SOFTWARE AS A SERVICE (SUBSCRIPTION ) AGREEMENT
This Software as a Service Agreement (“Agreement”), effective as of (“Effective Date”), is between REALM LLC, a Wyoming corporation with offices located at 80 W Broadway, Jackson, WY 83001 (“Provider”) and __________________________, a _________________________ with offices located at _________________________ (“Customer”). Provider wishes to offer Provider’s software-as-a-service (“SaaS”) to Customer and Customer desires access to the same, subject to the terms and conditions set forth in this Agreement. Accordingly, the parties agree as follows:
- Definitions. Terms
not otherwise defined in this Agreement have the meanings ascribed below:
“Access Credentials” means any
user name, identification number, password, license or security key, security
token, PIN, or other security code, method, technology, or device used, alone
or in combination, to verify an individual’s identity and authorization to
access and use the Services.
“Action” means any claim, action,
cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of
violation, proceeding, litigation, citation, summons, subpoena, or
investigation of any nature, civil, criminal, administrative, regulatory, or
other, whether at law, in equity or otherwise.
“Affiliate” of a Person means
any other Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such Person. As used in this paragraph, the term “control” means the power to
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or ownership of more than 50%
of the voting securities of a Person.
“Authorized User” means
Customer’s employees, consultants, contractors, and agents (i) who are
authorized by Customer to access and use the Services under the rights granted
to Customer pursuant to this Agreement; and (ii) for whom access to the
Services has been purchased hereunder. Authorized Users are identified at Exhibit B.
“Customer Data” means
information, data, and other content, in any form or medium, that is collected,
downloaded, or otherwise received, directly or indirectly from Customer or an
Authorized User by or through the Services, excluding Resultant Data.
“Customer Systems” means the
Customer’s information technology infrastructure, including computers,
software, hardware, databases, electronic systems (including database
management systems), and networks, whether operated directly by Customer or
through the use of third-party services.
“Documentation” means any
manuals, instructions, or other documents or materials listed in Exhibit
C that the Provider provides or makes available to Customer in any form
or medium and which describe the functionality, components, features, or
requirements of the Services or Provider Materials, including any aspect of the
installation, configuration, integration, operation, use, support, or
means General Data Protection Regulation, as passed and amended from
time-to-time, by the European Union.
“Harmful Code” means any
software, hardware, or other technology, device, or means, including any virus,
worm, malware, or other malicious computer code, the purpose or effect of which
is to (a) permit unauthorized access to, or to destroy, disrupt, disable,
distort, or otherwise harm or impede in any manner any (i) computer, software, firmware,
hardware, system, or network; or (ii) any application or function of any of the
foregoing or the security, integrity, confidentiality, or use of any data
Processed thereby; or (b) prevent Customer or any Authorized User from
accessing or using the Services or Provider Systems as intended by this
Agreement. Harmful Code does not include any Provider Disabling Device.
“Intellectual Property Rights”
means any and all registered and unregistered rights granted, applied for, or
otherwise now or hereafter in existence under or related to any patent,
copyright, trademark, trade secret, database protection, or other intellectual
property rights laws, and all similar or equivalent rights or forms of
protection, in any part of the world.
“Law” means any statute, law,
ordinance, regulation, rule, code, order, constitution, treaty, common law,
judgment, decree, or other requirement of any federal, state, local, or foreign
government or political subdivision thereof, or any arbitrator, court, or
tribunal of competent jurisdiction.
“Losses” means any and all
losses, damages, deficiencies, claims, actions, judgments, settlements,
interest, awards, penalties, fines, costs, or expenses of whatever kind,
including reasonable attorneys’ fees and the costs of enforcing any right to
indemnification hereunder and the cost of pursuing any insurance providers.
“Permitted Use” means any use
of the Services by an Authorized User for the benefit of Customer in the ordinary
course of its internal business operations.
“Person” means an individual,
corporation, partnership, joint venture, limited liability entity, governmental
authority, unincorporated organization, trust, association or other entity.
“Personal Information” means
information that Customer provides or for which Customer provides access to
Provider, or information which Provider creates or obtains on behalf of Customer,
in accordance with this Agreement that: (i) directly or indirectly identifies
an individual (including, for example, names, signatures, addresses, telephone
numbers, email addresses, and other unique identifiers); or (ii) can be used to
authenticate an individual. Customer’s business contact information is not by
itself Personal Information.
“Process” means to take any
action or perform any operation or set of operations that the SaaS Services are
capable of taking or performing on any data, information, or other content.
“Provider Disabling Device”
means any software, hardware, or other technology, device, or means (including
any back door, time bomb, time out, drop dead device, software routine, or
other disabling device) used by Provider or its designee to disable Customer’s
or any Authorized User’s access to or use of the Services automatically with
the passage of time or under the positive control of Provider or its designee.
“Provider Materials” means the
Services, Specifications, Documentation, and Provider Systems and any and all
other information, data, documents, materials, works, and other content,
devices, methods, processes, hardware, software, and other technologies and
inventions, including any deliverables, technical or functional descriptions,
requirements, plans or reports, that are provided or used by Provider or any
Subcontractor in connection with the Services or otherwise comprise or relate
to the Services or Provider Systems. Provider Materials include Resultant Data
and any information, data, or other content derived from Provider’s monitoring
of Customer’s access to or use of the Services, but do not include Customer
“Provider Personnel” means all
individuals involved in the performance of Services as employees, agents, or
independent contractors of Provider or any Subcontractor.
“Provider Systems” means the
information technology infrastructure used by or on behalf of Provider in
performing the Services, including all computers, software, hardware,
databases, electronic systems (including database management systems), and
networks, whether operated directly by Provider or through the use of
“Representatives” means, with
respect to a party, that party’s and its Affiliates’ employees, officers, consultants,
agents, independent contractors, service providers, sublicensees,
subcontractors, and legal advisors.
“Resultant Data” means data
and information related to Customer’s use of the Services that is used by
Provider in an aggregate and anonymized manner, including to compile
statistical and performance information related to the provision and operation
of the Services.
“Services” means the
software-as-a-service offering described in Exhibit A.
“Specifications” means the
specifications for the Services set forth in Exhibit C.
“Third-Party Materials” means
materials and information, in any form or medium, including any open-source or
other software, documents, data, content, specifications, products, equipment, or
components of or relating to the Services that are not proprietary to Provider.
- Access and Use. Subject to the terms and conditions of this Agreement, Provider grants Customer a non-exclusive, non-transferable right to access and use the SaaS offering described in Exhibit A (“Services”) during the Term, solely for use by Authorized Users, and use is limited to Customer’s internal use. Provider shall provide Access Credentials on the Effective Date. The total number of Authorized Users will not exceed the number set forth in Exhibit B, except as agreed in writing by the parties.
- Documentation License. Provider grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
- Service and System Control. Except as otherwise expressly provided in this Agreement, Provider retains sole control over the operation, provision, maintenance and management of the Provider Materials. Customer retains sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.
- Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Materials, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.
- Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. The parties’ initial service managers are identified in Exhibit B. A party shall provide timely written notice to the other party upon naming a new service manager.
- Changes. Provider reserves the right to make changes to the Services or Provider Materials as Provider deems reasonably necessary. At any time during the Term, Customer may request in writing changes to the Services (see Exhibit D, “Change Orders”), however any change will be effective only upon approval in writing by Provider.
- Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
- Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider reasonably believes: (i) Customer or any Authorized User has failed to comply with this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.8 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.
- Use Restrictions; Service Usage and Data Storage.
- 3.1. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement.
- For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
- copy, modify, or create derivative works or improvements of the Services or Provider Materials;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
- reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
- bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
- damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part;
- remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
- access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer), or that violates any applicable Law;
- access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or
- otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under this Section 3.
- Customer Obligations.
- Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with access to Customer’s premises and Customer Systems as necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
- Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
- Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
- Non-Solicitation. During the Term and for one year after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior 12 months employed or engaged by Provider or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 4.4, Provider will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable employee or contractor during the prior 12 months.
- Support Levels. The Services include Provider’s standard customer support services (“Support Services”) at the support levels Customer purchases, according to the Provider service support schedule attached as Exhibit E (“Support Exhibit”). Provider may amend the Support Exhibit from time-to-time in its sole discretion. Customer may purchase enhanced support services separately at Provider’s then-current rates.
- Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
- Provider Systems and Security Obligations. Each party will employ security measures in accordance with industry practice, to include GDPR compliance. A current copy of Provider’s security measures is set forth in Exhibit F (“Privacy and Security Policy”).
- Data Breach Procedures. Provider maintains a data breach plan in accordance with the criteria set forth in Provider’s Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).
- Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and authorized use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
- Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
- Fees and Payment.
- Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
- Fees and Payment. Customer shall pay Provider all fees set forth in Exhibit A (“Fees”) within 30 days after the date of the invoice, in U.S. dollars. Customer shall make payments to the address or account specified in Exhibit A or such other address or account as Provider may specify in writing from time-to-time.
- Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
- 8.3.1. Provider may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
- Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
- if such failure continues for 10 business days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
- No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
- Fee Increases. Provider may increase Fees no more than once annually for any contract year after the first contract year of the Term, including any contract year of any Renewal Term, by providing written notice to Customer at least 120 calendar days prior to the commencement of the applicable Renewal Term, and Exhibit A will be deemed amended accordingly.
- Audit Procedure. Provider or its nominee (including its accountants and auditors) may, upon notice of not less than 10 business days, inspect and audit Customer’s use of the Services under this Agreement at any time during the Term and for 1 year following the termination or earlier expiration of this Agreement. All audits will be conducted during regular business hours, and no more frequently than once in any 12-month period. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Provider with respect to such audit. Provider shall only examine information related to Customer’s use of the Software.
- Cost and Results of Audit. If the audit determines that Customer’s use of the Services exceeded the usage permitted by this Agreement by more than 10 %, Customer shall pay to Provider all amounts due for such excess use of the Software, plus interest on such amounts, as calculated pursuant to this Section 8. If the audit determines that such excess use equals or exceeds 20% of Customer’s permitted level of use, Customer shall also pay to Provider all costs incurred by Provider in conducting the audit. Customer shall make all payments required under this Section 8.6 within 30 days of the date of written notification of the audit results.
- Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing, all Provider Materials are the Confidential Information of Provider and the financial terms and existence of this Agreement are the Confidential Information of each of the parties.
- Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
- Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
- not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
- except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
- safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
- promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
- ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
- Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
- Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
- Intellectual Property Rights.
- Provider Materials. All right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants and hereby assigns to Provider all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
- Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.4.
- Provider Materials. As between Customer and Provider, Provider is and will remain the sole and exclusive owner of all right, title, and interest in and to all Provider Materials and Resultant Data, including all Intellectual Property Rights relating thereto, subject to the specific rights and permissions granted to Customer under this Agreement. Customer further acknowledges that: (a) the Resultant Data is an original compilation protected by United States copyright laws; (b) Provider has dedicated substantial resources to collect, manage and compile the Resultant Data; and (c) the Resultant Data constitutes trade secrets of Licensor
- Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider, its Subcontractors, and the Provider Personnel to enforce this Agreement and exercise Provider’s, its Subcontractors’, and the Provider Personnel’s rights and perform Provider’s, its Subcontractors’, and the Provider Personnel’s obligations hereunder.
- Representations and Warranties.
- Mutual Representations and Warranties. Each party represents and warrants to the other party that:
- it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
- it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
- the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
- when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
- Additional Provider Representations, Warranties, and Covenants. Provider represents, warrants, and covenants to Customer that Provider will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement. Provider agrees to comply with all applicable laws relating to data privacy, to include applicable GDPR provisions.
- Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law. Customer agrees to comply with all applicable laws relating to data privacy, to include applicable GDPR provisions.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
- Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by the Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party’s Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
- Third-Party Materials or Customer Data;
- access to or use of the Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer’s use in the Documentation;
- modification of the Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification;
- failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or
- act, omission, or other matter described in Section 12.2.1, Section 12.2.2, Section 12.2.3, or Section 12.2.4, whether or not the same results in any Action against or Losses by any Provider Indemnitee.
- Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) arising out of or resulting from, or are alleged to arise out of or to result from:
- Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
- any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
- allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
- negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
- Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
- Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
- obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement;
- modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or
- by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, provided that if such termination occurs prior to 1 year after the Effective Date, subject to Customer’s compliance with its post-termination obligations set forth in Section 14.4, Customer will be entitled to a refund of any amounts paid prior to the termination date and covering periods occurring after the termination date.
- Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Limitations of Liability.
- EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Term and Termination.
- Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until 1 year from the Effective Date (“Initial Term”).
- Renewal Term. This Agreement will automatically renew for additional yearly terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 90 days prior to the expiration of the then-current term (each, a “Renewal Term” and collectively, together with the Initial Term, the “Term”).
- Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
- Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.1, Section 7 or Section 9;
- Provider may terminate this Agreement for convenience, upon written notice of not less than 60 days to Customer;
- either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
- either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
- all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
- Provider shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Provider directly or indirectly controls (but Provider’s obligations under this Section 14.4.2 do not apply to any Resultant Data);
- Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider’s Confidential Information; and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 14.4.3;
- notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (ii) Provider may retain Customer Data in its then-current state and solely to the extent and for so long as required by applicable Law; (iii) Provider may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 14.4.4 will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
- Provider may disable all Customer and Authorized User access to the Provider Materials;
- if Customer terminates this Agreement pursuant to Section 14.3.3, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will refund to Customer Fees paid in advance for Services Provider has not performed as of the effective date of termination.
- if Provider terminates this Agreement pursuant to Section 14.3.1 or Section 14.3.3, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Provider’s invoice therefor; and
- Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 9, Section 11.4, Section 12, Section 13, Section 14.4, this Section 14.5, and Section 15.
- Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Provider may, without Customer’s consent, include Customer’s name and other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials.
- Notices. Any notice, request, consent, claim, demand, waiver or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4):
If to Provider:
P.O. Box 10736
Jackson, WY 83001
If to Customer:
Notices sent in accordance with this
Section 15.4 will be deemed effectively given: (a) when received, if delivered
by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally
recognized overnight courier, signature required; (c) when sent, if by email
(in each case, with confirmation of transmission), if sent during the
addressee’s normal business hours (and on the next business day, if sent after
the addressee’s normal business hours); and (d) on the fourth day after the date
mailed by certified or registered mail, return receipt requested, postage
- Interpretation. For purposes of this Agreement: (a)
the words “include,” “includes,” and “including” are deemed to be followed by
the words “without limitation”; (b) the word “or” is not exclusive; (c) the
words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this
Agreement as a whole; (d) words denoting the singular have a comparable meaning
when used in the plural, and vice-versa; and (e) words denoting any gender
include all genders. Unless the context otherwise requires, references in this
Agreement: (x) to sections, exhibits, schedules, attachments, and appendices
mean the sections of, and exhibits, schedules, attachments, and appendices
attached to, this Agreement; (y) to an agreement, instrument, or other document
means such agreement, instrument, or other document as amended, supplemented,
and modified from time to time to the extent permitted by the provisions
thereof; and (z) to a statute means such statute as amended from time to time
and includes any successor legislation thereto and any regulations promulgated
thereunder. The parties intend this Agreement to be construed without regard to
any presumption or rule requiring construction or interpretation against the
party drafting an instrument or causing any instrument to be drafted. The
exhibits, schedules, attachments, and appendices referred to herein are an
integral part of this Agreement to the same extent as if they were set forth
- Headings. The headings in this Agreement are
for reference only and do not affect the interpretation of this Agreement.
- Entire Agreement. This Agreement, together with any
documents incorporated herein by reference, constitutes the sole and entire
agreement of the parties with respect to the subject matter of this Agreement
and supersedes all prior and contemporaneous understandings, agreements,
representations, and warranties, both written and oral, with respect to such
subject matter. In the event of any inconsistency between the statements made
in the body of this Agreement, the related exhibits, schedules, attachments,
and appendices and any other documents incorporated herein by reference, the
following order of precedence governs: (a) first, this Agreement, excluding its
exhibits, schedules, attachments, and appendices; (b) second, the exhibits,
schedules, attachments, and appendices to this Agreement as of the Effective
Date; and (c) third, any other documents incorporated herein by reference.
- Assignment. Customer shall not assign or
otherwise transfer any of its rights, or delegate or otherwise transfer any of
its obligations or performance under this Agreement, in each case whether
voluntarily, involuntarily, by operation of law, or otherwise, without
Provider’s prior written consent, which consent shall not be unreasonably
withheld, conditioned, or delayed. For purposes of the preceding sentence, and
without limiting its generality, any merger, consolidation, or reorganization
involving Customer (regardless of whether Customer is a surviving or
disappearing entity) will be deemed to be a transfer of rights, obligations, or
performance under this Agreement for which Provider’s prior written consent is
required. No assignment, delegation, or transfer will relieve Customer of any
of its obligations or performance under this Agreement. Any purported
assignment, delegation, or transfer in violation of this Section 15.8 is void.
This Agreement is binding upon and inures to the benefit of the parties hereto
and their respective successors and permitted assigns.
- Force Majeure.
Breach or Default. In no event will either party be liable or responsible
to the other party, or be deemed to have defaulted under or breached this
Agreement, for any failure or delay in fulfilling or performing any term of
this Agreement (except for any obligations to make payments), when and to the
extent such failure or delay is caused by any circumstances beyond such party’s
reasonable control (a “Force Majeure Event”), including acts of God,
flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other
civil unrest, embargoes or blockades in effect on or after the date of this
Agreement, national or regional emergency, strikes, labor stoppages or
slowdowns or other industrial disturbances, passage of Law or any action taken
by a governmental or public authority, including imposing an embargo, export or
import restriction, quota, or other restriction or prohibition or any complete
or partial government shutdown, or national or regional shortage of adequate
power or telecommunications or transportation. Either party may terminate this
Agreement if a Force Majeure Event affecting the other party continues
substantially uninterrupted for a period of 30 days or more.
Party Obligations. In the event of any failure or delay caused by a Force
Majeure Event, the affected party shall give prompt written notice to the other
party, stating the period of time the occurrence is expected to continue and
use commercially reasonable efforts to end the failure or delay and minimize
the effects of such Force Majeure Event.
Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties
hereto and their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer upon any other
Person any legal or equitable right, benefit, or remedy of any nature
whatsoever under or by reason of this Agreement.
and Modification; Waiver. No amendment to or modification of this Agreement is
effective unless it is in writing and signed by an authorized representative of
each party. No waiver by any party of any of the provisions hereof shall be
effective unless explicitly set forth in writing and signed by the party so
waiving. Except as otherwise set forth in this Agreement, no failure to
exercise, or delay in exercising, any rights, remedy, power, or privilege
arising from this Agreement will operate or be construed as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power, or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power, or privilege.
- Severability. If
any term or provision of this Agreement is invalid, illegal, or unenforceable
in any jurisdiction, such invalidity, illegality, or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction. Upon such
determination that any term or other provision is invalid, illegal, or
unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest
Law; Submission to Jurisdiction. This Agreement is governed by and
construed in accordance with the internal laws of the State of Wyoming without
giving effect to any choice or conflict of law provision or rule that would
require or permit the application of the laws of any jurisdiction other than
those of the State of Wyoming. Any legal suit, action, or proceeding arising
out of or related to this Agreement or the licenses granted hereunder will be
instituted exclusively in the federal courts of the United States or the courts
of the State of Wyoming in each case located in the city of Jackson and County
of Teton, and each party irrevocably submits to the exclusive jurisdiction of
such courts in any such suit, action, or proceeding. Service of process,
summons, notice, or other document by mail to such party’s address set forth
herein shall be effective service of process for any suit, action, or other
proceeding brought in any such court.
Each party acknowledges and agrees that a breach or threatened breach by such
party of any of its obligations under Section 9 or, in
the case of Customer, Section 3.1, Section 4.3, Section 7 or
would cause the other party irreparable harm for which monetary damages would not
be an adequate remedy and that, in the event of such breach or threatened
breach, the other party will be entitled to equitable relief, including a
restraining order, an injunction, specific performance, and any other relief
that may be available from any court, without any requirement to post a bond or
other security, or to prove actual damages or that monetary damages are not an
adequate remedy. Such remedies are not exclusive and are in addition to all
other remedies that may be available at law, in equity, or otherwise.
In the event that any action, suit, or other legal or administrative proceeding
is instituted or commenced by either party against the other party arising out
of or related to this Agreement, the prevailing party is entitled to recover
its actual attorneys’ fees and court costs from the non-prevailing party.
- Counterparts. This
Agreement may be executed in counterparts, each of which is deemed an original,
but all of which together are deemed to be one and the same agreement. A signed
copy of this Agreement delivered by email is deemed to have the same legal
effect as delivery of an original signed copy of this Agreement.
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first above written.
Provider: REALM LLC Customer:
USERS AND SERVICE MANAGERS
AND SECURITY POLICY