EFFECTIVE DATE: April 12, 2023
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”), WHICH ALONG WITH ANY APPLICABLE ORDER AND ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTE THE AGREEMENT BETWEEN THE ENTITY SUBSCRIBING TO USE THE SERVICES (“YOU” or “CUSTOMER”), AND SOFTWARE DEFINED AUTOMATION INC. (“SDA”). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICES BETWEEN THE PARTIES AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
BY EXECUTING OR ENTERING INTO AN ORDER THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING OR USING, OR SUBSCRIBING TO USE THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT (PERSONALLY AND ON BEHALF OF ANY COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT WHEN USING THE SERVICES OR THAT YOU NAME AS THE USER WHEN YOU CREATE AN ACCOUNT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND TO BIND ANY COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT TO THIS AGREEMENT. THE TERMS OF ALL ORDERS ENTERED INTER HEREUNDER SHALL BE INCORPORATED HEREIN BY THIS REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
SDA may change these Terms from time to time at its sole discretion, and if it makes any material changes, it will attempt to notify you by sending you an email to the last email address you provided to SDA and/or posting a notice on SDA’s website. Therefore, you agree to promptly notify SDA of any changes in your email address. Any material changes to these Terms will be effective upon the next renewal date of the Agreement pursuant to the applicable Order. If you disagree with any changes to the Agreement, you must terminate your use of the Services prior to the next renewal of the Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Preview Services” means SDA products, services or functionality that may be made available to Customer on a trial or evaluation basis which are designated as beta, pilot, limited release, private preview, developer preview, public preview, pre-release, experimental, non-production, evaluation, or by a similar description.
“Customer Data” means electronic data and information transmitted by Customer or its Users into the Services (excluding Non-SDA Applications).
“Documentation” means the user manuals, specifications, and policies, as may be updated from time to time, that describe the functionality, features, operation, or use of the Services and that are made available by SDA to Customer, including via the Support Services Plan.
“Effective Date” shall mean the effective date set forth in the Order or the date on which Customer subscribes through an online ordering page.
“Free Services” means SDA products, services or functionality ordered by Customer pursuant to an Order for no fees or that are otherwise provided or made available by SDA to Customer free of charge. “Free Services” do not include Purchased Services that are the subject of a free trial.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-SDA Application” means any Customer or third party owned application or other software functionality that interoperates with a Service and that is provided by or on behalf of Customer or that Customer requests SDA to interoperate with the Services.
“Order” means an ordering document or online ordering page that specifies the Services being ordered by Customer and the fees to be paid by Customer for such Services, and that references this Master Services Agreement.
“Party” shall mean each of SDA and Customer.
“Professional Services” means any professional services ordered by Customer and to be provided by SDA as expressly identified in an Order, such as consulting, implementation, or training services.
“Purchased Services” means SDA products, services or functionality ordered and purchased by Customer pursuant to an Order. “Purchased Services” do not include Free Services.
“Services” means, collectively or individually as applicable, Preview Services, Free Services, Professional Services, and/or Purchased Services. “Services” exclude Non-SDA Applications.
“User” means an individual employee or contractor of Customer who is authorized by Customer to use a Service on Customer’s behalf, and for whom Customer has purchased a subscription (in the case of Purchased Services) or obtained the appropriate level of access (in the case of Preview Services or Free Services), and to whom Customer (or, when applicable, SDA at Customer’s request) has supplied a user identification and password (for Services utilizing authentication).
2.1 Provision of Purchased Services.
SDA will (a) use commercially reasonable efforts to make the Purchased Services available to Customer pursuant to this Agreement and the applicable Documentation, (b) provide support for the Purchased Services in accordance with SDA’s Support Services Plan attached as Exhibit A hereto, and (c) use commercially reasonable efforts to make the Purchased Services available in accordance with the Service Level Agreement attached as Exhibit B hereto.
2.2 Protection of Customer Data.
SDA will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). The terms of the Data Processing Addendum attached as Exhibit C hereto (“DPA”) apply to the extent that SDA Processes any Customer Personal Data (as those terms are defined in the DPA) under this Agreement.
2.3 Preview Services.
2.3.1 From time to time, SDA may make certain Preview Services available to Customer. Customer may choose whether to evaluate or use such Preview Services in its sole discretion. Customer must comply with all terms related to any Preview Service as posted on the SDA website or otherwise made available to Customer. SDA may add or modify terms, including lowering or raising any usage limits, related to access to or use of any Preview Services at any time. The Service Level Agreement does not apply to any Preview Services.
2.3.2 SDA may suspend or terminate Customer’s access to or use of any Preview Service at any time. Customer’s access to and use of each Preview Service will automatically terminate upon the release of a generally available version of the applicable Preview Service or upon notice of termination by SDA. Notwithstanding anything to the contrary in this Agreement, after suspension or termination of Customer’s access to or use of any Preview Service for any reason, (a) Customer will not have any further right to access or use the applicable Preview Service, and (b) any Customer Data transmitted into the applicable Preview Service may be deleted or inaccessible.
2.3.3 SDA HAS NO OBLIGATION TO RETAIN ANY CUSTOMER DATA ENTERED INTO THE PREVIEW SERVICES, OR ANY CUSTOMIZATIONS MADE TO THE PREVIEW SERVICES BY CUSTOMER OR ANY USER. USE OF PREVIEW SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT EXCEPT THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING THE “REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS,” “INDEMNIFICATION BY SDA,” AND “LIMITATION OF LIABILITY” SECTIONS BELOW, AND WITHOUT LIMITING ANY DISCLAIMERS IN THIS AGREEMENT, PREVIEW SERVICES ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, AND DEFECTS. ACCORDINGLY, SDA PROVIDES ALL PREVIEW SERVICES TO CUSTOMER “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” AND SDA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO ANY PREVIEW SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE SDA’S LIABILITY WITH RESPECT TO ANY AND ALL PREVIEW SERVICES SHALL NOT EXCEED $1,000.00. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SDA NOR ANY OF ITS SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING ANY PREVIEW SERVICES.
2.4 Free Trials.
2.4.1 If an Order states that Customer may use certain Purchased Services on a temporary, free trial basis, SDA will make such Service(s) available to Customer on a temporary trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer agreed to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by either Party of the free trial in its sole discretion. Additional trial terms and conditions may apply and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.4.2 SDA HAS NO OBLIGATION TO RETAIN ANY CUSTOMER DATA ENTERED INTO THE SERVICES THAT ARE THE SUBJECT TO THE FREE TRIAL, OR ANY CUSTOMIZATIONS MADE TO SUCH SERVICES BY CUSTOMER OR ANY USER, DURING CUSTOMER’S FREE TRIAL UNLESS SUCH SERVICES BECOME PURCHASED SERVICES FOR WHICH CUSTOMER PURCHASES A PAID SUBSCRIPTION PRIOR TO THE TERMINATION OF THE FREE TRIAL. USE OF SERVICES SUBJECT TO A FREE TRIAL IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT EXCEPT THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING THE “REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS,” “INDEMNIFICATION BY SDA,” AND “LIMITATION OF LIABILITY” SECTIONS BELOW, AND WITHOUT LIMITING ANY DISCLAIMERS IN THIS AGREEMENT, DURING THE FREE TRIAL PERIOD THE SERVICES SUBJECT TO THE FREE TRIAL ARE PROVIDED TO CUSTOMER “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” AND SDA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO SUCH SERVICES DURING THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE SDA’S LIABILITY WITH RESPECT TO SUCH SERVICES SHALL NOT EXCEED $1,000.00. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SDA NOR ANY OF ITS SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING SUCH SERVICES.
2.5 Free Services.
2.5.1 SDA may make certain Free Services available to Customer. A Free Service may be structured per User or per Customer tenant. Unless otherwise agreed in writing with SDA, Customer may use only one tenant for the applicable Free Service. Usage over the applicable usage limitations of the Free Service requires Customer’s purchase a relevant Purchased Service to cover such over use. Customer agrees that SDA, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof upon at least two (2) business days’ notice to Customer. Customer agrees that SDA will not be liable to Customer or any third party for any such termination of Customer’s access to Free Services. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if SDA terminates Customer’s account, except as required by law, SDA will provide Customer a reasonable opportunity to retrieve its Customer Data.
2.5.2 USE OF FREE SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT EXCEPT THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING THE “REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS,” “INDEMNIFICATION BY SDA,” AND “LIMITATION OF LIABILITY” SECTIONS BELOW, AND WITHOUT LIMITING ANY DISCLAIMERS IN THIS AGREEMENT, FREE SERVICES ARE PROVIDED TO CUSTOMER “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” AND SDA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE SDA’S LIABILITY WITH RESPECT TO ANY AND ALL FREE SERVICES SHALL NOT EXCEED $1,000.00. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SDA NOR ANY OF ITS SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING FREE SERVICES.
2.6 Professional Services.
If Professional Services are purchased in an Order, SDA will provide to Customer such Professional Services in accordance with the Order. Unless stated otherwise in the Order, any timelines provided in connection with Professional Services are good faith projections and not guarantees.
2.7 Additional Product Terms.
Additional terms and conditions that apply to specific Services are set forth in Exhibit D attached hereto.
3. USE OF SERVICES
Unless otherwise provided in the applicable Order or Documentation, (a) Purchased Services are purchased as subscriptions for the term stated in the applicable Order, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by SDA regarding future functionality or features. Company reserves the right to delete individual User accounts that have been inactive for more than one year.
3.2 Usage Limits.
Customer’s and its Users’ use of the Services are subject to any usage limitations specified in the applicable Orders or Documentation. If Customer exceeds a contractual usage limit, SDA will work with Customer in an effort to promptly reduce Customer’s usage so that it conforms to the applicable limit. If, notwithstanding SDA’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order for additional quantities of the applicable Services promptly upon SDA’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
3.3 Customer Responsibilities.
Upon registration, SDA will grant Customer access to a dedicated console account allowing the invitation of other Users. Customer will (a) be responsible for Users’ compliance with this Agreement and the applicable Documentation and the provision and security of the access credentials utilized by all Users, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-SDA Applications with which Customer uses any Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify SDA promptly of any such unauthorized access or use, (d) use the Services only in accordance with this Agreement, the applicable Documentation, and all applicable laws and government regulations, and (e) at all times comply with the contracts and/or terms of service applicable to Non-SDA Applications. Any use of the Services in breach of the foregoing by Customer or any of its Users that in SDA’s judgment threatens the security, integrity, or availability of the Services or SDA’s infrastructure is necessary to ensure the protection of Customer’s critical assets and may result in SDA’s immediate suspension of Customer’s access to the relevant Services. However, SDA will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension. SDA does not provide legal or compliance advice. Customer is responsible for making its own assessment of whether Customer’s use of the Services and Non-SDA Applications meets applicable legal and regulatory requirements.
3.4 Usage Restrictions.
Customer will not, directly or indirectly, (a) make any Service available to any person or entity other than Customer and its Users, or use any Service for the benefit of any person or entity other than Customer, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any third party rights (including intellectual property and privacy rights), (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit access to or use of any Services in a way that circumvents a contractual usage limit, or use any Service to access, copy, or use any of SDA’s intellectual property except as expressly permitted under this Agreement, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (j) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of a Service, (3) copy any ideas, features, functions or graphics of a Service, or (4) determine whether a Service is within the scope of any patent.
3.5 Removal of Non-SDA Applications.
If Customer receives notice, including from SDA, that a Non-SDA Application may no longer be used or must be removed, modified, and/or disabled to avoid violating applicable law or third party rights, Customer must promptly comply with such notice. If Customer does not take required action in accordance with the above, or if in SDA’s reasonable judgment continued violation is likely to occur, SDA may disable the applicable Service and suspend Customer’s access to such Service. If requested by SDA, Customer shall confirm in writing its compliance with this Section and SDA is authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable.
4. NON-SDA PRODUCTS AND SERVICES
4.1 Non-SDA Products and Services.
SDA or third parties may make available third party products or services, including, for example, Non-SDA Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any provider of such non-SDA products or services is solely between Customer and the applicable non-SDA provider. SDA does not warrant or support Non-SDA Applications or other non-SDA products or services unless expressly provided otherwise in an Order. SDA is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Non-SDA Applications or other non-SDA products or services, or any of their providers.
4.2 Integration with Non-SDA Applications.
The Services may contain features designed to interoperate with Non-SDA Applications. SDA cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-SDA Application ceases to make the Non-SDA Application available for interoperation with the corresponding Service features in a manner reasonably acceptable to SDA.
5. FEES, PAYMENTS, AND TAXES
Customer will pay all fees specified in Orders in accordance with the payment schedule set forth in the Orders. Except as otherwise expressly specified herein or in an Order, (i) payment obligations are non- cancelable and fees paid are non-refundable, and (ii) quantities purchased cannot be decreased during the relevant subscription term.
5.2 Invoicing and Payment.
If Customer’s Order provides for payment via credit card, Customer will provide SDA with valid and updated credit card information. If Customer provides credit card information to SDA, Customer authorizes SDA to charge such credit card for all Services listed in the Order in accordance with the payment schedule set forth in the Order, for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card, SDA will invoice Customer in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to SDA and notifying SDA of any changes to such information. Unless otherwise set forth on an Order, all fees for Professional Services will be billed monthly.
5.3 Overdue Charges.
If any owed amount is not received by SDA by the due date, then without limiting SDA’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
5.4 Suspension of Service and Acceleration.
If any amount owed by Customer under this Agreement is thirty (30) or more days overdue, SDA may, without limiting its other rights and remedies, suspend Customer’s access to the Services until such amounts are paid in full, provided that SDA will give Customer at least ten (10) days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending the Services.
5.5 Payment Disputes.
SDA will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
SDA’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction or taxing authority (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases and uses of Services. If SDA has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, SDA will invoice Customer and Customer will pay that amount within thirty (30) days unless Customer provides SDA with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, SDA is solely responsible for taxes assessable against it based on its income, property and employees.
6. PROPRIETARY RIGHTS
6.1 Access Rights.
During the term of this Agreement and subject to the terms and conditions of this Agreement, SDA grants Customer and its Users a non-exclusive, non-transferable, and non-sublicensable right to access and use the Services in accordance with this Agreement and the Documentation solely for Customer’s internal use.
6.2 Reservation of Rights.
Subject to the limited rights expressly granted hereunder, SDA, its Affiliates and licensors reserve all of their rights, title, and interests in and to the Services and the technologies used by SDA to provide the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Unless expressly set forth otherwise in an applicable Order, SDA retains exclusive ownership of all work product and deliverables created by SDA in connection with its performance of Professional Services.
6.3 Customer Data.
Customer grants SDA, its Affiliates and their contractors engaged to assist in the provision of the Services a worldwide, non-exclusive license to host, copy, use, transmit, and display all Customer Data as appropriate for SDA to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. Notwithstanding anything to the contrary herein, Customer agrees that SDA may use, during and after the term of this Agreement, Customer Data that has been de-identified by SDA for any lawful purpose, including to (a) improve the Services and SDA’s related products and services, (b) create and use analyses and statistical works derived from the Customer Data and/or Customer’s and its Users’ use of the Services, provided, however, that in no event will SDA disclose to any third parties any such analyses or statistical works in any manner that identifies Customer or any User or that contains any of Customer’s Confidential Information.
6.4 Non-SDA Applications.
If Customer chooses to use, or chooses for SDA to use, any Non-SDA Applications with a Service, Customer grants SDA all necessary permissions and sublicenses to use the Non-SDA Applications and to allow the Non-SDA Applications and their providers to access Customer Data and information about usage of the Non-SDA Applications as appropriate for the interoperation of those Non-SDA Applications with the Service.
6.5 Open Source.
Certain items of software included with the Services may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under the terms and conditions accompanying such Open Source Software. Nothing in this Agreement limits Customer’s rights under or grants Customer rights that supersede the terms and conditions of any applicable end user license for the Open Source Software. To the extent there are any conflicts between the terms of this Agreement and any Open Source Software license corresponding to the Open Source Software included with the Services or additional obligations by such Open Source Software license that are not set forth in this Agreement, the terms of the Open Source Software license will control.
Customer hereby irrevocably assigns to SDA all rights, title, and interest, including all intellectual property rights, in and to any and all suggestions, enhancement requests, recommendations, corrections or other feedback (collectively, “Feedback”) provided by Customer or any of its Users relating to the Services.
7.1 Definition of Confidential Information.
“Confidential Information” means all information disclosed by a Party or its Affiliates (“Disclosing Party”) to the other Party or its Affiliates (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; and Confidential Information of SDA includes the Services, the Documentation, the terms of this Agreement (including all pricing), all Feedback, all information about or involving (including the existence of) any Preview Services, and all work product resulting from SDA’s provision of any Professional Services. Confidential Information of each Party includes non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without any use of or reference to any Confidential Information of the Disclosing Party, as demonstrated by its written records. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the Parties in connection with the evaluation of additional SDA products or services.
7.2 Protection of Confidential Information.
As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. The Receiving Party will remain responsible for all such individuals’ compliance with this “Confidentiality” section. Notwithstanding the foregoing, SDA may disclose the terms of this Agreement and any Customer Data a Non-SDA Application provider to the extent necessary to perform SDA’s obligations under this Agreement.
7.3 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s request and cost, if the Disclosing Party wishes to contest the disclosure.
8. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
Each Party represents that it has validly entered into this Agreement and has the legal power and corporate authority to do so.
8.2 SDA Warranties.
SDA warrants that during an applicable subscription term (a) SDA will not materially decrease the overall security of the Services, (b) the Services will perform materially in accordance with the applicable Documentation, (c) SDA will perform Professional Services in a professional manner, and (d) except with respect to Non-SDA Applications, SDA will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
8.3 Customer Warranties.
Customer warrants that it has and will maintain all necessary rights, licenses, consents, approvals, and permissions required for SDA and Customer to use all Non-SDA Applications and all Customer Data in connection with the Services.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED BY SDA IN THE “SDA WARRANTIES” SECTION ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SDA DOES NOT MAKE ANY WARRANTY OF ANY KIND REGARDING ANY OF THE SERVICES OR SDA’S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SDA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
FOR THE AVOIDANCE OF DOUBT, SDA SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING PROPERTY DAMAGE, LOST PROFITS OR MANUFACTURING DEFECTS, RESULTING FROM CUSTOMER’S FAILURE TO COMPLY WITH THE DOCUMENTATION, DECISIONS MADE BY USERS THE SERVICES, OR FAILURE TO UPDATE SYSTEMS NOT OPERATED BY SDA, INCLUDING ANY NON-SDA APPLICATION OR UNDERLYING OPERATING SYSTEM OF THE EDGE HARDWARE.
IN THE EVENT THAT SDA IS GRANTED ACCESS TO CUSTOMER’S ACCOUNT AS CONTEMPLATED BY THE SUPPORT SERVICES PLAN, SDA SHALL NOT BE LIABLE FOR ANY DAMAGES OF INCLUDING PROPERTY DAMAGE, LOST PROFITS OR MANUFACTURING DEFECTS RESULTING FROM THE ACTIONS TAKEN BY SDA DURING THE DURATION OF THE ACCESS.
9.1 Indemnification by SDA.
SDA will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorneys’ fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by SDA in writing of, a Claim Against Customer, provided Customer (a) promptly gives SDA written notice of the Claim Against Customer, (b) gives SDA sole control of the defense and settlement of the Claim Against Customer (except that SDA may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives SDA all reasonable assistance requested by SDA in connection with the Claim Against Customer, at SDA’s expense. If SDA receives information about an infringement or misappropriation claim related to a Service, SDA may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching SDA’s warranties under “SDA Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (x) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer, or (y) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by SDA, if the Services or use thereof would not infringe without such use or combination.
9.2 Indemnification by Customer.
Customer will defend SDA and its Affiliates against any claim, demand, suit or proceeding made or brought against SDA or its Affiliates by a third party (a) alleging that SDA’s or Customer’s use of a Non-SDA Application or the combination of a Non-SDA Application or configuration provided or required by Customer and used with the Services, infringes, misappropriates, or otherwise violates any other entity’s or person’s (including a provider of a Non-SDA Application) rights (including intellectual property rights), or (b) arising from (i) Customer’s use of the Services in an unlawful manner or in violation of this Agreement or the Documentation, or (ii) any Customer Data or Customer’s or SDA’s use of Customer Data with the Services (each a “Claim Against SDA”), and will indemnify SDA from any damages, attorneys’ fees and costs finally awarded against SDA or its Affiliates as a result of, or for any amounts paid by SDA or its Affiliates under a settlement approved by Customer in writing of, a Claim Against SDA, provided SDA (x) promptly gives Customer written notice of the Claim Against SDA, (y) gives Customer sole control of the defense and settlement of the Claim Against SDA (except that Customer may not settle any Claim Against SDA unless it unconditionally releases SDA and its Affiliates of all liability), and (z) gives Customer all reasonable assistance requested by Customer in connection with the Claim Against SDA, at Customer’s expense.
9.3 Exclusive Remedy.
This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S LIABILITY FOR ITS OBLIGATIONS UNDER THE “INDEMNIFICATION” SECTION ABOVE, ITS BREACH OF THE “CONFIDENTIALITY” SECTION ABOVE, OR ITS WILLFUL MISCONDUCT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES, PAYMENT, AND TAXES” SECTION ABOVE. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THE FOREGOING LIMITATION ON LIABILITY.
10.2 Exclusion of Consequential and Related Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR A PARTY’S LIABILITY FOR ITS BREACH OF THE “CONFIDENTIALITY” SECTION ABOVE, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
11. TERM AND TERMINATION
11.1 Term of Agreement.
This Agreement commences on the effective date of the initial Order and, unless terminated earlier in accordance with the terms of this Agreement, continues in effect until all Orders and the subscriptions thereunder have expired.
11.2 Term of Purchased Subscriptions.
The term of each subscription for Services under an Order shall be as specified in such Order. Except as otherwise specified in an Order, upon the expiration of each subscription, such subscription will automatically renew for the renewal term set forth in the Order, unless either Party provides the other with written notice of non-renewal (i) at least thirty (30) days before the expiration of the term in the case of an annual subscription or (ii) seven (7) days before the expiration of the subscription term in the case of a monthly subscription. Notwithstanding anything to the contrary herein, SDA may modify the pricing applicable to a subscription renewal by providing Customer with at least sixty (60) days’ written notice of such modification before the expiration of the relevant subscription term.
A Party may terminate this Agreement for cause (i) upon at least thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such thirty (30)-day period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Effect of Termination.
Immediately upon the termination of this Agreement, Customer and its Users shall discontinue all use of all Services, Documentation, and SDA’s Confidential Information. Promptly upon the termination of this Agreement, each Party shall return or permanently erase and destroy all copies of all Confidential Information of the other Party. Each Party, upon the other Party’s request, shall certify in writing that it has fully complied with its obligations under this Section.
11.5 Refund or Payment upon Termination.
If this Agreement is terminated by Customer in accordance with the “Termination” section above, SDA will refund Customer any prepaid fees covering the remainder of the term of this Agreement after the effective date of termination. If this Agreement is terminated by SDA in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of this Agreement. In no event will termination relieve Customer of its obligation to pay any fees payable to SDA for the period prior to the effective date of termination.
11.6 Surviving Provisions.
This Section and the sections titled “Preview Services” (but only Section 2.3.3 thereof), “Free Trials” (but only Section 2.4.2 thereof), “Free Services” (but only Section 2.5.2 thereof), “Fees, Payment, and Taxes,” “Proprietary Rights,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Liability,” “Effect of Termination,” “Refund or Payment upon Termination,” and “General Provisions” will survive any termination of this Agreement, and the section titled “Protection of Customer Data” will survive any termination of this Agreement for so long as SDA retains possession of Customer Data.
12. GENERAL PROVISIONS
12.1 Export Compliance.
The Services, other SDA technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. SDA and Customer each represent that it is not on any U.S. government denied-party list. Customer will not access or use, and will not permit any User to access or use, any Service in a U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
Neither Party has received or been offered, or may provide or offer, any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 Entire Agreement and Order of Precedence.
This Agreement is the entire agreement between SDA and Customer regarding the subject matter herein and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning such subject matter. The Parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Orders, (2) the exhibits attached hereto, (3) the body of this Agreement, and (4) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. As used herein, the terms “include” and “including” shall be deemed to mean “include, without limitation” or “including, without limitation.”
12.4 Relationship of the Parties.
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment related taxes.
12.5 Third-Party Beneficiaries
There are no third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Neither Party may assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety without the other Party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if Customer or any of its Affiliates is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of SDA, then SDA may terminate this Agreement upon written notice. In the event of such a termination, SDA will refund Customer any prepaid fees covering the remainder of the term of this Agreement for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
12.9 Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing, sent to the addresses (including email addresses) set forth on the latest Order, and will be effective upon (a) personal delivery, (b) the next business day after delivery to a reputable overnight courier or via email.
12.10 Governing Law and Jurisdiction.
This Agreement, and any disputes arising out of or related to this Agreement, will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in the State of Delaware will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.