BUTTERFLYMX PROPERTY SERVICE AGREEMENT
This ButterflyMX Property Service Agreement (“Agreement”) applies to any order for ButterflyMX Products and Services (“Order”) mutually agreed upon and executed by RUNS LIKE BUTTER, INC., a Delaware corporation with an address at 12 East 33rd St, 6th Floor, New York, NY 10016, doing business as ButterflyMX (“Provider”) and the customer set forth on the applicable Order (“Subscriber”). Each of Provider and Subscriber are referred to as a “Party” and collectively as the “Parties”.
1.1 “Affiliate” of a Person (as defined below) means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition only, the term “control” means the power to direct or cause the direction or the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and “controlled by” and “under common control with” have correlative meanings.
1.2 “Authorized User” means Subscriber’s employees, contractors, tenants, and third party service providers who are authorized by Subscriber to access and use the Subscription Services that have been supplied user identifications and passwords by Subscriber (or by Provider at Subscriber’s request) and who have agreed to Provider’s standard terms and conditions for access and use of the Subscription Services.
1.3 “Confidential Information” shall mean any and all technical and non-technical data or information, in oral, written, graphic or electronic form, that is either indicated to be the proprietary or confidential information of the Disclosing Party, or which, by its nature, the Receiving Party would reasonably deem to be confidential or proprietary, including the terms of this Agreement and any information that relates to the Disclosing Party’s products, services, research, development, business activities, ideas, know-how, inventions, processes, testing methods, specifications, designs, schematics, techniques, technical documentation, marketing or business plans, and financial information. Data regarding the operation of the Products and Services, including data associated with building entry events and other interactions with the hardware Products, is Confidential Data of Provider.
1.4 “Disclosing Party” is defined in Section 7.1.
1.5 “Documentation” means the end user documentation for the Products and Services as made available by Provider.
1.6 “Fees” means the Product Fees and the Subscription Fees.
1.7 “Intellectual Property Rights” means all intellectual property rights and related proprietary rights arising under the laws of all jurisdictions worldwide, including: (a) patents and patent applications, including any continuation, continuation-in-part, divisional and provisional applications and any patents issuing thereon and any reissues, reexaminations, substitutes and extensions of any of the foregoing; (b) all registered and unregistered trademarks, service marks, trade or brand names, other proprietary indicia, logos, and symbols and all goodwill associated with any of the foregoing; (c) original works of authorship, registered and unregistered copyrights and copyright applications; (d) designs, inventions (whether or not patentable), marketing and educational tools, formulae, processes, know-how, technology, and business methods; and (e) software, database and computer rights.
1.8 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
1.9 “Product Fees” means the one-time fees for Products as set forth on an Order.
1.10 “Product Software” means the Provider software that is incorporated into the Products in object code form.
1.11 “Products” means those Provider products set forth on an applicable Order, including the Product Software incorporated therein.
1.12 “Professional Services” means implementation services and any other professional services that Provider may provide to Subscriber under this Agreement, as set forth in more detail on an Order.
1.13 “Provider Claim” is defined in Section 9.2.
1.14 “Provider Indemnified Parties” is defined in Section 9.2.
1.15 “Receiving Party” is defined in Section 7.1.
1.16 “Services” means the Subscription Services and Professional Services.
1.17 “Subscriber Claim” is defined in Section 9.1.
1.18 “Subscriber Indemnified Parties” is defined in Section 9.1.
1.19 “Subscription Services” means the subscription services Provider will provide to Subscriber under this Agreement, as set forth in more detail on an Order.
1.20 “Subscription Fees” means the recurring subscription fees for Subscription Services as set forth on an Order.
1.21 “Subscription Term” is defined in Section 5.1.
2.1 Orders. Subject to the terms and conditions of this Agreement, Provider shall supply Subscriber with the Products set forth on each applicable Order. All Orders shall be governed by this Agreement. In the event of any conflict between the terms contained in this Agreement and the terms contained in an Order, the terms of this Agreement shall control, unless the Order explicitly references a section of this Agreement to be superseded, in which case the terms of the Order shall control with respect to such section, but only to the extent of the conflict. The Parties may communicate regarding Orders via electronic means using confirmed electronic mail.
2.2 Orders and Delivery. The Parties will mutually agree upon and execute all Orders. Any quotations or other terms on an order form or other sales proposal provided to Subscriber by Provider are valid for forty-five (45) days from the date of such order form or sales proposal. Once Subscriber has paid each applicable Order in full, Provider will ship the ordered Products to Subscriber’s delivery address set forth on the Order at Subscriber’s expense. Provider reserves the right to require that Subscriber pay an upfront deposit for Services prior to shipping Products. The Products will be deemed accepted by Subscriber upon delivery. Provider reserves the right to charge a restocking fee of twenty-five percent (25%) of the manufacturer’s suggested retail price at the time of purchase for any Products that are returned between thirty (30) and one hundred fifty (150) days after delivery. The restocking fee shall not apply to Products returned under Section 2.3. No returns of Products will be accepted more than one hundred fifty (150) days after delivery.
2.3 Product Return. If Provider provides any hardware Products to Subscriber at no cost, within thirty (30) days after the expiration or termination of this Agreement, Subscriber will either purchase such hardware Products at the manufacturer’s suggested retail price at the time they were originally provided, or return them via a method acceptable to Provider, in the same condition in which they were delivered to Subscriber, reasonable wear and tear excepted.
2.4 Product Software License. Subject to the terms and conditions of this Agreement, Provider hereby grants to Subscriber a non-exclusive, non-transferable (except in accordance with Section 11.1) license, without the right to sublicense, to run the Product Software as incorporated into the Products during the Term solely for Subscriber’s use of the Product in conjunction with any Services ordered under this Agreement. The Product Software is licensed, not sold to Subscriber.
3.1 Services. Subject to the terms and conditions of this Agreement (a) Provider shall use commercially reasonable efforts to provide Subscriber with the Services set forth on each applicable Order; and (b) Provider hereby grants Subscriber a non-exclusive, non-transferable (except in accordance with Section 11.1), non-sublicensable right during the Subscription Term to access and use the Subscription Services solely for the purpose of receiving the Subscription Services for Subscriber’s internal business operations. Subscriber acknowledges and agrees that (i) use of Provider’s hardware Products is subject to the additional terms and conditions set forth in the documentation for such Products, and (ii) use of Provider’s end-user mobile application related to the Subscription Services is subject to additional terms and conditions set forth in the end user license agreement for such mobile application. Subscriber acknowledges and agrees that Provider may, at its discretion, display certain content via the Subscription Services and mobile application.
3.2 Hardware Products. Unless otherwise noted on an applicable Order, Subscriber is solely responsible for the installation of all hardware Products. Provider shall have no liability to Subscriber or any third party related to the performance or non-performance of installation services by Subscriber or its third-party contractor. Subscriber is also responsible for the provision of adequate infrastructure for the operation of the hardware Products, including power, internet connectivity, and low-voltage electrical connections.
3.3 Prohibited Activities. Subscriber shall not use the Subscription Services: (a) in violation of this Agreement; (b) to infringe, misappropriate, or violate the Intellectual Property Rights of any third party or any rights of publicity or privacy; or (c) to violate any law, statute, ordinance or regulation. In addition, Subscriber shall not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or operation of the Subscription Services, or access the Subscription Services by any means except those provided by Provider.
3.4 Account Information. Subscriber is responsible for maintaining the confidentiality and security of the account information provided to it by Provider or created by Subscriber for its Authorized Users. Subscriber is fully responsible for all activities that occur under such account information (except for activities caused by the gross negligence or willful misconduct of Provider). In the event that Subscriber suspects or becomes aware of any unauthorized use of its account information, Subscriber shall immediately notify Provider of the same.
4. FEES AND PAYMENT
4.1 Fees. Product Fees are invoiced in full on the effective date of the applicable Order. Subscription Fees for the full duration of the Subscription Term are invoiced in advance once the Products are installed and activated. For example, if the Subscription Term is three (3) years and the Subscription Fees per year are $5,000, the Subscription Fees of $15,000 would be invoiced once the Products are installed and activated. Subscriber shall pay all Fees within thirty (30) days after receipt of an invoice therefor. Subscriber may pay amounts due under this Agreement by credit card or check mailed to Provider’s address as set forth in the preamble of this Agreement. Provider reserves the right to change Product Fees at any time and Subscription Fees upon renewal of Subscriber’s Subscription Term, provided Provider provides Subscriber with thirty (30) days prior written notice of any such changes. All undisputed Fees are non-cancelable and non-refundable. Subscriber must email any billing disputes to firstname.lastname@example.org within thirty (30) days of receipt of the applicable invoice, and Subscriber waives any disputes not made within that time.
4.2 Expenses. Provider will invoice Subscriber for all reasonable and pre-approved travel expenses and other out-of-pocket expenses Provider incurs in providing any Services at any Provider property or facility, and Subscriber shall pay all such invoices within thirty (30) days of receipt of the same.
4.3 Late Payments. Late payments will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. In the event Provider delivers an invoice for any Fees or interest payments owed hereunder to Subscriber, Subscriber shall pay the invoiced amounts within thirty (30) days of receipt of such invoice.
4.4 Taxes. The Fees do not include any sales, use or similar local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Subscriber is responsible for paying all Taxes, excluding only taxes based on Provider’s income. If Provider has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this section, the appropriate amount shall be invoiced to and paid by Subscriber unless Subscriber provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement commences upon the Effective Date of the applicable Order and, subject to earlier termination as set forth herein, continues until the expiration of the last-to-expire Order for Services (the “Term”). Each Order for Services shall continue for the subscription term specified therein (“Subscription Term”), and will automatically renew for subsequent Subscription Terms unless either Party notifies the other of its intent not to renew such Subscription Term no less than thirty (30) days prior to the expiration of the current Subscription Term.
5.2 Termination for Convenience. Subscriber may terminate any Order, or this Agreement and all Orders, for convenience at any time upon ninety (90) days prior written notice to Provider.
5.3 Termination for Cause. Either Party may terminate an Order, or this Agreement and all Orders, effective upon written notice to the other Party, if the other Party materially breaches an Order or this Agreement and does not cure the breach within thirty (30) days after the non-breaching Party notifies it in writing of the breach. In addition, either Party may terminate this Agreement and all Orders, effective immediately upon written notice to the other Party, if the other Party (a) infringes, misappropriate or violates the Intellectual Property Rights of the non-breaching Party; (b) becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors; or (c) commits any breach of this Agreement that is incapable of cure. Provider reserves the right to limit or suspend Subscriber’s access to and use of the Services if Subscriber fails to pay any undisputed Fees when due, or otherwise breaches this Agreement or any Service Order. Provider shall have no liability to Subscriber for any limitation, suspension or termination of access to or use of the Services pursuant to this Section 5.3.
5.4 Survival. The following provisions shall survive the expiration or termination of this Agreement: 1, 4 (with respect to any amounts that remain outstanding), 5.4, 6, 7, 8, 9, 10 and 11.
6. INTELLECTUAL PROPERTY
6.1 Ownership. Subscriber acknowledges that any and all Intellectual Property Rights in the Products and Services and are and shall remain the property of Provider, and Subscriber shall not at any time during the Term or after the expiration or termination of this Agreement in any way question or dispute the ownership thereof by Provider. To the extent Subscriber obtains any rights in the Products or Services or any Intellectual Property Rights therein, Subscriber hereby assigns all of its right, title and interest in and to the same to Provider. All rights not expressly granted under this Agreement are reserved to Provider.
6.2 Solution Data. As between Provider and Subscriber, Provider shall own all data collected, generated, processed or stored by the Products and Services (excluding the personal identifying information of Subscriber’s personnel or residents), and may use such data for its business purposes, provided that Provider shall not share any data with any third party in a non-anonymized or non-aggregated manner without Subscriber’s consent.
6.3 Restrictions. Except as otherwise specifically permitted under this Agreement, or as otherwise agreed by the Parties in writing, Subscriber shall not (as applicable) use, copy, modify, create derivative works of, distribute, sell, pledge, sublicense, lease, loan, rent, timeshare or provide access to the Products or Services nor permit any third party to do any of the foregoing. Subscriber acknowledges that the Products and Services contain the valuable trade secrets of Provider; consequently, except as may be expressly permitted by applicable law, Subscriber shall not (a) derive or attempt to derive the source code of all or any portion of the Product Software or Services by any means, (b) reverse engineer, decompile, disassemble, or translate the Products or Services or any portion thereof, or (c) sublicense, transfer and/or assign the Products or Services to any third party (except in accordance with Section 11.1), whether with or without consideration, (d) render any services to third parties using the Products or Services; (e) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Products or Services; or (f) permit any third party to do any of the foregoing.
6.4 Feedback. Any and all suggestions for correction, change and modification to the Products or Services and other feedback Subscriber elects to provide to Provider (collectively “Feedback”) are and will remain the property of Provider. Subscriber acknowledges and expressly agrees that any contribution of Feedback does not and will not give or grant Subscriber any right, title or interest in the Products or Services or in any such Feedback. All Feedback becomes the sole and exclusive property of Provider, and Provider may use and disclose Feedback without further notice or compensation to Subscriber and without retention by Subscriber of any proprietary or other right or claim. Subscriber hereby assigns to Provider any and all right, title and interest that Subscriber may have in and to any and all Feedback. At Provider’s request and expense, Subscriber will execute any document, registration or filing required to give effect to the foregoing assignment.
6.5 Marketing Support. Subscriber shall reasonably assist Provider with marketing support and/or activities at no third-party cost or expense to Subscriber. Such marketing support and/or activities shall include serving as a public reference for Provider with respect to customer use, participating in questionnaires and surveys in connection with case studies, and cooperating with press releases with respect to Subscriber’s use of Provider’s Products and Services. Without limiting the foregoing, Subscriber may grant upon written request from Provider permission to publish Subscriber’s names, corporate logos and/or service marks in any form of media in connection with any advertising, marketing and other promotional materials developed by Provider. Notwithstanding the foregoing, Provider, upon request by Subscriber, will cease to use Subscriber’s names, corporate logos and/or service marks in any marketing materials which are printed subsequent to such request and shall, upon such request, remove such names, corporate logos and/or service marks from its web site.
7.1 Use and Non-Disclosure. Each Party (“Receiving Party”) will maintain in confidence all Confidential Information disclosed to it by the other Party (the “Disclosing Party”) under this Agreement. The Receiving Party agrees not to use any of the Disclosing Party’s Confidential Information except as expressly authorized by this Agreement, and further agrees not to disclose or grant use of such Confidential Information to any third party without the prior written consent of the Disclosing Party on a case-by-case basis. Notwithstanding the foregoing, either Party may disclose this Agreement to its professional advisors and potential and actual investors and/or acquirers, provided such persons are subject to written confidentiality obligations no less protective than the terms of this Section 7.1. In addition, the Receiving Party will use at least the same standard of care as it uses to protect its own Confidential Information of similar nature to protect the confidentiality of the Confidential Information of the Disclosing Party, and in no event less than reasonable care. The Receiving Party agrees to promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information. The restrictions on disclosure will not apply to Confidential Information which is required to be disclosed by a court, government agency or regulatory requirement, provided that Receiving Party shall first notify the Disclosing Party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order.
7.2 Exceptions. The obligations of confidentiality contained in Section 7.1 will not apply to the extent that it can be established by the Receiving Party beyond a reasonable doubt that Confidential Information: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; (d) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (e) was developed independently by the Receiving Party without any use of the Disclosing Party's Confidential Information.
7.3 Equitable Relief. The Receiving Party understands and agrees that the Disclosing Party would suffer immediate and irreparable harm in the event of any breach of any of the Receiving Party’s obligations under this Agreement, that monetary damages would not be an adequate remedy for any breach of this Agreement and, therefore, that the Disclosing Party shall be entitled to appropriate equitable relief, including an injunction and an order for specific performance, as a remedy for any such breach in addition to any other relief to which it is entitled, including but not limited to monetary damages, and that Disclosing Party shall not be required to post a bond or other security to obtain such equitable relief.
8. WARRANTY AND DISCLAIMER
8.1 Mutual Warranties. Each Party represents and warrants that (a) it has the full corporate right, power and authority to enter into this Agreement, (b) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound, (c) this Agreement constitutes the legal, valid and binding obligation of such Party, in accordance with their terms; and (d) it will comply with all applicable law in the performance of its obligations and duties hereunder.
8.2 Provider Warranties. Provider hereby represents and warrants that (a) it will provide the Services in a manner consistent with general industry standards applicable to services similar to the Services and in accordance with the service levels set forth in Schedule A attached hereto; (b) the Products and Services will not infringe any valid and registered U.S. patent, copyright or trademark, and (c) it and its third party service providers that host the Subscription Services will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Subscriber’s electronic data and information submitted by or for Subscriber to the Subscription Services or collected and processed by or for Subscriber using the Subscription Services. In the event of a breach of the warranty in (a), Provider shall, as its sole and exclusive obligation and Subscriber’s sole and exclusive remedy, promptly reperform the affected Services at no additional cost to Subscriber. In the event of a breach of the warranty in (b), Provider shall, as its sole and exclusive obligation and Subscriber’s sole and exclusive remedy, at Provider’s option and expense, (x) modify the affected Products or Services so that they are no longer infringing; (y) replace the affected Products or Services with substantially similar alternate products or services; or (z) if neither of the options in (x) or (y) is commercially practicable as determined in Provider’s sole discretion, accept a return of the affected Products or Services and issue Subscriber a pro-rated refund of any amounts Subscriber paid therefor.
8.3 Exceptions. Provider shall have no liability or obligation for any breach of the warranties set forth in Section 8.2 resulting from: (a) the use or combination, by Subscriber, of the Products or Services with any other software or hardware not supported by Provider; (b) causes external to the Products or Services, such as problems with the hardware, network, power or other infrastructure of Subscriber; (c) unauthorized or improper use of the Products or Services by Subscriber; or (d) any modification of the Products or Services by anyone other than Provider.
8.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION 8, THE PRODUCTS AND SERVICES ARE PROVIDED TO SUBSCRIBER “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND. PROVIDER HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE SECURE OR ERROR FREE. EXCEPT AS SET FORTH IN SECTION 9.1 WITH RESPECT TO SUBSCRIBER CLAIMS, PROVIDER IS NOT RESPONSIBLE OR LIABLE FOR SUBSCRIBER’S OR ITS AUTHORIZED USERS’ USE OF THE PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, WHICH PERSONS SUBSCRIBER OR ITS AUTHORIZED USERS ALLOW OR DO NOT ALLOW TO ENTER SUBSCRIBER’S PROPERTY.
9.1 Provider Indemnification. Subject to this Agreement, Provider shall at its expense defend Subscriber and its officers, directors and employees (“Subscriber Indemnified Parties”) against any claims brought against any Subscriber Indemnified Party arising from or related to a third party claim that the Products or Services, as used in accordance with these Terms, infringe any valid and registered U.S. patent, copyright or trademark (each, a “Subscriber Claim”), and shall pay any damages finally awarded by a court or agreed to by Provider in a settlement with respect to such Subscriber Claim, provided that Subscriber (a) promptly gives written notice of the Subscriber Claim to Provider; (b) gives Provider sole control of the defense and settlement of the Subscriber Claim (provided that Provider may not agree to any settlement that imposes any liability or obligation on Subscriber); and (c) provides to Provider, at Provider’s cost, reasonable assistance in connection therewith.
9.2 Subscriber Indemnification. Subject to this Agreement, Subscriber shall at its expense defend Provider, its Affiliates and its and their respective officers, directors and employees (“Provider Indemnified Parties”) against any claims made or brought against any Provider Indemnified Party arising from or related to Subscriber’s violation of this Agreement or use of the Products or Services in a manner not contemplated hereunder (each, a “Provider Claim”) and shall pay any damages finally awarded by a court or agreed to by Subscriber in a settlement with respect to such Provider Claim, provided that Provider (a) promptly gives written notice of the Provider Claim to Subscriber; (b) gives Subscriber sole control of the defense and settlement of the Provider Claim (provided that Subscriber may not agree to any settlement that imposes any liability or obligation on Provider); and (c) provides to Subscriber, at Subscriber’s cost, reasonable assistance in connection therewith.
10. LIMITATION OF LIABILITY
10.1 Exclusion of Consequential Damages. EXCEPT FOR SUBSCRIBER’S BREACH OF SECTION 3.3 (PROHIBITED ACTIVITIES) OR 6.3 (RESTRICTIONS), EITHER PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY), THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNITY), AND A PARTY’S INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10.2 Limitation of Liability. EXCEPT FOR SUBSCRIBER’S PAYMENT OBLIGATIONS FOR PRODUCTS AND SERVICES UNDER THIS AGREEMENT, SUBSCRIBER’S BREACH OF SECTION 3.3 (PROHIBITED ACTIVITIES) OR 6.3 (RESTRICTIONS), EITHER PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY), AND A PARTY’S INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF (A) THE AMOUNTS ACTUALLY PAID BY SUBSCRIBER TO PROVIDER HEREUNDER FOR THE TWELVE (12) MONTH PERIOD THAT PRECEDED THE EVENT THAT GAVE RISE TO LIABILITY, OR (B) TEN THOUSAND DOLLARS ($10,000) (THE “CAP”). NOTWITHSTANDING THE FOREGOING, THE PARTIES’ RESPECTIVE LIABILITY WITH RESPECT TO THEIR INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNITY) SHALL NOT EXCEED AN AMOUNT EQUAL TO THREE (3) TIMES THE CAP.
11.1 Assignment. Neither Party shall assign any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the other Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either Party may assign its rights and delegate its obligations under this Agreement to an Affiliate or in connection with a merger, consolidation or reorganization involving such Party or a sale of all or substantially all of the assets or stock of such Party or business to which this Agreement relates without the other Party’s prior written consent, provided that the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any purported assignment or delegation in violation of this Section 11.1 is void and a material breach of this Agreement. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
11.2 Entire Agreement. This Agreement, together with its attached Schedules and Orders executed by the Parties, constitutes the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, commitments, and representations with respect to the subject matter hereof.
11.3 Force Majeure. If Provider is unable to perform any of its obligations hereunder due to any act of God, fire, casualty, flood, war, strike, shortage of labor or materials, or any other cause beyond its reasonable control (a “Force Majeure Event”), then Provider’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform.
11.4 Governing Law; Venue. This Agreement and any dispute arising from the construction, performance or breach hereof shall be governed by and construed and enforced in accordance with the laws of the State of New York, without reference to its conflict of law principles. The Parties hereto agree that the exclusive jurisdiction and venue for any action brought between the Parties under these Terms shall be the state or federal courts located in New York City, New York, and each of the Parties hereby agrees and submits itself to the exclusive jurisdiction and venue of such courts for such purpose, to the exclusion of all other venues, forums or jurisdictions.
11.5 Headings; Interpretation. Headings used in this Agreement are intended for convenience or reference only and shall not control or affect the meaning or construction of any provision of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing an instrument to be drafted. As used in this Agreement, the words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.”
11.6 No Third Party Beneficiaries. Except for the Parties’ indemnification obligations under Section 9, nothing in this Agreement shall confer any rights upon any Person other than the Parties, and each such Party’s respective successors and permitted assigns.
11.7 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) upon confirmation of receipt if sent by email. Notices to the Parties shall be sent to their respective addresses set forth in the applicable Order. Either Party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other party notice in the manner set forth herein.
11.8 Relationship of Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11.9 Waiver; Cumulative Remedies; Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Support and Maintenance; Service Levels
Support and Maintenance. Provider will support and maintain the Subscription Services so that they operate substantially in accordance with their specifications as set forth in the Documentation, and will promptly repair or replace, without any additional charge, the Subscription Services or any portion thereof that do not perform in accordance with such specifications.
Updates and Upgrades. Provider will update the Subscription Services and make available to Subscriber any and all patches, enhancements, updates, upgrades and new versions of the Subscription Services that Subscriber makes generally commercially available (“Updates”). Any such Updates will be deemed part of the Subscription Services as that term is used herein and will be covered by the support services set forth in this Schedule.
Availability and Contacts. Provider will provide phone and email technical support for the Subscription Services for up to three (3) Subscriber representatives per Subscriber property or facility from 6 am – 10 pm Eastern Standard Time without additional charge. Provider’s support personnel will provide Subscriber with remote assistance for help in using and operating the Subscription Services and to accept reports of errors in the Subscription Services. Provider personnel performing support services will be experienced, knowledgeable and qualified in the use, maintenance and support of the Subscription Services. Support services do not include additional training, custom programming or services for problems, errors or inquiries relating to the equipment and ancillary services necessary to access and use the Subscription Services, including hardware, software, wireless devices, and telecommunication services or their interoperation with the Subscription Services.
Contact information for technical support is as follows:
Phone: (775) 600-2950
Provider may change any of the foregoing contact information from time to time by not less than thirty (30) days prior written notice to Subscriber, so long as at least one number or address is at all times available for each means of contact.
Service Level Standards. Provider will at all times during the Term of this Agreement use commercially reasonable efforts to maintain the following service levels for the Subscription Services (collectively, the “Service Levels”).
System Availability Service Level. Provider will make the Subscription Services available 99% of the time during each one-month period during the Term, excluding any Subscription Services maintenance or Force Majeure Events that result in the Subscription Services not being available to Subscriber, as measured and monitored from Provider’s facilities (“Service Availability”). Service Availability will be calculated on a monthly basis using the following formula: Actual Availability divided by Total Scheduled Availability multiplied by 100%. The following definitions will apply with respect to the calculation of Service Availability:
“Actual Availability” means Total Scheduled Availability minus Downtime, in minutes.
“Downtime” means the time (in minutes) that the computing infrastructure that hosts the Subscription Services is online and available to receive application requests from the public internet. Downtime does not include any unavailability of the Subscription Services and system due to System Maintenance or a failure or defect arising out of a Force Majeure Event, or any inability of an Authorized User to access the Subscription Services due to such Authorized User’s loss of power, internet connectivity, or other cause unrelated to the Subscription Services.
“System Maintenance” means time (in minutes) that the Subscription Services are not accessible to Subscriber due to maintenance of the Subscription Services, including for maintenance and upgrading of the software and hardware used by Provider or its service providers to provide the Subscription Services. System Maintenance includes scheduled maintenance and unscheduled, emergency maintenance. Provider will use commercially reasonable efforts to provide Subscriber with at least five (5) business days’ prior written notice of any scheduled maintenance or sixty (60) minutes’ advance written notice for unscheduled, emergency maintenance. Provider will provide such notices to Subscriber by email to an address provided by Subscriber. System Maintenance in any given month will not exceed two (2) hours per month. Any time during which the Subscription Services are unavailable to Subscriber due to maintenance or other activity by Provider for which Provider fails to give notice, which exceeds the permitted time allotment, or which occurs outside of the foregoing permitted hours will be included in the calculation of Downtime.
“Total Scheduled Availability” means seven (7) days per week, twenty-four (24) hours per day, excluding System Maintenance, in minutes.