(1) AgilePoint, Inc. is incorporated and registered in State of Delaware, United States with an office in Mountain View, California (Supplier).
(2) YOU OR A COMPANY OR OTHER PERSON OR LEGAL ENTITY, SUCH AS YOUR EMPLOYER ARE THE CUSTOMER (Customer). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS PLATFORM AS A SERVICE AGREEMENT (Agreement). THIS AGREEMENT GOVERNS YOUR RIGHTS TO THE AGILEPOINT PRODUCTS. BY CLICKING “ACCEPT” CUSTOMER ACCEPTS THIS AGREEMENT AND THE AGREEMENT WILL BE DEEMED A BINDING CONTRACT BETWEEN AGILEPOINT AND CUSTOMER. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT CLICK “YES, I AGREE TO THE AGREEMENT TERMS AND CONDITIONS” (BELOW) AND CUSTOMER WILL NOT BE AUTHORIZED TO USE THE PRODUCTS.
(A) The Supplier has developed certain software applications and a platform that it makes available to subscribers via the internet for the purpose of developing applications on the platform and potentially making them and parts of the platform available to end-users.
(B) The Customer wishes to use the Supplier’s services.
(C) The Supplier has agreed to provide and the Customer has agreed to use and pay for the Supplier’s services in a Purchase Order, which was made and is subject to the terms and conditions of this Agreement, except that “Community” version users shall not pay.
(D) This Platform as a Service Agreement (“Agreement”) describes Customer’s rights and responsibilities for use of AgilePoint’s cloud-based or AgilePoint-hosted solutions of AgilePoint NX and any software we provide through the cloud effective on the date you click the “Yes, I agree to the above terms and conditions” below. This Agreement contains, among other things, warranty disclaimers, liability limitations and limitations for use. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date here of.
AGREED TERMS AND CONDITIONS
The definitions and rules of interpretation in this clause apply in this Agreement.
Acceptable Use Policy: the acceptable use policy set out agilepoint.com/aup or such other website address as may be notified to the Customer from time to time.
Application: any application developed by the Customer using the Services, including both source code and object code, but excluding any Customer Content.
Authorized Users: those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Services and the Documentation, as further described in Clause 2.2(e).
Back-Up Policy: the back-up policy set out at in the Service Level Agreement or such other website address as may be notified to the Customer from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in the United States when banks are open for business.
Community Customers: Customers who use the “Community” version of Supplier’s services, which is offered as “freemium” or for evaluation.
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organizational measures: as defined in the Data Protection Legislation.
Customer Account: the Customer’s account with the Supplier in respect of the Services.
but excluding all Resultant Data and authentication information provided in relation to the Customer Account.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the United States of America relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications, including, but not limited to, the CAN-SPAM Act, General consumer privacy laws and regulations (see Federal Trade Commission), sector specific privacy laws, and state privacy laws such as California’s “Shine the Light” law (Civil Code Section § 1798.83) and Consumer Privacy Act of 2018 (CCPA).
Documentation: the documents made available to the Customer by the Supplier online via documentation.agilepoint.com or such other web address notified by the Supplier to the Customer from time to time that sets out a description of the Services and the user instructions for the Services.
Effective Date: the date Customer clicks the “Yes, I agree to the above terms and conditions” button.
End-User: any person the Customer permits access to use any Application.
End-User Account: the account held and maintained with the Customer by any End-User as a prerequisite to accessing and using the relevant Application on the Platform.
but excluding all Resultant Data and authentication information provided in relation to any End User Account.
Excluded Fields of Use:
Healthcare Legislation: any laws, regulations or mandatory codes applied or enforced by any national or regional medical or healthcare regulatory body.
Initial Subscription Term: the first start and end dates for the Services that the parties agree to as part of Customer procuring the Services from Supplier.
Integrated Services Elements: such elements of the Services as are integrated into an Application and include, but are not limited to, applications at store.agilepoint.com and those set out in Schedule 1.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, and Intellectual Property Rights include, without limitation, any Marks.
Mark Guidelines: the mark guidelines set out in Schedule 2.
of a party to this Agreement, whether or not registered.
Named Seat: individual authorized by you to access the Services regardless of whether the individual is actively accessing Services at any given time.
Normal Business Hours: 8:00 am to 5:00 pm local time, each Business Day.
Open-Source Software: any software licensed under any form of open-source license meeting the Open Source Initiative’s Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public License (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Services or the Software, or with which the Services or the Software is compiled or to which it is linked.
Plan: the pricing and features subscription plan selected by Customer. Examples can be found here: agilepoint.com/pricing/
Platform: the Supplier’s infrastructure and cloud computing platform and runtime environment, as described in the Documentation.
Privacy and Security Policy: the privacy and security policy set out at agilepoint.com/privacy-statement or such other website address as may be notified to the Customer from time to time.
Renewal Period: a successive period of 12 months commencing on the day following expiry of the Initial Subscription Term.
Resultant Data: data and information related to Customer’s use of the Services that is used by Supplier in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
Service Level Agreement: the service level Agreement set out at agilepoint.com/sla or such other website address as may be notified to the Customer from time to time. For Community Customers, at this time the only service included in the Service Level Agreement is access to Documentation.
Services: the subscription services provided by the Supplier to the Customer under this Agreement via agilepoint.com, nxone.com or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation, including:
Software: the online software applications and tools provided by the Supplier from time to time as part of the Services, including any updates the Supplier may make to such applications and tools.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out at agilepoint.com/pricing. Currently, there is no Subscription Fees for Community version of Services, however AgilePoint may need to charge fees for this in the future to, among other things, pay for costs, such as to third-party hosting providers.
Subscription Term: has the meaning given in Clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support: the support to be provided to the Customer under Clause 4.3.
Territory: the United States of America.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to Clause 9 that entitle Authorized Users to access and use the Services and the Documentation in accordance with this Agreement.
Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not email.
1.10 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
1.11 If there is an inconsistency between any of the provisions of this Agreement and the terms and conditions located at any URL, the provisions of this Agreement shall prevail. If there is an inconsistency between any of the provisions in the main body of this Agreement and the terms and conditions set out in any schedule to this Agreement, the provisions in the main body of this Agreement shall prevail.
1.12 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with Clause 3.3 and Clause 9.1 or subscribing as a Community Customer, the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right during the Subscription Term:
(a) to permit the Authorized Users to use the Services and the Documentation solely to develop, upload and run Applications on the Platform;
(b) to integrate the Services into any Application, to provide the Services, solely as integrated into any Application, to End-Users and to permit those Services to be used in association with the Customer’s Marks;
(c) to permit End-Users to run Applications on the Platform and to use in accordance with this Agreement such of the Services as have been integrated into those Applications;
except in relation to any Excluded Fields of Use or otherwise excluded as stated herein (e.g. See Clause 2.8).
2.2 In relation to the Authorized Users, the Customer agrees that:
(a) the maximum number of Authorized Users that it authorizes to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any Named Seat User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services and/or Documentation;
(c) each Authorized User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than every one hundred eighty (180) days and that each Authorized User shall keep his password confidential;
(d) it shall disable any Authorized User’s access to the Services and the Documentation promptly upon termination or suspension of such Authorized User’s employment or services contract with the Customer;
(e) it shall maintain a written, up-to-date list of current Authorized Users and provide such list to the Supplier within [five] Business Days of the Supplier’s written request at any time or times;
(f) it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name and password of each Authorized User and the Supplier’s data processing facilities to audit compliance with this Agreement;
(g) if any of the audits referred to in Clause 2.2(f) reveal that any password has been provided to any individual who is not an Authorized User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
(h) if any of the audits referred to in Clause 2.2(f) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in the Subscription Fees at agilepoint.com/pricing within ten Business Days of the date of the relevant audit.
2.3 The Customer shall comply with the Acceptable Use Policy in relation to all Applications and Customer Content.
2.4 If the Customer becomes aware that any Application or Customer Content or an End-User’s use of an Application or Customer Content breaches the Acceptable Use Policy, the Customer shall:
(a) immediately suspend the relevant Application;
(b) remove the relevant Customer Content; and
(c) if relevant, suspend the relevant End-User Account and that End-User’s access to the relevant Application and Customer Content.
(a) disable the Customer’s or the relevant End-User’s access to the relevant Application or any material that breaches the Acceptable Use Policy; and
(b) disable the Customer Account [and the relevant End-User Account],
for so long as the relevant breach remains unremedied, without liability or prejudice to its other rights and without prior notice to the Customer or the relevant End-User.
2.6 Whenever the Supplier reasonably suspects that there has been a breach of the Acceptable Use Policy, the Customer shall permit the Supplier to audit all Applications and Customer Content to ensure compliance with the Acceptable Use Policy by the Customer and the End-Users. Such right to audit shall be exercised at the Supplier’s expense, with reasonable prior notice and in such a manner as not to substantially interfere with the Customer’s normal conduct of business. For clarity, the parties acknowledge that the Supplier is not obliged to carry out any such audit.
2.7 Notwithstanding any other provision in this Agreement, if there is a Security Event, the Supplier may, without liability or prejudice to its other rights and without prior notice to the Customer or any End-User, remove the relevant Customer Content and disable the Customer Account, any End-User Account and the relevant Application until the relevant Security Event has been resolved. The Supplier shall give the Customer written notice as soon as is reasonably practicable of the nature of the relevant Security Event.
2.8 The Customer shall not:
(a) except as may be allowed by any applicable law, which is incapable of exclusion by Agreement between the parties:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;
(c) use the Services and/or Documentation to provide services to third parties or to provide any services in the Excluded Fields of Use;
(d) subject to Clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorized Users, provided that the provision of Services to End-Users is permitted to the extent necessary to enable them to use the relevant Application;
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2;
(f) process data under the Agreement that (i) requires any approval from a governmental agency to do so, for example, a financial services regulator, or (ii) is it subject to any ongoing regulatory compliance regime (other than a data protection authority or any data protection compliance regime).
2.9 The Customer shall:
(a) use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify the Supplier; and
(b) comply with any further obligations set out in the Documentation that govern use of the Services or development of Applications.
2.10 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary, parent, affiliate or holding company of the Customer.
2.11 Any Open-Source Software provided by the Supplier may be used according to the terms and conditions of the specific license under which the relevant Open-Source Software is distributed, but is provided “as is” and expressly subject to the disclaimer in Clause 13.2(c). Such terms and conditions shall govern such use to the extent that they expressly supersede this agreement.
3.1 Subject to Clause 3.2 and Clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and the Supplier shall grant access to the Services and the Documentation to such additional Authorized Users in accordance with the provisions of this Agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request.
3.3 Except for Community Customers, if the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions. If such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 The Supplier shall, during the Subscription Term:
(a) provide the Services and access to the Platform and make available the Documentation to the Customer on and subject to the terms of this Agreement; and
(b) enable End-Users to connect via the internet to any Application that the Customer has deployed on the Platform and to use in accordance with this Agreement such of the Services as have been integrated into that Application.
4.2 Except for Community Customers, the Supplier warrants that it will provide the Services in accordance with the Service Level Agreement, which can be viewed at agilepoint.com/sla.
4.3 Except for Community Customers, the Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
4.4 Notwithstanding any other provision in this Agreement, the Customer acknowledges and agrees that it is responsible for technical support of all Applications.
4.5 From time to time the Supplier may:
(a) modify the Services by issuing updates (for example, bug fixes or performance improvements); and
(b) make new features, functionality, applications or tools available in respect of the Services, whose use may be subject to the Customer’s acceptance of further terms and conditions,
and may give the Customer written notice of material modifications to the Services and any such new features, functionality, applications or tools. For clarity, any modification to the Subscription Fees shall be addressed under Clause 9.6.
5.1 The Customer (or its licensors) shall own all Intellectual Property Rights in and to all of the Customer Content and any Application (other than any Integrated Services Elements) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Content and any Application.
5.2 The Customer shall engage all Authorized Users on terms that include an assignment of all Intellectual Property Rights in and to the relevant Application to the Customer and shall ensure that such terms are adhered to.
5.3 The Customer hereby grants to the Supplier a non-exclusive, non-transferable right during the Subscription Term to carry out any acts that would otherwise be restricted by any of the Customer’s Intellectual Property Rights in the Customer Content and all Applications for the purpose of enabling the Supplier to provide the Services to the Customer in accordance with this Agreement.
5.4 The Customer acknowledges and agrees that:
(a) the Supplier may include the Customer’s name or the Customer’s Marks in a list of the Supplier’s customers in any medium or in any link from the Platform to the Customer’s website; and
(b) the Supplier may refer to the Customer, orally or in writing, as a customer of the Services for promotional, marketing and financial reporting purposes.
5.5 The parties acknowledge and agree that, even though Supplier has a Back-Up Policy according to the SLA,:
(a) the Supplier is not responsible or liable for the deletion of or failure to store any of the Applications, the Customer Content, and other communications maintained or transmitted through use of the Services; and
(b) the Customer is solely responsible for securing and backing up all Applications and Customer Content.
5.6 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5.7 The parties acknowledge that:
(a) if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation.
(c) the personal data may be transferred or stored outside the United States, European Economic Area and the United Kingdom or the country where the Customer, the Authorized Users or the End-Users are located in order to carry out the Services and the Supplier’s other obligations under this Agreement.
5.8 Without prejudice to the generality of Clause 5.6, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this Agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf and, without limitation, the Customer shall ensure that all End-Users have been informed of, and have given and maintained their consent to permit access, monitoring, use and disclosure of all End-User Content by the Customer or the Supplier in accordance with this Agreement.
5.9 Without prejudice to the generality of Clause 5.6, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this Agreement:
(a) process that personal data only on the documented written instructions as written (i.e. through the Application) by Customer through Services unless the Supplier is required by the laws of the United States, or of any state thereof, applicable to the Supplier including the Data Protection Legislation to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organizational measures, reviewable by the Customer, to protect against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it).
(c) not transfer any personal data outside of the United States of America unless the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(d) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a personal data breach;
(f) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Agreement unless required by Applicable Law to store the personal data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
5.10 The Customer consents to the Supplier appointing cloud hosting providers selected by Supplier, including Amazon Web Services, Inc. (aws.amazon.com) and Microsoft Azure (azure.microsoft.com), as third-party processor of personal data under this Agreement. Supplier may amend the list and Customer may terminate this Agreement in accordance with Clause 14 if Customer disagrees with such change. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business and in either case, which the Supplier undertakes to reflect, and will continue to reflect, the requirements of the Data Protection Legislation. Subject to Clause 13, as between the Customer and the Supplier, the Supplier shall remain liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
5.11 Either party may, at any time on not less than 30 days’ notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorized contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 7.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer or any End-User through the Services will meet the Customer’s or any End-User’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This Agreement shall not prevent the Supplier from entering into similar Agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
7.4 The Supplier warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.
The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by the Supplier,
in order to provide the Services, including Customer Content, security access information and configuration services;
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations, including any of those relating to the export of data and software, with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorized Users and End-Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for breach of this Agreement caused or contributed to by any acts or omissions on the part of any Authorized User or End-User;
(e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including provision of the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
(g) be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s or any End-User’s network connections or telecommunications links or caused by the internet;
(h) as between the parties, be responsible for responding to all third party requests concerning the use of the Services by the Customer or any End-User; and
(i) not access the Services in a manner intended to avoid incurring fees or unreasonably to reserve names for Applications, by creating multiple Applications or deployments of the same Application or otherwise.
Community Customers Only: This Section 9 shall not apply to Community Customers unless and until either Supplier begins to charge for Services in the Community version or Community Customers change their subscription to incur fees for Services that Customer agrees to hereafter.
9.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with agilepoint.com/pricing.
9.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete approved purchase order information or credit card details acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to the Supplier, the Customer hereby authorizes the Supplier to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to Clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to Clause 14.1, at least 30 days before each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.3 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer Account and password and the Customer’s access, and all End-User Accounts and passwords and End-Users’ access, to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to eight percent (8%) commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in U.S. dollars;
(b) are, subject to Clause 13.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
9.5 If at any time while using the Services the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees. The Supplier’s excess data storage fees current as at the Effective Date are set out at agilepoint.com/pricing.
9.6 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to Clause 3.3 and/or the excess storage fees payable pursuant to Clause 9.5 at the start of each Renewal Period upon 90 days’ prior notice to the Customer and agilepoint.com/pricing shall be deemed to have been amended accordingly.
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Services (whether integrated into an Application or not), the Integrated Services Elements, Resultant Data, the Documentation, the Software and the Supplier’s Marks. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, or in, any Intellectual Property Rights or any other rights or licenses in respect of the Services, the Documentation or the Supplier’s Marks.
10.2 The Supplier confirms that it has all the rights in relation to the Services, the Documentation and the Supplier’s Marks that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10.3 If the Customer wishes to display the Supplier’s Marks in relation to its use of the Services, the Customer shall:
(a) obtain a written license from the Supplier through the process specified in the Mark Guidelines; and
(b) comply with the Mark Guidelines.
10.4 All uses of a party’s Marks under Clause 5.4 or Clause 10.3, including all goodwill arising, shall accrue solely to the benefit of the party owning the Intellectual Property Rights in those Marks.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents (and also, in the case of the Customer only, by the End-Users) in breach of the terms of this Agreement.
11.4 The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The Customer shall not be responsible for any loss, destruction, or alteration of Confidential Information caused by any third party, but shall be so responsible if caused by any End-User.
11.6 The parties acknowledge that:
(a) the Supplier’s Confidential Information includes details of the Services, Resultant Data, and the results of any performance tests of the Services; and
(b) the Customer’s Confidential Information includes the Customer Content and details of Applications (other than any Integrated Services Elements).
11.7 The above provisions of this Clause 11 shall survive termination of this Agreement, however arising.
11.8 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:
(a) the Customer Content or any Application;
(b) the Customer’s Marks; or
(c) the Customer’s or any End-User’s use of the Services and/or Documentation.
12.2 The Supplier shall defend, indemnify and hold harmless the Customer against any claim that the use of any of the Services infringes any United States patent effective as of the Effective Date, copyright, trademark, database right or right of confidentiality, provided that this does not apply to the extent that any such claim is based on the use of any Open-Source Software.
(a) the indemnifying party being given prompt notice of any relevant claim;
(b) the indemnified party providing reasonable co-operation to the indemnifying party in the defense and settlement of such claim, at the indemnifying party expense; and
(c) the indemnifying party being given sole authority to defend or settle such claim.
12.4 Except as specifically provided in this Agreement, the enforcement and protection of a party’s Intellectual Property Rights shall be in the sole discretion and control of that party and any and all recoveries resulting from such enforcement or protection actions shall be retained by that party.
12.5 In the defense or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.6 In no event shall the Supplier, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than the Supplier;
(b) the use of the Services or Documentation by the Customer or any End-User in combination with any Customer Content or any Application;
(c) the use of the Services or Documentation by the Customer or any End-User in a manner contrary to the instructions given to the Customer by the Supplier; or
(d) the use of the Services or Documentation by the Customer or any End-User after notice to the Customer of the alleged or actual infringement from the Supplier or any appropriate authority.
12.7 The foregoing and Clause 13.4(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
13.1 This Clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer or any End-User:
(a) arising under or in connection with this Agreement;
(b) in respect of any use made by the Customer or any End-User of the Services and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.2 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer or any End-User, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer or any End-User in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
(b) the Supplier makes no warranty or representation that the Services comply with any Healthcare Legislation and the Customer assumes sole responsibility for compliance with the same;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement;
(d) the Services and the Documentation are provided to the Customer and the End-Users on an “as is” basis; and
(e) neither the Software nor the Documentation nor the Services, are designed, made or intended for any of the Excluded Fields of Use.
13.3 Nothing in this Agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s gross negligence; or
(b) for fraud or fraudulent misrepresentation.
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at Clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the twelve (12) months immediately preceding the date on which the claim arose.
14.1 This Agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed after each Renewal Period, unless:
(a) either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement.
The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than ten (10) days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of ten (10) days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of United States bankruptcy law;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 14.2(d) to Clause 14.2(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business or other activities. For Community Customers, non-use of the Services for more than thirty (30) days constitutes a cessation of activities.
14.3 On termination of this Agreement for any reason:
(a) all licenses granted under this Agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
(c) without limiting the effect of Clause 14.3(b), the Supplier may require the Customer immediately to return all copies of the Software, the Documentation, the Supplier’s Confidential Information and any other materials or to erase the same from the Customer’s computer and communications systems and devices used by the Customer (but not those used by any End-User in relation to any Application), including such systems and data storage services provided by third parties (to the extent technically and legally practicable) in accordance with Clause 5.9(f). The Customer may, at the Supplier’s request, be required to confirm in writing that all such copies have been returned or so erased;
(d) the Supplier may destroy or otherwise dispose of any of the Customer Content and Applications in its possession unless the Supplier receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Content and Applications. The Supplier shall use reasonable commercial endeavors to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Content and Applications;
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement that existed at or before the date of termination shall not be affected or prejudiced;
(f) any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiration of this Agreement, including Clause 1 (Interpretation), Clause 5.7 (data protection), Clause 11 (Confidentiality), Clause 12 (Indemnity) and Clause 14 (Term and termination), shall remain in full force and effect; and
(g) any outstanding balance becomes immediately due and payable.
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21.1 This Agreement, and any documents referred to in it, constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.
21.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
22.2 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns).
25.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this Agreement.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the United States of America.
Each party irrevocably agrees that the courts of the State of California, USA shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement has been entered into on the date stated at the beginning of it.
INTEGRATED SERVICES ELEMENTS
The following are Integrated Service Elements listed solely for the purpose of identification and not meant to entitle Customer for inclusion in the services actually purchased. This is not meant to be an exhaustive list of what is currently considered an Integrated Service Elements. Depending on Customer’s Plan, additional Subscription Fees may be incurred for use of each of these services:
1.1 All uses by the Customer of the Supplier’s Marks shall be in accordance with such quality control standards as the Supplier may promulgate from time to time. The Customer shall refrain from all uses of the Supplier’s Marks to which the Supplier objects.
1.2 The Customer shall not, without the Supplier’s prior written consent in each instance, use any Supplier’s Mark in advertising, publicity, marketing or other promotional materials or activities.
1.3 The Customer shall submit to the Supplier in advance for its approval:
(a) any marketing materials, and
(b) a mock-up of any web pages,
which refer to the Supplier, any Supplier’s Mark, the Services or the Documentation.
1.4 Any license that may be granted by the Supplier to the Customer to use any of the Supplier’s Marks shall be a non-exclusive, non-transferable, non-assignable, royalty-free license to use such Marks solely for the purposes of exercising the Customer’s rights and performing its obligations under this Agreement.
1.5 All promotional literature and other materials prepared by the Customer in connection with its promotional obligations under this Agreement shall bear appropriate copyright and trademark notices as prescribed by the Supplier.
1.6 The Customer shall not use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to any Supplier’s Mark or will dilute the distinctive nature of the Supplier’s Marks.
1.7 At no time during the Subscription Term or thereafter shall the Customer attack, challenge or file any application with respect to any Supplier’s Mark.