1.1 "Additional License Limitations" means any additional license limitations set forth in the applicable Order Form.
1.2 "Authorized User" means an individual employee of Customer registered and identified by Customer by name to receive a User ID in order to access the SAAS Service online.
1.3 "Data" means all documents, information, content, records, files, and data entered into, received, processed, or stored by or for Customer using this Service.
1.4 "Order Form" shall mean a written order form executed by Service Provider and Customer which sets forth the necessary information relating to the Services Customer has the right to receive and the Fees payable to Licensor. Order Forms shall be in a form substantially similar to Service Provider's standard Order Form. Customer may not use any Customer standard form of order form which may contain pre-printed or other terms and conditions. The parties agree that such terms and conditions shall have no effect whatsoever.
1.5 "Output" shall mean all documents, information, records and other output of the Services.
1.6 "Registration Information" means the information requested by Service Provider to register individual Authorized Users to use the SAAS Service as further described in Section 7.1 of these Terms and Conditions.
1.7 "SAAS Service" means access and use of the Software on a software as a service basis (SaaS) via the Internet.
1.8 "Services" means the SAAS Service, Support Services, training, professional and other services provided by Service Provider as set forth in an Order Form.
1.9 "Software" is Service Provider's software as further described in an Order Form.
1.10 "Support Services" will mean those support and maintenance services provided by Service Provider to Customer under this Agreement and as set forth in Section 4.1.
1.11 "Update" means any improvement, enhancement, modification and/or changes to the SAAS Service offered or provided by Service Provider, including any customizations and other developments made for Customer.
1.12 "User ID" means a unique user identification assigned to an authorized individual Authorized User as set forth in Section 7.1.
1.13 "User Materials" means any on-line help files or written instruction manuals regarding the use of the SAAS Service provided to Customer by Service Provider.
2.1 License. Subject to compliance with this Agreement, Service Provider grants to Customer a nonexclusive, personal and nontransferable license, during the term of the applicable Order Form, to allow its Authorized Users to access and use the SAAS Service on its behalf solely for Customer's internal use and subject to any Additional License Limitations.
2.2 Restrictions. Customer may only use the SAAS Service to process and manage its own Data. Customer will not, in whole or in part, (a) copy the SAAS Service or User Materials or distribute copies of the SAAS Service or User Materials to any third party; (b) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the SAAS Service or User Materials except as otherwise permitted by law; (c) rent, loan, sub-license, lease, distribute or attempt to grant any rights to the SAAS Service to third parties; or (d) use the SAAS Service or User Materials to act as a service bureau or application service provider, or to permit access to the SAAS Service or User Materials of any kind to any third party.
The number of Authorized Users licensed shall be as set forth in an Order Form. Customer may permanently reassign an Authorized User license from one individual to another individual by (i) notifying Service Provider of the Authorized User whose use of the SAAS Service is being terminated and the individual to whom the Authorized User license will be reassigned, and (ii) paying any training fee specified in an Order Form for the individual to whom the Authorized User license will be reassigned. Upon payment of any applicable training fee and receipt of Registration Information for the new Authorized User, Service Provider will provide a User ID to Customer for the new Authorized User. Customer may request additional Authorized Users licenses. Upon payment of any applicable training fee, and receipt of Registration Information for the new Authorized Users, Service Provider will provide the User IDs to Customer for such additional use.
4.1 Support Services. Service Provider will use commercially reasonable efforts to provide the following Support Services:
Support Requests. Service Provider will provide support during its normal business hours in response to telephone and email queries from Authorized Users as described in these Terms and Conditions.
Error Resolution. If an Authorized User identifies an Error, Customer will report the Error to Service Provider in accordance with Service Provider's support procedures. Customer will provide all information reasonably requested by Service Provider and will give Service Provider assistance and co-operation to enable Service Provider to properly perform the activities included in these Terms and Conditions. An "Error" is an event where the SAAS Service does not perform substantially as described in the User Materials.
Service Provider will assign a category and work to resolve reported Errors as follows:
Severity 1: An Error that causes an emergency condition preventing access to the SAAS Service or loss of critical functions that prevents an Authorized User from conducting normal business operations. Service Provider will give first priority to resolving Severity 1 Errors. If Service Provider provides a workaround for a Severity 1 Error, it will be downgraded to a Severity 2 or 3 Error.
Severity 2: An Error that prevents the use of one or more functions of the SAAS Service, but does not prevent an Authorized User from conducting normal business operations. Severity 2 Errors will have priority for resolution over Severity 3 Errors.
Severity 3: An Error that does not significantly affect an Authorized User's use of the SAAS Service.
System Administrator. Customer will provide Service Provider a designated system administrator / support contact with all relevant contact information to respond to questions from Service Provider regarding the SAAS Service and Service Provider's provision of Services.
Support Exceptions. Service Provider will not be responsible or liable with respect to any problems or issues arising from (i) unauthorized or improper use of the SAAS Service; (ii) modification, alteration or configuration of the SAAS Service by or for Customer that has not been authorized in writing by Service Provider; (iii) hardware, software, technology or intellectual property which has not been provided by Service Provider pursuant to this Agreement; (iv) communications facilities; (v) any breach of this Agreement by Customer, or any act or omission of any Authorized User which, if performed or omitted by Customer would be a material breach of this Agreement; and/or (vi) any act or omission of Customer or any Authorized User that prevents, delays, disturbs or interferes with Service Provider's performance of its obligations hereunder.
4.2 Scheduled Maintenance. Service Provider reserves the right to take down applicable servers hosting the SAAS Service to conduct routine maintenance checks ("Scheduled Maintenance") or emergency maintenance ("Emergency Maintenance"). Service Provider will use commercially reasonable efforts to perform Scheduled Maintenance outside of regular business hours. Service Provider will not be responsible for any damages or costs incurred by Customer, if any, for Scheduled Maintenance or Emergency Maintenance.
If requested by Customer and agreed upon by Service Provider, Customer may purchase additional training services and/or consulting, interface development or other services at Service Provider's then-current standard rates pursuant to a mutually agreed Order Form.
6.1 Fees and Payment Terms. Fees for Services are as mutually agreed and set forth in the applicable Order Form. Customer will pay the Fees as specified in the applicable Order Form.
6.2 Late Fees; Suspension of Services; Collection Costs. If Customer fails to pay any charges when due, Service Provider may charge interest of the lesser of 1.5%, or the maximum permissible rate, per month on any outstanding balance. In addition to any other rights and remedies of Service Provider hereunder, if payment is past due, Service Provider may, in its sole discretion, elect to suspend the SAAS Service and any other Services under this Agreement. Customer agrees to pay all costs and expenses (including reasonable attorneys' fees) incurred by Service Provider in connection with collecting any amounts due and payable by Customer under this Agreement.
6.3 Taxes. The fees do not include taxes. Customer will be responsible for and reimburse and hold Service Provider harmless against the payment of all taxes associated with this Agreement (other than taxes based on Service Provider's gross receipts or net income).
6.4 Reports; Right to Audit. Customer shall submit to Service Provider all reports reasonably requested by Service Provider necessary for Service Provider to determine amounts due and owing to Service Provider and to confirm Customer's compliance with the terms of this Agreement. Customer shall maintain complete and accurate written records describing: (a) any and all transactions, including the transactions specified in an Order Form, (b) all amounts due and payable hereunder, and (c) any other information which may be reasonably required by Service Provider to determine whether Customer is complying with the terms of this Agreement. To ensure compliance with the terms of this Agreement, Service Provider shall have the right to conduct an inspection and audit of the facilities of Customer and all the relevant books and records of Customer, and to obtain true and correct photocopies thereof, during regular business hours at Customer's offices and in such a manner as not to interfere unreasonably with Customer's normal business activities. If any such audit should disclose any underpayment of Fees, Customer shall promptly pay Service Provider such underpaid amount, together with interest thereon at a rate of one and one-half percent (1.5%) per month or partial month during which each such amount was owed and unpaid, or the highest rate allowed by law, whichever is lower. If the amount of such underpayment exceeds five percent (5%) of amounts otherwise paid, then Customer shall immediately reimburse Service Provider for Service Provider's reasonable expenses associated with such audit.
7.1 Registration Information and User IDs. Customer will promptly provide to Service Provider the name, contact information and other information requested by Service Provider to register each Authorized User (collectively, the "Registration Information") to use the SAAS Service. Each Authorized User will have a unique User ID for his or her access to the SAAS Service. Customer will ensure that its Authorized Users will use only their respective assigned User IDs and will never use another's User ID. Customer will adopt and maintain such security precautions for User IDs to prevent their disclosure to and use by unauthorized persons and will promptly notify Service Provider if the security or integrity of a User ID or password has been compromised. Customer will promptly notify Service Provider in writing of the termination of employment of any of its Authorized Users.
7.2 Authorized Users. Customer will (a) remain responsible for all obligations under this Agreement arising in connection with its Authorized Users' use of the SAAS Service; (b) be liable for any act or omission by any of its Authorized Users, which, if performed or omitted by Customer, would be a breach of this Agreement; and (c) any such act or omission of any Authorized User will be deemed to be a breach of this Agreement by Customer.
7.3 Computer System. Customer will: (a) cooperate and consult with Service Provider in the set-up and activation of the SAAS Service for Customer, (b) provide and maintain, in good and working order at all times, its own Internet access and all necessary communications equipment, software and other materials necessary for Authorized Users to access and use the SAAS Service. Customer is responsible for the security of its own computer systems and the security of its access to and connection with the SAAS Service.
7.4 Authorization; Noninfringement; Delivery of Data. Customer Form, (b) all amounts due and payable hereunder, and (c) any other information which may be reasonably required by Service Provider to determine whether Customer is complying with the terms of this Agreement. To ensure compliance with the terms of this Agreement, Service Provider shall have the right to conduct an inspection and audit of the facilities of Customer and all the relevant books and records of Customer, and to obtain true and correct photocopies thereof, during regular business hours at Customer's offices and in such a manner as not to interfere unreasonably with Customer's normal business activities. If any such audit should disclose any underpayment of Fees, Customer shall promptly pay Service Provider such underpaid amount, together with interest thereon at a rate of one and one-half percent (1.5%) per month or partial month during which each such amount was owed and unpaid, or the highest rate allowed by law, whichever is lower. If the amount of such underpayment exceeds five percent (5%) of amounts otherwise paid, then Customer shall immediately reimburse Service Provider for Service Provider's reasonable expenses associated with such audit.
7.5 No Interference with Service Operations. Customer will not take any action that: (a) interferes or attempts to interfere with the proper working of the SAAS Service or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the SAAS Service; (b) circumvents, disables, or interferes or attempts to circumvent, disable, or interfere with security-related features of the SAAS Service or features that prevent or restrict use, access to, or copying of any data or enforce limitations on use of the SAAS Service or data; or (c) imposes or may impose, in Service Provider's sole discretion, an unreasonable or disproportionately large load on the SAAS Service infrastructure.
7.6 Customer Review and Responsibility. Customer will be solely responsible for any services that it provides to others involving the use of the SAAS Service, Data, Output or the Services. Service Provider makes no representations concerning the completeness, accuracy, or utility of any Data in the SAAS Service or any Output or concerning the qualifications or competence of any Authorized User that may place Data in the SAAS Service. Customer shall be solely responsible for ensuring accuracy, completeness and compliance of any Output provided to any third party, and all liabilities and responsibilities in connection with such Output, and Service Provider shall not be responsible for the accuracy, completeness, or compliance thereof. Neither Customer nor any other person will have any claim or cause of action against Service Provider as a result of any professional or other services rendered or withheld in connection with the use of the SAAS Service, Data, Output or the Services.
8.1 Term. The term of this Agreement shall continue from the Effective Date until the earlier of (a) expiration of the term of all Order Forms or (b) termination of this Agreement as provided in this Agreement.
(a) Each party will have the right to terminate this entire Agreement or the applicable Order Form upon thirty (30) days prior written notice if the other party is in material breach of this Agreement or an applicable Order Form, and the breaching party fails to remedy such breach within such notice period. Notwithstanding the foregoing, Service Provider may terminate this entire Agreement or any applicable Order Form upon written notice to Customer if Customer violates the scope or any restriction on its license under Section 2 above or its obligations hereunder with respect to Confidential Information
(b) If at any time Customer fails to pay to Service Provider the amounts required under this Agreement as and when such sums are due, Service Provider may in such event terminate this Agreement or the applicable Order Form by written notice to Customer, unless Customer pays all amounts due, including all accrued interest, within ten (10) days of such notice.
8.3 The Fees for Services under this Agreement were determined by mutual agreement based upon certain assumed volumes of processing activity and the length of the Term of this Agreement and the Order Forms. Customer acknowledges that without the certainty of such revenue during the remainder of such Term , Service Provider would have been unwilling to provide Services at the prices set forth in this Agreement. The parties agree that it would be difficult or impossible to ascertain Service Provider's actual damages for a breach of this Agreement by Customer resulting in a termination of this Agreement or any Order Form before the end of the Term. Accordingly, in the event of a termination of this Agreement or any Order Form by Service Provider under any of the provisions of Section 8.2, Customer agrees to pay Service Provider as liquidated damages an amount equal to the greater of:
(i) the monthly minimum fees (as set forth in the applicable Order Forms), or
(ii) the monthly average of the total of all Fees invoiced to Customer by Service Provider during the six (6) monthly billing periods preceding the date of termination,
8.4 Effect of Termination.
(a) Upon termination for any reason, all licenses granted hereunder will automatically terminate, and Service Provider may immediately disable and discontinue Customer's access to and use of the SAAS Service without additional notice to Customer. Customer will return to Service Provider all User Materials and other materials it has acquired pertaining to the SAAS Service or any Confidential Information. In addition, all fees and payment obligations of Customer will become immediately due and payable.
(b) Once a party has provided notice of termination or non-renewal to the other party pursuant to this Section, the parties will use their commercially reasonable efforts to reach agreement as to an "exit plan" including, to the extent possible, the appropriate transition of the Services. Any transition services provided by Service Provider shall be chargeable at Service Provider's then current professional services rates. Pursuant to Customer's written request, which must be received by Service Provider within thirty (30) days after the termination or expiration of this Agreement or an applicable Order Form, Service Provider will furnish to Customer, at Service Provider's then current professional services rates, one copy of Customer's data files in Service Provider's standard machine-readable format as may be maintained by Service Provider from time to time in accordance with Service Provider's procedures and retention schedules. In the absence of such notice by Customer, Service Provider may dispose of or destroy such data and any other materials at Service Provider's discretion consistent with the requirements of Section 10 governing Customer's Confidential Information.
(c) All rights to payment and the provisions of Sections 6, 7.2, 7.4, 7.6, 8.3 and 9-13 of these Terms and Conditions (together with any other provisions of these Terms and Conditions that by their sense and context are intended to survive termination) will survive any expiration or termination of the Agreement.
9.1 SAAS Service. Service Provider is and will remain the exclusive owner of all right, title and interest in and to the SAAS Service, Updates, User Materials, Service Provider's Confidential Information, and all other specifications, manuals, tapes, programs, documentation, reports, systems, work product and/or other tangible or intangible material of any nature used, developed, provided or accessible to Customer in connection with this Agreement, including all intellectual property rights therein (the "Service Provider Materials"). Customer hereby acknowledges and agrees that the Service Provider Materials, including without limitation, its Confidential Information, constitute and contain valuable proprietary products and trade secrets of Service Provider, embodying substantial creative efforts and confidential information, ideas, and expressions. The parties acknowledge that this Agreement in no way limits or restricts Service Provider or any Service Provider affiliates from developing or marketing on their own or for any third party software or services, as from time to time constituted without payment of any compensation, or delivery of any notice, to Customer.
9.2 Aggregated Information. Customer acknowledges and agrees that all general, anonymized or otherwise aggregated information based on Data or Output from Customer's or its Authorized Users' use of the Services or data based on Customer's or its Authorized Users' overall use of the Services are and will remain the property of Service Provider.
9.3 Data and Output. Customer grants to Service Provider a non-exclusive license, during the term of this Agreement, to use, reproduce, modify, display and distribute Data and Output for the purposes of performing its obligations under this Agreement. Subject to the foregoing, Customer is and will remain the owner of all right, title and interest in and to all Data, Output and Customer Confidential Information.
9.4 Feedback. To the extent that Service Provider receives from Customer or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the SAAS Service or any other products or services ("Feedback"), Service Provider may use, disclose and exploit such Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide other products and services.
10.1 Definition. "Confidential Information" means information of or relating to Customer or Service Provider or their respective affiliates, subsidiaries, vendors, suppliers, service providers or licensors, that is competitively sensitive material not generally known to the public, including without limitation, information that relates to past, present or future research and development, trade secrets, products and services, pricing, marketing, financial matters, or business affairs (including without limitation, policies, procedures, plans, methods of operation, specifications, manuals, programs, documentation, guidelines, procedures, forms, and report formats), systems, networks, computer equipment and software proprietary to or licensed by a party, including without limitation, object or source code, custom software modifications, software documentation and training aids, and all data, code, techniques, algorithms, methods, logic, architecture, and designs embodied or incorporated therein.
10.2 Obligations. The parties acknowledge that the Services require disclosure by each party ("Disclosing Party") to the other party ("Receiving Party") of certain of the Disclosing Party's Confidential Information. With respect to Confidential Information of the Disclosing Party that is disclosed to the Receiving Party, the Receiving Party shall, subject to the exceptions stated herein: (a) maintain and protect the confidentiality of the information with the same care and measures to avoid unauthorized disclosure or access as the Receiving Party uses with its own Confidential Information, but in no event less than a reasonable standard of care; (b) use the information solely to carry out the purposes for which the information was disclosed; and limit access to the information to: (i) employees of the Receiving Party, or of its subsidiaries or affiliates, who have a need to know to facilitate, monitor or review the delivery, receipt or performance of the Services; (ii) employees of the Receiving Party's suppliers or licensors who have a need to know the information solely for the purpose of facilitating the performance, delivery or use of the Services; and (iii) the Receiving Party's external attorneys and auditors. Any of the foregoing individuals to whom the Receiving Party discloses information must be under a legally binding obligation to maintain the confidentiality of the information. The Receiving Party shall remain responsible to the Disclosing Party for acts or omissions of such individuals that if committed by the Receiving Party would constitute a violation of the Receiving Party's confidentiality obligations hereunder. Customer shall not disclose the terms and conditions of this Agreement, including without limitation, pricing, to any third party without Service Provider's prior written consent.
10.3 Exceptions. The Receiving Party shall not be in violation of this Agreement for: disclosing Confidential Information of the Disclosing Party that (i) is or becomes publicly available other than as a result of a breach of this Agreement, (ii) is disclosed to the Receiving Party by a third party not subject to any obligation of confidentiality, (iii) was already known by the Receiving Party prior to the date of this Agreement (unless disclosed in connection with negotiations and discussions related to this Agreement or associated transactions), or (iv) was independently developed by the Receiving Party without reference to Confidential Information received from the Disclosing Party; or (b) disclosing Confidential Information of the Disclosing Party when required to do so by (i) the Receiving Party's federal or state regulatory agencies, or (ii) a federal or state law or regulation, or a subpoena or court order or agency action that requires disclosure, provided, however, that, if disclosure of Confidential Information is required by any of the foregoing, the Receiving Party shall, unless prohibited by law, regulation or court or agency order, promptly notify the Disclosing Party and, at the Disclosing Party's request and expense, cooperate with the Disclosing Party's efforts, if any, to prevent or limit the disclosure.
10.4 No License; Return of Information. Nothing in this Section shall be construed as a grant or assignment of any right or license in the Disclosing Party's Confidential Information. The Disclosing Party's Confidential Information shall at all times remain the property of the Disclosing Party. At any time the Disclosing Party reasonably requests, and in any event upon the termination or expiration of this Agreement, the Receiving Party shall, at the election of the Disclosing Party, promptly return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party's possession or control, or certify in writing to the Disclosing Party that the Confidential Information has been destroyed, subject to any provisions in this Agreement regarding return of Customer's Data or as otherwise agreed between the parties for the transfer of Customer's Data to a third party.
10.5 Remedies and Responsibilities. The Receiving Party acknowledges that the Disclosing Party has the right to take all reasonable steps to protect the Disclosing Party's Confidential Information, including without limitation, seeking injunctive relief and/or any other remedies that may be available at law or in equity, all of which remedies shall be cumulative and in addition to any rights and remedies available by contract, law, rule, regulation or order. Any requirements for a bond in connection with any such injunctive or other equitable relief are hereby waived by both parties.
11.1 Service Limitations. The SAAS Service may be temporarily unavailable from time to time due to required maintenance, telecommunications interruptions, or other disruptions. Service Provider may also make improvements and/or changes in the SAAS Service at any time without notice. Service Provider will not be responsible for any damages that Customer may suffer arising out of use, or inability to use, the SAAS Service. Service Provider will not be liable for unauthorized access to or alteration, theft or destruction of Customer's data files, programs, procedures or information through accident, fraudulent means or devices, or any other method. It is hereby acknowledged that it is Customer's responsibility to validate for correctness all Output and to protect Customer's Data from loss by maintaining back-ups of all Data and routinely updating such back-ups. Customer hereby waives any damages occasioned by lost or corrupt Data, incorrect Output or incorrect data files resulting from a programming error, operator error, equipment or software malfunction, or from the use of third-party software.
11.2 Disclaimer of Warranties.
SERVICE PROVIDER MAKES NO WARRANTIES RELATED TO THE SERVICES PROVIDED BY SERVICE PROVIDER HEREUNDER, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES TO ACHIEVE CUSTOMER'S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SERVICES. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES MEET CUSTOMER'S REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR FREE.
11.3 Limitations of Liability.
IN NO EVENT WILL SERVICE PROVIDER (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS SERVICE PROVIDERS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY SERVICES PROVIDED BY SERVICE PROVIDER HEREUNDER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, DATA OR ANY OUTPUT, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AVAILABLE REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE TOTAL LIABILITY, IF ANY, OF SERVICE PROVIDER (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS SERVICE PROVIDERS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) IN THE AGGREGATE OVER THE TERM OF THIS AGREEMENT FOR ALL CLAIMS, CAUSES OF ACTION OR LIABILITY WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT AND/OR THE SERVICES PROVIDED HEREUNDER (COLLECTIVELY, "CLAIMS'), SHALL BE LIMITED TO THE LESSER OF: (A) CUSTOMER'S DIRECT DAMAGES, ACUTALLY INCURRED, OR (B) THE TOTAL FEES PAID BY CUSTOMER TO SERVICE PROVIDER IN THE MOST RECENT SIX (6) MONTH PERIOD. NOTWITHSTANDING THE FOREGOING, SERVICE PROVIDER'S SOLE OBLIGATION IN THE EVENT OF AN ERROR BY SERVICE PROVIDER IN THE PERFORMANCE OF ANY SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO REPROCESSING APPLICABLE DATA OR REPERFORMING THE SERVICES. SERVICE PROVIDER (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS SERVICE PROVIDERS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) SHALL HAVE NO LIABILITY, EXPRESS OR IMPLIED, WHETHER ARISING UNDER CONTRACT, TORT OR OTHERWISE, FOR ANY CLAIM OR DEMAND: (A) RESULTING DIRECTLY OR INDIRECTLY FROM CUSTOMER'S INTERNAL OPERATIONS, EQUIPMENT, SYSTEMS OR SOFTWARE OWNED OR LICENSED BY COMPANY; OR (B) BY THIRD PARTIES, EVEN IF SERVICE PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN. CUSTOMER ACKNOWLEDGES THAT SERVICE PROVIDER HAS SET ITS FEES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
12.1 Indemnification of Customer by Service Provider. Subject to the limitations of liability in Section 11, Service Provider shall indemnify and hold harmless Customer, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend Customer against, pay any final judgments awarded against Customer, and pay Customer's reasonable costs and attorneys' fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on Service Provider's alleged infringement of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary rights of such third party under the laws of the United States arising out of the Software, unless and except to the extent that such infringement is caused by Service Provider's compliance with Customer's unique specification or instructions or Service Provider's use of trademarks, Data, or other materials supplied by Customer.
12.2 Indemnification of Service Provider by Customer. Customer shall indemnify and hold harmless Service Provider, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend Service Provider against, pay any final judgments awarded against Service Provider, and pay all of Customer's reasonable costs and attorneys' fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on (i) Customer's improper or misuse of the Services (including without limitation, in violation of applicable laws, rules or regulations or this Agreement); (ii) Service Provider's compliance with Customer's instructions; (iii) Service Provider's use of trademarks, Data or other materials supplied by Customer, (iv) any breach or alleged breach by Customer of this Agreement, or (v) the conduct of any business in connection with use of the Services.
12.3 Indemnification Procedures. If any third party makes a claim covered by Section 12.1 or Section 12.2 against an indemnitee with respect to which such indemnitee intends to seek indemnification under this Section, such indemnitee shall give notice of such claim to the indemnifying party, including a brief description of the amount and basis therefor, if known. Upon giving such notice, the indemnifying party shall be obligated to defend such indemnitee against such claim, and shall be entitled to assume control of the defense of the claim with counsel chosen by the indemnifying party, reasonably satisfactory to the indemnitee. The indemnitee shall cooperate fully with and assist the indemnifying party in its defense against such claim in all reasonable respects. The indemnifying party shall keep the indemnitee fully apprised at all times as to the status of the defense. Notwithstanding the foregoing, the indemnitee shall have the right to employ its own separate counsel in any such action, but the fees and expenses of such counsel shall be at the expense of the indemnitee. Neither the indemnifying party nor any indemnitee shall be liable for any settlement of action or claim effected without its consent. Notwithstanding the foregoing, the indemnitee shall retain, assume, or reassume sole control over all expenses relating to every aspect of the defense that it believes is not the subject of the indemnification provided for in this Section. Until both (a) the indemnitee receives notice from indemnifying party that it will defend, and (b) the indemnifying party assumes such defense, the indemnitee may, at any time after ten (10) days from the date notice of claim is given to the indemnifying party by the indemnitee, resist or otherwise defend the claim or, after consultation with and consent of the indemnifying party, settle or otherwise compromise or pay the claim. The indemnitee shall keep the indemnifying party fully apprised at all times as to the status of the defense.
13.1 Assignment, Successors. No right or license under this Agreement may be assigned or transferred by Customer, nor may any duty be delegated by Customer without Service Provider's prior written consent. Any assignment, transfer or delegation in contradiction of this provision will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of Customer and Service Provider.
13.2 Subcontracting. Service Provider may freely subcontract its duties and obligations under this Agreement. In the event that Service Provider subcontracts any of its duties and obligations, Service Provider agrees that: (i) the third party shall execute a confidentiality agreement consistent with the terms of this Agreement and (ii) any such permitted subcontracting shall not release Service Provider from any of its obligations under this Agreement.
13.3 Force Majeure. Notwithstanding any other provision of this Agreement, no party to this Agreement shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors. Without limiting the foregoing, the following shall constitute events of force majeure: acts of State or governmental action, riots, war, terrorism, strikes, lockouts, prolonged shortage of energy supplies, epidemics, fire, flood, hurricane, typhoon, earthquake, lightning, explosion, any other acts of God or any third party, the failure of telecommunications equipment or other hardware, any third party software or any third party services.
13.4 Governing Law. This Agreement shall be governed by the laws of the State of South Carolina, excluding its principles of conflicts of laws.
13.5 Exclusive Forums.All disputes arising under this Agreement shall be brought solely in the Court of Common Pleas, Richland County, South Carolina, as permitted by law. The Court of Common Pleas, Richland County, South Carolina shall have jurisdiction over disputes under this Agreement. Customer consents to the personal jurisdiction of the above courts.
13.6 Notice. All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Service Provider is 1225 Laurel St, Columbia SC 29201; and the notice address for Customer is the address specified in the Agreement Signature Page. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
13.7 Independent Contractor. Service Provider is acting as an independent contractor in its capacity under this Agreement. Nothing contained in this Agreement or in the relationship of the Customer and Service Provider shall be deemed to constitute a partnership, joint venture, or any other relationship between the Customer and Service Provider except as is limited by the terms of this Agreement.
13.8 Use of Name. Service Provider may use in advertising, publicity, or otherwise the fact that Customer is a customer of Service Provider.
13.9 Non-solicitation of Key Employees. During the term of this Agreement and for a period of one (1) year immediately following its termination, each party agrees not to employ or solicit for employment a key employee of the other party while such employee is employed by the other party or within six (6) months following termination of employment with the other party without the prior written approval of the other party. The term "key employee" means any employee engaged in providing or receiving Services under this Agreement. This Section shall not be construed to prevent general advertisement of employment opportunities.
13.10 Export Control. Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business, such as the Export Administration Regulations ("EAR") maintained by the United States Department of Commerce, trade and economic sanctions maintained by the United States Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ("ITAR") maintained by the United States Department of State.
13.11 Miscellaneous. This Agreement, together with the exhibits hereto, constitutes the entire agreement between Service Provider and Customer with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter. This Agreement, including the exhibits hereto, may be amended only by an instrument in writing executed by the parties or their permitted assignees. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or arbitrator by reason of such party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement. This Agreement may be signed in counterparts with the same effect as if the signatures were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. Counterpart signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in "portable document format" (".pdf") form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature.