This is a legal document that explains your rights and obligations related to your use of the SSN Technology and is incorporated by reference into one or more executed Order Forms. Please read this Agreement carefully before downloading or using the SSN Software or accessing the SSN Services. By downloading or using the SSN Software libraries and/or accessing the SSN Services, you are agreeing to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of a company, organization or other legal entity (an “Entity), you are agreeing to these Terms for that Entity and representing to SSN that You have the authority to bind such Entity and its Affiliates, to this Agreement, in which case the terms “Customer”, “You”, “Your” shall refer to such Entity and its Affiliates. If you do not have such authority, or if you do not agree with the terms of this Agreement, do not download the SSN Software and/or use the SSN Technology.
(a) This Agreement, together with all applicable exhibits, including Order Forms, Service Level Agreements, Service Terms and Support Plans, states the terms and conditions by which SSN delivers and Customer receives and/or uses the SSN Technology provided by SSN.
(b) Order Forms. Customer’s license to use SSN Technology is available through a subscription term as indicated on a validly executed Order Form. Each Order Form submitted and executed by both parties is hereby incorporated by reference and constitutes part of this Agreement. Customer may order additional SSN Technology through additional Order Form(s). In addition to the terms and conditions set forth in this Agreement and in each applicable Order Form, specific additional terms and conditions, and SLAs may be applicable to each SSN Technology ordered by Customer may be set out in the Service Terms and reference to “Order Form” includes any such applicable Service Terms.
(c) Optional SSN Technology. During the Subscription Term, certain adjunct software and services may be made available to Customer for use under terms and conditions set out in the Service Terms. Such software and services are optional, and Customer is not required to use these software and services. Download and/or use of any optional SSN Technology by Customer constitutes Customer’s acceptance of the applicable Service Terms including applicable usage fees (if any).
(d) Priority. Reference herein to the “Agreement” shall mean this body of the Customer Agreement (the “Standard Terms”), the initially attached Order Form, any subsequently agreed Order Form(s), all applicable Service Terms (whether to an applicable Order Form or otherwise) properly signed by both parties. In the event of a conflict between or among the terms of documents relating to a Service, the following order of priority will govern, except where the specific terms of a document provide otherwise: (1) Order Form Terms & Conditions, (2) Service Terms, and (3) this Agreement.
(e) Provision of SSN Technology. By its execution or written acceptance of an Order Form(s) pursuant thereto, SSN shall provide and support the SSN Technology set forth in such Order Form(s) during the Order Form Term set forth and defined therein and in accordance with the terms and conditions of this Agreement, including, without limitation, these Standard Terms and the applicable Order Form(s).
(a) “Affiliate” means any corporate or limited liability entity that controls or is controlled by, or is under common control with, another corporate or limited liability entity, where “control” means the ownership or control of greater than fifty percent (50%) of the equity or voting rights of such entity.
(b) “Confidential Information” means all confidential or proprietary information, documents, materials, and data, which are owned by, licensed to or under the control of a party and disclosed under this Agreement, whether communicated verbally, in writing or in machine readable form. Confidential Information includes that which is expressly designated by the disclosing party as its “Confidential Information” or would be reasonably understood by one in the computer software industry to be confidential in the circumstances. Confidential Information includes all processes, inventions, trade secrets, ideas, designs, research, source code, know-how, business methods, production plans, specifications, marketing plans, software documentation, software architecture and financial information of a party, to the extent such information has not been made publicly available by that party or otherwise disclosed without imposing any obligations that the information be kept confidential.
(c) “Customer Technology” means any tools, technology, software or like materials owned, controlled, licensed to and/or otherwise used by or for Customers benefit, including, without limitation, Customer’s Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, data, trade secrets and all related intellectual property rights throughout the world (whether owned by Customer or licensed to Customer from a third party) in the foregoing and also including any and all derivatives, improvements, updates, enhancements, modifications or extensions of any of the aforementioned conceived, reduced to practice or developed during the term of this Agreement by Customer.
(d) “Documentation” means any online or printed user manuals or functional specifications that describe the functionality of the SSN Technology including any updates to the foregoing, that are provided to Customer by SSN.
(e) “DIRECT Project” means the native client application(s) built by the Customer using SSN Technology, as outlined in the Service Terms, identified on the Order Form in connection with which Customer has been granted a license for use of SSN Technology under this Agreement.
(f) “Service Level Agreement” means all Service Level Agreements (“SLA”) offered by SSN with respect to SSN Technology. These SLAs may be updated from time to time by SSN.
(g) “Service Terms” means the terms and conditions for particular SSN Technology located at http://www.solidstatenetworks.com/service-terms.
(h) “SSN Services” means those services provisioned by SSN to Customer under this Agreement, which may include but are not limited to: content delivery, data ingress, data storage, data indexing, data transformation, compute, databases, APIs, web user interfaces, monitoring, reporting, analytics, and support services provided by SSN and/or through SSN’s partners.
(i) “SSN Software” means any tools, technology, software, or like materials owned, controlled, licensed to and/or otherwise used by or for SSN’s benefit, including without limitation, software tools, hardware designs, algorithms, APIs, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network design, know-how, data, trade secrets related to Distributable Software and Non-Distributable Software (in source and object forms) and all related intellectual property rights throughout the world (whether owned by SSN or licensed to SSN from a third party) in the foregoing and also including any and all derivatives, improvements, updates, enhancements, modifications or extensions of any of the aforementioned conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to the Customer or that have general applicability in the art.
(j) “SSN Technology” means any tools, technology, software or like materials owned, controlled, licensed to and/or otherwise used by or for SSN’s benefit, including, without limitation, software, tools, hardware designs, algorithms, SSN Software (in source and object forms), SSN Services, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, data, trade secrets and all related intellectual property rights throughout the world (whether owned by SSN or licensed to SSN from a third party) in the foregoing and also including any and all derivatives, improvements, updates, enhancements, modifications or extensions of any of the aforementioned conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Customer or that have general applicability in the art.
(k) “Subscription” means Customer’s acceptance and continued compliance with terms of this Agreement in exchange for access to and use of SSN Technology, including future versions of SSN Software that SSN may make available.
(l) “Subscription Fees” means the fees charged under the applicable fee schedule for access to and/or use of the SSN Technology during the Subscription Term, as outlined on an executed Order Form or within the applicable Service Terms.
(m) “Technical Support” or “Support” means the services in the Support Plans indicated on the Order Form.
(n) “Third Party Software” means third party software components included in SSN Technology.
(o) “User” means a named individual to whom the Customer has granted access to use the SSN Technology.
(p) “Version” means any updated or upgraded build of SSN Software that SSN chooses to make available.
3. Reservation of Rights and Ownership.
(a) Intellectual Property. As between Customer and SSN, Customer acknowledges that, SSN represents that it owns or has validly licensed all right, title, and interest in and to SSN Technology, including all associated copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights with respect thereto, as well as any information, whether in electronic, printed, or other format, including instructions, on-line help messages, manuals, training materials, and other publications, that contain, describe, explain or otherwise relate to SSN Technology. SSN reserves all rights not expressly granted to Customer in this Agreement.
As between Customer and SSN, SSN acknowledges that Customer represents that it owns or has validly licensed all right, title, and interest in and to all Customer Technology, including all associated copyrights, patents, trademarks, trade secrets, and other intellectual property and proprietary rights with respect thereto.
(b) SSN Trademarks. Customer acknowledges that all symbols, trademarks, trade names, and service marks (“Trademarks”) used by SSN in connection with SSN Technology belong to SSN (or its licensors) and that Customer acquires no ownership rights in such Trademarks. Customer will not remove any copyright notices, trademark notices or other proprietary legends of SSN or its licensors contained on or in SSN Technology.
(c) Customer Improvements and Assignment. Unless and except as authorized in writing by SSN, Customer will not modify or improve, nor seek to modify or improve, any SSN Technology. In the event that Customer, by and through its employees, agents, or contractors, develops an improvement or modification of the SSN Technology, Customer acknowledges that such improvement or modification is the exclusive property of SSN, except for any Customer Technology contained therein. Customer hereby assigns, and will cause its applicable employees, agents or contractors to assign, all rights to any such improvement or modification of SSN Technology to SSN, except for any Customer Technology contained therein, as part of this Agreement. Customer will execute, and prior to their beginning any improvement or modification work will cause its applicable employees, agents or contractors to have executed, all documents reasonably necessary to evidence and reflect this assignment.
(d) No Challenge or Contest. Customer will not commence any action against SSN alleging the invalidity of any patent, copyright, trade secret, trademark or other intellectual property right pertaining to SSN Technology in connection with this Agreement.
4. SSN’s Warranties, Disclaimers and Limitation of Liability
(a) General. SSN represents and warrants to Customer that
(i) it possesses all legal rights and authority necessary to grant the rights granted to Customer herein and to enter into this Agreement;
(ii) its entering into and performance under this Agreement will not cause a breach of any agreements it has with any third parties;
(iii) it has validly licensed the Third-Party Software;
(iv) it will not remove any copyright notices, trademark notices or other proprietary legends of Customer or its licensors contained on or in the Customer Technology.
(b) Software Warranties. SSN warrants that the SSN Software and Modifications (as contained in the SSN Software at the time the SSN Software is delivered to Customer),
(i) will not contain any viruses, backdoors, rootkits, or other disabling code that can be initiated remotely or automatically;
(ii) will function substantially in accordance with its documentation;
(iii) the SSN Software does not and will not include as a requirement for operations any open source software or technology that is licensed under the GNU General Public License (GPL) or any other license in such a manner as would require Customer to make its source code publicly available. Except for the implied warranty of no hidden defects or as otherwise expressly stated in this Section 4(b) or in Section 4(a) above, or on an Order Form, SSN makes no other representations or warranties, express or implied, regarding the SSN Software. SSN expressly does not warrant that the SSN Software or the operation of the SSN Software will be uninterrupted or error-free.
(c) CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT EXCEPT AS STATED IN THIS AGREEMENT, THE SSN TECHNOLOGY IS PROVIDED WITHOUT ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND FROM SSN INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
(d) EXCEPT FOR A VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS OR IN CONNECTION WITH ANY INDEMNIFIED OBLIGATION , IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM THIS AGREEMENT, INCLUDING LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ALL OTHER REMEDIES AVAILABLE TO THE OTHER PARTY FAIL IN THEIR ESSENTIAL PURPOSE.
(e) If Customer believes that the SSN Software, or any component thereof, is not in compliance with the warranties set forth in Section 4(a) or 4(b) above, Customer shall notify SSN of the non-compliance, and SSN shall have a reasonable opportunity to investigate the claimed breach of warranty and will promptly repair or replace the SSN Software, or any component thereof, that is found not to be in compliance. If SSN determines, in its sole discretion, that the SSN Software cannot be repaired or replaced so that it is compliant with SSN’s warranties, then SSN may cancel this Agreement and issue a pro rata refund for the affected Services to Customer. Notwithstanding anything else in the Agreement to the contrary, Customer’s sole and exclusive remedies for a breach of any software warranty set forth in Section 4(b) above are set forth in this Section 4(e).
(f) Any and all warranties and indemnification obligations of SSN in this Agreement shall be void where the non-compliance of warranty or occurrence giving rise to an indemnification obligation is caused by or is related solely to
(i) the unauthorized or unapproved acts or omissions of non-SSN personnel, including third parties;
(ii) any alterations or modifications made to the SSN Software by Customer, its agents, representatives or contractors;
(iii) Customer’s use of the SSN Software in violation of the terms and conditions of this Agreement; and
(iv) any coding, information, specifications or instructions created or provided by Customer.
(g) Except for claims arising under Sections 8(b)&(d), 11 of this Agreement, Section 2 of the Service Terms or either party’s confidentiality obligations hereunder and a party’s indemnification obligations under this Agreement, neither party’s liability to the other party under this Agreement shall not exceed the greater of:
(i) the total amount of fees payable by Customer to SSN under this Agreement; or
(ii) the total amount of fees paid by Customer to SSN during the twelve (12) months immediately preceding the date of the claim, and in each case, plus attorneys’ fees incurred in connection with the claims.
5. Customer Obligations.
(a) Warranties of Customer. Customer represents and warrants that
(i) Customer possesses the legal right and ability to enter into this Agreement,
(ii) its entering into this Agreement and performance of its obligations will not violate any applicable laws or regulations or cause a breach of any agreement it has with any third parties;
(b) SSN Software Compatibility. Customer will be responsible for ensuring that its Licensed Customer Application is compatible with the SSN Software.
(c) End Users. Customer is solely responsible for
(i) establishing the end users’ rights to access and use the SSN Software as part of the Licensed Customer Application;
(ii) meeting the existing technical requirements, and any updates, for use of the SSN Software; and
(iii) maintaining the security, confidentiality and integrity of the Licensed Customer Application and all content created, received, transmitted through or stored on Customer’s computer network.
(d) Customer’s Compliance with Law and Regulations. Customer agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. Customer will comply at all times with all applicable laws, rules and regulations (“Rules and Regulations”) that apply to the specific Services ordered by Customer, if any, as updated by SSN from time to time. If a change to the Rules and Regulations has a material adverse effect on Customer’s ability to use the Services, Customer may terminate any applicable Order Form(s) for convenience without any consequences. No change to the Rules and Regulations will override the negotiated terms of this Agreement or any applicable Order Form(s).
(e) User Credentials. Customer is responsible for all actions taken under the User ID and passwords (the “Credentials”) issued by SSN and shall only use the SSN Services using your own Credentials. Customer must use every effort to keep Credentials safe and should not disclose them to any other person. Customer shall not transfer or sell their Credentials to any other person. Customer shall also not permit, either directly or indirectly, any other person or entity to use their Credentials to access the SSN Technology.
6. Third Party Materials.
(a) Third Party Software. The SSN Software contains software which has been validly licensed to SSN for incorporation and use in the SSN Software and in connection with the SSN Services (“Third Party Software”). SSN represents and warrants to Customer that it has all rights necessary with respect to such Third-Party Software to grant to Customer the rights granted herein. All Third-Party Software is provided “as is” without any express or implied warranties of any kind by SSN or its licensors. Third Party Software is documented and available at: http://www.solidstatenetworks.com/legal.
(b) Third Party Products. In connection with the SSN Services, SSN may provide Customer access to, computer programs, hardware, documentation, services or other product licensed by an entity other than SSN (“Third Party Products”). SSN has established reseller relationships with certain commercial vendors, (“Third Party Vendors”). SSN shall obtain, at its expense, all licenses and rights to such Third-Party Products necessary for Customer to exercise the rights granted by SSN hereunder. All right, title, and interest in and to such Third-Party Products is retained by the applicable Third-Party Vendor or licensor.
(c) Support for Third Party Products. Unless otherwise notified, Customer understands that product support for Third Party Products is provided by SSN and not by the Third-Party Vendor. Except as otherwise set forth in an Order Form or elsewhere in this Agreement, neither SSN nor any Third-Party Vendor makes any representations or warranties, express or implied, regarding any Third-Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES SUCH THIRD-PARTY PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM SSN OR ANY THIRD-PARTY VENDOR, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SSN NOR ANY THIRD-PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD-PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND SSN WITH RESPECT TO ANY UNAUTHORIZED USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS; PROVIDED THAT SUCH THIRD PARTY LICENSE AND/OR END USER SUBSCRIBER AGREEMENTS ARE PROVIDED TO CUSTOMER, COPIES OF WHICH SSN WILL PROVIDE TO CUSTOMER.
(d) Third Party Trademarks. Customer shall not
(i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third-Party Product or that appear during use of any Third-Party Product; or
(ii) reverse engineer, decompile, or disassemble any Third-Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
7. Delivery and Payment Terms. This Section 7 sets forth the terms under which the SSN Technology identified on an Order Form (as signed by Customer and SSN) will be provided by SSN:
(a) Delivery of SSN Technology; Term. On or before the Effective Date specified in an Order Form(s) signed by both parties, SSN will
(i) deliver to Customer the applicable SSN Software and
(ii) activate applicable SSN Services.
(b) Subscription Term. The term for the SSN Technology will commence on the Effective Date and shall continue in effect for the term as specified on an Order Form (the “Subscription Term”) and any Renewal Term, unless earlier terminated by either party in accordance with Section 8.
(c) Renewal Term(s). Upon expiration of the Subscription Term, the term of an Order Form shall be extended for a period of equal duration to the Subscription Term (“Renewal Term”), unless and until
(i) Customer gives SSN written notice of termination no less than thirty (30) days prior to the end of the Subscription Term; or
(ii) SSN gives Customer written notice no less than sixty (60) days prior to the end of the Subscription Term; or
(iii) a new Order Form is executed by both parties for the Services which will begin a new Subscription Term.
(d) Payment Terms.
(i) By submitting an Order Forms(s), Customer agrees to
(1) take and pay for the SSN Technology identified on the Order Form(s); and
(2) pay for all optional software and services offered by SSN during the Subscription Term and actually used by Customer in accordance with the applicable Service Terms.
(ii) On the execution date for the SSN Technology, Customer will be billed (the “Initial Bill”) an amount equal to
(1) all non-recurring charges indicated in the Order Form(s) and
(2) the minimum committed monthly recurring charges, if any, for the first month of the term prorated for the number of calendar days remaining in such month. Subsequent monthly billing will occur on the first day of each calendar month of the Subscription Term.
(iii) Monthly recurring charges for any minimum committed charges, as indicated in the Order Form(s), will occur on the first day of each calendar month of the term and any charges for variable fees due, as indicated on the Order Form(s), will be billed on the first day of the following month in which the Services were provided (the “Recurring Bill”). All non-recurring charges for Ordered SSN Technology and Custom Services will be billed in SSN’s discretion either immediately after the Services are provided or at the end of the month in which the SSN Technology is provided (the “Non-Recurring Bill”).
(iv) Payment for all Data Transfer Fees, if indicated in the Order Form(s), is due upon receipt of each SSN invoice and payment of all other fees indicated in the Order Form(s) is due within thirty (30) days of the date of the corresponding SSN invoice.
(v)All payments will be made in U.S. Dollars.
(c) Fees During Renewal Term. SSN may change the fees for the SSN Technology listed on the Order Form(s) with such new fees to be effective as of the Renewal Date. SSN will provide written notice to Customer at least sixty (60) days prior to the Renewal Date of any applicable changes to the fees for SSN Technology it will charge Customer. Customer is deemed to have accepted SSN’s changes to the SSN Technology fees unless Customer terminates the SSN Technology in accordance with Section 8.
(d) Late payments. Any payment not made within thirty (30) days of the due date (“Payment Default”) will accrue interest at the rate of one and one-half percent (1 ½ %) per month, or the highest rate allowed by applicable law, whichever is lower. In the event of a Payment Default by Customer that persists for more than sixty (60) days, Customer also shall pay to SSN all reasonable out-of-pocket expenses incurred by SSN in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer including reasonable attorney’s fees and the fees of any collection agency retained by SSN.
(e) Taxes. Notwithstanding any other provision of this Agreement, Customer shall have the right to withhold all amounts that customer is required by law to withhold from payments made to SSN hereunder for any foreign, national, state or local sales, use, value added, withholding or other taxes, customs duties or similar tariffs and fees and such amounts may be deducted from amounts due and payable to SSN under this Agreement. SSN shall complete the withholding tax documentation as provided by Customer to SSN from time to time including completion of Form W-8BEN or Form W-9, and shall provide a US taxpayer identification number, and shall forward completed documentation to Customer or any relevant third parties, as instructed by Customer and without delay. Customer agrees to notify SSN of any such potential taxes and to reasonably cooperate with SSN in its efforts to obtain such reduced tax rates or eliminate such taxes under applicable income tax treaties. Each party is solely responsible for its own income taxes and employment-related taxes.
8. Termination. Unless otherwise set forth in a notice of termination, the termination of any individual Order Form shall apply only to that Order Form and shall not terminate any other Order Forms or the Agreement or the parties’ respective obligations thereunder.
(a) Termination and Payment Obligations. Upon termination of any SSN Technology at any time and for any reason, Customer’s rights to use the SSN Technology will immediately cease. If any SSN Technology is terminated for any reason other than an uncured material breach by SSN, Customer’s payment obligations for the applicable SSN Technology under this Agreement including all charges stated in an Order Form(s) incurred for SSN Technology actually provided to Customer SSN through the date of termination, will immediately become due.
(b) Termination Without Cause During Renewal Term. SSN Technology may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other prior written notice of at least thirty (30) days prior to the effective date of termination.
(c) Termination with Cause. SSN Technology may be terminated by either party for cause immediately by written notice upon the occurrence of any of the following events:
(i) if the other ceases to do business;
(ii) if the other breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days of written notice describing the breach; or
(iii) if the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against the other and not dismissed within sixty (60) days.
(1) If SSN Technology is terminated by SSN under Section 8(c) all remaining committed monthly recurring and other charges specified on the applicable Order Form(s) for the balance of the then current term shall immediately become due and payable.
(2) In addition to any other rights it may have under this Agreement or applicable law, SSN may elect, at its sole discretion, to temporarily suspend Customer’s right to use and access SSN Technology in the event of a Payment Default that Customer has failed to cure per Section 8(c)&(b) without limiting its ability to terminate as otherwise permitted to do so under the Agreement.
(d) Early Termination. If Customer elects to terminate SSN Technology before the expiration of the Subscription Term or any subsequent Renewal Term pursuant to Section 8(b), Customer shall pay SSN a termination charge (which Customer acknowledges reflects a reasonable measure of actual damages and not a penalty) in accordance with the following provisions:(i) For termination within the Subscription Term for which the SSN Technology was ordered, by Customer shall pay (1) one hundred percent (100%) of the committed monthly recurring charges (“MRCs”) or any annual commitment charges, or account balances, as applicable, for the terminated Service payable for the remainder of the Subscription Term; (2) any early termination or cancellation charges previously disclosed to Customer on an applicable schedule; (ii) For termination of SSN Technology by Customer within any Renewal Term, Customer shall pay the MRCs or a pro rata portion of any annual commitment charges, as applicable, for the terminated SSN Technology payable to the effective date of early termination; (iii) For termination in the Subscription Term or Renewal Term, Customer shall pay any payments due for other SSN Services ordered by and provided to Customer prior to termination. The payments set forth in this Section 8(d) shall be SSN’s sole remedy with regards to Customer’s termination under this Agreement pursuant to Section 8(a).
(e) Termination of this Agreement. The Agreement may be terminated as follows:
(i) Customer may terminate this Agreement for any or no reason upon thirty (30) days’ written notice to SSN. By terminating this Agreement, all current and active Subscriptions under all Order Forms effective on the termination date will immediately cease.
(ii) SSN may terminate this Agreement for any or no reason upon thirty (30) days written notice to Customer, provided that there are no Order Forms in effect under this Agreement.
(iii) In addition to any other rights either party may have under this Agreement or applicable law, either party may terminate this Agreement immediately if the other party materially breaches this Agreement and fails to cure such within thirty (30) days’ written notice from the non-breaching party. Without limiting the foregoing, Customer’s failure to make any payment due under this Agreement or breach of any restriction under this Agreement constitutes a material breach of this Agreement.
(iv) Upon termination of the Agreement for any reason, Customer’s rights to use the Non-Distributable Software, SSN Services, and to use the SSN Software to delivery, update, patch and otherwise modify the DIRECT Project will immediately cease. Notwithstanding the foregoing, Customer’s end-users may continue to possess and use the DIRECT Project containing Distributable Software in object code format in the version that exists on the effective date of any such termination. In addition, any and all payment obligations of Customer under this Agreement, including but not limited to all charges stated in an Order Form(s) incurred for SSN Services actually provided to Customer by SSN through the date of termination, will become due and payable immediately, except where Customer has terminated this Agreement under Section 8(e)(iii) for an uncured material breach by SSN.
(v) Upon termination of this Agreement, Customer shall promptly remove and destroy, or at the request of SSN return, all Confidential Information of SSN in Customer’s possession or control that is not reasonably required to exercise any continuing right and license to use the SSN Software with end users. Without limiting any of Customer’s obligations set forth elsewhere in this Agreement, including, without limitation, Section 9, Customer’s obligations of confidentiality with respect to any retained Confidential Information of SSN will survive the termination of this Agreement. Upon termination of this Agreement, SSN shall promptly remove, destroy or return (at Customer’s option) all Confidential Information of Customer in SSN’s possession or control. Without limiting any of SSN’s obligations set forth elsewhere in this Agreement, including, without limitation, Section 9, SSN’s obligations of confidentiality with respect to any retained Confidential Information of Customer will survive the termination of this Agreement.
(vi) Except for a termination by either party under Section 8(e)(iii), neither party shall have any liability for damages or costs incurred by the other party as a result of any termination of this Agreement in accordance with these terms or any actions that the other party is required to undertake as a result of the termination of this Agreement.
(a) All Confidential Information disclosed by either party to the other during the term of this Agreement, or disclosed prior to the Subscription, shall be maintained by the receiving party in confidence and afforded at least the same degree of care and scrutiny that the receiving party utilizes to protect its own Confidential Information from disclosure, but no less than reasonable care. The receiving party is entitled to use Confidential Information of the disclosing party only in furtherance of the receiving party’s performance hereunder and will disclose such Confidential Information only to those employees whose duties require a need to know the Confidential Information in order to perform those duties. Either party may disclose Confidential Information to its Affiliates provided that such Affiliates are bound by confidentiality provisions that are as stringent as those set forth in this Section 9. Customer and SSN will also maintain the confidentiality of the terms and conditions of this Agreement.
(b) Each party acknowledges that the Confidential Information of the other has tangible value and contains trade secrets and other proprietary information not intended for public disclosure or dissemination and that any disclosure by the receiving party in violation of its confidentiality obligations under this Agreement will cause potential or actual irreparable harm to the disclosing party for which money damages will be an insufficient remedy and difficult to calculate. Accordingly, each party agrees that for any use or disclosure, or threatened use or disclosure, of Confidential Information not authorized by the express terms of this Agreement, the disclosing party shall be entitled to seek and obtain from a court of competent jurisdiction specific performance and injunctive relief to prevent the unauthorized use or disclosure (whether actual or threatened) by the receiving party. The receiving party waives all arguments that the disclosing party posts a bond or other undertaking as a condition of such relief and agrees that no bond or other undertaking shall be necessary to secure such relief. This remedy shall not be exclusive but shall be in addition to all other remedies available to the disclosing party under this Agreement, at law or in equity.
(c) The parties agree that their obligations under this Section 9 do not apply to any portion of the disclosing party’s Confidential Information that is:
(i) previously known to the receiving party under no obligation of confidentiality;
(ii) is obtained by the receiving party from a third party in lawful possession of such information and with the right to disclose the information without violating any person’s rights in such information or otherwise violating any legal obligation to maintain its confidentiality;
(iii) is or becomes part of the public domain through no fault of the receiving party or its employees (except that information that consists of a compilation of information in the public domain shall continue to be treated as Confidential Information if the compilation itself is not available in the public domain or readily ascertainable from public sources);
(iv) is independently developed or ascertained by the receiving party without the use of any Confidential Information of the disclosing party; or
(v) is required to be disclosed as part of any administrative, governmental or judicial action, provided that the receiving party immediately notifies the disclosing party of the action to the extent permitted by law and the portions of the disclosing party’s Confidential Information affected, and the disclosing party has a reasonable opportunity to intervene and/or seek legal or other equitable relief to protect its Confidential Information.
10. Laws and Regulations.
(a) Customer’s Compliance with Laws and Regulations. Customer agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. Customer will comply at all times with all applicable laws and regulatory rules in applicable jurisdictions (“Laws and Regulations”) as they apply to the specific Services used by Customer. If a change to the Laws and Regulations has a material adverse effect on Customer’s ability to use the Services, Customer may terminate any applicable Order Form(s) for convenience without any consequences. No change to the Laws and Regulations will override the negotiated terms of this Agreement or any applicable Order Form(s).
(b) SSN’s Compliance with Laws and Regulations. Customer acknowledges that each Service provided by SSN may be subject to laws and regulatory rules in one or more jurisdictions. SSN undertakes to comply with all applicable laws governing the provision of the Services to Customer, and accordingly, may, at its reasonable discretion, cancel or suspend the provision of any Service, or portion of that Service, or any portion or element thereof, that SSN reasonably and in good faith determines is in violation of any applicable law or regulation or any SSN license in any jurisdiction, or is no longer permitted under any of the same by providing written notice thereof to Customer. In these circumstances, SSN will make reasonable efforts to restore the Service, or to provide a functionally equivalent substitute service that is permitted under any applicable law or regulation or under SSN license(s). Any pricing terms for functionally equivalent substitute service will be separately negotiated in good faith. If, after such good faith negotiations, the parties are unable to agree on any such substitute pricing terms within forty-five (45) days of SSNs’ written notice regarding the substitution, either party may terminate such Service without any liability or penalty upon thirty (30) days prior written notice.
(c) Export Laws. The parties will comply with all applicable legal requirements established under the export control laws of the United States. The parties will cooperate fully in any government audit or inquiry that relates to these controls. Customer will not export, re-export, transfer or disclose, directly or indirectly (even if incorporated into other products), any of the licensed SSN Software or related technical information to any country so restricted by the U.S. Export Administration Regulations, as modified from time to time, or to any national or resident thereof, unless Customer has obtained the prior written consent of both SSN and the U.S. Department of Commerce and any relevant local governmental authority of the country into which Customer desires to export such material. SSN shall provide Customer with all information and assistance reasonably requested by Customer (including applicable Export Commodity Control Numbers) needed for Customer’s compliance with applicable export control laws and regulations.
(a) SSN will defend, indemnify and hold Customer, its Affiliates, its subsidiaries, shareholders, directors, officers, employees and agents harmless against any costs, expenses (including, but not limited to, reasonable attorneys’ fees), damages, liabilities, penalties, actions, proceedings or judgments resulting from and finally awarded on any third-party claim (collectively, “Losses”) that
(i) alleges that the SSN Software infringes upon another’s copyright or misappropriates another’s trade secret;
(ii) alleges that any SSN trademark (or trademark of any SSN licensor in connection with the Third-Party Software) being lawfully used by Customer infringes upon another trademark;
(iii) alleges a breach of any of SSN’s representations, warranties or covenants set forth in this Agreement;
(iv) arises out of any intentional act or omission of SSN, except to the extent that such Losses are subject to indemnification by Customer pursuant to subsection (b) below.
(b) Customer will defend, indemnify and hold SSN, its Affiliates, its subsidiaries, shareholders, directors, officers, employees and agents harmless against any Losses arising out of or relating to
(i) Customer’s use and distribution of the SSN Software in a manner not authorized by this Agreement, or any data, material or other content created, transmitted or received by Customer or its end users in connection with the SSN Software and/or Licensed Customer Application;
(ii) the Licensed Customer Application;
(iii) any intentional act or omission of Customer or its end users in connection with the SSN Software and/or the Licensed Customer Application; and/or
(iv) any claim arising out of the combination of the SSN Software with all or any portion of the Licensed Customer Application, to the extent such claim would not have arisen but for such combination, except to the extent that such Losses are subject to indemnification by SSN pursuant to subsection (a) above.
(c) The parties’ respective obligations to defend and indemnify are conditioned upon:
(i) the party claiming the right to indemnification promptly giving the other party written notice of the claim, provided that a failure to promptly notify the other party shall not relieve the indemnifying party of its indemnification obligations unless the delay materially prejudices the indemnifying party’s ability to defend against the Losses,
(ii) the indemnifying party obtaining sole control of the defense of the claim, and
(iii) the party claiming the right to indemnification cooperating in the defense of the claim (including by making available all documents and possession in the party’s custody or control that are relevant to the claim and by making appropriate personnel available to testify and consult with the indemnifying party’s attorneys in connection with the defense of the claim). The indemnifying party shall have sole control over any settlements, subject to the indemnified party’s right to reasonable consultation and excluding any settlement that requires an affirmative act by the indemnified party.
(d) If the SSN Software becomes, or in SSN’s reasonable and good faith opinion is likely to become the subject of an infringement or misappropriation claim that would impair Customer’s right to continue using the SSN Software, SSN may at its sole option and expense either:
(i) procure for Customer the right to continue using the SSN Software;
(ii) replace or modify the SSN Software so that it becomes non-infringing; or
(iii) if (i) and (ii) are not commercially feasible, terminate Customer’s right to use the SSN Software, or affected portion thereof, and give Customer a pro-rata refund or credit for the license fees actually paid to SSN for the affected SSN Software.
(e) This Section 11 states the parties’ entire liabilities and their sole and exclusive remedies for all Losses subject to indemnification as set forth above.
12. Dispute Resolution.
(a) Management Level Discussion. In the event of any dispute arising out of or relating to this Agreement, SSN and Customer will first attempt to resolve the matter by engaging in a prompt and good faith review and discussion between at least one management level officer of each party. Either party may request that such discussions be commenced by giving written notice to the other party. If the parties are unable to resolve the dispute within ten (10) business days of commencing their discussions or within twenty (20) calendar days of a party’s request to hold such discussions, the dispute will be submitted to binding arbitration as provided in Section 12(b).
(b) All disputes relating to or arising out of this Agreement not resolved by Management Level Discussions will be submitted to and resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and before a single arbitrator, as determined in accordance with such Commercial Arbitration Rules of the AAA. This provision will apply regardless of the exact nature of the claim or legal theory being asserted. The location of the arbitration will be in Phoenix, Arizona, unless otherwise agreed in writing by the parties. Each party will bear its own costs and expenses in connection with the arbitration. The arbitrator(s) will have the authority to award reasonable costs and attorney’s fees to the prevailing party. The decision of the arbitrator(s) will be final and binding upon the parties, and a judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. It is the intent of the parties to have very limited discovery, which shall be determined by the arbitrator(s) at the outset of the proceedings.
(a) THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THOSE LAWS KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (UCITA).
(b) Customer acknowledges that the SSN Technology provided by SSN may be subject to laws and regulatory rules in one or more jurisdictions. SSN undertakes to comply with all applicable laws governing the distribution of its SSN Technology to Customer; therefore, if the SSN Technology, in whole or in part, is determined to be in violation of any applicable law or regulatory rules in any jurisdiction, or is no longer permitted under any of the same, then upon written notice to Customer, SSN may suspend Customer’s right to use the SSN Technology in such jurisdiction, without liability to Customer. In these circumstances, SSN will make reasonable efforts to deliver a functionally equivalent substitute of the SSN Technology that complies with and is permitted under the applicable law or regulations. Any pricing terms for a functionally equivalent substitute SSN Technology will be separately negotiated in good faith. If, after such good faith negotiations, the parties are unable to agree on any such substitute pricing terms within forty-five (45) days of SSNs’ written notice regarding the substitution, either party may cancel the Agreement or any portion or element thereof and/or terminate Customer’s right to use the SSN Technology in such jurisdiction, without any liability or penalty to the other.
(c) Except as is specifically set forth in an Order Form or in an amendment to this Agreement, neither party will use or make reference to, whether orally or in writing, the name, logo or any trademarks of the other party, including, without limitation, in or as part of
(i) any public communications, including, without limitation, email, web pages and press releases,
(ii) advertising, marketing and/or promotional materials, and/or
(iii) to infer or communicate an endorsement by such other party.
(d) If any provision of this Agreement is ever held by an arbitrator or court of competent jurisdiction to be void or unenforceable under the law, that provision will be stricken and the remaining provisions of this Agreement will remain in full force and effect.
(e) Except as otherwise expressly set forth in this Agreement,
(i) this Agreement is intended solely for the benefit of SSN and Customer, and their respective successors and permitted assigns; and
(ii) there are no intended third-party beneficiaries to this Agreement, and no third party has the right to make any claim or assert any right under this Agreement.
(f) The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
(g) Neither party may assign or transfer this Agreement to a third party without the previous written consent of the other party, which consent shall not be unreasonably withheld or delayed, except that consent shall not be required in the event of assignment to
(i) to an Affiliate of either party;
(ii) by way of or in connection with a merger, acquisition or reorganization of either party; or
(iii) to a successor of all or substantially all of the stock, assets, business or undertaking of either party to which this Agreement relates.
(h) All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when made in writing and addressed to a party in accordance with the executed Order Form. Notice may be provided by any of the following means: personal delivery, U.S. Registered Mail or Certified Mail, Return Receipt Requested, or by commercial overnight courier. (Other communications that do not amount to formal notice (e.g., approvals) may be communicated by way of electronic mail and shall be deemed provided upon confirmed delivery.) Each party may change their contact information to receive notice by notifying the other party in accordance with this Section 13(h).
(i) SSN and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between SSN and Customer. Neither SSN nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
(j) The headings are for convenience of reference and are not intended to have any substantive significance in the construction or interpretation of this Agreement.
(k) This Agreement, including the Order Form, Service Terms and any listed exhibits or schedules, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
(l) This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in this Agreement, this Agreement may be changed only by a written document signed by authorized representatives of SSN and Customer in accordance with this Section 13(l).
(m) SSN may issue an amended Agreement in its sole discretion by providing notice to Customer or by providing Customer with digital access to the amended Agreement via email or when accessing the SSN Technology under your Subscription at least 30 days prior to the renewal of any Subscription Term. Customer is not required to accept the amended Agreement. By downloading or using a new version or component of SSN Technology, you hereby agree to be bound by this Agreement as amended most recently prior to or contemporaneously with the issuance of that particular version or component of the SSN Technology. If you do not accept the amended Agreement, you may not download or use any new version or component that is made available by SSN contemporaneously with or after an amended Agreement is issued, and SSN reserves the right to cancel your Subscription (but this will not terminate the Software Subscription License for the Distributable Software downloaded prior to the issuance of the amended Agreement). If Customer is a legal entity, acceptance of an amended Agreement by any of your employees will be binding on you.
(n) The definitions herein and the respective rights and obligations of the parties under Sections 2, 5, 8(a) (as applies to use of the DIRECT Project, which may continue on a limited basis post-termination as provided under Section 4 (d) & (g), 7 (d), 8 (e)(iv)-(vi),9, 11, 12 and 13 shall survive any termination or expiration of this Agreement or Subscription Term.
Authorized representatives of Customer and SSN have read the foregoing and all documents incorporated therein and, by executing the Order Form(s), agree and accept such terms effective as of the date indicated below the Customer signature on the initial Order Form.
Solid State Networks | Customer Agreement |v.CA1118r1