THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
NOTWITHSTANDING ANYTHING ELSE STATED HEREIN, IF CUSTOMER AND SOSPES HAVE EXECUTED A WRITTEN AGREEMENT FOR THE ACCESS TO OR USE OF THE SOFTWARE OR SERVICES (“SIGNED AGREEMENT”), THEN THE TERMS OF THE SIGNED AGREEMENT SHALL GOVERN AND CONTROL AND THIS AGREEMENT SHALL HAVE NO EFFECT.
1. DEFINITIONS: For purposes of the Agreement, the following definitions apply:
A. “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.
C. “Annual Customers” means Customers who have a valid annual or multi-year contract for Services.
D. “Beta Services” means our services that are not generally available to customers.
E. “Confirmation Notice” means a confirmation notice issued electronically by SOSPES to the Customer, confirming the Licensed Product purchased and access details. Confirmation Notice includes services order forms or other purchasing documentation entered into between Customer and SOSPES for the Services or Licensed Product.
F. “Customer” means an “Annual Customer” or Monthly Customer” as the case may be.
G. “Customer Data” means any data provided by Customer to SOSPES under this Agreement. Customer Data includes Data as defined in paragraph 11.
H. “Documentation” means explanatory materials created by SOSPES in printed, electronic or online form that accompany the Services or Software.
I. “Licensed Product” means all SOSPES Services, Software, updates or Documentation to which Customer has rightful access.
J. “Malware” means applications, executable code, or malicious content that SOSPES deems to be harmful, including, but not limited to: code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
K. “Monthly Customer” means Customers who have a valid monthly contract for Services with no annual or multi-year commitment.
L. “Non-SOSPES Applications” means a web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You.
M. “Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
N. “SOSPES” means SOSPES, LLC, a Colorado limited liability company, with offices located at 4845 Pearl East Circle, Suite 101, Boulder, CO 80301, USA.
O. “Service Level Agreement” or “SLA” means an addendum to this Agreement where the Customer and SOSPES define the scope, quality, and responsibilities of each party with respect to the Services to be provided.
P. “Services” means “Software as a Service” or “SaaS”, which consists of activities including system administration, system management and system monitoring that SOSPES performs using software installed on SOSPES systems along with any optional add-on services, and as ordered by Customer. Services do not include VSP Services or any other services performed by a party other than SOSPES.
Q. “Software” means programs, applications or object code obtained from SOSPES and installed in the Customer’s environment or mobile devices, including updates and upgrades and for the purposes of facilitating the delivery or functionality of the Services, such as plug-ins.
R. “Term” means the time period during which you have the right to receive the Services specified in an Order Form which has been accepted and acknowledged by SOSPES in writing.
S. “User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
T. “VSP Services” means the Virtual Safety Program services provided under an agreement in the form of Attachment 2 to this Agreement between Customer and the provider of VSP Services should Customer elect to purchase such services.
U. “We,” “Us” or “Our” means SOSPES.
V. “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. RIGHT OF USE AND RESTRICTIONS
A. Right to Access and Use Services. Subject to the terms of this Agreement, SOSPES grants Customer a royalty-free, nonexclusive, nontransferable, limited term right to use the Services described in the Confirmation Notice, for up to the number of Users identified on the Confirmation Notice, solely for Customer’s internal business use during the Term. Unless otherwise specified by SOSPES, no software will be delivered to the Customer as part of the Services.
B. Right to Install and use Software. Subject to the terms of this Agreement, SOSPES grants Customer a royalty-free, nonexclusive, nontransferable, worldwide limited term license to install Software on equipment owned or operated by or on behalf of Customer, as needed to deliver the Licensed Products, Services or functionality described in the relevant Confirmation Notice solely for Customer’s internal business use during the Term. Copies of the Software may be made as required for disaster recovery purposes. The Software must be de-installed at the end of the Term.
C. Restrictions. Customer may not access the Software or Services if Customer is a direct competitor of SOSPES, or for monitoring the availability, security, performance, functionality, or for any other benchmarking or competitive purposes without SOSPES’s express written permission. Customer will not: (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make the Software or Services available to any third party; (ii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or (except as set forth in Section 2.B above) copy the Software or Services, or any of its components; (iii) use the Software or Services to conduct fraudulent activities; (iv) attempt to gain unauthorized access to the Software or Services, engage in any denial of service attacks, or otherwise cause immediate, material or ongoing harm to SOSPES, its provision of the Software or Services, or others; (v) impersonate or misrepresent an affiliation with a person or entity; (vi) use the Software or Services to store or transmit Malware; (vii) use the Software or Services for any purpose that violates applicable law or regulation, infringes on the rights of any person or entity, or violates this Agreement; (viii) market, sell, license, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign, or otherwise transfer to a third party the Software or Services or any copy thereof, in whole or in part; or (ix) use the Software or Services for third-party training, commercial time-sharing, or service bureau use (each of (i) to (ix) is a “Prohibited Use”). All rights not expressly granted to Customer are reserved by SOSPES and its licensors.
D. Right to Use Customer Data. Customer hereby grants SOSPES (and its contractors) a limited, non-exclusive, royalty-free, license for the Term of this Agreement to access, use, reproduce, transmit, store, and archive the Customer Data solely as necessary for SOSPES to (i) execute, perform and deliver the Services; (ii) provide and improve the Software, Services and technical support to Customer during the Term; and (iii) for the aggregation purposes set forth in Section 11 below.
3. BETA RELEASES
SOSPES reserves the right to materially change or discontinue Software or Services designated in Beta stage at any time and without notice to Customer. Access or use of Software or Services identified as not generally available for commercial use, such as “Beta” or “Pre-Release” (“Beta Product”), is restricted to Customer’s internal performance evaluation of the Beta Product. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Customer’s access to the Beta Product may be interrupted during maintenance periods. SOSPES is not obligated to finally release any version of the Beta Product. Customer will report to SOSPES unusual, unplanned, or out of the ordinary events observed in the Beta Product. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE BETA PRODUCTS MAY CONTAIN BUGS, ERRORS AND DEFECTS AND ARE NOT EXPECTED TO FUNCTION WITHOUT INTERRUPTION. SOSPES WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA PRODUCT.
If Customer has signed up for an evaluation of the Software or Services (“Evaluation”), then the provisions of this paragraph shall apply and shall supersede any other conflicting term of this Agreement. Customer’s use of the evaluation is limited to thirty (30) days unless otherwise agreed to in writing by SOSPES. Customer acknowledges that the evaluation may contain errors or other problems that could cause system or other failures and data loss. Consequently, evaluation Software and Services are provided to Customer solely on an “AS-IS” basis, and SOSPES disclaims any warranty or liability obligations to Customer of any kind. Customer is not eligible for any support for evaluation Software or Services. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, SOSPES’S LIABILITY AND THAT OF ITS
SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF ONE HUNDRED ($100.00) DOLLARS (OR THE THEN CURRENT VALUE IN THE RELEVANT LOCAL CURRENCY) IN TOTAL.
5. CUSTOMER OBLIGATIONS
A. Customer is responsible for all activity occurring under Customer’s Software, Services and support accounts. Customer will provide SOSPES with all information and assistance required to supply the Software or Services or enable Customer’s use of the same. Customer will immediately notify SOSPES upon Customer becoming aware of any: (i) unauthorized account use or other suspected security breach; (ii) unauthorized use, copying or distribution of Software, accompanying documentation or Customer Data; and (iii) unusual performance of the Software or Service observed by Customer.
B. Customer must obtain all necessary rights and permissions from Users. Customer represents and warrants that: (i) Customer has the legal rights and applicable consents to provide Customer Data to SOSPES, (ii) Customer complies with all applicable laws for processing and transferring Customer Data to SOSPES, (iii) Customer retains adequate back-ups of Customer Data, and (iv) Customer is solely responsible for Customer Data, the servers and such network on which such data is stored and transmitted. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. The Services rely on Customer Data as supplied by Customer, as well as the servers and network used by Customer, and SOSPES is not liable for the content of Customer Data or Customer’s servers and other equipment and personal property. SOSPES does not assume any duty or obligation to correct or modify Customer Data, servers, equipment, or personal property.
C. Customer will provide SOSPES contact information for Customer’s system administrator, who is authorized to provide the information required to configure and manage the Services (“System Administrator”). SOSPES will provide Customer with a confidential access code to the administration tool, which may only be accessed by the System Administrator.
D. Customer agrees to provide current and complete account Users’ information as necessary for SOSPES to manage Customer’s account. Customer agrees to accept SOSPES emails relevant to Customer’s receipt of the Services at the e-mail address specified by its System Administrator.
E. Customer agrees that SOSPES may rely on all information provided to SOSPES by the Customer from the designated e-mail addresses. SOSPES may provide all notices, statements, and other communications arising under this Agreement (other than legal notices) to Customer through either e-mail, posting on the Services or other electronic transmission.
6. SOSPES OBLIGATIONS
SOSPES is responsible for providing the Services in substantial conformance with this Agreement, the Order Forms, and the applicable Service Level Agreement.
7. TERM AND TERMINATION
A. Term of Agreement. Unless earlier terminated pursuant to Sections 7 or 13.C, this Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
B. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless SOSPES has given Customer written notice of a pricing increase at least 30 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
C. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, (ii) 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, or (iii) Customer makes an unauthorized assignment of this Agreement. Upon termination of this Agreement, Sospes will retain Customer Data for a maximum of 30 days. At Customer’s written request, Sospes will provide raw Customer Data to Customer electronically in Sospes’ standard comma delimited format. Alternate formats will be provided on a fee basis. After expiration of the 30 day period, Customer agrees that SOSPES has no obligation to retain Customer Data, which may be irretrievably deleted. After the support or Services subscription period expires, Customer has no further rights to receive any updates or upgrades.
D. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 7.C (i) or (ii), SOSPES will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by SOSPES in accordance with Section 7.C, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to SOSPES for the period prior to the effective date of termination.
E. Effect of Termination / Data Deletion. On the termination of this Agreement for any reason: (A) all rights granted to Customer under this Agreement, including its ability to access any data stored in the Software or Services, will immediately terminate; and (B) Customer must promptly discontinue all use of the Software or Services and delete or destroy any SOSPES Confidential Information. Upon termination of the Agreement, SOSPES will have no obligation to maintain or provide Customer Data, and shall have the option to thereafter delete or destroy all copies of Customer Data in SOSPES’s systems or otherwise in its possession or control, unless legally prohibited. Termination of the Agreement will not entitle Customer to any refunds, credits, or exchanges except as provided for in 7.D. above.
8. FEES AND PAYMENT FOR PURCHASED SERVICES
A. Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased regardless of actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
B. Invoicing and Payment. Customer will provide SOSPES with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to SOSPES. If Customer provides credit card information to SOSPES, Customer authorizes SOSPES to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 7.B (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, SOSPES will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 15 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to SOSPES and notifying SOSPES of any changes to such information.
C. Overdue Charges. If any invoiced amount is not received by SOSPES by the due date, then without limiting any rights or remedies, (a) 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, and/or (b) SOSPES may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 8.B (Invoicing and Payment).
D. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Services is 30 or more days overdue (or 10 or more days overdue in the case of
amounts Customer has authorized SOSPES to charge to Customer’s credit card), SOSPES may, without limiting any other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to Customer until such amounts are paid in full. SOSPES will give Customer at least 10 days’ prior notice that the account is overdue before suspending Services.
E. Payment Disputes. SOSPES will not exercise its rights under Section 8.C (Overdue Charges) or 8.D (Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
F. Taxes. SOSPES’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 whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If SOSPES has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 8.F, SOSPES will invoice Customer and Customer will pay that amount unless Customer provides SOSPES with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, SOSPES is solely responsible for taxes assessable against SOSPES based on SOSPES’s income, property and employees.
9. SUSPENSION OF SERVICE
SOSPES may suspend the Services: (a) if SOSPES deems it necessary to prevent or terminate any Prohibited Use; or (b) upon notice to Customer if: (i) Customer commits a material breach of this Agreement; or (ii) if SOSPES receives credible notice from a third party or agency that Customer is in material breach of the Agreement. Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including Customer’s obligation to pay fees. SOSPES may temporarily suspend the Services for maintenance purposes. SOSPES will use commercially reasonable efforts to minimize any such disruption of Services. Upon suspension for any reason, SOSPES will provide Customer with written notice specifying the reason for the suspension. Customer will not be entitled to any Service Credits under the Service Level Agreement that Customer might have otherwise accrued during the suspension period.
“Confidential Information” means any business materials, data, or information of a party to this Agreement that is disclosed to the other, except for information that is: (a) publicly available or later becomes publicly available other than through breach of this Agreement; (b) previously known to or independently developed by the Receiving Party who have not been exposed to the Confidential Information; or (c) subsequently obtained by the Receiving Party through a third party without obligations of confidentiality. Customer acknowledges that SOSPES’s pricing, services access codes and Intellectual Property are SOSPES’s Confidential Information. The party receiving Confidential Information (“Receiving Party”) will exercise the same degree of care and protection for the Confidential Information of the party that has disclosed Confidential Information (“Disclosing Party”) that it exercises with its own Confidential Information but no less than a reasonable degree of care. The Receiving Party may not directly or indirectly disclose, copy, distribute, republish, sell, license or otherwise allow any third party access to such Confidential Information. The Parties agree to maintain the confidentiality as described herein for two (2) years after the termination of this Agreement. Notwithstanding the above, either party may disclose Confidential Information: (1) to its employees, contractors or agents who have a need to know in order to provide and improve the Services and are subject to substantially similar obligations of confidentiality; and (2) if required by law (including a court order or subpoena), provided, the Receiving Party, where lawfully permitted, promptly notifies the Disclosing Party in time to review and challenge the potential disclosure. In the event of any termination or expiration of this Agreement, each party will either return or, at the Disclosing Party’s request, destroy the Confidential Information of the other party; provided however, that SOSPES may retain copies of Customer’s Confidential Information for routine backup and archival purposes.
12. INTELLECTUAL PROPERTY
The Software and Services (including any associated software, documentation, hardware, websites, passwords, components and tools) (“SOSPES Property”) are the sole and exclusive property of SOSPES or its licensors, who retain sole ownership of all right, title and interest in SOSPES Property, as well as any derivative works thereof. These ownership rights include copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights (“Intellectual Property”). Customer agrees, on behalf of itself and its Users, that it will take no action inconsistent with SOSPES’s Intellectual Property rights. Customer agrees that SOSPES has the unrestricted right to use feedback or recommendations provided by Customer in SOSPES’s sole discretion, without notice to, payment to or consent from Customer and that such feedback is not subject to the Confidential Information provisions of this Agreement. Customer agrees not to disclose such feedback to any third party without the express written consent of SOSPES.
Customer retains all right, title and interest in and to Customer Data.
13. LIMITED WARRANTY, REMEDIES AND DISCLAIMER
A. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
B. LIMITED WARRANTY. SOSPES warrants that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical specifications of the Services and Software; (b) the Services will substantially conform with this Agreement, (d) SOSPES will not materially decrease the functionality of the Services during a term in the Order Form; and (d) the Services will be provided in a manner consistent with generally accepted industry standards. SOSPES shall only provide the foregoing warranty where the Customer has an active subscription to the Services. There shall be no other warranty.
C. The Services may contain features designed to interoperate with Non-SOSPES applications and software (such as HRIS systems for example). To use such features, Customer may be required to obtain access to Non-SOSPES applications from their providers, and may be required to grant SOSPES access to Customer’s account(s) on the Non-SOSPES applications. If the provider of a Non-SOSPES application ceases to make the Non-SOSPES application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling Customer to any refund, credit, or other compensation.
D. LIMITATION OF REMEDY. The sole and exclusive remedy for any claim for breach of warranty under this Agreement is for SOSPES to modify the Services to conform with the documentation. If SOSPES is unable to do so, SOSPES may, in its own discretion: (1) allow Monthly Customers to terminate the Agreement; or (2) for Annual Customers, provide Service Credits that extend the term of the Customer’s Service Agreement by thirty (30) days upon renewal of the annual Agreement.
E. DISCLAIMER. WITH THE EXCEPTION OF THE LIMITED WARRANTY, ANY USE BY CUSTOMER AND USERS OF THE SOFTWARE AND SERVICES IS AT CUSTOMER’S OWN RISK. THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. SOSPES AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, NON-INFRINGEMENT, TITLE, AND OWNERSHIP. SOSPES AND ITS LICENSORS AND CONTRACTORS DO NOT WARRANT THAT THE SERVICES OR SOFTWARE: (1) ARE ERROR-FREE; (2) WILL PERFORM UNINTERRUPTED; OR (3) WILL MEET CUSTOMER’S REQUIREMENTS. BETA AND EVALUATION SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTIES WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY’S INCLUDING HOSTING PROVIDERS.
F. The Services and Software may include programs or code that are licensed under an Open Source Software (“OSS”) license model. OSS programs and code are subject to the terms, conditions and obligations of the applicable OSS license, and are SPECIFICALLY EXCLUDED FROM ALL WARRANTY AND SUPPORT OBLIGATIONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.
14. THIRD PARTIES
THE SOFTWARE AND SERVICES AND THE SOFTWARE UNDER WHICH THE SERVICES OPERATE MAY CONTAIN INDEPENDENT THIRD PARTY PRODUCTS AND RELY UPON THEM TO PERFORM CERTAIN FUNCTIONALITY. CUSTOMER ALSO ACKNOWLEDGES THAT THE VSP SERVICES (IF PURCHASED BY CUSTOMER) WILL BE DELIVERED UNDER A CONTRACT BETWEEN CUSTOMER AND A THIRD PARTY. SOSPES MAKES NO WARRANTIES, REPRESENTATIONS, OR AGREEMENTS OF ANY KIND REGARDING, AND CUSTOMER RELEASES SOSPES FROM ALL LIABILITY ARISING FROM OR RELATED TO, ANY INDEPENDENT THIRD PARTY PRODUCT, THE VSP SERVICES, AND ANY OTHER THIRD PARTY SERVICES.
15. INTERNET DELAYS
SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SOSPES IS NOT REPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS.
No data transmission over the Internet can be guaranteed to be secure. While SOSPES deploys security precautions such as encryption of data, SOSPES is not responsible for any interception or interruption of any communications through the Internet or networks or systems outside SOSPES’s control. Customer is responsible for maintaining the security of its networks, servers, applications, and access codes.
17. LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SOSPES’S AND ITS CONTRACTORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT OR ANY OTHER LEGAL THEORY OF LIABILITY, IS LIMITED: (1) EXCEPT FOR INDEMNIFICATION, FOR MONTHLY CUSTOMERS, TO THE FEES
PAID UNDER THIS AGREEMENT FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY; AND FOR ANNUAL CUSTOMERS, TO THE FEES PAID UNDER THIS AGREEMENT FOR THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY; AND (2) FOR INDEMNIFICATION, TO CUSTOMER’S ACTUAL DAMAGES CAUSED BY THE INDEMNIFIED CLAIM NOT TO EXCEED $2,500 IN THE AGGREGATE. THE FOREGOING LIMITATIONS ARE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT. IN NO EVENT WILL SOSPES OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING DAMAGES ARISING FROM LOSS OR DELAYED USE OF DATA; LOST PROFITS, SAVINGS OR REVENUE; DAMAGE TO EQUIPMENT; LOSS OF OR DAMAGE TO RECORDS OR DATA; RE-PROCUREMENT COSTS; AND THIRD PARTY CLAIMS AGAINST CUSTOMER) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF SOSPES HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
A. Indemnification By Customer. Customer agrees to indemnify, defend, and hold SOSPES harmless from all claims, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any: (i) Customer or User’s engagement in a Prohibited Use; (ii) Customer Data passing to or from Customer through the Services or SOSPES’s network; (iii) taxes arising from the Software and Services whether now in effect or imposed in the future (excluding taxes based on SOSPES’s income); (iv) failure by Customer to obtain all necessary consents related to Customer Data; (v) claims by third parties arising from Customer’s use of the Software or Services (excluding claims that the Software or Services, as provided by SOSPES, infringe third party intellectual property rights); (vi) any and all acts or omissions of Customer or its Users; and (vii) any reasonable costs and attorneys’ fees required for SOSPES to respond to a subpoena, court order or other official government inquiry regarding Customer Data or Customer’s use of the Software or Services.
B. Indemnification by SOSPES. SOSPES shall defend and hold Customer harmless from any claim by a third party that the Software or Services infringe any patent, copyright or trade secret of that third party. The foregoing obligation of SOSPES does not apply with respect to Software, Services or portions or components thereof: (i) not supplied by SOSPES; (ii) used in a manner not expressly authorized by this Agreement or the accompanying Documentation (iii) made in accordance with Customer’s specifications; (iv) modified by anyone other than SOSPES, if the alleged infringement relates to such modification; (v) combined with other products, processes or materials where the alleged infringement would not exist but for such combination; or (vi) where Customer continues the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement. In the event the Software or Services are held by a court of competent jurisdiction to constitute an infringement or use of the Software or Services is enjoined, SOSPES shall, at its sole option, do one of the following: (i) procure the right to continued use; (ii) modify the Software or Services so that their use becomes non-infringing; (iii) replace the Software or Services with substantially similar products in functionality and performance; or (iv) if none of the foregoing alternatives is reasonably available to SOSPES, SOSPES shall refund the pro-rata unused portion of the software or services.
C. The Parties may request indemnification under this provision, provided they: (a) promptly give written notice of the claim to the indemnifying party; (b) give sole control of the defense and settlement to the indemnifying party (provided any settlement relieves the indemnified party of all liability in the matter); (c) provide all available information and reasonable assistance; and (d) have not previously compromised or settled such claim.
D. THIS SECTION STATES SOSPES’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS.
Any waiver of rights under this Agreement must be in writing. Failure to exercise or enforce any right under this Agreement will not be deemed a waiver of that Party’s right nor bar the exercise or enforcement of it at any time thereafter.
20. JURISDICTION/GOVERNING LAW; COSTS; LIMITATION PERIOD
This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of Colorado. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The federal courts of United States District Court for the District of Colorado or the state courts located in Boulder County, as applicable, shall have the exclusive jurisdiction over all disputes relating to this Agreement.
21. NOTICE AND ACCURACY OF INFORMATION
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
All legal notices to SOSPES under this Agreement must be addressed to
4845 Pearl East Circle, Suite 101
Boulder, CO 80301
22. MODIFICATION TO TERMS
SOSPES reserves the right to modify the terms and conditions of this Agreement at any time, effective upon the posting of an updated version at https://sospes.com. Customer is responsible for regularly reviewing this Agreement. Continued use of the Software or Services after any such change shall constitute Customer’s consent to the changes.
23. BINDING EFFECT AND ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. SOSPES retains the right to assign this Agreement in its sole discretion. Customer may not assign this Agreement without the prior written permission of SOSPES.
Rights and obligations in paragraphs 6, 10-14, 17-21, 23 and 30 survive the termination or expiration of this Agreement.
Customer acknowledges that the Services and Software provided by SOSPES are subject to U.S. and when applicable non-US export regulations. Customer shall comply with applicable export and import laws and regulations for the jurisdiction in which the Services will be imported, exported and/or provided. Customer shall not export the Services or Software to any individual, entity or country prohibited by applicable law or regulation. Customer is responsible, at Customer’s own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Services and/or Software provided by SOSPES.
26. NOTICE TO U.S. GOVERNMENT END USERS
SOSPES provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data –
Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with SOSPES to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
27. FORCE MAJEURE
SOSPES is not liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused by forces of nature or any other cause beyond its reasonable control.
28. ENTIRE AGREEMENT AND SEVERABILITY
This Agreement represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. This Agreement supersedes and controls over any conflicting terms contained in any Customer purchase order. If any provision of this Agreement is declared invalid or unenforceable by a court or administrative agency of competent jurisdiction, the remaining provisions hereof shall remain in full force and effect and this Agreement shall be construed and performed as if it did not contain the invalid or unenforceable provision.
The parties to this Agreement are independent contractors. Neither party will be deemed to be or hold itself out as a partner, joint venturer or agent of the other party. This is a non-exclusive arrangement.
30. THIRD PARTIES
No term of this Agreement shall be enforceable by a person who is not a party to the Agreement.
SERVICE LEVEL AGREEMENT
1. Telephone Support
SOSPES will provide telephone support for the SaaS application to the Customer contacts named in the on-line order form (the “Technical Support Contacts”). The Technical Support Contacts may be changed upon notification by customer to SOSPES.
2. Service Availability
|SOSPES will use commercially reasonable efforts to maintain the availability of the SaaS to Customer and its users as follows: Service Category||Availability/Response Time|
The availability percentage does not include interruptions due to Scheduled Downtime or Force Majeure.
|Scheduled Downtime||Generally scheduled for 10:00p-4:00a Mountain time as SOSPES notifies Licensee no less than twenty-four (24) hours in advance.|
|Unplanned Outages (other than for system emergency)||Maximum 8 hours over a reference period of 1 year, excluding Force Majeure.|
|Unplanned Outages for system emergency||Maximum 24 hours over a reference period of 1 year, excluding Force Majeure. SOSPES will promptly notify Company of any Unplanned Outage (whether or not for system emergency), including a description of the Unplanned Outage and the expected or estimated time until normal operations will resume.|
|Data back-ups||SQL server full backups are taken every week, differential backups every 5 minutes. Backups are stored for the past 35 days, allowing SOSPES to restore to any point (within 5 minutes) during the previous 35 days.|