This Cloud Service and Software License Agreement ("Agreement") dated as of this day (the "Effective Date") is by and between You (an individual or an entity), and Visualware, Inc., a Delaware Corporation, with offices at 937 Sierra Drive, Turlock, CA 95380 ("Supplier"), each a Party and together the Parties hereto, for provision of the Cloud Services, Software, and Support Services, subject to the following terms and conditions:
The terms defined in this Section shall have the meanings set forth below whenever they appear in this Agreement unless the context in which they are used requires a different meaning or a different definition is described for a particular Section or provision:
"Affiliate" means at any time, and concerning any corporation, partnership, person or other entity, any other corporation, partnership, person or entity that at such time, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first corporation, partnership, person, or other entity. As used in this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, partnership, person, or other entity, whether through the ownership of voting securities or by contract or otherwise.
"Cloud Computing" means a distributed technology that covers environments that share a pool of computing resources (e.g., networks, servers, storage, applications, or services). Multi-tenancy is considered the key element and in its simplest form implies use of same resources or applications by multiple consumers that may belong to the same or different organizations.
"Cloud Service" means a service provided pursuant to this Agreement and described in an Order entered thereunder, and which includes provision of Cloud Computing, the provision of remote access by You to Cloud Computing and any underlying software, and the provision of associated software that facilitates and/or implements such remote access, and which may also include the provision, storage and/or transmission of Content located in Supplier’s processing and other facilities.
"Content" means collectively, Your Content and Supplier Content.
"Intellectual Property Rights" means any patent, copyright, rights in Trademarks, trade secret rights, and other intellectual property or proprietary rights arising under the laws of any jurisdiction.
"Order" means a service order, Statement of Work (SOW) or other written communication and/or electronic transmission mutually agreed to and entered into in writing between You and Supplier for the procurement of a Cloud Service and related Software and Support Services.
"Person" means any natural person, corporation, partnership, limited liability company or other entity.
"Personal Data" means any data or records, whether or not aggregated, that contain personally or individually identifiable information relating to a User or prospective User, including without limitation names, addresses, locations, e-mail addresses, telephone or mobile device numbers, and User PINs, passwords and other User authentication information.
"Support Service" means the services provided by Supplier to You under this Agreement, which such Support Services are in support of the Cloud Services and/or Software.
"Software" shall mean such software as is provided by or made accessible by Supplier to You and additional Users in connection with the Cloud Services.
"Specifications" mean, the documentation, manuals and specifications describing the operation, use, characteristics, capabilities and performance of the Cloud Service(s), Support Services and Software, as set forth in an Order or in materials provided by Supplier to You or Users.
"Supplier Content" means the content provided by Supplier for storage on or delivery via a Cloud Service.
"Trademarks" means any trademarks, service marks, trade dress, trade names, corporate names, proprietary logos or indicia and other source or business identifiers.
"Unavailability" means the Cloud Service and/or Software is not accessible to a User and such failure to function or inaccessibility is not attributable to scheduled maintenance.
"Users" means any of your employee, contract personnel, contractor, agent, customer or prospective customer that accesses or visits the Cloud Service or Software
"Your Data" means information regarding the use of the Cloud Service, including but not limited to Personal Data, the number of "impressions", the number of times Users click on pre-specified links, and any other demographic information collected or compiled by Supplier regarding usage of the Cloud Service.
"User Input" means information or data provided by a User in connection with such Users use of the Cloud Service.
"Your Content" means any information that Supplier may receive about Your business plans, needs, practices, network, facilities, products, services, and customers, including Your Input or other content provided by You and Users, or inputted into the Cloud Service by You and Users, Your Materials, and any information derived from the foregoing.
"Your Marks" means those Trademarks of Yours as You may from time to time notify Supplier in writing to be "Your Marks" within the meaning of this Agreement or those which by their context and nature should reasonably be assumed by Supplier to be "Your Marks."
"Your Materials" means any of Your Marks, Content branding, and any other graphical, audio, visual or textual content supplied by You.
2.1 You may procure Cloud Service(s), Support Service(s) and Software as set forth on an Order, on a nonexclusive basis, nontransferable basis, pursuant to the terms and conditions set forth in this Agreement You shall order Cloud Services, Support Service and associated Software by submitting an Order in accordance with the terms of this Agreement, which Order will thereafter be treated as an Exhibit to this Agreement. Upon receipt of an Order which conforms to this Agreement, Supplier shall provide such Cloud Services, Services and Software in accordance with the terms and conditions of this Agreement and the applicable Order, provided that the terms of this Agreement shall prevail over any conflicting terms in an Order.
3.1 Supplier hereby grants to You and Users a non-exclusive, non-transferable, worldwide, and enterprise-wide license to access and use the Cloud Service, Software associated therewith, and Supplier Content that is accessed or generated in real-time thereon. Licenses to access and use the Cloud Service and Software associated therewith may be limited to the term specified in an Order, and such licenses shall be irrevocable during their term.
3.2 You acknowledge that all amendments, additions and enhancements to the Cloud Service, Software and Supplier Content and documentation belong to and shall remain vested in Supplier. You agree:
3.2.1 not to copy the Software (other than for the purposes of normal operation or for archival purposes)
3.2.2 not to reverse engineer, disassemble, decompile, translate or modify the Software without the prior permission in writing from Supplier;
3.2.3 to maintain adequate security measures intended to safeguard the Cloud Service, Software and Supplier Content from access or use by unauthorized Users; and
3.2.4 to notify Supplier if You become aware of use of the Cloud Service, Software and Supplier Content by unauthorized Users.
3.2.5 not to - for commercial gain - sublicense, sell, lease, assign, pledge, permit use of, give, lend, distribute, disclose or in any way transfer to third parties any Licensed Software, Documentation, copies thereof or trade secrets contained therein.
3.3 Except when there is a breach of Your payment obligations under this Agreement or per Section 5.2, which is not cured within the agreed upon cure period, under no other circumstances shall Your licenses to the Cloud Service(s), Software or Supplier Content be impaired, revoked, or restricted by Supplier in any manner or at any time during the term of the Agreement.
4.1 Supplier represents and warrants to You (i)that at the time of delivery the Software, Cloud Service and Supplier Content as delivered by Supplier shall conform to and perform in accordance with the Specifications; (ii) that during the term of the Agreement supplier will provide the Cloud Services with commercially reasonable skill and care in accordance with the Documentation and terms of the Product
4.2 Supplier will use commercially reasonable efforts to deliver Supplier Products free of malicious code.
5.1 Supplier will defend any third-party claim against You that Your valid use of Supplier’s Cloud Service, Software or Supplier Content infringes a third party’s patent, copyright or registered trademark (the "IP Claim")., providing that you promptly notify Supplier in writing of the IP Claim; fully cooperate with Supplier in the defense of the IP Claim; and grant Supplier the right to exclusively control the defense and settlement of the IP Claim, and any subsequent appeal.
Supplier will have no obligation to reimburse You for attorney fees and costs incurred prior to Supplier’s receipt of notification of the IP Claim. You, at Your own expense, may retain Your own legal representation.
5.2 Additional Remedies. If an IP Claim is made and prevents Your exercise of the Product usage per the Agreement, Supplier will either procure for You the right to continue using the Supplier Technology or replace or modify the Technology with functionality that is at least equivalent. Only if Supplier determines that these alternatives are not reasonably available, Supplier may terminate Your rights granted under this Agreement for the remainder of the unexpired Usage Term.
5.3 Exclusions. Supplier has no obligation regarding any IP Claim based on:
- compliance with any designs, specifications, or requirements You provide or a third party provides;
- Your modification of any Supplier Technology or modification by a third party;
- the amount or duration of use made of the Supplier Technology, revenue You earned, or services You offered;
- combination, operation, or use of the Supplier Technology with non-Supplier products, software or business processes;
- Your failure to modify or replace the Supplier Technology as required by Supplier; or
- any Supplier Technology provided on a no charge, beta or evaluation basis.
5.4 This Section is Suppliers full obligation and Your exclusive remedy regarding any IP Claim against You.
6.1 You will pay all applicable federal, state and local sales and use taxes ("Taxes"), except any taxes or tax-like charges determined by or related to Supplier’s income, net worth, franchise, property or employees (which shall be borne solely by Supplier).
7.1 Supplier reserves the right to immediately suspend your use of Cloud Service(s), Support Service(s) and Software as set forth in Sections 2, Section 3 and Section 5.2 of this Agreement.
7.2 Supplier may cancel the Agreement if breach(s) of the agreement and related orders are not resolved to Suppliers satisfaction within 30 days of being notified by Supplier.
8.1 Confidential Information.
8.1.1 Each Party shall treat Confidential Information of the other party ("Disclosing Party") with the same care as it uses for its own confidential information of like sensitivity, and Supplier shall use Your Confidential Information only for purposes of providing the Cloud Service, Service, Software, or analysis related to this Agreement. This Section shall not be deemed to limit the licenses granted to You and/or its Users pursuant to the Agreement.
8.1.2 These obligations do not apply to Confidential Information which, as shown by reasonably documented proof (i) was in the other Party’s possession prior to receipt; or (ii) was received in good faith from a third party not subject to a confidentiality obligation; or (iii) now is or later becomes publicly known through no breach of a confidentiality obligation to the other Party; or (iv) is authorized in writing by the disclosing Party to be released or is designated in writing by that Party as no longer being confidential or proprietary. Notwithstanding the foregoing limitations, Supplier shall treat Personal Data, User Data and User Input as Confidential Information of Yours.
8.2 Other than as required by law or as set forth in Section 11.3 below, a Party shall not, without the prior written consent of the other Party, disclose to any person, or make a public announcement of, the existence of discussions or negotiations or any of the terms relating to this Agreement.
8.3 If a Party receives a request to disclose any Confidential Information of the Disclosing Party, whether pursuant to a valid subpoena or an order issued by a court or regulatory body or in connection with a legal filing by the other Party with a governmental agency ("Ordered Party"),and on advice of legal counsel such disclosure is required by law, then prior to disclosure, the Ordered Party shall (i) notify the Disclosing Party of the terms of such request and advice (unless such notification is legally prohibited), (ii) cooperate with the Ordered Party in taking lawful steps to resist, narrow, or eliminate the need for that disclosure, and (iii) if disclosure is nonetheless required, work with the Disclosing Party to take into account the Disclosing Party’s reasonable requirements as to its timing, content and manner of making or delivery and use best efforts to obtain a protective order or other binding assurance from the court or regulatory body that confidential treatment shall be afforded to such portion of the Confidential Information as is required to be disclosed. The foregoing is without limitation of either Party’s ability to seek a protective order or other relief limiting such disclosure; in such a case, the other Party shall cooperate in such efforts.
8.4 It is agreed that a violation of any of the provisions of these non-disclosure provisions will cause irreparable harm and injury to the Disclosing Party, and that the Disclosing Party shall be entitled, in addition to any other rights and remedies it may have at law or in equity, to seek an injunction enjoining and restraining the other Party from doing or continuing to do any such act and any other violations or threatened violations of this Agreement.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, ITS EMPLOYEES, SUBCONTRACTORS, AND/OR AGENTS, OR TO ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOST PROFITS FOR ANY CLAIM OR DEMAND OF ANY NATURE OR KIND, ARISING OUT OF, RESULTING FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF. The foregoing limitation shall be inapplicable to the indemnification, confidentiality, compliance with laws and export control provisions of this Agreement, and to claims for personal injury (including death) and damage to tangible personal property to the extent either is proximately caused by the negligence, acts or omissions of a Party.
10.1 Choice of Law and Jurisdiction. The construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction and subject to the exclusive jurisdiction of its federal or state courts in California. Any suit brought by either party against the other party for claims arising out of this Agreement shall be brought in the Supreme Court of the State of California, Stanislaus County. The parties consent to the jurisdiction of said courts and waive objection to the exercise of such jurisdiction on forum non convenience grounds or otherwise. The application of the UN Convention on Contracts for the International Sale of Goods is specifically excluded from this Agreement. Furthermore, in no event shall this Agreement become subject to the Uniform Computer Information Transactions Act (UCITA) even if passed by the state of governing law.
10.2 Notices. All notices, requests, demands and other communications of either Party, other than support requests, given to the other pursuant to this Agreement shall be in writing and sent by e-mail (with automatic confirmation of receipt), registered mail or overnight courier service to the Parties and shall be effective as of the day of receipt. Support requests will be make via the Suppliers WEB site. Notices to Supplier are to be made to the address in the opening paragraph of this Agreement and to You at the address provided in the Order.
10.3 Assignment. This Agreement shall be binding upon the Parties' respective successors and permitted assigns. Neither Party, may assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the other Party and any such attempted assignment shall be void except in connection with any change of control of Visualware, provided that the other party or parties involved in the change of control event are not competitors of You.
10.4 Supplier and all subcontractors shall comply with all U.S. export controls, laws and regulations.
10.5 No Waiver. Either Party’s failure to enforce any provision of this Agreement or to exercise any option, shall not be construed as a waiver of such provision or affect the validity of this Agreement.
10.6 Severability. If any provision or portion of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, it is only to that extent to be deemed omitted, and such invalidity or unenforceability shall not affect any other provision of this Agreement. This Agreement shall then be construed as if such unenforceable provision(s) had never been contained herein and the balance of the Agreement shall remain enforceable.
10.7 Survival of Obligations. The respective obligations of the parties under this Agreement that by their nature would continue beyond the termination, cancellation or expiration, shall survive any termination, cancellation or expiration, including, but not limited to, obligations to indemnify, insure and maintain confidentiality.
10.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original, and when taken together will constitute one and the same agreement. Delivery of an executed counterpart of a signature page by facsimile transmission or scanned image (e.g., .pdf or .tiff file extension name) as an attachment to e-mail shall be as effective as delivery of a manually executed counterpart of this Agreement.
10.9 Entire Agreement. This Agreement including any exhibits constitutes the entire agreement between the Parties in connection with the subject matter hereof and cancels and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. No amendment, alteration or modification of this Agreement shall be effective unless it is set forth in a writing signed by duly authorized representatives of both Parties.
This agreement is subject to change