasonably available, accept return of the Licensed Software or cease providing the infringing Services and refund to Licensee the price Licensee paid to Licensor therefore, for perpetual licenses on a pro rata basis as depreciated over a three (3) year straight line basis from the date of delivery and for subscription or term for the then-current term of the license. Licensor shall have no liability for alleged infringement based on (1) use for a purpose or in a manner for which the Licensed Software or Services were not designed; (2) use of any older version of the Licensed Software when use of a newer version made available by Licensor to Licensee would have avoided the infringement and (3) any modification to the Licensed Software made without Licensor’s written approval. THIS SECTION 6 STATES THE ENTIRE LIABILITY OF LICENSOR, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
6.2 Licensee Indemnity. Licensee shall be solely responsible for, and shall indemnify, defend, and hold Licensor free and harmless from all damages, liabilities, charges, and expenses (including reasonable attorneys’ fees) from all claims, lawsuits, or other proceedings arising out of or relating to (i) Licensee’s use of the Licensed Software in a manner not permitted by this Agreement, not permitted by Licensor, or not in conformance with Licensor written requirements and the Documentation and Product Specification, (ii) the acts or omissions of Licensee, its employees, and agents and all persons or entities who have access through Licensee to the Licensed Software, or (iii) relating to an infringement of any right resulting in any way from the use of the Licensed Software with other software or materials not licensed to Licensee by or not approved by Licensor.
7. LIMITATION ON LIABILITY
- Cap on Direct Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR, NOR ANY OF ITS LICENSORS, AFFILIATES, EMPLOYEES, OR CONSULTANTS’ LIABILITY EXCEED THE LICENSE FEES PAID BY LICENSEE FOR THE LICENSED SOFTWARE IN THE PRECEDING TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST OF ANY SUCH CLAIM. FURTHERMORE, LICENSOR DISCLAIMS ALL LIABILITY ARISING FROM THE DEPLOYMENT, DELIVERY, OR USE OF ANY CONTENT INSTALLED OR DELIVERED TO LICENSEE. WHERE LICENSOR LICENSES THE LICENSED SOFTWARE TO AN MSP, LICENSOR SHALL HAVE NO LIABILITY TO THE MSP’S CUSTOMERS TO WHICH THE MSP SUBLICENSES THE LICENSED SOFTWARE.
- No Indirect Damages. NEITHER LICENSOR NOR ANY OF ITS LICENSORS, AFFILIATES, EMPLOYEES OR CONSULTANTS SHALL BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE LICENSED SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SYSTEMS OR CONTENT; OR (iv) THE DELIVERY OF CONTENT TO LICENSEE THROUGH THE LICENSED SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.
8. TERM AND TERMINATION
- Term. This Agreement shall remain in full force and effect for one (1) year from the Effective Date (the “Initial Term”) and will automatically renew for additional periods of one (1) year (each, an “Additional Term”, and together with the Initial Term, the “Term”), unless otherwise terminated by a party by written notice of non-renewal at least sixty (60) days prior to the end of the then current Term, or otherwise earlier terminated as provided hereunder. Notwithstanding the foregoing, in the event that the term of any Order Form or the Term of License exceeds the Term defined in this Section, the Term shall be the time period specified in such Order Form or Term of License.
- Termination for Breach. Either party may terminate the Agreement or any or all applicable Order Form if the other party breaches a material term and fails to cure the breach within thirty (30) days of receipt of written notice from the non-breaching party.
- Termination by Licensor. Licensor may terminate this Agreement and the license granted to Licensee upon the occurrence of any of the following events: (a) Licensee fails to pay Licensor any License Fees, charge, tax, or other reimbursement when due and the failure to pay is not cured within ten (10) days of Licensee’s receipt of Licensor’s written notice thereof; (b) Licensee transfers title to or possession of the Licensed Software without Licensor’s prior written consent; Licensor may terminate this Agreement immediately at its option upon written notice if the Licensee: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within sixty (60) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365).
- Effects of Termination. Upon termination of this Agreement, Licensee will cease using the Licensed Software and Licensor will not have any further obligation to provide support and maintenance services. Licensee will pay any undisputed invoice (any disputed invoices shall be disputed in good faith and in a writing received by Licensor prior to the due date thereof) within twenty (20) days of receipt of Licensor’s correct invoice. Upon termination of the Agreement, each party shall, upon request, destroy or return to the other all Confidential Information of the other.
9. GENERAL PROVISIONS
- Bankruptcy. All rights and licenses that Licensor grants to Licensee under this Agreement except for any rights in trademarks are, for purposes of Section 365(n) of Title 11 of the United States Bankruptcy Code (“Code”), licenses to rights in “intellectual property” as defined in the Code. The parties agree that Licensee shall retain and may fully exercise all of its rights under the Code. Licensee shall receive a complete duplicate of, or access to, as appropriate, any such intellectual property and all embodiments of such intellectual property, and Licensor shall promptly deliver the same upon Licensee’s request if Licensee does not already have possession or access (i) within sixty (60) days of the commencement of any bankruptcy proceeding or such other time as specified by the Bankruptcy Court unless Licensor elects to continue to perform all of its obligations under the Agreement during that time; or (ii) if this Agreement is rejected by or on behalf of Licensor during the time stated in subsection (i) above. Licensor hereby grants to Licensee a nonexclusive license in the intellectual property only to the same extent as the rights stated in each applicable exhibit incorporated into this Agreement. Licensee covenants not to invoke its rights to the Licensed Software under the foregoing sentence unless the events in (i) or (ii) occur.
- Export. The Licensed Software and Documentation provided to Licensee pursuant to this Agreement may be subject to the export control laws and regulations of the United States, including without limitation the Export Administration Regulations, and applicable laws and regulations of other countries. Each party shall comply with all export control laws and regulations applicable to its use, transfer or export of the Licensed Software and Documentation. Licensor certifies that it is not restricted from making or receiving U.S. exports.
- Order of Precedence. To the extent any terms and conditions of this Agreement conflict with the terms and conditions of any Order Form, the terms and conditions of the Order Form shall control. The pre-printed terms on any purchase order issued by Licensee shall not apply to this Agreement.
- Assignment. Licensee shall not, directly or indirectly, by operation of law or otherwise, transfer or assign the Licensed Software or this Agreement, or transfer, assign or sublicense any license rights granted hereunder, in whole or in part, without the prior written consent of Licensor, which consent shall be at Licensor’s sole discretion. Any attempted assignment in violation of this Section shall be void.
- Waiver and Amendments. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of that party’s rights or the provision, nor shall it be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. All waivers must be in writing and signed by the party charged with the waiver. This Agreement may only be amended in a subsequently-dated writing signed by authorized representatives of the parties.
- Severability. If any provision of this Agreement is determined to be unenforceable or invalid under applicable law or be so held by applicable court decision, then such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. In such event, the invalid or unenforceable provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law and court decisions.
- Controlling Law. This Agreement shall be governed by and construed according to the laws of the Commonwealth of Massachusetts, without regard to any conflicts of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not be applied to this Agreement.
- Independent Contractors. The relationship of the parties under this Agreement is that of independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, employment or agency relationship. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
- Force Majeure. Neither party shall be liable under this Agreement because of a failure or delay in performing its obligations hereunder on account of riots, insurrection, fires, floods, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party.
- Counterparts. This Agreement may be signed in counterparts, which together shall form a single agreement as if all parties had executed the same document.
- Headings and Drafting. The headings in this Agreement are included for the convenience of the parties and shall not be used to construe or interpret the Agreement. This Agreement shall be interpreted as if drafted by both parties. It shall not be construed in favor of or against a party based on the author of the document.
- Notices. You agree that Licensor can provide notices in connection with this Agreement to you through our website or through the dashboard, or by mailing notices to the email or physical addresses identified in your JetPatch Cloud Account. Notices to Licensor shall be sent to the address below or such other address as Licensor may specify in writing.
4 Liberty Square floor 3
Boston MA 02129
- The parties agree that they have been, or have had the opportunity to be, represented by counsel during the negotiation and execution of this Agreement and therefore waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
- Entire Agreement. This Agreement and all fully executed Exhibits state the complete understanding and agreement of the parties regarding the subject matter herein. It supersedes all prior or contemporaneous proposals, agreements or other communications between the parties, oral or written, regarding the subject matter.
SUPPORT AND MAINTENANCE SERVICES
Standard maintenance and support services including technical support, bug fixes, error correction and maintenance updates to the Licensed Software shall be available to Licensee during normal Licensor business hours, provided that Licensee has a valid maintenance agreement in place with Licensor for the applicable software.
Licensor will respond to any requests for technical support made in the manner set forth below, and use diligent efforts to provide a bug fix or workaround for any failure of the Licensed Software to operate in accordance with the documentation.
Technical Support Phone: 1-855-802-3193
Licensor business hours are 8 am – 6 pm US Eastern Time Monday through Friday. Licensor will respond to Priority errors on a 24 X 7 basis.
Service Level Agreements
Licensor shall respond to requests for support according to the schedule outlined below:
|Error Classification||Acknowledgment||Provide Plan for Error Correction or Workaround|
|Priority Errors||4 Business Hours||8 Business Hours|
|Secondary Errors||1 Business Day||5 Business Days|
|Minor Errors||2 Business Days||Next Software Release|
Errors will be classified according to the following definition:
(i) “Priority Errors” – Those Errors that render the Licensed Software inoperative; materially impact, degrade or restrict the performance, functionality, reliability, or use of the Licensed Software; materially impact, degrade or restrict the performance, functionality, reliability, or use of one or more of the major functions or features of the Licensed Software; or result in a lack of functionality or intermittent failure of the Licensed Software. Licensor will deliver support for Priority Errors 24x7x365. Licensor shall escalate all Priority Errors to Licensor’s senior management team for resolution. Licensor will provide a response by a qualified member of its staff to begin to diagnose and to correct a Priority Error as soon as possible but in any event a response via telephone will be provided within 1 hour during Business Hours (and within 4 hours during non-Business Hours) of notification by Licensee. Licensor will use best efforts to resolve Priority Errors within twenty-four (24) hours of receiving the error notification from Licensee. For any error not resolved within that timeframe, Licensor will continue to use best efforts to resolve Priority Errors until resolved. Once Licensor implements an acceptable work-around, the severity classification will drop to a Secondary Error until Licensor provides a permanent resolution to the Error.
(ii) “Secondary Errors” – Those Errors that impact, degrade or restrict the performance, functionality, reliability, or use of the Licensed Software in a non-material manner; impact, degrade or restrict the performance, functionality, reliability, or use of one or more of the major functions or features of the Licensed Software in a non-material manner.
(iii) “Minor Errors” – Those Errors that are cosmetic in nature, or enhancement requests.
Support tickets will be closed once mutually agreed to by Licensor and Licensee.
Request for Enhancements
Licensor welcomes Licensee input regarding improvements and enhancements to our product and will review this input on an ongoing basis to determine the viability and opportunity for incorporating this feedback into our product development cycle. As part of this process, Licensor will periodically publish the complete list of open enhancements and solicit Licensee feedback regarding prioritization and functional clarity.