1. ACCESS AND USE.
1.1 Provision of Access. Subject to this Agreement, Company grants to Customer a non-exclusive, non-transferable right to access the features and functions of the NJBSoft Software (the “Software”) and associated reports and documentation (the “Documentation”) (collectively, the Software and the Documentation are the “Product”) during the Term (as defined below), solely for use by Authorized End Users according to this Agreement’s terms and conditions. Customer may use the Product for internal business only. Company will provide Customer passwords, links, or other credentials allowing Customer to access the Product (the “Access Protocols”), and the applicable Documentation. Customer is responsible for all Authorized End Users’ acts and omissions and will inform them of this Agreement’s applicable provisions and require them to comply with the Customer’s obligation under this Agreement. “Authorized End User” means any individual authorized, by virtue of his relationship to or permissions from Customer, to access the Product in accordance with Customer’s rights under this Agreement.
1.2 Documentation License. Subject to this Agreement’s terms, Company grants Customer a non-exclusive, non-transferable right and license to use the Documentation during the Term related to Customer’s use of the Product. As between the Parties, Company agrees that Customer retains all right, title, and interest in and to Customer Content, granting Company a non-exclusive, worldwide right and license to use, copy, manipulate and render Customer Content through the Product.
1.3 Suspension. Company may temporarily suspend Customer’s and any Authorized End User’s access to any portion of, or all of the Product according to Company’s obligations and responsibilities in the Service Level Agreement.
2. FEES AND EXPENSES; PAYMENTS.
2.1 Fees. Customer shall pay to Company, without offset or deduction, the fees stated in the Quote (the “Fees”). Unless otherwise stated, Customer shall pay all Fees within thirty (30) calendar days after the Company issues an invoice. Upon the Effective Date, all Fees are fully earned and not subject to refund for any reason. Company may adjust the Fees after the initial term of this Agreement, and each year following, by providing at least seventy-five (75) days written notice, electronically or otherwise.
2.2 Customer Operating Expenses. Customer must pay to implement this Agreement, including Product or Authorized End User costs.
2.3 Taxes. As allowable by law, Customer must pay all applicable taxes, export and import fees, customs, duties, and similar charges (other than Company income tax), and related penalties and interest for the grant of license rights, or delivery of services. Customer’s payments to Company are free and clear of any withholding taxes. Customer is solely responsible for any taxes, and will provide Company with evidence of payment.
2.4 Late Payments; Interest. Any unpaid amount will accrue interest at the lesser of 1.5% per month or the legal maximum rate, until paid.
3. TREATMENT OF CONFIDENTIAL INFORMATION AND DATA.
3.1 Ownership of Confidential Information. Each Party has access to the other Party’s Confidential Information or third-party Confidential Information. The disclosing Party/applicable third party owns, and considers proprietary, all Confidential Information.
3.2 Confidentiality Obligations. Each Party agrees: (i) to use Confidential Information disclosed by the other Party only for the stated purposes; (ii) not to reproduce Confidential Information the other Party discloses, and to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) neither Party will create any derivative work from the other party’s Confidential Information; (iv) to restrict access to the other Party’s Confidential Information to its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information according to this Agreement’s terms; (v) to assist Company with objecting to access requests by public bodies, and (v) to return or destroy, pursuant to Section 5.4, all Confidential Information in its possession when this Agreement terminates or expires. Notwithstanding the foregoing, Customer agrees that Company may collect and provide non-specific, aggregated, statistical data regarding Customer’s use of the Product to third parties.
3.3 Confidentiality Exceptions. Notwithstanding the foregoing, Confidential Information does not include information that (i) is publicly available or in the public domain when disclosed; (ii) is publicly available without recipient’s fault; (iii) is rightfully given to the recipient by persons without confidentiality obligations; (iv) the recipient already possesses free of any confidentiality obligations when disclosed; (v) the recipient independently develops; or (vi) the disclosing Party approved for unrestricted release. Parties may disclose Confidential Information (i) to comply with court, governmental order, or law, if disclosing Party notifies the other Party and attempts obtaining a protective order.
3.5. Data Transfer or Destruction. When Company no longer needs Customer Content and, upon Customer request, Company will destroy or transfer all Customer Content in its possession. Company only retains Customer De-Identified Data.
4. REPRESENTATIONS AND WARRANTIES.
4.1 Mutual Representations. Each Party represents (i) that it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, constitutes a valid and binding obligation, and will be enforceable against such Party in accordance with its terms.
4.2 Service Levels. Company represents the Product will materially conform to the Service Level Performance Standards when accessed and used according to the Documentation and the Access Protocols. Notwithstanding any other provision of this Agreement, Customer agrees that its sole and exclusive remedy, and Company’s sole and exclusive obligation, for a potential breach of this representation is set forth in the Service Level Performance Standards which is incorporated herein.
4.4 Security Controls. Company will store and process Customer Content according to industry best practices, including administrative, physical, and technical safeguards to secure Customer Content from unauthorized access, disclosure, and use. Company will conduct periodic risk assessments and remediate any identified security vulnerabilities in a timely manner.
4.5. Disclaimers and Limitation of Liability.
Except as set forth in this Section 4, ALL SERVICES AND PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” COMPANY 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, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY 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.
COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. COMPANY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES. THE LIMITED REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF THEIR ESSENTIAL PURPOSE.
5. TERM AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and, unless terminated according to its terms, continues for the Initial Term (stated on the Quote), and automatically renews for successive 1-year terms, unless a Party provides sixty (60) days’ written notice of nonrenewal before then-current term ends (collectively, the initial term and renewal terms are the “Term”).
5.2 Termination for Breach. Either Party may terminate this Agreement if the other Party materially breaches. The terminating Party must notify the breaching Party, identifying the breach(es) necessitating termination, and the breaching Party, must cure the breach(es) within thirty (30) days of receiving the written notice, otherwise the terminating Party may terminate the Agreement with immediate effect.
5.3 Termination Upon Bankruptcy or Insolvency. Either Party may terminate this Agreement immediately upon written notice to the other Party, if (i) the other Party is insolvent or unable to pay its debts when due; (ii) the other Party files a bankruptcy or similar petition, or, if filed against, the petition is not removed within ninety (90) days; or (iii) the other Party’s business discontinues; a receiver is appointed, or an assignment made.
5.4 Effect of Termination. Upon termination, Customer will immediately discontinue using the Product, the Documentation, and Company Confidential Information and both Parties will either return, or, at the other Party’s option, destroy, all copies of the Documentation and any Confidential Information. Customer will promptly pay Company all outstanding amounts due. Customer has thirty (30) days from the termination date or expiration of this Agreement to provide a written request to receive a copy of Company-stored Customer Content in backup format as determined by Company.
5.5 Survival. Sections 3, 4.5, 5.4, 6, and 7 survive the Agreement’s termination.
6. INDEMNIFICATION. Customer shall indemnify, defend, and hold harmless Company and its affiliates, officers, managers, directors, employees, agents, successors, and assigns, for, from, and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees, and other costs of defense, arising from or relating to any breach of any Customer obligation, representation or warranty or claim that the data or information provided by Customer to Company infringes upon the intellectual property rights or other rights of any third party.
7.1. Entire Agreement; Governing Law. This Agreement sets forth the entire agreement and understanding between the Parties and supersedes and merges all prior oral and written agreements, with respect to this subject matter. No modifications, additions, or amendments to this Agreement shall be effective unless made in writing as an amendment to this Agreement and signed by duly authorized representatives of the parties. The headings and captions of this Agreement are inserted for convenience and do not define, limit, or describe the scope and intent of this Agreement or any particular section, paragraph, or provision. THIS AGREEMENT WILL EXCLUSIVELY BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF. ALL CLAIMS BROUGHT UNDER THIS AGREEMENT HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS IN MARICOPA COUNTY, ARIZONA.
7.2. Severability. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, and the remainder of such provision and this Agreement will be valid and enforceable to the fullest extent permitted by applicable law.
7.3 Conflicts. In the event of any discrepancies between this Agreement and the statement of work, this Agreement shall prevail over the statement of work unless the statement of work specifically states that it is intended to prevail over the terms of this Agreement.
7.4. Waiver; Notices. Waiver of a breach of this Agreement shall not constitute waiver of another breach. Failure to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any notice, communication, or request required or permitted by this Agreement shall be given to the recipient in writing by both email and either certified mail, nationally recognized overnight courier, or hand delivery to the address set forth in the Quote. Any such notice shall be deemed to be received on the date received by recipient.
7.5 Relationship of the Parties. It is agreed that the relationship of the parties is that of independent contractors. Nothing herein shall be construed as creating a partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.
Service Level Performance Standard
This Service Level Performance Standard (“SLPS”) is a part of the Agreement between Company and Customer, under which Company provides certain services for Customer. It sets forth the parties’ objectives and the performance levels Company strives to meet in providing the Product. This SLPS is effective beginning on the Effective Date and will remain in effect until the termination of the Agreement.
1. Definitions. For the purposes of this SLPS, the following terms have the meanings set forth below. Capitalized terms used but not defined in this SLPS shall have the meanings set out in the Agreement. Any revisions to the service levels must be in writing and authorized by both parties.
“Scheduled Downtime” the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the Product, as hosted by Company, due to planned system maintenance performed by Company, as set forth in the table below. Company will exercise reasonable efforts to perform scheduled system maintenance between the hours of 5:00 PM and 3:00 AM Pacific Standard Time. Company reserves the right to change the aggregated times set forth in the table below, provided that Company provides reasonable prior notice prior to modifying such Scheduled Downtime.6
When Scheduled Downtime will occur on a regular basis:
Purpose of Scheduled Downtime:
Maximum Duration of Scheduled Downtime:
Once per calendar month
“Unscheduled Downtime” the total amount of time during any calendar month, measured in minutes, during which the Customer is not able to access the features and functions of the Product as contemplated in this SLPS, other than Scheduled Downtime.
2. Customer Requirements.
(a) Minimum System: The SLPS is only applicable if Customer and its Authorized End Users, as applicable, meet the minimum system standards as set forth on NJBSoft.com, which the Company may update from time to time upon written notice to Customer.
(b) Additional Customer Obligations: Customer is responsible for maintenance and management of its computer network(s), servers, software, and maintenance and management of related equipment or services. Customer is responsible for correctly configuring its systems according to the Company’s instructions, if provided, to ensure access to the features and functions of the Product. To allow Company to monitor Customer’s learning management system (or other applicable platform accessing the Product) for system performance pursuant to Section 3.1(iv), Customer must also provide Company with the ability to perform testing from an IP address to be provided by Company at regular intervals
(c) Reporting of Unscheduled Downtime: Customer must promptly notify Company if Unscheduled Downtime occurs. Unscheduled Downtime begins on the earlier of when Company receives accurate notification from Customer, or when Company first becomes aware of it.
(d) Customer’s Non-Performance: Company’s obligations in this SLPS will be excused if any failures result in whole or in part from Customer’s or its Authorized End Users’ failure(s) to meet their obligations.
(a) Product Availability: Company will undertake commercially reasonable measures to ensure that Product Availability is available as set forth in this SLPS.
(b) Unscheduled Downtime: Company will undertake commercially reasonable measures to ensure that the Unscheduled Downtime is no more than 10 hours during each calendar month (the “Service Standard”), provided that any Unscheduled Downtime occurring as a result of (i) Customer’s breach of any provision of this SLPS; (ii) non-compliance by Customer with any provision of this SLPS; (iii) incompatibility of Customer’s or Authorized End User’s equipment or software with the Product; (iv) performance of Amazon Web Service, Customer’s systems, or the Internet; (v) modifications or updates by third party manufacturers/licensors to systems or software that interact with the Product; (vi) a Service Suspension (defined below), or (vii) force majeure, as defined in the Terms of Service, shall not be considered toward any reduction in Product Availability measurements.
(c) Access to Support; Response Times: Customer may report Unscheduled Downtime at any time by emailing Company at email@example.com. Company will exercise commercially reasonable efforts to initiate remedial activity within 60 minutes of each report of Unscheduled Downtime during business hours (5:00AM to 6:00 PM Pacific Time, Monday through Friday, excluding Company holidays) for issues affecting connectivity and server availability. During non-business Hours, Company will initiate remedial activity within two (2) hours for issues affecting connectivity and server availability.
(d) Service Suspension: Company may temporarily suspend Customer’s and any Authorized End User’s access to any portion of, or all of the Product if (i) Company reasonably determines that (a) there is a threat or attack on any of the Product; (b) Customer’s or any Authorized End User’s use of the Product disrupts or poses a security risk to the Product or any of Company’s customers or vendors; (c) Customer or any Authorized End User(s) is/are using the Product for illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) applicable law prohibits Company’s provision of the Product to Customer or any Authorized End User; or (f) Company’s vendor has suspended or terminated Company’s access to or use of any third party services or products required for Customer to access the Product (each such suspension, in a “Service Suspension”). Company will make commercially reasonable efforts to provide Customer notice of any Service Suspension (including notices sent to Company’s registered email address) and to provide access updates following any Service Suspension. Company will use commercially reasonable efforts to provide access to the Product as soon as reasonably possible after curing the Service Suspension. Company is not liable for any damage, liabilities, or losses that Customer or any Authorized End User may incur from a Service Suspension.
(a) Corrective Action: In the event that Product Availability is less than as provided in this SLPS, Company will take reasonable corrective action to correct any related issues. Except as set forth in the following Section 4(b), the Customer’s rights under this Section 4(a) are Customer’s sole and exclusive remedy with respect to any Unscheduled Downtime or any failure by Company to meet this SLPS.
(b) Termination. Company acknowledges that Product Availability is important to Customer’s business processes. Accordingly, Customer may exercise its rights to terminate the Agreement if (i) Company fails to meet this SLPS three (3) or more times during any twelve (12)-month period; or (ii) Unscheduled Downtime for any single calendar month is more than 20 hours.