CONTINUOUS TECHNOLOGIES
MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) governs use of the Continuous Platform and Continuous Applications that are identified on an Order Form that references this Agreement, as well as any future Order Forms that reference this Agreement. In this Agreement, “we,” “our,” or “us” means Continuous Technologies, Inc., and “you” or “your” means the customer identified in an Order Form.
BY EITHER: (1) SIGNING AN ORDER FORM REFERENCING THIS AGREEMENT; OR (2) CLICKING “I ACCEPT,” “I AGREE,” OR WORDS OF LIKE MEANING WHEN YOU ACCESS OR IMPLEMENT THE PRODUCTS, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THE TERMS OF THIS AGREEMENT, AND MAY NOT ACCESS OR USE THE PRODUCTS.
1. Access and Use.
1. 1. Access and Use. Subject to all of the terms and conditions of this Agreement, and the payment of applicable fees, we grant you: (i) the right to use and access the Continuous Platform identified in an Order Form; and (ii) the right to setup, use and access any Continuous Applications identified in an Order Form; and (iii) a limited, non-transferable, non-sublicensable, non-exclusive, revocable license to copy and use the Documentation. The foregoing rights are limited to: (i) your internal business operations; (ii) the term of the subscription set out in the applicable Order Form; (iii) use in accordance with the terms of this Agreement, any additional limitations set forth on the applicable Order Form and the Documentation.
1.2. Usage Limitations. Use of the Products may be subject to user limitations or other limitations described in an Order Form. We have the right to disable access rights that exceed such limitations. We will use reasonable efforts to contact you before enforcing such limitations. You may choose to lower your use of the Products to conform with the usage limitations, or, you can choose to increase your usage limitations and pay any corresponding fees. Unless otherwise stated in an Order Form, fees for such increased usage will be charged at the standard list pricing in effect at that time.
1.3. Authentication Keys. We will provide you with security authentication information that allows you to access the Products and Documentation. You are responsible for maintaining the confidentiality and security of the security authentication information.
2. Restrictions. You will not, and will not allow any third party in your control, to:
(i). reverse engineer, or attempt to reverse engineer, the Products, or any component thereof, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces in the Products by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then, only to the extent of such applicable law, and with prior written notice to us);
(ii). distribute, sell, sublicense, rent or otherwise transfer the Products to any third party;
(iii). re-create, lease or use the Products for time sharing, hosting, service provider or like purposes;
(iv). post, upload or introduce, any data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine or mechanism, through or to the Products, that causes or is designed to: (i) gain unlawful access to the Products; or (ii) cause the Products to cease functioning, or to disrupt, disable, harm or otherwise impair the Products or Third Party Products in any manner, including aesthetic disruptions or distortions; or (ii) use the Products to access, or damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with the operation of the Products or any of our other software, firmware, hardware, computer systems or networks;
(v). remove any product identification, proprietary, copyright or other notices contained in, or on, the Products or Documentation;
(vi). modify any part of the Products or Documentation, create a derivative work of any part of the Products or Documentation, or incorporate the Products into or with other software, except to the extent that we authorize that in writing; or
(vii). publicly disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Products from any source.
3. Suspension. We have the right to suspend your access to the Products if you don’t pay us, or if we reasonably believe that you have breached this Agreement, violated third party rights, or violated applicable laws. We will do our best to give you notice before we suspend your access to the Products; however, we may suspend any individual users’ access immediately if that user has violated Section 2 (Restrictions).
4. Business Communications. It is our intent that each of us communicate regularly with the other when this Agreement is in effect. You agree that we can use your Business Data to communicate with you. We will communicate with the individuals identified in the Order Form, and those who contact us for technical support or other day to day questions via phone or electronic communications.
5. Open Source Components. The Continuous Products may contain software code and/or libraries that are made available to the public at no charge, and which are subject to the license terms provided with, and applicable, to, the software code. Your use of that code is subject to the applicable license terms. You will not use or combine any software with the Products which contains any free code which is licensed under the “General Public License”, a similar “viral” license or any other license which could: (i) compromise or interfere in any way with our Intellectual Property Rights; or (ii) require us to publicly release the source code to the Products or any portion thereof.
6. Fees; Payment; Taxes. You will pay us the fees set forth in an Order Form at the times, and in the amounts set forth therein. All invoices are due and payable within thirty (30) days of the invoice date, unless the Order Form says otherwise. Fees are non-refundable and will be paid in U.S. Dollars. Fees will be paid without set off or deduction of any kind. You are responsible for all taxes, withholdings, duties and levies arising from your use of the Products, except for taxes based on our net income. Unless otherwise stated in an Order Form, your fees may increase by five percent (5%) each year, on each anniversary of the subscription start date.
7. Services.
7.1. Implementation Services. You may setup and configure the Products on your own, using our Implementation Tools, or ask us to help you do so. If you ask us to assist with implementation and configuration, those services will be listed in an Order Form. All Implementation Tools used for implementation of the Products are an integral part of the Products, and are included in the your Product license.
7.2. Technical Support Services. During the term of the applicable subscription, we will provide you with the technical and customer support identified in the Order Form, which may be further described in the Documentation.
7.3. Professional Services. We may provide you with Professional Services during the term of this Agreement (or applicable Order Form), such as best practices workshops, system architecture, feature design, customizations to third party products, or other services that are identified in an Order Form. As long as you pay us, we hereby assign to you all right, title and interest to those items of the Work Product that are identified as Work Product in an Order Form.
7.4. Training Services. We may provide you with Training Services during the term of this Agreement, such as how to guides, classroom training and ad-hoc training. As long as you pay us, we hereby grant you an exclusive, irrevocable, non-transferrable, non-sublicensable, royalty-free, worldwide right to use the Training Materials for your internal business purposes, including the right to make a reasonable number of copies of such materials. You agree that the training materials are our Confidential Information.
7.5. General Expertise. Our ability to perform Services is dependent on our past experience in providing similar Services to others. We expect to continue this type of work in the future. We retain, and are not conveying to you, our methods of business or operation, know-how, templates, or expertise relating to the Services we provide.
7.6. Expenses. If you provide prior written approval, Expenses will be invoiced to you at cost.
7.7. Project Delays. You are responsible for giving us the information and access to key stakeholders we need to perform Services in a timely manner; otherwise your implementation, configuration and deployment will be delayed. You are responsible for any of those delays.
7.8. Access. If the Services require access to your networks, infrastructure, facilities, or software (including any necessary license rights for Third Party Software), you will provide us with access to those parts of your networks, infrastructure, facilities or software (including any necessary license rights for Third Party Software), that are necessary for our performance of the Services.
8. Performance Standards.
8.1. Availability. We will use commercially reasonable efforts to make the Products available to you 24 hours a day, 7 days a week, subject to: (i) planned downtime (of which we will give advance electronic notice); (ii) emergency maintenance; and (iii) the occurrence of force majeure events (see Section 18.4). We don’t control the internet, Third Party Products, such as Salesforce or NetSuite, or the hosting providers. If the Products aren’t available because of downtime caused by Third Party Products (such as Salesforce or NetSuite), internet outages, or hosting providers, we aren’t responsible.
8.2. Conformance to Documentation. During the term of the applicable subscription, the Products will substantially conform to the Documentation.
8.3. Services Warranty. We will provide all Services in a professional and workmanlike manner.
9. Third Party Products. We do not provide Third Party Products under this Agreement. You may choose to connect to the Products using Third Party Products, (such as the Mulesoft integration tool). We are not responsible for the availability of such Third Party Products, or for the related licensing or maintenance of those products. You are solely responsible for obtaining and maintaining the rights to use and access Third Party Products, and for complying with all related terms and conditions. Your failure to obtain and maintain the ability to use the Third Party Products may cause the Products or your solution to fail to operate.
10. Customer Data. The Continuous Platform does not receive, collect, store or process any Personal Data. The Continuous Applications are deployed into Third Party Products such as Salesforce and NetSuite, and, as such, you control all access to your Customer Data and Personal Data in those Third Party Products. The Continuous Platform performs processing and calculations using tokens and keys, without the use of any Personal Data. If you, or an authorized user, put Personal Data into the Continuous Platform, you are responsible for compliance with all applicable data privacy laws in connection with such activities.
11. Monitoring the Continuous Platform. You agree that we may monitor and gather data and information related to your use of the Continuous Platform, including, for example, data regarding memory usage, connection speed and efficiency.
12. Term; Termination. This Agreement will commence on the Effective Date and will continue until provided in this Section 12. Your use of the Products is authorized during the subscription term in the Order Form. Unless otherwise stated in the Order Form, your subscription will automatically renew for additional one (1) year terms unless or until either of us gives notice to terminate sixty (60) days prior to the end of the the-current subscription term.
12.1. Termination. Either of us may terminate this Agreement if the other party: (i) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach, provided, however, that the right of termination in this subsection will apply only to the Order Form affected if the material breach does not affect the entire Agreement; or (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party, and such proceeding is not dismissed within sixty (60) days thereafter. Your failure to pay us when fees are due, is a material breach. If your breach is such that it cannot be cured, then we have the right to terminate this Agreement, or any Order Form immediately. Our termination of this Agreement or any Order Form is not an exclusive remedy. Unless otherwise stated in an Order Form, your subscription will continue for the remainder of the term of the subscription, and your use of the Products will continue to be subject to the terms of this Agreement.
12.2. Effect of Termination. Termination of this Agreement or any Order Form does not affect your obligation to pay us. Your right to use the Products terminates at the expiration or termination of the applicable Order Form, or when this Agreement terminates, as applicable. On termination, you will return all tangible portions of the Documentation that are in your possession at the time of termination. Any data that exists in the Continuous Platform at the time of termination, will be deleted within thirty (30) days. Termination of this Agreement does not effect any previously accrued rights or obligations.
12.3. Survival. The following provisions of this Agreement survive termination: 2 (Restrictions), 6 (Payment), 12.2 (Effect of Termination), 14 (Ownership), 15 (Confidentiality), 16.4 (Customer Indemnities), 17 (Limitation of Remedies and Damages), 18 (General) and (19) Definitions, and any provision of the Agreement that, by its terms, survives.
13. Representations and Warranties. Each party represents and warrants that: (i) it has full power and authority to enter into the Agreement; and (ii) it will comply with all laws applicable to its performance under this Agreement.
14. Ownership.
14.1. Products. We retain ownership of the Products, our Confidential Information, Implementation Tools and Documentation including, without limitation, all Intellectual Property Rights thereto, and all copies, modifications, implementation code, APIs, user interfaces, enhancements, versions, and derivative works of all of the foregoing, (including any such materials to the extent incorporating any Feedback). No use of the words “purchase”, “sale” or like terms in this Agreement, Order Forms, or elsewhere, conveys any ownership rights to you under this Agreement. We are free to exploit and use any Feedback you provide to us, without obligation of compensation or attribution. Except for the limited rights to use and access the Products and Documentation set forth in this Agreement, no other rights are granted to you.
14.2. Customer Data. You own all Customer Data, and you control all access to Customer Data. To the extent that we need to access or use the Customer Data in the performance of this Agreement, such as providing technical support, professional services, or consulting services, you agree that we can access and use the Customer Data if necessary to complete the obligations of this Agreement.
14.3. Business Data. All of your Business Data will be handled in accordance with our privacy policy, located at the following URL (or any successor URL): https://continuoustech.com/privacy-policy/.
15. Confidentiality
15.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement, whether orally or in writing, that is designated as confidential and, where the information is disclosed in written form, is marked as “confidential,” “proprietary” or with words of like meaning. The Confidential Information of Continuous Technologies includes the Products, Documentation and the Order Form(s) (including pricing).
15.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party: (i) will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) will limit access to the Disclosing Party’s Confidential Information to those of its and its Affiliates’ employees, contractors, financial advisors and legal advisors, who need that access for purposes consistent with this Agreement, and who have signed confidentiality agreements with the Receiving Party containing protections substantially similar to those contained herein. The Receiving Party will not remove any proprietary or confidential notice from any form of the Disclosing Party’s Confidential Information.
15.3. No License. The Disclosing Party retains all ownership rights in and to its Confidential Information. Except for the limited right to use the Disclosing Party’s Confidential Information under this Agreement, no other rights or licenses are granted to the Disclosing Party’s Confidential Information.
15.4. Exceptions. The Receiving Party is not in breach of this Agreement where the Disclosing Party’s Confidential Information: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of, or access to, the Disclosing Party’s Confidential Information.
15.5. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, in Disclosing Party’s efforts to contest the compelled disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
15.6. Survival. The obligations in this Section 15 will survive termination of this Agreement for a period of 2 years.
16. Indemnification
16.1. Indemnity by Continuous Technologies. Subject to the exceptions in Section 16.2, and your compliance with this Agreement, we will defend, or at our option settle, any third-party lawsuit or proceeding brought against you by a third party based, upon a claim that the Products, as delivered, infringe or misappropriate the Intellectual Property Rights of such third party (“Claim”), and will pay all damages and costs (including reasonable attorneys fees) finally awarded against you (if any). You will give us prompt written notice of any Claim. Our obligations are conditioned upon you: (i) giving us prompt written notice of the Claim; (ii) giving us sole control over defense of the Claim; and (iii) cooperating fully with us in our defense of such Claim. We may, in our sole discretion, and option, either: (i) obtain the right for you to continue using the Products; or (ii) replace or modify the Products so that it (or they) is (are) no longer subject to such Claim. If we can’t do either of the foregoing on commercially practical terms, we may terminate the Order Form applicable to the allegedly infringing Products, or the Agreement, or both, and provide you with a refund of any pre-paid and unconsumed fees for the allegedly infringing Products.
16.2. Exceptions. We don’t have any obligation to indemnify you, if any portion of a Claim relates to: (i) the combination of the Products with any product, software, service, process, or other item (including Third Party Products) not provided, or specified, by us; (ii) the modification of the Products by a person other than us; (iii) Your use of the Products that is not the current version, if your use of the current version of the Products avoids the alleged infringement; (iv) your use of the Products in a manner not contemplated or authorized by this Agreement; (v) your use of the Products after we notify you to discontinue that use; or (vi) your willful misconduct, fraud, or knowing or negligent acts in connection with this Agreement; or (vii) any use of the Products that is provided at no charge; or (viii) your use of the Products to practice any method or process that does not occur wholly within the Products.
16.3. THIS SECTION 16 STATES OUR ENTIRE LIABILITY, AND EXCLUSIVE REMEDY FOR THE
INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
16.4. Customer Indemnification. You will indemnify and hold us harmless, from and against all damages, fines, expenses, costs, fees and other losses arising from any third party lawsuit or proceeding brought against us, that arises out of: (i) the Customer Data; or (ii) your breach of Section 2 (Restrictions).
17. Limitation of Remedies and Damages.
17.1. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR: (I) YOUR OBLIGATION TO PAY FEES; OR (II) FOR INDEMNIFICATION OBLIGATIONS; OR (III) FOR BREACH OF CONFIDENTIALITY; OR (IV) FOR EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD; OR (V) FOR YOUR BREACH OF SECTION 2, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17.2. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR: (I) YOUR OBLIGATION TO PAY FEES; OR (II) FOR INDEMNIFICATION OBLIGATIONS; OR (III) FOR BREACH OF CONFIDENTIALITY; OR (IV) FOR EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD; OR (V) FOR YOUR BREACH OF SECTION 2, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE A CLAIM FIRST AROSE.
17.3. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS, AND ALL SERVICES ARE PROVIDED “AS- IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER WE NOR OUR SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS WILL BE AVAILABLE, ERROR-FREE, COMPLETELY SECURE, VIRUS FREE OR WITHOUT INTERRUPTION, OR THAT THEY WILL MEET YOUR REQUIREMENTS, OR THAT PROGRAM DEFECTS OR ERRORS ARE CAPABLE OF CORRECTION. THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE INTERNET; WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR SERVICE INTERRUPTIONS.
18. General.
18.1. Order of Precedence. In the event of a conflict between this Agreement and any Order Forms, the terms of the Order Form will prevail to the extent of the conflict.
18.2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), however, either of us may assign or transfer this Agreement in connection with the sale or disposition of 50% or more of the voting rights in each of our respective business entities. You must promptly notify us of the transfer or assignment. Any attempted assignment without consent is null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
18.3. Amendments. All modifications of this Agreement must in in writing and signed by each of our authorized representatives.
18.4. Force Majeure. Except for payment obligations, neither party will be liable to the other for failure to perform its obligations to the extent caused by an event beyond the reasonable control of such party, including, without limitation, government regulations or orders, outbreak of a state of emergency, acts of god, war, warlike hostilities, civil commotion, riots, epidemics, fire, strikes, lockouts, or any other similar cause or causes, provided that the affected party promptly notifies the other of such occurrence and makes its best efforts to eliminate the effect thereof.
18.5. Governing Law. This Agreement is deemed to be made under and will be interpreted in accordance with the laws of the State of Delaware, excluding its conflict of laws provisions.
18.6. Arbitration. We both agree that any dispute, claim or controversy directly or indirectly relating to or arising out of this Agreement, the termination or validity hereof, any alleged breach of this Agreement, or the engagement contemplated hereby, will be submitted to Judicial Arbitration and Mediation Services (“JAMS”), or its successor, in San Francisco, California, for final and binding arbitration in front of a panel of three arbitrators with JAMS in San Francisco, California, under the JAMS Comprehensive Arbitration Rules and Procedures (with each party choosing one arbitrator, and the chosen arbitrators choosing the third arbitrator). The arbitrators will, in their award, allocate all of the costs of the arbitration, including the fees of the arbitrators and the reasonable attorneys’ fees of the prevailing party, against the party who did not prevail. The award in the arbitration will be final and binding. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§1–16, and judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The parties agree and consent to personal jurisdiction, service of process and venue in any federal or state court within the State and County of San Francisco, California in connection with any action brought to enforce an award in arbitration.
18.7. Counterparts. This Agreement may be executed in one or more counterparts, each of which constitutes an original and all of which taken together constitutes the same agreement. This Agreement may be signed using an electronic or handwritten signature, which each of us agree is permitted, and is of equal effect, whether on original or electronic copies.
18.8. Independent Contractors. The parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created between the parties. Neither party has the authority to bind the other or incur obligations on the other party’s behalf.
18.9. Notices. Any notice which may be or is required to be given under this Agreement will be in writing, and will be deemed to have been received: (i) when delivered personally with signature confirmation; or (ii) after being sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one (1) day after having been sent by a commercial overnight carrier with written verification of receipt. In addition, each of us will email a copy of all notices by email. Either party may change its notice address by written notice to the other. All notices related to or arising under this Agreement will be addressed to Customer at the address set forth in the Order Form, and to legal@Continuoustech.com.
18.10. Publicity. We may use your name and logo on our website, and in our marketing materials to identify you as a customer. We will use your logo in accordance with your instructions. If you agree, we may issue a press release, written testimonial, or review, identifying you as a customer.
18.11. Severability. If any provision of this Agreement is determined by a court to be illegal, unenforceable or invalid, that provision will be limited or modified to the minimum extent necessary to avoid such illegality, unenforceability or invalidity. If limitation or modification of the illegal, unenforceable or invalid provision is not possible, that provision will be stricken from the Agreement and the remaining terms will be in full force and effect.
18.12. Waivers. No waiver of any breach will be held to be a waiver of any other or subsequent breach regardless of the course of dealing which develops or has developed between the parties. All waivers must be in writing.
18.13. Equitable Remedies. Actual or threatened breach of certain sections of this Agreement (such as, without limitation, provisions on intellectual property (including ownership), and confidentiality) may cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Either party is entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach or threatened breach, without the need to post a bond or prove damages.
18.14. No Third Party Beneficiaries. There are no third party beneficiaries of this Agreement.
18.15. Entire Agreement. This Agreement, together with all Order Forms, sets forth the entire understanding of the parties regarding the subject matter hereof. All other proposals and discussions are superseded. The pre-printed terms and conditions appearing on the parties’ purchase orders, invoices, order confirmations or similar documents will be for administrative purposes only.
18.16. U.S. Government End-Users. The Products are commercial computer software. If the user of the Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, and/or Documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
18.17. Export Compliance. You acknowledge that the Products may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. You will not, and will not allow any third-party under your control to, remove or export from the United States or allow the export, re-export or access of any part of the Products or Documentation, or any direct product thereof: (i) into or from (or to or by a national or resident of) any embargoed or terrorist-supporting country; (ii) to or by anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to or from any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing, and you warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Products are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
18.18. Captions and Headings. The captions and paragraph headings in this Agreement are for convenience of reference only; they will not be deemed part of this Agreement, nor used as an aid in its construction.
19. Definitions.
19.1. “Order Form” means any order form signed by you, and by us, that references this Agreement.
19.2. “Continuous Platform” means software we develop, including all related updates, and upgrades, including our hosted rating and calculation engine, user interfaces, APIs, and other software and materials that provide functionality to you directly or through the Continuous Application.
19.3. “Continuous Applications” means the software that we develop, including all related updates, upgrades, implementation code, APIs, error corrections, code interfaces and other software code, that is deployed into your operating environment and licensed to you for your use during the subscription term.
19.4. “Products” means the Continuous Applications and Continuous Platform.
19.5. “Business Data” means information related to your employees or independent contractors that you provide to us under this Agreement, such as name and email address.
19.6. “Personal Data” means any information relating to an identified or identifiable natural person.
19.7. “Customer Data” means all Business Data or Personal Data or content that you or your authorized users input into the Products.
19.8. “Documentation” means any written or electronic document(s) that we make available to you, including updates to those documents that set(s) out a description of the Products and the proper use and operation thereof. We may make the Documentation available to you through our online customer portal.
10.9. “Training Materials” mean any videos, documents or guides that are used classroom training, ad-hoc training Implementation Services, Technical Support Services or Training Services.
19.10. “Feedback” means ideas, feedback or suggestions that you give us related to the Continuous Platform and Continuous Applications. Feedback does not include your Confidential Information or Customer Data.
19.11. “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, methods, processes, techniques, know-how, updates, improvements, extensions, modifications and derivative works thereof, trade names, mask works, designs, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.
19.12. “Third Party Products” means products, services, software or programs that are developed, owned, or provided by you, or by a third party. Third Party Products include NetSuite and Salesforce, and other similar products.
19.13. “Services” means Implementation Services, Technical Support Services and Professional Services we perform for you that is described in an Order Form.
19.14. “Professional Services” means work that we perform for you, other than Implementation Services, Technical Support Services and Training Services, that are described in an Order Form. Professional Services may include solution workshops, designs, or customizations to Products or Third Party Products.
19.15. “Technical Support Services” means any technical support, issue management, application management, guides, user training, or best practice guidance that are used to implement and use Products or Third Party Products.
19.16. “Implementation Tools” means any setup configurations, scripts, code, methodologies or training materials that are used to implement and configure Products.
19.17. “Work Product” means the final form of materials that result from our performance of the Professional Services described in an Order Form. Work Product does not include any software code that is used to perform any Services. Under no circumstances will our Intellectual Property Rights, the Products, Documentation, Training Materials, or any portion thereof, be considered Work Product.
Updated December 15, 2024