ENTERPRISE STANDARD SERVICES AGREEMENT
AppVault, LLC, a Georgia limited liability company (the “Company”), shall make available to Client, as identified above, access and use of such Services (defined below) as are set forth on the Order Schedule, attached hereto as Exhibit A, pursuant to the terms and conditions of this Services Agreement (“Agreement”). Client agrees on behalf of itself and its customers and all users that the products and services specified on the Order Schedule signed by Client is governed by this Agreement. This Agreement is made and entered into by and between the Company and Client (individually a “Party” and, collectively, the “Parties”).
TERMS AND CONDITIONS
1. DEFINITIONS. The terms below shall have the following meaning:
“Company Technology” shall mean, individually and collectively, the Services, and specifically includes all proprietary technology, software, algorithms and content owned or used by Company and its licensors with respect to any of the foregoing.
“Confidential Information” shall mean such proprietary information, including (without limitation) all of the Company Technology, as well as associated pricing provided as part of the Services (defined herein), as well as other items provided to Client as part of the Services or Company Technology, that are not Trade Secrets but that a disclosing Party otherwise makes reasonable efforts to not disclose to other entities or persons except under an obligation of non-disclosure. Confidential Information does not include any items that become publicly and widely-known or made generally available through no wrongful act of a receiving Party or of others who were under confidentiality obligations as to the item or items involved.
“Marks” shall mean such trademarks, service marks, trade names, trade dress or like words, symbols or devices (or any combination thereof) used or intended to be used to identify and distinguish a product or service and to indicate the source of such product or service.
“Proprietary Rights” shall mean all worldwide legal and equitable rights, title and interest, including copyrights and rights in patent, trade secret, Marks, moral and other intellectual property rights such as the rights in or to the structure, sequence and organization of a work of authorship or in or to any user interface, audio or visual display or presentation.
“Services” shall mean the services and related products made available by the Company and its affiliates or licensors to Client pursuant this Agreement and the attached Order Schedule (the “Services Ordered”) along with all related services that enhance and/or support the provision of such Services Ordered.
“Term” shall mean such period of time beginning on the Effective Date, as set forth in the attached Order Schedule, and ending the earlier of: (a) the expiration date as set forth on the Order Schedule, or (b) the earlier termination, as expressly permitted under this Agreement or the applicable Order Schedule.
“Trade Secrets” shall mean such information or materials, including (without limitation) technical and nontechnical data, formulas, drawings, compilations, programs, devices, methods, techniques, drawings, processes, financial and product plans, and lists of actual or potential customers or suppliers, that a Party: (a) derives economic value, actual or potential, from not being generally known to, or ascertainable through proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
B. General. Client agrees that: (a) Client will not knowingly take any action to harm Company, its licensors and suppliers, or any other client or supplier of Company, or use the Services in violation of the Agreement or any applicable license, law or regulation; (b) Client is responsible for obtaining and maintaining all required licenses and consents to receive and use the Services on its own computers and conduct Client’s business; (c) Client will ensure that all customers, users and other parties who may access or use the Services through Client shall be subject to, and bound by, terms and conditions as required by Company for such persons as set forth in this Agreement and the Order Schedule and the other generally published policies of Company; (d) Client is responsible for obtaining and maintaining its own anti-virus software and protection and Company will have no obligation or liability for any viruses, bots, Trojan Horses, time bombs or similar harmful codes and items that Client may receive by accessing the Services; and (e) when Company provides a Service which is accessed using a password, user name or other identifier (collectively, “Password”), Client agrees that it shall (i) ensure that each Password is kept confidential and not shared among individuals, and (ii) notify the Company promptly if Client becomes aware of any Password being used by a person not authorized by Client to access a Service.
3. Intellectual Property.
A. Company’s Rights. Client acknowledges that the Services and Company Technology are proprietary and unique to the Company and its affiliates and third-party suppliers, and as to the same, all right, title and interest (including, without limitation, Proprietary Rights) shall remain with the Company or its affiliates and third-party suppliers, except as expressly stated herein. During the Term of this Agreement, Client is granted a non-exclusive right to use and access the Services Ordered and related Company Technology provided in connection therewith. Client agrees to: (i) take, or cause to be taken, all necessary precautions to maintain the confidentiality and proprietary nature of all Trade Secrets and Confidential Information; (ii) comply with all laws and requirements necessary to protect all Proprietary Rights of Company and its affiliates and third-party suppliers in the Company Technology; and (iii) comply with Sections 3.B., 3. D. and 3.E. of this Agreement.
B. Restrictions. Client agrees, unless specifically permitted in writing by Company, that it will not distribute or provide unauthorized access to any part of the Company Technology, including databases, to any third party, nor will it, nor assist any third party to: (i) modify or create derivative works of the Company Technology; (ii) reverse engineer, decrypt, disassemble or decompile any software code or algorithms of all or any part of the Company Technology; (iii) sublicense, sell, resell, transfer or assign any interest in the Company Technology to a third party; (iv) remove, obscure, deface or otherwise interfere with any proprietary or restrictive notice or legend contained or included in the Company Technology; (v) impair or compromise the functionality or security of the Company Technology; or (vi) use any of the Company Technology for any other purpose that is not specifically permitted under this Agreement, or the Order Schedule, including to commercially exploit any portion of the Company Technology to build a competitive product or service.
C. Client & Third-Party Content. Company acknowledges that the Services contain content supplied by Client and their customers, service users and other third-parties (“Information Providers”). Company acknowledges that it does not own such content; however, Company is granted a non-exclusive license to use, execute, perform, reproduce and display such content with, and in order to perform, the Services and its obligations under this Agreement. Client shall ensure that all content provided to Company does not infringe the rights, title or interests of a third-party, including (without limitation) Proprietary Rights and contract and confidentiality rights. Upon termination of this Agreement or discontinuation of a Service, applicable Information Providers’ content (including all copies thereof) no longer needed by Company and not retrieved by Client within a reasonable period of time therefrom may be destroyed by Company. Client represents and covenants that it either owns, or has all necessary Proprietary Rights in, to and under, the Information Provider’s content provided to Company so as to grant the licenses to Company as specified herein. Client agrees to comply with any restrictions or conditions imposed on the use, access, storage or redistribution of content by the relevant Information Provider as notified to Client by the Company or such Information Provider.
D. Company Marks and Credit Branding. The name and Marks of the Company are valuable intellectual property of the Company. Client will not remove or conceal any Company Mark, copyright or other proprietary notice or any credit-line or date-line included in the Services. Client will comply with all attribution and branding instructions given by the Company in connection with the Services. Except as set forth in this Agreement, Client may not use the Company’s name or Marks without the Company’s prior written consent. All rights to the Company’s name and Marks, whether now existing or which may hereafter come into existence, are reserved to the Company. Any goodwill generated through Client’s use of the Company’s name and Marks will inure solely to the benefit of the Company.
E. Client Marks. The name and Marks of the Client are valuable intellectual property of the Client. Client hereby grants to Company and its suppliers, licensors and affiliates permission to use, reproduce and display Client Marks in connection with: (i) the Services when such are to be private labeled under Client Marks, and (ii) press releases and other promotional materials as a commercial reference regarding the Client’s use of the Services. Except as set forth in this Agreement, the Company may not use the Client Marks without the Client’s prior written consent. All rights to the Client Marks, whether now existing or which may hereafter come into existence, are reserved to Client. Any goodwill generated through Company’s use of the Client Marks will inure solely to the benefit of the Client.
F. Injunctive Relief. Recognizing and acknowledging that any violations of the provisions of this Section 4 may cause the Company or affiliates and suppliers irreparable damage for which other remedies would be inadequate, the Client agrees that, in addition to any other remedies that may be available at law or in equity, the Company shall have the right to obtain such injunctive or other equitable relief from a court of competent jurisdiction as may be necessary to prevent any such violation without obligation to post bond.
G. Copyright Violation Complaints. If Client believes that the works of it, any customer or user of the Services through it, or some third-party has been reproduced on the Services in a way that constitutes copyright infringement, the the Client must notify the Company in accordance with Title 17, United States Code, Section 512(c)(2), by providing the following information:
i. Identification of the copyrighted work that is claimed to have been infringed;
ii. Identification of the material that is claimed to be infringing and needs to be removed, including a description of where it is located on the Services so that the copyright agent can locate it;
iii. The name, address, telephone number, and, if available, e-mail address of the person claiming the infringement so that the Company may contact such person about the complaint; and
iv. A signed statement from Client and the claimant that: the above information is accurate; a good faith belief exists that the identified use of the material is not authorized by the copyright owner, its agent, or the law; and, under penalty of perjury, that the claimant is the copyright owner or is authorized to act on the copyright owner's behalf in this situation.
Notices of copyright infringement claims should be sent via the notice provisions of this Agreement as provided herein and addressed to the attention: CEO or by email to [email protected]
A. Generally. In consideration of the rights granted to Client in this Agreement, Client agrees to pay Company all fees, amounts and charges for the Services Ordered as set forth in the Order Schedule attached hereto (the “Fees”). Fees for each Service Ordered will accrue as of the earlier when such Service is: (i) available for access as set forth on the attached Order Schedule; or (ii) first accessed by Client. All Fees shall be due and payable in accordance with the Order Schedule attached hereto.
B. Taxes. In addition to Fees, Client will pay any and all applicable sales, use, goods and services, value-added or other taxes payable which arise as a result of the Services Ordered, other than the tax which results on the net income of the Company for Fees paid by Client.
C. No Set-off. In all cases, the amounts due under this Agreement will be paid by the Client in full without any withholding, set-off, counterclaim or deduction.
D. Late Payments. All amounts owed hereunder not paid when due will bear interest from the date such amount became due at the lesser of: (a) 1.5 percent per month; or (b) the maximum allowable rate of interest in the State of Georgia for transactions between sophisticated commercial entities. Client agrees to pay the reasonable collection including any legal fees incurred by Company to collect any Fee or amounts that become delinquent.
Client agrees (a) to hold all Company Technology and Services that is Confidential Information or a Trade Secret in strictest confidence, and (b) not to use, duplicate, reproduce, distribute, disclose or otherwise disseminate Company Information or any physical embodiments thereof. Client shall not take any action causing, or fail to take any action necessary in order to prevent, any Company Technology, Services or Trade Secrets from losing its character or ceasing to qualify as Confidential Information or a Trade Secret. In the event that Client is required by law to disclose any Confidential Information, Client will not make such disclosure unless, and only to the extent that Client has been advised by independent legal counsel that such disclosure is required by law and then only after prior written notice is given to Company when Client becomes aware that such disclosure has been requested and is required by law. Following the expiration or termination of this Agreement for any reason, this Section 5 shall survive for a period of three (3) years with respect to Confidential Information and for so long as is permitted by applicable law with respect to Trade Secrets.
6. WARRANTIES AND DISCLAIMERS.
A. General. Each Party to this Agreement represents and warrants that (a) it has the full right and power to enter into and fully perform this Agreement in accordance with its terms, and (b) the execution, delivery and performance of this Agreement will not violate rights granted by such Party to any third-party or violate the provisions of any agreement to which it is a party.
B. DISCLAIMER OF WARRANTIES. ALL SERVICES AND COMPANY TECHNOLOGY AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY STATED HEREIN, THERE ARE NO WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ITS AFFILIATES OR SUPPLIERS MAKES ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR COMPANY TECHNOLOGY PROVIDED PURSUANT TO THIS AGREEMENT, AND THE COMPANY AND ITS AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ANY CONDITION OF QUALITY AND ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION MADE BY THE COMPANY OR ITS REPRESENTATIVES EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
7. LIABILITY LIMIT.
A. Inaccuracies of Service. Although the Company makes reasonable efforts to ensure the accuracy and reliability of the Services and Company Technology, neither the Company nor its Affiliates or Suppliers guarantees such accuracy or reliability, and Client acknowledges that neither the Company, its Affiliates and Suppliers, nor their respective representatives, will be held liable for any damages suffered or incurred by Client or, to the maximum extent permitted by law, any other person or entity arising out of any fault, interruption or delay in any Service or Company Technology or out of any inaccuracy, error or omission in any Service or Company Technology supplied to Client, however such faults, interruptions, delays, inaccuracies, errors or omissions arise.
B. Acts of God. Except for Client’s failure to comply with any payment obligations, neither Party will be liable for any failure to perform any obligation under this Agreement, or for any delay in the performance thereof, due to causes beyond its control, including industrial disputes of whatever nature, acts of God, public enemy, government, war or terrorism or involving failure of telecommunications or Internet services, or acts of Nature, fire or other casualty.
C. Exclusion of Special Damages. EXCEPT FOR A PARTY’S INDEMNIFICATION LIABILITY UNDER SECTION 8, UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS AFFILIATES OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING LOST PROFITS, REGARDLESS OF WHETHER SUCH DAMAGES COULD HAVE BEEN FORESEEN OR PREVENTED.
D. Aggregate Liability. In no event will the aggregate liability of either Party to the other Party or to any third party for damages, direct or otherwise, arising out of or in connection with this Agreement, exceed the total amount of the Fees actually received by Company from Client during the twelve-month (12) period immediately preceding the act or omission giving rise to the loss, regardless of the cause or form of action; provided, however, that the foregoing limitation of liability shall not apply to each Party’s obligation to indemnify the other Party pursuant to this Agreement, or any damages suffered by the Company caused by any violation by Client of Sections 2, 3, 5 or 6 of this Agreement.
A. Indemnification by Client. Client will indemnify, defend and hold harmless Company, its Affiliates and Suppliers and all their respective officers, employees and representatives from and against any and all liabilities, damages, awards, settlements, losses, claims and expenses, including reasonable attorney fees and expenses and costs of investigation (collectively, “Damages”) resulting from third-party claims arising from any (a) breach of this Agreement by Client, or (b) a third-party accessing all or part of the Service through or by means of Client to the extent such claim, if brought by Client directly against the Company, would be excluded pursuant to Section 7.
B. Indemnification by Company. The Company will indemnify and hold harmless Client, its officers, directors, employees and agents from and against any and all Damages resulting from third party claims arising from any (a) breach of Section 5 of this Agreement by the Company, or (b) a claim that the supplied Services infringes any third party intellectual property right; provided that the relevant claim (i) does not arise from any modification to the Services made by Client, (ii) does not arise from the combination of the Services with other products or technology not supplied by the Company, and (iii) is not based upon content obtained from a Client, its customers or some third-party.
C. Notice and Participation. A Party seeking indemnification pursuant to this Agreement (the “Indemnified Party”) will give prompt written notice to the Party from whom indemnification is sought (the “Indemnifying Party”). The Parties will cooperate (at the expense of the Indemnifying Party) in the defense or prosecution of any third-party claim.
A. Termination for Insolvency. In addition to any other remedy available at law or in equity, either Party may terminate this Agreement immediately in the event of the other Party’s making an assignment for the benefit of its creditors, the filing by the other Party or its creditors of a voluntary or involuntary petition under any bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code, or under the provisions of any similar law, or the appointment of a trustee or receiver for the other Party or its property.
B. Obligations Upon Termination. Promptly upon termination of this Agreement for any reason, Client will immediately: (i) pay all Fees, amounts and taxes owed or due through the date of termination, (ii) discontinue all use of the Services and Company Technology, and (iii) return to Company, or at Company’s election destroy, all Company Technology and documentation that were provided to Client along with all copies of the same.
10. PUBLICITY & PRIVACY.
A. Publicity. The Parties recognize the value and importance of clear, accurate and consistent public communications regarding the business relationship contemplated by this Agreement. Accordingly, the timing and content of any press release or like public announcement regarding this Agreement and its subject matter will be subject to the prior written consent of each of the Parties, which approval shall not be unreasonably withheld or delayed.
A. Controlling Law, Jurisdiction and Waiver of Jury Trial. This Agreement is made under, and shall be construed and enforced in accordance with, the laws of the State of Georgia applicable to agreements made and to be performed solely therein, without giving effect to doctrines or principles of conflicts of law. The Parties irrevocably submit and consent to the jurisdiction of any Georgia state court sitting in Fulton County, Georgia, or Federal court sitting in the Northern District of Georgia, over any action or proceeding arising out of or relating to this Agreement, and the Parties hereby irrevocably agree that all claims in respect of any such action or proceeding may be heard and determined in such Georgia state or Federal court.
B. Notices. All notices, requests, demands, claims, and other communications hereunder shall be given in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given three (3) business days after it is sent by registered or certified mail, return receipt requested, postage prepaid, or one (1) business day after it is sent by a reputable overnight delivery service and addressed to the intended recipient as set forth below. If to Client, notices shall be sent at the address set forth on the first page of this Agreement.
If to Company:
5565 Glenridge Connector, Suite 1000
Atlanta, GA 30342
C. Assignments. This Agreement shall be binding upon and inure to the benefit of the Parties, their respective personal representatives, and permitted successors and assigns. Client may not assign or otherwise transfer any of its rights or delegate any of its duties under this Agreement without the prior written consent of the Company.
D. Construction. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean “including, but not limited to.”
E. Relationship Between the Parties. There is no joint venture, partnership, agency or fiduciary relationship existing between the Parties and the Parties do not intend to create any such relationship by this Agreement.
F. Entire Agreement. This Agreement (including the documents referred to herein and documents that expressly reference this document and are executed by the Parties) constitutes the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent such understandings, agreements or representations related in any way to the subject matter hereof. All schedules, exhibits, policies and procedures of Company that are applicable to the subject matter of this Agreement may be and may be replaced, modified or terminated by Company with notice to Client or publication by Company.
G. Amendments, Waivers. The Agreement may only be amended in writing signed by authorized representatives of both Parties. If either Party delays or fails to exercise any right or remedy under the Agreement, it will not have waived that right or remedy.
H. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall be deemed modified to the extent necessary to make it valid and enforceable and shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
I. Survival. Sections 3, 4, 5, 6, 7, 8 and 11 of this Agreement will survive the termination or expiration of the Agreement.
J. Headings. The headings to the Agreement are for convenience and shall not be used as an aid to interpret the Agreement.
K. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
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