United States - ASP AGREEMENT ADDITIONAL TERMS AND CONDITIONS
Effective as of July 15, 2015, these ASP Agreement Additional Terms and Conditions (these “Terms”) are and shall be deemed to be part of and incorporated into every Authorized Service Provider Agreement (“ASP Agreement”) dated on or after that date between Virium Technology LLC , a Massachusetts limited liability company (“Service Provider”) and any customer of Service Provider (a “Customer”) and incorporated into all purchase orders, price quotes, written proposals, and schedules or addenda dated on or after that date and concerning specific Services (as hereafter defined) or aspects of specific Services, or amendments to any of the foregoing documents, by which Service Provider would provide Services or access to the Applications (as hereafter defined). Service Provider and Customer collectively may be called the “Parties”, and each may be called a “Party”. In the event of any conflict between these Terms, on the one hand, and any other terms or conditions of any ASP Agreement, purchase order, contract regarding any specific package, bundle or group of Services to be provided by Service Provider, or schedule, on the other hand, these Terms shall control.
WHEREAS, the Service Provider hosts and provides access to the Applications (as hereafter defined) in its capacity as an application service provider; and
WHEREAS, Customer is an Independent Software Vendor (ISV) and/or computer solutions provider that desires to access the Applications as hosted by the Service Provider from a remote location under a non-exclusive license in connection with Customer’s servicing of its own clients in return for the payment of fees described in Customer’s ASP Agreement with Service Provider;
NOW THEREFORE, for and in consideration of the premises, of the terms set forth herein, and of other good and valuable consideration, the receipt and sufficiency of which the Parties stipulate, the Parties hereby agree as follows:
As used in the ASP Agreement (including without limitation these Terms), the following defined terms shall have the meanings ascribed to them below:
• A. “Affiliate” means any employee, manager, officer, director, shareholder, representative, agent or attorney of the specified Party;
• B. “Applications” means the selected software applications provided by the ASP Infrastructure to the extent made available to Customer in Customer’s ASP Agreement;
• C. “ASP Infrastructure” means the Service Provider’s computer hardware, firmware, software and communications infrastructure used to facilitate Customer’s access to the Applications;
• D. “Authorized User” means anyone whom Service Provider or Customer authorizes to access the Applications or the ASP Infrastructure under Customer’s rights provided by the ASP Agreement (including without limitation these Terms) and includes, without limitation, any of Customer’s clients to whom Customer provides access to or use of any part of the Applications;
• E. “Authorized User Computer Systems” means an Authorized User’s hardware, firmware, software and communications infrastructure through and on which any Applications may be accessed or used;
• F. “Business Day” means any day other than Saturday or Sunday that is not a legal national or state holiday;
• G. “Business Hour” means any time between 9:00 a.m. and 6:00 p.m. Eastern Standard Time on a Business Day during which the Service Provider is open for business;
• H. “Confidential Information” means all business, technical, or financial information, or information that is otherwise not generally known to the public and would be useful to either Party’s business competitors, exchanged or communicated by either Party with or to the other Party;
• I. “Customer Computer Systems” means the Customer’s computer hardware, firmware, software, and communications infrastructure through and on which any Applications may be used;
• J. “Customer Data” means any data belonging to the Customer (or any of its Authorized Users) or to third parties and used by Customer (or any of its Authorized Users) under license that is created using the Applications or otherwise stored in the ASP Infrastructure.
• K. “Effective Date” means the date on which both the pertinent Customer and Service Provider have signed their ASP Agreement.
• L. “Fees” means the sums payable by the Customer in return for access to the Applications, the ASP Infrastructure, and Services provided by Service Provider in accordance with the ASP Agreement (including without limitation Sections 6 and 13 of these Terms);
• M. “Intellectual Property Rights” means all vested contingent and future intellectual property rights, including but not limited to any copyright, trademark, service mark, design rights (whether registered or unregistered), patents, know-how, trade secret, invention, get-up and database rights;
• N. “Losses” means demands, claims, causes of action, liabilities, losses, damages, judgments, expenses and attorneys’ fees.
• O. “Service(s)” means the service(s) related to access to or use of the Applications that Service Provider has agreed to provide to a Customer in the ASP Agreement with that Customer.
• P. “Software” means any and all software programming, whether operating systems or more specific programming, that may be included in or accessible through the Applications or ASP Infrastructure.
• Q. “Surviving Provisions” means the provisions of these Terms (and therefore of the ASP Agreement) that shall survive any termination of the ASP Agreement, which are all of the provisions of these Terms except subsections 4.A, 5.A, 5.B, 5.C, 7, 8, 9.A and 9.C-G, 10.A, C, D, 11, 12.A-E, 13, and 16.C.
• R. “Unauthorized User” means (a) any person or entity other than an Authorized User who attempts to access or does access any Application or ASP Infrastructure from any computer, cellphone, tablet, or other device owned, leased, borrowed or controlled by Customer or any of its directors, officers, managers, employees or agents; or (b) any Authorized User who attempts to use or access any part of the ASP Infrastructure or Applications that neither Customer nor Service Provider authorized the Authorized User to access or use.
2. Role of these Terms.
A. Governing Role; Incorporation by Reference. These Terms shall govern all Services and shall be deemed incorporated into each and every ASP Agreement, purchase order, change order, contract, and quote, and every amendment thereto, pursuant to which Customer contracts to receive any Services. None of these Terms or any other provision of the ASP Agreement may be waived, changed, deleted or terminated orally. No purchase order, contract, or quote for the provision, sale or cost of Services may amend, change, alter, or limit these Terms or their applicability to all Services, unless it is named “Amendment to ASP Agreement” and is signed by an authorized representative of both Customer and Service Provider. No such change shall amend, modify or otherwise affect these Terms, except to the extent that the amendment explicitly states such modification.
B. Service Provider Not a Fiduciary. Notwithstanding any contract, purchase order, change order or amendment to any of the foregoing that Customer and Service Provider may sign, Service Provider shall never have any fiduciary duties or other implied duties to Customer. The relationship between Service Provider and Customer shall never be more than an independent contract relationship.
C. Service Provider is Not Contracting with Customer’s Clients. The ASP Agreement (including without limitation these Terms) is between and for the benefit of Service Provider and Customer only (except to the extent that the indemnification provisions of these Terms explicitly provide indemnification, hold harmless and defense protections for Affiliates of Customer and Service Provider). Service Provider does not intend to have and hereby expressly disclaims any contractual relationship or obligations to any of Customer’s clients. Customer’s clients are not intended third party beneficiaries of the ASP Agreement. Customer shall have its own written contract with each of its clients who is an Authorized User regarding any services provided by Customer to such Authorized User(s) that includes any use of, access to or reliance on any of the Applications or any portion of the ASP Infrastructure. Customer shall be solely liable and responsible for any demand, claim or cause of action asserted by any of Customer’s clients related to the Services or Customer’s use (or facilitation of any Authorized User’s use) of any aspect of the Applications or of the ASP Infrastructure.
3. Service Provider Not a Manufacturer or Warranty Provider
A. Service Provider Not a Manufacturer. Customer acknowledges that Service Provider is not a manufacturer of any computer hardware, Software or communications infrastructure. Service Provider provides no independent warranties regarding any Software nor any of the computer hardware or communications infrastructure that is part of the ASP Infrastructure or accessible through any Applications. Customer agrees that only the third party manufacturers of any ASP Infrastructure and of any Software that forms part of the Applications or ASP Infrastructure may be liable (and that Service Provider shall not be liable) for the quality, performance, merchantability, fitness for any general or specific use, and any and all warranty coverage, if any, for any computer hardware, Software or communications infrastructure forming part of the ASP Infrastructure or part of any Application that Customer may access. Customer may only pursue any and all performance, defective product, quality, breach of warranty, or any other claims related to any Software, communications infrastructure, or computer hardware against the third party manufacturers, designers, and producers of such products forming part of the ASP Infrastructure or Applications and not against Service Provider.
B. Customer’s Non-Interference Covenants. Customer agrees to (and agrees to cause Customer’s Affiliates and Authorized Users to) refrain from maliciously or intentionally interfering with the proper operation of any ASP Infrastructure or Applications, including but not limited to defeating identification procedures, obtaining access beyond that which Customer is authorized to have, or impairing the availability, reliability, or quality of service for other of Service Provider’s customers. Customer further agrees not to interfere with the proper operation of other Service Provider systems reachable through the Internet, including any attempt at unauthorized access. Customer agrees to follow the acceptable use policy of any network or service to which Customer or any Authorized User connects.
A. Specific Services to be Provided. Customer has requested and agreed to pay to Service Provider all Fees required by the ASP Agreement for the Services related to the Applications described in the ASP Agreement. Service Provider shall have no obligation to provide any Services related to any Applications other than as stated in the ASP Agreement. Commencing on the Effective Date, Service Provider shall provide the Services to Customer on a non-exclusive basis during the Contract Term and in accordance with the ASP Agreement (including without limitation these Terms). Service Provider shall provide access to the Applications through the ASP Infrastructure and shall use its commercially reasonable best efforts to keep such access available, without interruption, 24 hours per day, 7 days per week, 365 days per year. This undertaking shall be subject to the exceptions contained in Sections 5 (Contract Term and Termination), 6 (Fees and Payment), 13 (Support), and 19.F (Force Majeure) of these Terms.
B. No Service Provider Guarantees. Except to the extent that a purchase order or contract signed by Service Provider regarding a specific Service explicitly states otherwise, Service Provider does not warrant, represent or guarantee that any Applications or Services will achieve any specific result; accomplish any permanent fix to any Software or computer hardware or communications infrastructure malfunctions; detect any specific malfunctions; prevent any hacking or viruses; or keep any hardware, Software, Application, infrastructure or system running without interruption.
5. Contract Term and Termination.
A. Contract Term. Each ASP Agreement shall have a term (the “Contract Term”) that will commences on the Effective Date and end upon termination as specified in subsection 5.B or 5.C below.
B. Customer’s Right to Terminate. Customer may terminate the ASP Agreement as follows:
(I) on 15 days’ advance written notice, if Service Provider breaches the ASP Agreement and fails to cure the breach within 30 days after Service Provider receives a written notice from Customer of breach specifying the nature of the breach and the section of the ASP Agreement that has been breached;
(II) on 15 days’ advance written notice, if a receiver or liquidator is appointed by a court to manage Service Provider’s business affairs or liquidation, or if Service Provider files a bankruptcy petition in any state or federal court;
(III) at any time after the first six (6) months of the Contract Term, on at least 30 days’ advance written notice, for any reason or no reason; or
(IV) pursuant to the provisions governing Service Provider’s right to amend the ASP Agreement described in subsection 19.L
C. Service Provider’s Right to Terminate. Service Provider may terminate the ASP Agreement as follows:
(I) On three (3) days advance written notice, if Customer fails to timely pay the Fees required under the ASP Agreement (such as, without limitation, Section 6 of these Terms);
(II) On three (3) days’ advance written notice, if Customer breaches the ASP Agreement (by breach of any of these Terms or otherwise) and fails to cure the breach within five (5) days of receipt of written notice from Service Provider of the nature of the breach and the Section of the ASP Agreement (including without limitation of these Terms) breached;
(III) On five (5) days’ advance written notice, if a receiver or liquidator is appointed by a court to manage Customer’s business affairs or liquidation, or if Customer files a bankruptcy petition in any state or federal court; or
(IV) On thirty (30) days’ advance written notice, for any reason or for no reason.
D. Effect of Termination. Upon termination or expiration of the ASP Agreement, all rights and obligations of the Parties under the ASP Agreement shall immediately cease, except: (i) such termination shall not terminate, limit, or restrict the rights and remedies of either Party to redress for the other’s breach or violation (which remedies are cumulative), and (ii) any amounts owed to Service Provider under the ASP Agreement before such termination or expiration shall be immediately due and payable. Notwithstanding the termination of the ASP Agreement for any reason, the Surviving Provisions shall survive in accordance with their terms. Additionally, in the event of termination of the ASP Agreement by either Party for any reason or of the expiration of the Contract Term, the Customer shall uninstall or otherwise remove any means of access to the Applications and the ASP Infrastructure, including, but not limited to, client software supplied by Service Provider for that sole purpose, all no later than 15 days after the date of termination or expiration of the Contract Term. Immediately following such action, Customer shall inform Service Provider in writing that Customer has taken that action. Service Provider shall have the right to send a representative to Customer’s premises to verify that such action has been taken or to use all available electronic methods to confirm that Customer has taken such action.
6. Fees and Payment
A. The Fees due for the Services are specified in the ASP Agreement (the “Fees”).
B. The Customer shall pay to the Service Provider all Fees due within 30 days of receipt of an invoice. The exception are any upfront fees as listed in any Special Request Order (SRO), which shall be paid upon contract approval (signature).
C. In the event that the Customer does not pay all Fees due within the time period specified in subsection 6.B above, Service Provider may, without advance notice, suspend Customer’s use of the Service by whatever means Service Provider deems appropriate.
D. In the event that Customer fails to pay all Fees due under subsections 6.A and 6.B above, without limiting or otherwise affecting subsection 6.C above, that amount shall bear interest from the due date until payment is made in full, both before and after any judgment, at the lesser of 12% per annum or the maximum interest rate allowed by applicable law.
E. Service Provider reserves the right to vary the Fees from time to time as it may deem appropriate. Customer shall receive sixty (60) days’ advance written notice of any such variation, whereupon subsection 19.L (1) of these Terms shall control.
In the event that any Authorized Users require training in order to use the Applications, it shall be Customer’s responsibility to ensure that all Authorized Users are appropriately trained and to bear any costs associated with such training. Service Provider shall not provide any training of any kind save for advice on appropriate courses and/or materials.
A. Service Provider shall use its best commercially reasonable efforts to ensure that at all times the ASP Infrastructure includes firewalls, reserve power, redundant systems and backups.
B. Service Provider shall make daily backups of all data on the ASP server. Such backups will be made to external media. All external media shall be stored off site.
9. Maintenance of the ASP Infrastructure
A. Service Provider shall be responsible for all maintenance and upgrades to the ASP Infrastructure that it may deem appropriate from time to time.
B. Subject to the provisions of Section 13 below, Customer shall be responsible for all maintenance and upgrades to any Customer’s Computer System that may from time to time be required.
C. Whenever possible, Service Provider shall use its commercially reasonable best efforts to perform maintenance work outside of Customer’s business hours.
D. Unless maintenance is corrective in nature, maintenance shall only take place at scheduled times. The scheduled maintenance times shall be 1:00 AM EST – 6:00 AM EST, usually on a Monday.
E. Unless maintenance is corrective in nature, Service Provider shall provide at least 5 Business Days’ notice of any maintenance that foreseeably may affect Customer’s use of the Service. Service Provider shall use its commercially reasonably best efforts to provide as much notice as possible in the case of corrective maintenance, but advance notice may not always be possible.
F. Where maintenance will disrupt the Service, Service Provider shall attempt to complete the necessary work within 2 Business Hours from receipt of written notice and verification of the nature of the problem, or as soon as possible thereafter where resolution in that time is not possible (or whenever possible, the Service Provider shall provide a workaround solution to the Customer to enable the Customer’s continued use of the Service or to enable use that is as close to normal as is possible under the prevailing circumstances).
10. Intellectual Property; Non-Exclusive License to Access Applications
A. The Customer shall use all Applications for which it has agreed to pay Fees hereunder on a non-exclusive, non-transferable license, as further addressed in this Section. Access is only permitted through website and remote desktop connections.
B. All Applications provided by the Service Provider are the property of Service Provider, unless otherwise stated in the ASP Agreement, and shall be covered by the terms of the license included in the ASP Agreement. Where Applications are the property of a third party, the relevant licenses for those Applications may be annexed to the ASP Agreement.
C. Where Applications are the property of a third party, the Service Provider warrants that it has all requisite authority to sub-license such applications to Customer for the purposes of the ASP Agreement and for use under its terms.
D. Subject to the terms and conditions of the ASP Agreement (including without limitation these Terms), including the rights of any of Service Provider’s third-party licensors (“Third-Party Licensors”), Service Provider grants to Customer and each Authorized User a non-exclusive, non-transferable license to access the Applications for which Customer has agreed to pay Fees in the ASP Agreement, solely for Customer’s own business purposes (which may include the sale or management of software solutions to or for Customer’s Authorized Users). The access by Customer and each Authorized User to any Application and any incorporated Software is subject to the terms and conditions of any applicable end user license agreements of Service Provider and any applicable Third-Party Licensors. Service Provider makes no representations or warranties regarding Software to which Customer may have access under the terms of any applicable end user agreements with Third-Party Licensors. If Service Provider reasonably believes that the use of any Software component of any of the Applications would give rise to a colorable claim of infringement of the intellectual property rights of any third party, Service Provider may (but is not obligated to), at Service Provider’s sole cost and expense, procure the right to continued use of such component of the Software or Application or replace or modify it accordingly.
E. Intellectual Property. Service Provider hereby indemnifies and shall defend and hold harmless Customer and Customer’s Affiliates from and against any Losses incurred by Customer to the extent that such Losses arise from or are related to a third party claim that the Software and/or any other materials used by Service Provider in the Applications or the ASP Infrastructure in providing Services infringes upon any third-party copyright, patent, trade secret, contract right or other proprietary right, but only to the extent related to any infringement that occurred or allegedly occurred during the Contract Term.
F. Ownership and Retained Rights. All Intellectual Property Rights subsisting in the Applications and the ASP Infrastructure, including any supporting software and documentation, are the property of the Service Provider. For the purposes of this subsection 10 (F), “Applications” and “ASP Infrastructure” along with supporting software and documentation are taken to include the manner in which all such material is compiled and presented. The ASP Agreement does not transfer to Customer any Intellectual Property Rights or other property or proprietary right. All right, title, and interest in any Service provided to Customer or service or product accessible to Customer through an Application or the ASP Infrastructure, including without limitation any copyright, trade secret or vested or potential trademark or patent rights, is solely the property of Service Provider, or, as to Software created by Third Party Licensors (e.g. Microsoft or Adobe), of such Third Party Licensors. Customer hereby represents and warrants to Service Provider that Customer has the right to use any patented, copyrighted, trademarked or proprietary material that Customer uses, posts, or otherwise transfers to or by way of any of Service Provider’s servers.
G. Restrictions on Use. Except as expressly permitted in this Agreement, Customer shall not, and will not permit any third party, to (a) make, have made, copy, reproduce, redistribute, modify, adapt, alter, translate, or create derivative works from any Application, the ASP Infrastructure, the Software or its source code; (b) sublicense, distribute, sell, lease, rent, loan, transfer or grant to any Unauthorized User access to any Application, the ASP Infrastructure or any of the Software or its source code; (c) reverse engineer, decompile, disassemble, modify, or attempt to reconstruct, identify, or discover the Software, or its source code, or the Applications or the ASP Infrastructure, or any underlying ideas or techniques of the Applications, the ASP Infrastructure, the Software or its source code (except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation); (d) remove, alter, cover or obfuscate any copyright notices, trademarks, or other proprietary rights notices included in the Software, the Applications or the ASP Infrastructure and/or the web access portal, or infringe on any Intellectual Property Rights held by Service Provider or any Third Party Licensor; (e) attempt to correct any fault or perceived fault with any Application, ASP Infrastructure or Software; (e) otherwise use or access any Software, any Application or the ASP Infrastructure except in accordance with the ASP Agreement (including without limitation these Terms).
H. Customer Indemnification. Customer hereby agrees to indemnify and defend and hold harmless Service Provider and its Affiliates from and against any Losses incurred by Service Provider to the extent that such Losses arise from or are related to a third party claim that material that Customer or any of Customer’s Authorized Users uses, posts, or otherwise transfers to or by way of Service Provider’s servers, or the software, hardware and/or any other materials used or provided by Customer or any of Customer’s Authorized Users infringes upon any third-party copyright, patent, trade secret, contract right or other proprietary right.
A. Customer may access the Applications through the ASP Infrastructure at any given time.
B. Customers’ access to the Applications and the ASP Infrastructure shall be controlled by means of website and remote desktop connections.
C. Use of or access to any of the Applications or the ASP Infrastructure by Unauthorized Users is not permitted in the absence of express written consent from the Service Provider. Service Provider shall have no obligation to give such consent. In determining whether to give such consent, Service Provider may require such details as the reason that access to the Applications and ASP Infrastructure is required by the Unauthorized User, details of the Unauthorized User and other information that Service Provider may specify from time to time.
D. Service Provider shall monitor Customer’s use of the Applications and ASP Infrastructure from time to time to ensure compliance with the terms and conditions of the ASP Agreement and with any reasonable usage policy promulgated by Service Provider and in effect at the time (a “Reasonable Usage Policy”). In the event that the Customer’s use of the Service (directly or in conjunction with any use by any of Customer’s Authorized Users) exceeds levels deemed reasonable by the Reasonable Usage Policy, Service Provider reserves the right to increase Fees, in accordance with the ASP Agreement, as it deems appropriate, supplying 60 days’ written notice to Customer of such an increase.
E. Customer may only access the Applications detailed in the ASP Agreement. No access to other parts of the ASP Infrastructure shall be permitted in the absence of express written permission from Service Provider.
F. Customer is exclusively responsible for its use of the Services, including the conduct of Authorized Users, and must ensure that all use is in accordance with the ASP Agreement. Customer shall notify Service Provider immediately of any breaches of the ASP Agreement (including without limitation by any breach of any of these Terms) by Customer or any of Customer’s Authorized Users.
G. Access to the Applications is only permitted through website and remote desktop connections, via the ASP Infrastructure. Under no circumstances may Customer download, store, reproduce or redistribute the Applications or any other part of the ASP Infrastructure, without first obtaining the express written permission of the Service Provider. Service Provider shall have no obligation to give such permission.
H. Customer’s use of the Applications and ASP Infrastructure may, from time to time, be governed by statutory or regulatory rules and requirements external to the terms and conditions of the ASP Agreement. It shall be Customer’s exclusive responsibility to ensure that use of the Services by Customer (and any partial or derivative use, if any, by any of Customer’s Authorized Users) is in compliance with any such laws.
I. If Customer either suspects or becomes aware of any breach of Intellectual Property Rights subject to this Section 11 or Section 10 above, then Customer shall immediately inform Service Provider of the breach and the person or entity that committed the breach.
12. Customer Computer Systems
A. Prior to commencement of the Service, Service Provider may require assurance of compatibility between Customer Computer Systems and the Applications and ASP Infrastructure. Where appropriate, Service Provider may offer recommendations for upgrades and other alterations. Any such recommendations shall be presented in a written report to Customer.
B. Where, in the opinion of the Service Provider, any Customer Computer Systems or any Authorized User Computer Systems are likely to cause disruption to the ASP Infrastructure, Service Provider may require and/or effectuate a disconnection from the ASP Infrastructure until Service Provider determines that reconnection is possible. Service Provider may require changes such as upgrades or equipment replacement to be made to the Customer Computer Systems prior to reconnection.
C. In the event of any unauthorized access by Customer (or by any Customer’s Authorized User) to any Application or the ASP Infrastructure, Service Provider shall be entitled to terminate access indefinitely or temporarily as it deems appropriate and to terminate the ASP Agreement in accordance with subsection 5.C above.
D. Customer shall ensure that no Customer Computer Systems or Authorized User Computer Systems are connected to a third party ASP system or other service, communications system or network in such a way that the Service may be accessed by any Unauthorized User.
E. Service Provider may, in its sole discretion, reject material, data, software or products that Customer or any Customer’s Authorized User have placed, attempted to place, or have requested be placed on any of Service Provider’s servers, unless such software, material or data is determined by Service Provider to be reasonably necessary for Service Provider’s provision of the Services. In such event, Service Provider will notify Customer of any such rejection and provide Customer with an opportunity to amend or modify such material, data, software or products to meet Service Provider’s requirements.
F. Any material, data, software or products placed on Service Provider’s servers by or through Customer or any Customer’s Authorized User shall be free of any and all malicious code, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, trojan horses, worms, computer viruses and mechanisms that may disable or negatively impact any of Service Provider’s servers.
A. Service Provider shall provide telephone and email support services to Customer during Service Provider’s normal business hours of 9:00 AM – 6:00 PM East Coast U.S., Monday through Friday, and such business hours to exclude public holidays. Public Holidays are: Memorial Day, July 4th, Labor Day, Thanksgiving Day, December 24th, 25th, 26th, 31st, and January 1st. The support provided by the Service Provider shall relate only to the Applications and ASP Infrastructure. Any problems that are related to Customer Computer Systems, Authorized User Computer Systems, and/or application faults or bugs must be resolved by Customer’s own support staff.
B. In addition to the standard support provided for in subsection 13.A above, the Service Provider shall also provide telephone and email support services to Customer outside of their normal business, 24/7. Any outside-of-scope support projects shall be available should Customer require, but at an additional cost to Customer at the rates set out in the ASP Agreement.
C. When seeking support, Customer shall use its commercially reasonable best efforts to provide the fullest information possible to aid Service Provider in diagnosing any faults in either the Applications or the ASP Infrastructure.
D. Service Provider shall aim to resolve all support problems within 2 Business Hours or as soon as possible thereafter where resolution in that time is not possible.
E. Whenever possible, the Service Provider shall provide a workaround solution to Customer to enable Customer’s continued use of the Service or to enable use that is as close to normal as is possible under the prevailing circumstances.
14. Customer Data
A. Customer Data Generally. All Intellectual Property Rights in Customer Data shall remain the property of Customer, subject to subsection 14.B below.
B. Third Party Data and Ownership. Certain Customer Data may belong to third parties. In such cases, the Customer warrants that all such Customer Data is used with the consent of relevant third parties.
A. During the Term and for five (5) years after the termination or expiration of the ASP Agreement for any reason: (1) Service Provider shall use its commercially reasonable best efforts to keep all Customer Data secure and confidential; and (2) Service Provider shall not, in the absence of express written consent from Customer, disclose Customer Data to any third party unless such disclosure is required by law or regulation, in which case Customer shall be notified in writing of the disclosure. B. During the Term of the ASP Agreement, and for a period of five (5) years after termination or expiration of the ASP Agreement for any reason, the following obligations shall apply to the Party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”): (1) the Receiving Party may not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement; (2) the Receiving Party may not disclose any Confidential Information to any third party, except with the prior written consent of the Disclosing Party; and (3) the Receiving Party shall make every effort to prevent the unauthorized use or disclosure of the Confidential Information.
C. The confidentiality obligations in subsection 15.B above shall not apply to Confidential Information that: (a) is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party; (b) is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party; (c) is required to be disclosed by any applicable law or regulation; or (d) is received in good faith by the Receiving Party from a third party who, on reasonable inquiry by the Receiving Party, claims to have no obligations of confidence to the Disclosing Party in respect thereof and who imposes no obligations of confidence upon the Receiving Party.
D. Without limitation on any other rights or remedies that the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of any threatened or actual breach of this Section 15 by the Receiving Party, the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy in addition to any damages or other remedies to which the Disclosing Party may be entitled.
E. Subject to subsection 15.C above, Customer and Service Provider each agree to keep the following information confidential: all correspondence between them, as well as related information and contents (including but not limited to pricing); data exchanged between Service Provider and Customer, such as investor and borrower information; and/or any managed corporate information.
16. Representations and Warranties
A. Mutual Representations. Customer and Service Provider each represents and warrants to the other that: (a) it has full power and authority and the legal right and capacity to enter into the ASP Agreement (including without limitation these Terms) and to perform its obligations hereunder; and (b) the execution and delivery of the ASP Agreement and the performance of its obligations under the ASP Agreement (including without limitation these Terms) do not conflict with or constitute a default under any applicable laws or contract to which it is a party.
B. Customer’s Representations. Customer represents and warrants to Service Provider that: (a) Customer holds title to or is otherwise authorized to use Customer’s domain name; (b) Customer and Customer’s Authorized Users will not knowingly or negligently transmit through, or place on, any of Service Provider’s servers any material, data, software or products that contain any malicious code (including without limitation, disabling devices, drop dead devices, time bombs, trap doors, trojan horses, worms, computer viruses and mechanisms that may disable or negatively impact the servers, or other computer programming defects), provided that Customer shall not be deemed to have been negligent so long as it employs industry-standard virus-scanning software; (c) Customer and each of its Authorized Users will comply with all laws applicable to the Services and any Software; (d) Customer and each of its Authorized Users will not transmit any bulk e-mail or spam, any content that infringes any Intellectual Property Rights of any third party, any threatening or obscene materials, or any defamatory, libelous, or other actionable content or statements; and (e) the person signing the ASP Agreement has the authority to bind Customer to its terms and conditions.
C. Service Provider’s Representations. Service Provider represents, warrants and covenants to Customer that (i) all Services will be performed as efficiently as practicable and in a professional and workmanlike manner; (ii) Service Provider has no obligations to any third party that will in any way limit or restrict its ability to perform the Services; and (iii) in performing the Services, Service Provider will neither knowingly undertake nor cause, nor knowingly permit to be undertaken, any activity that is either illegal under any laws, decrees, rules or regulations or that would have the effect of causing Customer to be in violation of any laws, decrees, rules or regulations.
17. DISCLAIMER OF WARRANTIES; LIMITATION OF DAMAGES.
A. THE EXPRESS, BUT LIMITED, REPRESENTATIONS OR WARRANTIES SET FORTH IN THESE TERMS ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE APPLICATIONS, THE ASP INFRASTRUCTURE, ANY SOFTWARE AND SERVICES. SERVICE PROVIDER AND ITS AFFILIATES SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES (IMPLIED OR EXPRESS) OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. THERE IS NO WARRANTY THAT SERVICE PROVIDER’S SERVICES WILL FULFILL ANY OF CUSTOMER’S OR ANY CUSTOMER’S AUTHORIZED USER’S PARTICULAR PURPOSES OR NEEDS. THERE IS NO WARRANTY OF SYSTEMS INTEGRATION.
B. EXCEPT AS PROVIDED IN THIS AGREEMENT, SERVICE PROVIDER RENDERS ANY AND ALL SERVICES “AS IS”. CUSTOMER ACKNOWLEDGES THAT THE USE OF THE SERVICES BY CUSTOMER AND EACH OF ITS AUTHORIZED USERS ARE AT CUSTOMER’S OWN RISK AND THAT THERE IS NO WARRANTY OF UNINTERRUPTED OR ERROR-FREE SERVICE OR ACCURACY OR RELIABILITY.
C. SUBJECT TO SUBSECTION 18.A BELOW, NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST DATA OR CONFIDENTIAL INFORMATION, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION ARISING FROM OR RELATING TO THIS AGREEMENT OR ARISING FROM OR RELATING TO THE USE OF THE SOFTWARE, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE, THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, LOSS OF DATA, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION NEGLIGENCE OR OTHER TORTS), EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THIS SECTION 17, SERVICE PROVIDER DOES NOT EXCLUDE OR LIMIT LIABILITY FOR SERVICE PROVIDER’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR PERSONAL INJURY OR DEATH CAUSED BY SERVICE PROVIDER IF AND TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
D. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY ORAL WARRANTIES, REPRESENTATIONS, PROMISES, COMMITMENTS OR ASSURANCES BY SERVICE PROVIDER OR ANY SERVICE PROVIDER AFFILIATE IN SIGNING THIS AGREEMENT BUT HAS RELIED ONLY ON THE EXPLICIT TERMS OF THIS AGREEMENT.
E. Except with respect to Service Provider’s indemnification obligations under these Terms and any liability arising out of Service Provider’s gross negligence or willful misconduct, the aggregate liability of Service Provider and its Affiliates under any and all theories of liability and damages, whether based in tort, contract, or statute, and whether legal or equitable, may never exceed $2,000.00. The alleged or actual existence of more than one claim shall not enlarge that limitation of aggregate liability.
F. Service Provider is not obligated to exercise any control over the content of the information passing through Service Provider’s network except those controls expressly provided in these Terms or any other provision of the ASP Agreement signed by Service Provider.
G. In the event that Customer believes that it has any claims or causes of action against Service Provider, whether based in tort, contract, or statutory law, Customer shall be limited to asserting them against Service Provider and may not seek to hold any of Service Provider’s Affiliates liable.
A. Customer shall, at its sole expense, indemnify, defend, and hold Service Provider and Service Provider’s Affiliates (each a “Service Provider Indemnitee” and collectively the “Service Provider Indemnitees”) harmless from any Losses asserted against or suffered by any Service Provider Indemnitee that may arise from (a) Customer’s breach of these Terms or any other provision in the ASP Agreement, (b) the gross negligence or willful misconduct of Customer, any of Customer’s Affiliates or any of Customer’s Authorized Users, (c) death or personal injury (including bodily injury) to any person or destruction of any property to the extent resulting from, relating to, or arising out of the acts, errors, or omissions by Customer, any of Customer’s Affiliates, or any of Customer’s Authorized Users in the performance of, or relating to, the Services or the ASP Agreement (including without limitation these Terms); (d) Customer’s business operations; or (e) loss of or any damage to any software, data, stored information, or programming of any Customer or of any of Customer’s Authorized Users or Customer’s Affiliates in connection with the loading, transferring, storing, or manipulating any such software, data, stored information, or programming onto or using any Application or the ASP Infrastructure (each a “Service Provider Claim” and collectively the “Service Provider Claims”).
B. Service Provider shall indemnify, defend, and hold Customer and Customer’s Affiliates (each a “Customer Indemnitee” and collectively the “Customer Indemnitees” and, together with the Service Provider Indemnitees, the “Indemnitees”) harmless from any Losses asserted against or suffered by any Customer Indemnitees that may arise from (a) Service Provider’s breach of this Agreement, (b) the gross negligence or willful misconduct of Service Provider or Service Provider Affiliates, (c) death or personal injury (including bodily injury) to any person or destruction to any property to the extent resulting from, relating to, or arising out of the gross negligence or willful misconduct by Service Provider or Service Provider Affiliates in the performance of, or relating to, the ASP Agreement (each a “Customer Claim” and collectively the “Customer Claims” and, together with the Service Provider Claims, the “Claims”). The provisions of Section 17 above shall govern in case of any conflict between any of those liability limitations and the indemnification provisions in this subsection 18.B, except to the extent that applicable law bars any such liability limitation provisions.
C. An Indemnitee seeking indemnification pursuant to these Terms shall (a) promptly notify the indemnifying Party in writing of the Claim for which indemnification is sought; (b) make a reasonable effort to provide the indemnifying Party with the information and material in Indemnitee’s possession regarding the Claim, (c) furnish to the indemnifying Party such assistance, at the indemnifying Party’s sole cost and expense, as the indemnifying Party may reasonably request in connection with the investigation, settlement and defense of the Claim; (d) grant the indemnifying Party sole control over the resolution of the Claim (including, if applicable, the defense and settlement of it); provided, however (i) Indemnitee may participate in such resolution at Indemnitee’s option and expense, and (ii) the indemnifying Party shall not resolve or settle any Claim in any manner which may adversely affect Indemnitee’s right or interests without Indemnitee’s prior written consent, which consent shall not be unreasonably withheld or delayed. The indemnifying Party shall not be liable hereunder for any settlement entered into by Indemnitee without the indemnifying Party’s written consent (which consent shall not be unreasonably withheld or delayed).
A. Governing Law; Venue; Time for Claims; Attorneys’ Fees. The laws of the Commonwealth of Massachusetts, without respect to principles of conflicts of laws, shall govern all matters with respect to these Terms and any other provisions of the ASP Agreement, including without limitation tort claims. Jurisdiction with respect to any dispute regarding or under these Terms or any other provision of the ASP Agreement shall lie exclusively in Massachusetts courts, and venue shall lie exclusively in Barnstable County, Massachusetts. Each Party waives any objection to jurisdiction or venue of any action instituted against him, her or it as provided herein and agrees not to assert any defense based on lack of jurisdiction if the subject action is filed in Barnstable County, Massachusetts. Any cause of action that either Party may have against the other must be commenced within one year after the claim or cause of action arises, or such claim or cause of action is barred. In any action to enforce the ASP Agreement (including without limitation any provision of these Terms), the prevailing Party in the action shall pay the other Party’s reasonable attorneys' fees and costs in connection with such action.
B. Entire Agreement. The ASP Agreement (including without limitation these Terms) contains the entire agreement between Customer and Service Provider regarding all relevant aspects of the subject matter of the ASP Agreement and supersedes all prior understandings and agreements, if any, whether oral or in writing, between Customer and Service Provider regarding such subject matter. Any statement appearing as a restrictive endorsement on a check or other document that purports to modify a right, obligation or liability of either Customer or Service Provider shall be of no force and effect.
C. Severability. If any provision of the ASP Agreement (including without limitation these Terms), or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, then such provision shall be deemed modified to the minimum extent necessary to make it valid, binding and enforceable; or, if such modification is not reasonably possible, then such provision shall be deemed stricken from the ASP Agreement, with the remainder of the ASP Agreement continuing in full force and effect (as long as the essential provisions of the ASP Agreement for each Party remain valid, binding and enforceable).
D. Waiver. The waiver by one Party of the performance of any provision of the ASP Agreement (including without limitation these Terms) shall not invalidate the ASP Agreement nor be considered a waiver by it of any other provision of the ASP Agreement. The waiver by either or both Parties of the time for performing any act under the ASP Agreement shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided in the ASP Agreement (including without limitation these Terms) shall not be a waiver of any consistent remedy provided by law or in equity, and the provision in the ASP Agreement (including without limitation these Terms) for any remedy shall not exclude other remedies unless expressly excluded.
E. Assignment. Neither Party may assign its rights or delegate its obligations under the ASP Agreement without the other Party’s prior written consent. For purposes of the ASP Agreement, a change in control shall be considered a deemed assignment of rights and obligations. The ASP Agreement (including without limitation these Terms) shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties.
F. Force Majeure. If the performance under the ASP Agreement (including without limitation these Terms) of any obligation other than a monetary obligation (e.g., Customer’s obligation to pay Service Provider for the Services) is prevented, restricted, or interfered with by reason of fire or other casualty or accident; terrorism, strike(s) or labor dispute(s); inability to procure raw material power or supplies on commercially reasonable terms after commercially reasonable efforts; war or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any government, government’s agency, or inter-governmental body; or any other act or condition whatsoever beyond the reasonable control of the Parties, the Party so affected, upon giving notice to the other Party, shall be excused from such performance to the extent of such prevention, restriction, or interferences; provided that the Party so affected shall use its best efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder with the utmost dispatch whenever such causes are removed; and, provided further, that no such occurrence shall extend the Contract Term.
G. Notices. All notices and demands that any Party is required or desires to give to another shall be given in writing by United States registered or certified mail, return receipt requested, by personal delivery, by telegram or by express courier service, or electronic facsimile to the recipient Party’s address shown on the contract or purchase order between the Parties. Subject to the next sentence, all notices and demands given by mail shall be effective on the second business day after mailing; all notices and demands otherwise given as provided above shall be effective upon receipt by the Party to whom notice or a demand is being given. Either Party may give the other Party notice by e-mail address, provided that such notice shall not be effective until and unless the addressee Party acknowledges its receipt by return e-mail or other written acknowledgment. The rejection or other refusal to accept a notice, or the inability to deliver a notice because of a change of address where no notice was given hereunder of such change in address for purposes of notices and demands hereunder, shall be deemed to be receipt of the notice sent, and such notice shall be effective as of the date the notice was sent or given.
H. Relationship of Parties. Nothing contained herein shall render either Party the agent or legal representative of the other for any purpose whatsoever, nor shall the ASP Agreement (including without limitation these Terms) be deemed to create any form of business organization between the Parties, nor is any Party granted any right or authority to assume or create any obligation or responsibility on behalf of the other Party, nor shall any Party be in any way liable for any debt of another. The Parties’ relationship is that of Parties contracting for services on an independent contractor basis.
I. Remedies. The rights and remedies of each Party for the other Party’s breach of the ASP Agreement are cumulative, not exclusive, of any and all other remedies available at law or equity (including, without limitation and if the legal requirements are met, injunctive relief). However, no remedy may be sought by either Party that violates the limitations of Section 17 of these Terms.
J. Captions; Interpretation. Any captions in these Terms or any other provision of the ASP Agreement are for organizational and reference purposes only and may not be used to limit, narrow or modify the meaning of any provision in the ASP Agreement. The term “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means. Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender. The term “hereunder”, “herein” and the like refer to the ASP Agreement (including without limitation these Terms), unless the context otherwise requires.
K. Equal Bargaining Power. The ASP Agreement (including without limitation these Terms) shall be interpreted as if each Party had equal bargaining power and without regard for which Party drafted most or all of these Terms or any other provision(s) of the ASP Agreement.
L. Amendment. The ASP Agreement may be amended by only one of the two following ways:
1. An amendment to these Terms or any other ASP Agreement provision by Service Provider of which Service Provider gives Customer at least 60 days’ advance written notice with a copy of the written amendment that will take effect at least 60 days after the date of written notice (after receipt of which Customer shall have 60 days in which to either concur that the ASP Agreement remains in effect subject to that amendment-either by written confirmation or by a lack of any written response by Customer- or to notify Service Provider in writing that Customer terminates the ASP Agreement effective as of the date that is 61 days after the date of Service Provider’s notice of the amendment); or
2. A written amendment satisfying the requirements of subsection 2.B above.
M. No Third Party Beneficiaries. There are no intended third party beneficiaries of these Terms or any other provision of the ASP Agreement, except for the indemnitees expressly named in the indemnifications contained in Section 18 above.
CUSTOMER’S EXECUTION OF AN ASP AGREEMENT WITH VIRIUM TECHNOLOGY, LLC CONFIRMS THAT THESE TERMS ARE AUTOMATICALLY INCORPORATED BY REFERENCE INTO AND FORM PART OF THAT ASP AGREEMENT.