ConquerTerms of Service
These Conquer Terms and Conditions shall govern the Services (defined below) provided by Conquer, Inc. (“DS”) and its customer (“Customer”). These terms and conditions are intended to be supplemented by a Master Services Agreement (the “Agreement”) entered into by DS and Customer (individually, a “Party” and collectively, the “Parties”).
1.0 LICENSE
1.1 Grant of License.
Subject to the terms and conditions set forth herein, DS grants to Customer and its Affiliates for the Term of the Agreement, as defined in Section 6.1 of the Agreement, a limited, non-exclusive, non-transferable, and non- sublicensable license to access, display and use the Licensed Technology solely for its (their) internal business purposes within the United States and solely in connection with the use and operation of a multi-line dialing contact system.
1.2 License Restrictions.
1.2.1 Customer shall not:
1.2.1.1 copy, modify or create derivative works or improvements of the Services, Documentation or
Licensed Technology;
1.2.1.2 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services, Documentation or Licensed Technology to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
1.2.1.3 reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, Documentation or Licensed Technology, in whole or in part;
1.2.1.4 bypass or breach any security device or protection used by the Services, Documentation or Licensed Technology or access or use the Services other than by an authorized user through the use of his or her own then valid access credentials;
1.2.1.5 input, upload, transmit or otherwise provide to or through the Services, Documentation or Licensed Technology, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
1.2.1.6 damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Licensed Technology or DS’s provision of services to any third-party, in whole or in part;
1.2.1.7 remove, delete, alter or obscure any trademarks, specifications, documentation, end-user license agreement, warranties or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services, Documentation or Licensed Technology, including any copy thereof;
1.2.1.8 access or use the Services or Licensed Technology in any manner or for any purpose that infringes upon, misappropriates or otherwise violates any Proprietary Right or other right of any third-party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other DS customer), or that violates any applicable Law;
1.2.1.9 access or use the Services or Licensed Technology for purposes of competitive analysis of the Services or Licensed Technology, the development, provision, or use of a competing software service or product or any other purpose that is to DS’s detriment or commercial disadvantage;
1.2.1.10 access or use the Services or Licensed Technology in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; and/or
1.2.1.11 otherwise access or use the Services or Licensed Technology beyond the scope of the authorization granted under Section 1.1 of the Agreement.
1.2.2 Customer acknowledges and agrees that (A) any rights granted hereunder to any of Customer’s Affiliates with respect to the Licensed Technology shall expire or terminate immediately upon the expiration or earlier termination of the Agreement in accordance with the terms hereof; (B) Customer’s Affiliates shall be subject to all of the terms and conditions set forth in the Agreement, in any Order and in any Statement of Work; and (C) Customer shall be fully responsible for ensuring the compliance of its Affiliates with the terms and conditions of the Agreement and any and all violations of the terms or conditions of the Agreement by Customer’s Affiliates.
2.0 SERVICES; FEES; EXPENSES; INVOICES.
2.1 Services.
2.1.1 Assuming timely receipt of accurate information and assistance as required by Section 3.0 et seq. of the Agreement, DS agrees to accurately provide, on a timely basis, the Services indicated on a written and executed Order and any Statement of Work.
2.1.2 Customer shall, at its own expense, be responsible for all hardware, internet access, ancillary software requirements, and connectivity configuration necessary for use of the Licensed Technology, including, but not limited to, the purchase of third-party software as a service products from Microsoft. DS shall have the sole right with respect to creating, managing, editing, reviewing, deleting, and otherwise controlling the Licensed Technology. DS shall provide Customer technical assistance, if at all, in accordance with the terms and conditions of the Agreement, any Order, and any Statement of Work.
2.1.3 Customer shall be solely responsible for the Designated System and any of its software required to use the Licensed Technology on Customer’s computer, cloud-based hosting, or telephony system. Such Designated System and software shall include the components and conform to the minimum configuration requirements specified in any Documentation provided to Customer by DS from time to time.
2.1.4 DS shall not be responsible for errors in data entry or other services, programs, hardware, data files or output provided to, or maintained for, Customer resulting from errors in Customer’s input data, record data or from Customer’s failure to comply with the terms and conditions of the Agreement any Order or any Statement of Work. Customer may direct DS to correct or edit Customer’s input data files; provided, however, that such work shall be provided to Customer in accordance with an Order entered into by and between the Parties and at Customer’s additional cost and expense.
2.1.5 DS shall provide help desk support services to Customer in accordance with the Service Level Standards set forth on the Agreement.
2.1.6 DS reserves the right, in its sole discretion, to make any changes to the Services and Documentation that it deems necessary or useful to: (A) maintain or enhance (i) the quality or delivery of DS’s services to its customers, (ii) the competitive strength of or market for DS’s services or (iii) the Services’ cost efficiency or performance; or (B) to comply with applicable Law. Provided, however, that DS shall inform Customer of any such changes to the Services which will materially affect Customer’s use of the Services, as contemplated in the Agreement. Customer may request changes to the Services by written request to DS. Within five (5) business days of DS’s receipt of Customer’s requested changes, DS shall prepare a change request (each, a “Change Request”). The Change Request shall set forth in detail the effect(s) (if any) of the proposed changes on Services with respect to quantity, price and timing. DS shall have the right, in its sole discretion, to reject any such changes proposed by Customer or seek any changes that are mutually acceptable to both Parties and modify and finalize the Change Request accordingly.
2.1.7 DS may from time to time in, its sole discretion, engage third parties to perform the Services (each, a
“Subcontractor”).
2.2 Fees and Expenses.
2.2.1 Customer agrees to pay the charges (the “Services Fee(s)”) for the Licensed Technology and Services, as applicable and as set forth on each Order. The Services Fee shall remain in effect during the Term of the Agreement, unless modified in writing by the Parties. Notwithstanding the foregoing, Customer shall be responsible for all other applicable fees and expenses associated with any additional Services agreed upon by the Parties’.
2.2.2 Customer shall reimburse DS for its expenses incurred in connection with the provision of Services (including travel and lodging expenses)’.
2.2.3 Customer shall be liable for any taxes (including, but not limited to, federal manufacturers’ and retailers’ excise, state and local sales and use taxes, and personal property taxes), public charges and any interest and penalties thereon arising under the Agreement.
2.3 Billing.
With respect to one-time and recurring fees related to the Licensed Technology and Services, Customer shall remit payment in advance in immediately available funds, which amount shall be posted to Customer’s account. All advance payment funds shall be credited against Customer’s account. Customer’s use of the Services and Licensed Technology shall be debited against the Customer’s account in accordance with the schedule of pricing set forth in the applicable Order or Statement of Work. DS shall have no obligation to provide the Services or access to the Licensed Technology upon the exhaustion of credits on Customer’s account. All payments, whether made in advance or in arrears are non-refundable, except as set forth in the Agreement. In the event of the termination or expiration of the Agreement, the balance of Customer’s account, and all unused credits associated therewith, shall become the property of DS.’’
2.4 Past Due Amounts.
The Parties each agree that payments for fees related to Licensed Technology, Services and monthly fees due under the Agreement will be considered past due if Customer has not paid them within ten (10) days after the date of invoice. All past due amounts shall be subject to a late charge equal to three percent (3%) of the amount past due (the “Late Charge”) beginning on the fifteenth (15th) day after the date of the applicable invoice if Customer has not remitted payment in full. In addition to the Late Charge, interest shall accrue on all past due balances at the rate of ten percent (10%) per annum or the maximum rate allowed by Law, whichever is less. If Customer does not pay an invoice by the earlier of seventy-five (75) days after its due date or fifteen (15) days after notice that DS intends to terminate the Agreement for non-payment, then the Agreement and all of Customer’s rights hereunder shall terminate immediately without further notice.
2.5 Refund/Adjustment/Overpayment.
All fees paid hereunder are non-refundable. DS may, in its sole discretion, advance funds to Customer. However, DS shall have no obligation to advance funds to Customer or permit Customer’s account balance to run a negative balance. In the event that DS advances funds to Customer, Customer agrees that it will reimburse DS not later than ten (10) days after such advance of funds. DS shall take reasonable steps to inform Customer when Customer’s account has a negative balance.
3.0 CUSTOMER RESPONSIBILITIES.
3.1 Customer Assistance.
In addition to the other obligations set forth herein, Customer shall:
3.1.1 assign personnel with relevant training and experience to work in consultation with DS, if applicable, and participate in meetings relating to the Services;
3.1.2 provide the equipment and software (including obtaining any third-party software licenses) required to operate the Licensed Technology in accordance with, and to otherwise comply with, the hardware and Software specifications for the Licensed Technology;
3.1.3 safeguard the user IDs, passwords and other security data, methods and devices furnished to Customer in connection with the Licensed Technology and prevent unauthorized access to or use of the Licensed Technology;
3.1.4 be responsible for all maintenance of Customer’s networks, equipment and security required or appropriate in connection with the use of the Licensed Technology and be solely responsible for its own data processing, telecommunication and transmission equipment and for establishing and maintaining its own telecommunications lines;
3.1.5 have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data;
3.1.6 on an as-needed basis, provide DS with reasonable access to Customer’s premises as appropriate in order to
enable DS to perform its obligations under the Agreement;
3.1.7 on an as-needed basis, provide DS with reasonable remote access to Customer’s network equipment, servers, third-party hosted applications and Designated Systems as appropriate in order to enable DS to perform its obligations hereunder;
3.1.8 provide the initial information reasonably necessary in order to implement the Services; and
3.1.9 take such other actions as are reasonably required of Customer pursuant to the Agreement, any Order or any Statement of Work.
3.2 Requests for Changes and for Additional Services.
Customer agrees to submit a Change Request, for the purpose of requests for additional Services or changes affecting set-up, calculation, input, output or other aspects of the processing the Services, in writing, no less than thirty (30) days prior to the desired date for implementing such change or service. DS will determine the feasibility of the requested change or Service and, if feasible, provide Customer with (A) a cost estimate; and (B) an implementation schedule for such change of service.
4.0 OWNERSHIP OF INTELLECTUAL PROPERTY.
All title to and ownership of the Licensed Technology and all Proprietary Rights related thereto, other than the limited rights expressly granted to Customer herein, shall remain vested in DS, regardless of any participation or collaboration by Customer in any design, development or implementation of any such Licensed Technology. Customer shall not, and shall not permit others, to copy, translate, modify, create derivative works from, reverse engineer, decompile, recompile, disassemble, encumber or otherwise use the Licensed Technology, except as specifically authorized under the Agreement. Notwithstanding any other provision of the Agreement, failure by Customer, its agents, employees or contractors to comply with the terms of this Section 4.4 shall be deemed to constitute a material breach of the Agreement. Customer shall not challenge DS’s ownership of the Licensed Technology nor any part thereof, except in such circumstance where a third-party alleges infringement-related claims against Customer regarding Customer’s use of the Services.
5.0 OWNERSHIP OF CUSTOMER DATA.
Title and ownership of Customer Data is and remains with Customer. Customer represents and warrants to DS that (A) Customer, its Affiliates, employees, contractors and agents are authorized to disclose Customer Data to DS for use pursuant to the Agreement; and
(B) DS’s use or processing of Customer Data does not and shall not violate applicable Law or, if applicable, Customer’s or its Affiliates’ agreements with, or privacy notices to, individuals with respect to whom the Customer Data relates. DS shall not release any Customer Data to any third-party for any purposes, except with Customer’s written consent. DS SHALL HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA, UNLESS CAUSED BY THE GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF DS.
6.0 TERM AND TERMINATION.
(C) Term. The Agreement shall commence on the Effective Date and remain in full force and effect for a period of Twelve Months (12 Months) thereafter (the “Initial Term”), unless terminated earlier in accordance with the terms and conditions of the Agreement. Upon the expiration of the Initial Term, the Agreement shall be renewed automatically for additional terms of one (1) year each (the “Renewal Term”, and together with the Initial Term, the “Term”), unless (A) Customer is not current on all amounts due to DS under the Agreement, any Order and/or any Statement of Work; (B) Customer is in default of any obligation hereunder; or Customer provides DS with written notice at least ninety (90) days prior to the expiration of the then-current Term that Customer wishes to terminate the Agreement.
6.1 Termination for Cause. DS may terminate the Agreement if Customer shall have been delinquent in making any payment due under the Agreement, any Order or any Statement of Work and shall have not cured such payment default within the notice period set forth in Section 2.4 of the Agreement. Either Party may terminate the Agreement upon thirty (30) days’ advance written notice if the other Party shall have materially failed to perform and deliver the Services in accordance with the terms of the Agreement and shall have failed to cure such breach with thirty (30) days. Notwithstanding anything herein to the contrary, in the event that either Party commits a Material Breach (as hereinafter defined), the non-breaching Party shall have the right to terminate the Agreement, effective immediately.
6.2 Termination for Convenience. Either Party may terminate the Agreement for its own convenience upon ninety (90) days’ prior written notice to the other Party, provided that if Customer terminates the Agreement for convenience, the Services Fees shall not be refundable for any reason. Notwithstanding the foregoing, from and after that date which is eighteen (18) months after the Effective Date, Customer may terminate the Agreement for its own convenience upon thirty (30) days’ prior written notice to DS, provided however that the Services Fees shall not be refundable for any reason. In the event that Customer terminates the Agreement pursuant to this Section 6.3, Customer shall remain liable for any and all Service Fees owed to DS pursuant to the terms of the Agreement. Said Service Fees shall be due and payable on the date that Customer’s termination under this Section 6.3 becomes effective.
6.3 Events upon Expiration, Termination. Upon the expiration or termination of the Agreement:
6.3.1 Customer shall immediately: (A) cease all use of the Licensed Technology; (B) discontinue providing access to and remove all links to the Licensed Technology; (C) within ten (10) business days after the expiration or termination of the Agreement, destroy, all copies of the Licensed Technology in the possession or control of Customer and any of its Affiliates; and 6.4.5 DS shall (A) invoice, and/or deduct from Customer’s account, all accrued but unpaid fees and expenses, including, without limitation, the full amount of any implementation fees specified on the Order or any Statement of Work; and (B) disconnect all interfaces from DS to Customer’s Designated System in a timely fashion.
7.0 WARRANTY; WARRANTY DISCLAIMERS.
7.1 Limited Performance Warranty. DS warrants that the Licensed Technology will perform in all material respects in accordance with the Documentation when used in accordance with the terms of the Agreement on the hardware and with the third-party software specified by DS from time to time. Upon discovering that any Licensed Technology fails to conform to the warranty provided in this Section 7.1, Customer shall provide DS with written notice of such non-conformity within three (3) days after such discovery. DS’s liability and Customer’s sole remedy pursuant to this limited warranty shall be limited to DS’s good faith efforts to rectify any non-conformity.
7.2 Virus Warranty. DS warrants that it will take commercially reasonable actions to ensure that prior to the delivery of any portion of the Licensed Technology to Customer, the Licensed Technology will not contain any programming devices (e.g., viruses, key locks, back doors, trap doors, etc.) which would (A) disrupt the use of the Licensed Technology or any system, equipment or software to which Customer’s networks are interfaced or connected; or (B) destroy or damage data or make data inaccessible or delayed.
7.3 Services Warranty. DS represents and warrants that any Services rendered hereunder shall be performed in a professional and commercially reasonable manner consistent with the standard of care exercised by DS in performing similar services for other customers. Customer’s sole remedy for breach of this warranty shall be re-performance of the non-conforming Services. DS makes no representation or warranty regarding the availability of third-party telephony or cloud-based computer and software services which are used in connection with the delivery of the Services and use of the Licensed Technology. The unavailability of third-party telecommunications shall excuse DS from performance of the Services until such telephony services are available.
7.4 Disclaimers. THE WARRANTIES SET FORTH ABOVE FOR THE LICENSED TECHNOLOGY AND SERVICES PROVIDED HEREUNDER ARE COMPLETE AND ARE IN LIEU OF, AND CUSTOMER HEREBY WAIVES, ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF THE TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DS EXPRESSLY DISCLAIMS ANY WARRANTIES OF DURABILITY THAT THE LICENSED TECHNOLOGY WILL MEET ALL OF CUSTOMER’S NEEDS, OR THAT THE OPERATION OF THE LICENSED TECHNOLOGY WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED.
8.0 INDEMNIFICATION; DISCLAIMER OF LIABILITIES AND DAMAGES.
8.1 Indemnification by Customer. Customer shall indemnify, defend and hold harmless DS and its Affiliates, and all of their respective employees, agents, officers, directors, members, managers and shareholders, from and against any and all losses, damages, costs, liabilities, expenses, claims, suits, actions or other proceedings, to the extent based on or arising in connection with
(A) any breach of the Agreement by Customer, its Affiliates or their respective employees, agents or contractors and (B) the gross negligence or willful misconduct of Customer.
8.2 Indemnification by DS.
8.2.1 DS shall indemnify, defend and hold harmless Customer and its Affiliates, and all of their respective employees, agents, officers, directors, members, managers and shareholders for and against any losses, damages, costs, liabilities, expenses, claims, suits, actions or other proceedings, to the extent based on or arising in connection with the gross negligence or willful misconduct of DS, its Affiliates or their respective employees.
8.2.2 DS shall defend any suit, at DS’s cost and expense, brought against Customer that alleges the use of any DS manufactured, designed or labeled Licensed Technology, in accordance with its intended purpose and DS’s specifications, to be an infringement on any U.S. patent, copyright, or trade secret, and DS shall pay all reasonable legal costs and expenses incurred by Customer in conjunction with such an action and shall satisfy any final judgment against Customer, provided that Customer notifies DS promptly upon discovery of the existence or imminence of any such claim and terminate such infringement if and to the extent the infringement is within the control of Customer or any of its Affiliates, that DS shall have sole control of the defense or settlement of any such claims, and that Customer provides such assistance and cooperation to DS as is requested. The foregoing shall not include, and further Customer shall provide the defense and protection to DS for, an alleged infringement which results from (A) modifications to the Licensed Technology or any component thereof made by any person other than DS; (B) the use of any Licensed Technology other than in accordance with the Agreement or the Documentation; or (C) the use of DS’s Licensed Technology in combination with any item or process not supplied or formally approved by DS for use with the Licensed Technology. If the Licensed Technology is found to infringe, or, in DS’s opinion, is reasonably likely to be found to infringe, then DS may, within thirty (30) days, and at its sole option and expense, either (X) procure the right to continue to use such Licensed Technology; (Y) replace or modify such Licensed Technology or the offending part thereof so that the same does not infringe without reducing the functionality thereof; or (Z) if neither of the foregoing is commercially practicable, terminate the Agreement and the license granted hereunder, if the settlement or other resolution of the claim subject to indemnification requires that DS also agree to terminate its use of the infringing Licensed Technology, and in the event DS exercises this option (Z), it shall reimburse to Customer all pre-paid fees for unused Minutes. The remedies set forth in this Section 8.2.2 shall be Customer’s sole and exclusive remedies for any breach or infringement described in this Section 8.2.2.
8.3 Disclaimer of Certain Liabilities.
8.3.1 DS shall not be responsible for (A) any inaccuracies caused by Customer’s third-party computer systems, hardware or software (other than the Licensed Technology), including interfaces with such third-party software, or any inaccuracies that such systems may cause within the Licensed Technology; (B) any inaccuracies in or failures of the Licensed Technology to conform to the Documentation arising out of the use of a version or release of the Licensed Technology other than the most recent version or release provided to Customer by DS; (C) any inaccuracies caused by Customer entering data into the Licensed Technology databases through third-party applications; (D) any act or omission of Customer or its Affiliates, including, without limitation, any delays by Customer in its performance or cooperation; (E) any data that DS receives from Customer, its Affiliates or third-party sources; or (F) the Licensed Technology to the extent it is modified by any person other than DS.
8.3.2 To the extent the Licensed Technology utilizes the internet to transmit data or communications, DS shall have no liability for interception of any such data or communications, including encrypted data.
8.3.3 DS shall not be responsible or liable for (A) any damages arising in connection with access to or use of the Licensed Technology by Customer or its Affiliates, other than as authorized by the Agreement; or (B) any fault, inaccuracy, omission, delay or any other failure of the Licensed Technology caused by Customer or its Affiliates’ computer equipment or arising from use of the Licensed Technology on such equipment.
8.3.4 DS shall not be responsible for the reliability or continued availability of the telephone lines and equipment used to access the Licensed Technology whether such are provided by DS or Customer.
8.3.5 The content of third-party websites, systems, products or advertisements that may be linked to the Licensed Technology are not maintained or controlled by DS. As such, DS is not responsible for the availability, content or accuracy of third-party websites, systems or goods that may be linked to or advertised on the Licensed Technology.
8.3.6 Under no circumstances shall DS be liable for the actions of any person other than its employees, agents and contractors
8.4 Disclaimer of Certain Damages.
NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, CONNECTED WITH, OR RELATING TO THE AGREEMENT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, ECONOMIC LOSS OF ANY KIND, LOSS OF PROFITS OR REVENUE, LOSS OF CUSTOMER’S GOODWILL, ATTORNEYS’ FEES, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTED FACILITIES OR SERVICES, DOWNTIME COSTS, CLAIMS BY CLIENTS OR BUYERS OF EITHER PARTY, OR DAMAGES FOR ECONOMIC LOSSES OR PROPERTY DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO EITHER PARTY’S ACTS OR OMISSIONS, WHETHER UNDER NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY, OR OTHER PRODUCT LIABILITY THEORIES. ANY ACTION ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SOFTWARE OR SERVICES FURNISHED BY DS SHALL BE BROUGHT BY CUSTOMER WITHIN TWO (2) YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES, OR WITHIN THE APPLICABLE STATUTORY PERIOD, WHICHEVER IS SHORTER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THIS SECTION 8.4 SHALL NOT APPLY TO CLAIMS ARISING OUT OF OR RELATED TO A BREACH OF SECTIONS 4.0 OR 5.0
9.0 MARKETING AND PUBLIC RELATIONS.
9.1 Use of Customer Name/Logo.
Customer agrees that DS may, upon Customer’s written approval, include Customer’s name and/or company logo in new customer lists, current customer lists and press releases of DS at any time during the Term. DS agrees to promptly remove Customer’s name and/or company logo from any new customer or current customer lists of DS if Customer ceases to use the Licensed Technology or upon receipt of Customer’s written request to do so. Notwithstanding the foregoing, neither Party shall disclose the terms of the Agreement to any third-party without the prior written approval of the other Party.
9.2 Case Studies.
Customer agrees that DS may, upon Customer’s written approval, write and distribute a case study regarding the choice of DS, the solution provided, and the benefits of such solution. DS agrees to write and distribute a case study only if Customer is reasonably satisfied with the Services and Licensed Technology as applicable.
10.0 COMPLIANCE.
10.1 Compliance with Laws.
The Parties shall comply with all applicable state and federal laws, regulations, rules, ordinances and directives (collectively, “Laws”). Customer shall be responsible for ensuring that its use of the Licensed Technology fulfills the requirements of all such Laws and for determining the suitability of the Licensed Technology for Customer’s intended use. Both Parties expressly agree that (A) the Agreement is the result of arms-length negotiations; (B) neither Party has entered into the Agreement with a corrupt motive to obtain or retain business or to secure an unfair business advantage; and (C) each shall fully comply at all times with all applicable anti-corruption Laws including, but not limited to, the Foreign Corrupt Practices Act of 1977 of the U.S., as amended, and the UK Bribery Act 2010.
10.2 Export Control Compliance.
Customer shall comply with all Laws of the United States governing the use, access or export of software products. Without limitation, the Licensed Technology or any part thereof may not be used or accessed within or by, or otherwise exported to, (A) any United States embargoed country or (B) anyone on the United States Treasury Department’s list of Specially Designated Nations, the United States Department of Commerce’s Table of Denial Orders, or other similar lists.
11.0 MISCELLANEOUS; DISPUTE RESOLUTION.
11.1 Assignment.
Customer may not assign the Agreement or delegate any of its duties under the Agreement without the prior written consent of DS.
11.2 Dispute Resolution.
The Parties shall attempt in good faith to resolve any claim or dispute concerning the Agreement prior to the commencement of litigation. Upon the written request of either Party, each of the Parties will appoint a designated representative who does not devote substantially all of his or her time to the performance of the Agreement, whose task it will be to meet for the purpose of attempting to resolve the dispute. The designated representatives will meet in person or by telephone, as often as reasonably necessary, to gather and furnish to the other all information with respect to the matter in issue and which is pertinent to the understanding or resolution of the dispute. The representatives will discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding. The specific format for the discussions will be left to the discretion of the designated representatives. If the designated representatives do not resolve the dispute within thirty (30) days of receipt of written notice of the dispute, then an executive officer of Customer and an executive officer of DS will meet in person or by telephone to review and attempt to resolve the dispute prior to the commencement of litigation. In the event the executive officers do not reach a resolution within thirty (30) days of meeting in person or via telephone, either Party shall have the right to file a legal action in the Sacramento County Superior Court or the United States District Court in Sacramento. If either Party files a legal action without first complying with the requirements of this Section 11.2, that Party shall not be entitled to recover its fees and/or costs under Section 11.17 of the Agreement in the event that it is the prevailing party in the legal action.11.3 Force Majeure. Neither Party shall be liable for any failure or delay in performing its obligations (other than the payment of amounts due hereunder) hereunder during any period in which such performance is prevented or delayed by causes or conditions beyond the Party’s control, including, without limitation, flood, war, embargo, strike or other labor dispute, riot or the intervention of any government authority, power failures, viruses that are not preventable through generally available retail products, catastrophic hardware failures, usage spikes, attacks on a Party’s server, or any inability to transmit or receive information over the Internet. The delayed Party shall (A) promptly notify the other Party in writing of any such failure or delay in performance, the expected duration thereof and its anticipated effect and (B) use its best efforts to remedy such failure or delay. Notwithstanding the foregoing, the non-delayed Party shall have the right to terminate the Agreement if the excused failure or delay continues for more than sixty (60) days from the date that performance was first delayed; provided that, in the case of Customer, Customer is not otherwise in breach of the Agreement and has paid DS all amounts due to DS hereunder, including, but not limited to, all unpaid implementation fees, through the effective date of the termination pursuant to this Section 11.3. In the event that Customer terminates the Agreement under this Section 11.3, DS shall reimburse to Customer all pre-paid fees for unused Minutes.
11.4 Governing Law and Venue. The Agreement shall be interpreted in accordance with, and governed in all respects by, the laws of the State of California without regard to any conflicts of laws principles, and any action initiated to enforce the Agreement shall be venued in Sacramento County, California.
11.5 Independent Relationship. Nothing in the Agreement shall be deemed to create an employer/employee, principal/agent, partnership or joint venture relationship. Neither Party shall have the authority to enter into any contract on behalf of the other Party without that Party’s express written consent. Neither Party shall make any representation or incur any obligation in the name of or on behalf of the other Party. Nothing in the Agreement shall be construed as or constitute an appointment of either Party as the agent for the other.
12.0 DEFINITIONS
12.1 “Affiliate” means with respect to Party, its subsidiaries and controlled corporations or entities which are directly or indirectly controlled by such Party through ownership of more than fifty percent (50%) of the outstanding voting stock or rights, by control of a majority of the directors or managing members of the entities, by contract or arrangement, or otherwise.
12.2 “Confidential Information” means any and all tangible and intangible information (whether written or otherwise recorded or oral) that is of value to the disclosing Party and not generally known. Confidential Information includes, without limitation, software and related documentation, technical and business information relating to inventions or products, research and development, intellectual property, know-how, trade secrets, pricing information, production processes, finances, customers, marketing, present or future business plans, and any other information that is identified as confidential by the disclosing Party or that the receiving Party should reasonably know to be confidential based on the circumstances. Notwithstanding the foregoing, the term Confidential Information shall not include any information that is: (A) available from public sources or in the public domain, through no fault of the receiving Party; (B) received at any time from any third-party without breach of a non-disclosure obligation to the disclosing Party; (C) readily discernible from publicly-available products or literature; (D) approved for disclosure by prior written permission of an authorized officer of the disclosing Party; or (E) required to be disclosed under any Law, governmental rule or regulation or court order.
12.3 “Customer Data” means the data provided or inputted by or on behalf of Customer for use with the Licensed Technology, including Customer’s Confidential Information and excluding any Confidential Information of DS. The Parties each acknowledge and agree that during the Term of the Agreement, Customer, its Affiliates or other third parties may disclose certain Customer Data, including, without limitation, personally identifiable data regarding employees or other individuals, to DS for the benefit of Customer or its Affiliates. All such Customer Data is and remains the property of Customer.
12.4 “Custom Software” means specifically modified versions or modules of the Software created by DS pursuant to the Order, any signed Statement of Work or any other written agreement between the Parties.
12.5 “Designated System” means Customer’s computer equipment, telephone equipment, network hardware and operating systems, both premises and cloud-based devices designated to access and use the Licensed Technology.
12.6 “Documentation” means, in printed or electronic form, each of the manuals, user guides, technical specification documents and other instructional and reference materials generally distributed by DS regarding the Software or any Custom Software, all as updated and redistributed by DS from time to time.
12.7 “End User” means Customer’s employees, associates, personnel or others who are authorized to access the Licensed Technology.
12.8 “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (A) permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (B) prevent Customer or any authorized user from accessing or using the Services or Licensed Technology as intended by the Agreement.
12.9 “Licensed Technology” means any Software and any Custom Software licensed by Customer pursuant to the terms and conditions of the Agreement and any Upgrades thereto, if any, along with its related Documentation.
12.10 “Material Breach” means the occurrence of any of the following acts or events: (A) a Party’s breach of the confidentiality obligations in the Agreement; (B) if a Party is placed into receivership, becomes insolvent, admits in writing its inability to pay its debts as they mature, files a petition in bankruptcy, makes an assignment for the benefit of creditors or has an involuntary petition under any bankruptcy Laws filed against it which is not dismissed within thirty (30) days; and/or (C) an assignment by Customer of the Agreement in breach of Section 11.1 hereof.
12.11 “Minute(s)” means a minute(s) of time purchased by Customer to use the Licensed Technology.
12.12 “Order” means a specific written statement, executed by DS and Customer, which sets forth the Licensed Technology and Services to be provided by DS to Customer pursuant to the terms of the Agreement. Orders shall substantially be in the form of Order No. 1and be numbered sequentially.
12.13 “Proprietary Rights” means all copyright, patent, trademark, trade secret and other intellectual property, trade secrets and proprietary rights.
12.14 “Seat(s)” means a license for one concurrent user of the Licensed Technology.
12.15 “Services” means the implementation, training, support, maintenance, programming, hosting, data processing, printing, reporting, filing, transmitting, packaging, delivering and other services specified in the Order or any signed Statement of Work or otherwise provided by DS pursuant to the Agreement.
12.16 “Software” means the object code version of DS’s proprietary software application(s) set forth in an Order and made available to Customer by DS under the Agreement.
12.17 “Statement of Work” means any statement of work, work order or services addendum, executed by DS and Customer, which sets forth the Services to be provided by DS to Customer pursuant to the Agreement.
12.18 “Upgrades” means all updates, new versions, modifications and subsequent releases of the Licensed Technology.