This End User License Agreement (“Agreement”) is entered into between Datawire, Inc. (“Datawire”) and the customer entity identified in the Order Form (“Customer”). The Agreement consists of the terms and conditions set forth below, any attachments or exhibits referenced in the Agreement, and any Order Forms (as defined below) that reference this Agreement. Each of Datawire and Customer is a “Party” and collectively, they are the “Parties.”
This Agreement permits Customer to purchase from Datawire software licenses (“Software”) and related services (“Services”) pursuant to one or more Order Forms. This Agreement will govern Customer’s initial purchase of Software and/or Services as well as any future purchases made by Customer that reference this Agreement.
By accessing, executing, or otherwise using the Software, Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. If Customer is not willing to be bound by the terms of this Agreement, do not access or use the Software. The individual accepting this Agreement on behalf of Customer represents that they have the authority to bind Customer to this Agreement.
1. DATAWIRE SOFTWARE AND SERVICES
1.1 Provision of Datawire Software and Services. Under the terms of this Agreement, Datawire shall provide the Software and/or Services ordered by Customer pursuant to one or more Order Forms available to Customer.
1.2 Order Form and Subscription Term. Software and Services are made available to Customer on a subscription basis for the initial term designated on an Order Form (“Initial Term”) at the Fees set forth on the Order Form. The Initial Term will automatically renew for successive renewal terms equal to the expiring Initial Term (the “Subscription Term”) unless earlier terminated pursuant to this Agreement or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Subscription Term. No Order Form will be binding until executed by both Parties.
2. Evaluation License. Datawire makes certain Software available to Customer on a trial basis (“Trial Version”) free of charge until the end of the free trial period indicated on the Order Form. The Trial Version may be used only to review, demonstrate and evaluate the Software and may have limited features. The Trial Version may cease operating after the applicable time period or number of uses based on an internal metering mechanism within the Trial Version itself. Regardless of any such metering, Customer must stop use at the end of such period or number of uses. Additional trial terms and conditions may appear on the Order Form. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
3. GRANT AND RIGHTS FOR SOFTWARE
3.1 License. Subject to the terms and conditions of this Agreement and Order Form, Datawire hereby grants to Customer a limited, non-exclusive, non-transferable, license to use the Software identified on the Order Form, as well as its manuals, instructions, specifications and other documents and materials that Datawire provides or makes available which describe the functionality, components, features or requirements of the Software, including any one or more of the installation, configuration, integration, operation, use, support or maintenance thereof (“Documentation”) solely for Customer’s internal business purposes for use by your authorized employees and contractors (“End Users”) during the applicable Subscription Term and in accordance with the conditions and limitations set forth in the Order Form. Software and Documentation are collectively, the “Licensed Program Material”.
3.2 Third Party Software. To the extent that there is any third party software embedded in the Software (“Third Party Software”), such Third Party Software shall be considered a part of the Software and such Third Party Software shall be used and operated solely with the operation of the Software and not as a standalone application or for any other purpose.
3.3 Open Source Software. Certain portions of some Software, including Third Party Software, may be subject to an open source license, which when required by such license is included with the Documentation (“OSS License”). Customer’s license rights with respect to open source software subject to an OSS License are defined by the terms of the applicable OSS License; nothing in this Agreement restricts, limits, or otherwise affects any rights or obligations Customer may have, or conditions to which Customer may be subject, under such OSS License. The foregoing includes, without limitation, the Apache License, Version 2.0 found at: .
3.4 Restrictions. Customer shall not distribute, display, sublicense, rent, lease, use in a service bureau, modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, or copy the Licensed Program Materials, except to the extent expressly permitted by applicable law, and only to the extent Datawire is not permitted by that applicable law to exclude or limit such rights.
3.5 Proprietary Markings. Customer shall not remove or alter any Intellectual Property Rights notices or other proprietary markings on the Licensed Program Materials or copies thereof, including without limitation, any trademarks, trade names, trade dress, service marks, logos or other similar branding material or any copyright notices from the footer, navigation bar, login, or any other place in the Licensed Program Materials. Customer shall not place any Intellectual Property Rights notices, including limitation, any trademarks, trade names, trade dress, service marks, logos or other branding material on the Licensed Program Materials except with Datawire’s express prior written consent. As used in this Agreement, “Intellectual Property Rights” means the worldwide intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, patent applications, trade secrets, and know-how; (b) any work of authorship, including any copyrights, industrial designs, registration or moral rights recognized by law, (c) any trademarks, trade names, trade dress and associated goodwill, and (d) any other proprietary technology or material in which similar rights exist.
4. COMPLIANCE WITH LAW
4.1 Compliance with Laws. Customer shall not use the Licensed Program Materials for any unlawful purpose or in breach of any laws. Such unlawful purposes or breaches include, without limitation, civil and criminal offenses of copyright and trademark infringement, commission of any criminal offense, and any transmission or publication of any material that is defamatory, offensive, abusive or menacing character to any other person.
4.2 Export or Re-Export. Customer shall not use or otherwise export or re-export the Licensed Program Materials except as authorized by United States law and the laws of the jurisdiction in which the Licensed Program Materials is obtained. In particular, but without limitation, the Licensed Program Materials may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Program Materials, Customer represents and warrants that it not located in any such country or on any such list. Customer shall not use the Software for any purpose prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
4.3 US Government End Users. The Licensed Program Materials are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
5. OWNERSHIP. As between the Parties, Datawire retains all right, title and interest in the Licensed Program Materials, including but not limited to any and all Intellectual Property Rights in the Licensed Program Materials now owned or that may be owned in the future by Datawire.
6. SUPPORT
6.1 Support Schedule. Subject to the terms and conditions of this Agreement, and conditioned on Customer’s and its employees’ and agents’ compliance therewith, during the applicable Subscription Term Datawire will provide to Customer support Services for the Software at such support levels as specified on the applicable Order Form in accordance with the Datawire service support schedule set forth on Exhibit A (the “Support Schedule”). Datawire may amend the Support Schedule from time to time in its sole discretion.
7. FEES; PAYMENT TERMS
7.1 Fees. In consideration of the Services and the rights granted by Datawire to Customer under this Agreement, Customer shall pay to Datawire fees and other amounts payable pursuant to this Section 7 as set forth in the applicable Order Form (“Fees”). All Fees are non-refundable.
7.2 Fee Increases. Datawire may increase undiscounted fees set forth in the Order Form after the first contract year of any Subscription Term by providing written notice to Customer at least 60 calendar days prior to the commencement of that contract year.
7.3 Reseller Orders. This Agreement specifies the terms and conditions under which Datawire products and services will be provisioned by Datawire to Customer, whether purchased directly from Datawire or indirectly through Datawire partners or authorized resellers (each, a “Reseller”). Resellers are not authorized to make any promises or commitments on Datawire’s behalf, and we are not bound by any obligations other than as specified in this Agreement. If Customer purchases any Software through a Reseller, Customer owes payment to the Reseller as agreed between Customer and the Reseller, but acknowledges that Datawire may terminate Customer’s rights to use the Software if we do not receive our corresponding payment from the Reseller.
7.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Datawire’s income. If Customer is required to pay any withholding tax, charge or levy in respect of any payments due to Datawire hereunder, Customer shall gross up payments actually made so that Datawire receives sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy.
7.5 Payment. Customer shall pay all Fees and Reimbursable Expenses within 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by credit card, check, or electronic transfer to the address or account specified in invoice or such other address or account as Datawire may specify in writing from time to time.
7.6 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available to Datawire:
(a) Datawire may charge interest on the past due amount at the rate of 1% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law;
(b) Customer shall reimburse Datawire for all reasonable costs incurred by Datawire in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs and collection agency fees; and
(c) if such failure continues for 30 days following written notice thereof, Datawire may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any third party by reason of such suspension.
7.7 No Deductions or Setoffs. All amounts payable to Datawire under this Agreement shall be paid by Customer to Datawire in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
7.8 Audit. To confirm Customer’s compliance with the terms of this Agreement, Datawire has the right, at its expense, upon reasonable notice and during normal business hours to conduct audits of Customer’s use and deployment of the Licensed Program Material.
8. TERMINATION
8.1 Term. This Agreement is effective as of the applicable Order Form and will remain in effect until terminated in accordance with this Agreement. If there is no Order Form currently in effect, then either Party may terminate this Agreement with ten 10 days’ notice to the other Party. Each Order Form, unless expressly stated otherwise therein, will terminate upon expiration of the applicable Subscription Term or upon earlier termination as set forth in this Agreement or the Order Form.
8.2 Termination for Cause. Either Party may terminate this Agreement (including all related Order Forms) if the other Party (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that Party and is not dismissed within 60 days.
8.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease use of the applicable Software and delete all copies of the Licensed Program Material, any Service passwords codes, and any other Datawire Confidential Information in its possession and certify in writing to Datawire, within 30 days of termination of this Agreement, that Customer has complied with the foregoing. As an exception to the foregoing, Customer may continue to use portions of the Software governed by an OSS License for so long as Customer remains in compliance with the applicable OSS License. Except where an exclusive remedy is specified, the exercise of either Party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4 Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 8.4, Section 5 (Ownership), Section 7 (Fees), Section 8.3 (Effect of Termination), Section 9.2 (Disclaimer of Warranties), Section 10 (Confidentiality), Section 11 (Indemnification), Section 12 (Limitation of Liability), and Section 14 (Miscellaneous).
9. REPRESENTATIONS AND WARRANTIES
9.1 LIMITED WARRANTY. Datawire represents and warrants that during the Term, the Software shall perform substantially in accordance with the Documentation. The sole and exclusive remedy for any breach of the foregoing warranty is Datawire’s performance of the support obligations set forth in the Support Schedule.
9.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION 9, THE LICENSED PROGRAM MATERIAL AND SERVICES ARE PROVIDED “AS IS.” DATAWIRE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DATAWIRE MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED PROGRAM MATERIAL OR THE SERVICESWILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, INFORMATION, MATERIALS OR OTHER MATTER (INCLUDING ANY SOFTWARE, HARDWARE, FIRMWARE, SYSTEM OR NETWORK) EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. Customer is solely responsible for determining the appropriateness of using the Software.
10. CONFIDENTIALITY
10.1 Definition. “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that: (a) if disclosed in writing or other tangible form or medium, is marked “confidential” or “proprietary”; or (b) due to the nature of its subject matter or the circumstances surrounding its disclosure, would reasonably be understood to be confidential or proprietary. Without limiting the foregoing: the Licensed Program Materials are the Confidential Information of Datawire.
10.2 General Obligation. Each Party shall use reasonable care to protect the confidentiality thereof, using at least the same measures it would use to protect its own similar, Confidential Information disclosed by the other Party and shall not (a) use such Confidential Information for any purpose except the performance of this Agreement, or (b) disclose any such Confidential Information to any person (except employees or agents on a need-to-know basis where such persons have agreed to be bound in writing to obligations of confidentiality at least as protective as the terms of this Section 10.2), unless such disclosure is authorized by the other Party in writing, or (c) disclose any such Confidential Information required by court or judicial order without first informing the other Party and cooperating with such other Party if such other Party shall contest such disclosure or seek a protective order. The obligations of each Party under this Section 10 shall not apply to information which (i) was generally known in the trade or business in which it is practiced by the receiving Party at the time of disclosure, or becomes so generally known after such disclosure, through no act of the receiving Party and otherwise than as a result of a breach of this Section; (ii) has come into the possession of the receiving Party rightfully from a third party without obligation of confidentiality; (iii) was developed by the receiving Party independently of and without reference to Confidential Information; or (iv) is disclosed pursuant to any legal, judicial or arbitration or similar legal proceeding or as required by law; provided that the receiving Party disclosing such information uses all reasonable efforts to protect the information as being confidential.
10.3 Notification. Each Party shall notify the other promptly and in writing of the existence of any circumstances surrounding unauthorized access, disclosure, distribution, possession, alteration, transfer, reproduction or use of Confidential Information, and in the case of Customer, of the Licensed Program Material, or any portions thereof.
11. INDEMNIFICATION
11.1 Datawire Indemnification. Datawire shall defend Customer from and against any and all third party claim, suit, action or proceeding (each, an “Action”) that any of the Licensed Program Materials infringes any U.S. Intellectual Property Rights. Further Datawire shall indemnify and hold harmless Customer from and against any loss, damages or liabilities (collectively, “Losses”) finally adjudicated or settled and resulting from an Action. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any of the following and Customer agrees to indemnify Datawire from Actions arising from (a) modification of the Licensed Program Materials by any party other than Datawire without Datawire’s express consent; (b) the combination, operation, or use of the Licensed Program Materials with other product(s), data or services where the Licensed Program Materials would not by itself be infringing; or (c) unauthorized or improper use of the Licensed Program Materials.
11.2 Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 11.1. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.2 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
11.3 Mitigation. If the Licensed Program Material or Services, or any part of thereof, are, or in Datawire’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third party Intellectual Property Right, or if Customer’s use of any of the Licensed Program Material or Services is enjoined or threatened to be enjoined, Datawire may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use such Licensed Program Material or Services, as applicable, as contemplated by this Agreement;
(b) modify or replace such Licensed Program Material or Services, as applicable, in whole or in part, to seek to make these non-infringing, while providing materially equivalent features and functionality, and such Services and Licensed Program Material as so modified or replaced will constitute Services and Licensed Program Material under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Licensed Program Material or Services, as applicable, and require Customer to immediately cease any use of the Licensed Program Material or Services or any specified part or feature thereof.
11.4 THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DATAWIRE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE LICENSED PROGRAM MATERIAL AND SERVICES) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
12. LIMITATION OF LIABILITY
12.1 No Consequential Damages. EXCEPT FOR LIABILITY ARISING FROM BREACH OF SECTIONS 3.1 (LICENSE), 3.4 (RESTRICTIONS) OR 10 (CONFIDENTIALITY) OR LIABILITY ARISING FROM SECTION 11 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY THEREOF (WHETHER ANY SUCH CLAIMS ARISE UNDER THEORY OF CONTRACT, TORT OR OTHERWISE).
12.2 Limitation of Liability. except for liability arising from breach of Sections 3.1 (License), 3.4 (Restrictions), 10 (Confidentiality) or liability arising from Section 11 (indemnification), To the extent permitted by applicable law, the liability of either party and Datawire’s licensors, and either party’s personnel, subcontractors and suppliers arising out of, in connection with, or resulting from this Agreement and, without limitation, breach of contract, tort, warranty or otherwise, shall in the aggregate not exceed the Fees paid or payable by Customer hereunder in the 12 months immediately preceding the event giving rise to the claim.
13. FORCE MAJEURE
13.1 No Breach or Default. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law (including regulation) or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power, telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 30 days or more.
13.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable/diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
14. MISCELLANEOUS
14.1 Further Assurances. Upon reasonable request, a Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
14.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
14.3 Public Announcements. Customer agrees to participate in press announcements, case studies, or other marketing reasonably requested by Datawire. During the term of this Agreement and for 30 days thereafter, Customer grants Datawire the right, free of charge, to use Customer’s name and/or logo, worldwide, to identify Customer as such on Datawire’s website or other marketing or advertising materials.
14.4 Notices. Datawire will provide Customer with notices that affect Datawire’s customers generally (e.g., notices that relate to modifications or updates to, or the availability or interoperability of, the Software) via e-mail or the Software. Datawire will provide Customer with any legal notices by e-mail to the e-mail address Customer provided Datawire on the applicable Order, or during Customer’s registration for the Software, or to a substitute, updated e-mail address that Customer has provided to Datawire for these purposes. Customer is responsible for keeping its e-mail address current with Datawire. Except as otherwise specified in this Agreement, all notices to be given to Datawire under this Agreement must be in writing and sent by email to legal@Datawire.io or to a substitute, updated address notified by Datawire, marked “Attention: Legal Department”. Notices sent electronically will be deemed received within one (1) business day of dispatch.
14.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; and (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa. Unless the context otherwise requires, references in this Agreement: (i) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
14.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.7 Entire Agreement. This Agreement, including the Order Forms, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties (including additional or differing terms and conditions referenced in any Customer purchase orders), both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, and the Order Forms, the following order of precedence governs: (a) first, the Order Form; (b) second, this Agreement; and (c) the exhibits to this Agreement.
14.8 Assignment. Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the other Party’s prior written consent, provided however, that either party may assign this Agreement to any successor to all or substantially all of its business without the consent of the other party. Any purported assignment, delegation or transfer in violation of this Section 14.8 is void. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
14.9 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other individual or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
14.10 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14.11 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal law of the State of Massachusetts without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the law of any jurisdiction other than those of the State of Massachusetts. Any legal suit, action or proceeding arising out of or related to this Agreement or the Licensed Program Material, Services, or other subject matter hereof, or any transactions contemplated hereby, shall be instituted exclusively in the federal courts of the United States or the courts of the State of Massachusetts in each case located in the city of Boston or Suffolk County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court. Specifically excluded from application to this Agreement is the United Nations Convention on the International Sale of Goods.
14.13 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal suit, action or proceeding arising out of or relating to this Agreement or the Licensed Program Material, Services, or other subject matter hereof, or any transactions contemplated hereby.
14.14 Equitable Remedies. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 10 (Confidentiality), or, in the case of Customer, Section 5 (Ownership), or Section 5 of Exhibit A (Customer Obligations), of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
14.15 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
1. Support Services Definitions
1.1 “Error” means a reproducible failure of the Software to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause.
1.2 “Incident” means a support request that begins when Customer contacts Datawire to report one specific Error and ends when Datawire either: (a) Resolves the Error; or (b) determines in its sole discretion that the Error cannot be Resolved.
1.3 “Resolve” means the provision of: (a) Services that, in Datawire’s sole discretion, corrects the Error; (b) information to Customer that corrects the Error; (c) information to Customer on how to obtain a software solution that corrects the Error; (d) notice to Customer that the Error is caused by a known, unresolved issue or an incompatibility issue with the Software; (e) information to Customer that identifies the Error as being corrected by upgrading to a newer release of the Software; or (f) notice to Customer that the Error has been identified as arising out of or resulting from a Service Exception (as defined below).
1.4 “Respond” means Datawire’s initial communication with Customer, whether by telephone, e-mail or otherwise, acknowledging Customer’s request for Services in connection with a specific Error. “Response” has a correlative meaning.
2. Support Services
2.1 Maintenance Releases. During the applicable Subscription Term, Datawire will provide Customer with updates, upgrades, releases, or other adaptations or modifications of the Software, including updated Documentation (each, a “Maintenance Release”), which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software. Datawire provides all Maintenance Releases under the terms and conditions set forth in the Agreement. Maintenance Releases do not include new, separate product offerings, which may be offered by Datawire from time to time and at a separate cost. Upon release, Maintenance Releases are deemed to be Licensed Program Material.
2.2 Service Evolution. Datawire may, in its sole discretion, change aspects of the Services or their performance on 30 days’ prior written notice to Customer, provided that no such change materially reduces or otherwise has a material adverse effect on the: (a) Datawire’s level of effort in performing the Services; (b) Datawire’s obligation to provide the Services under this Agreement; or (c) Customer’s rights under this Agreement.
2.3 Subcontractors. Datawire may, in its sole discretion, perform any of the Services by or through third parties or any other Datawire personnel.
3. Limitations
3.1 Incidents. Datawire has the sole right to determine, in its reasonable discretion: (a) what constitutes an Incident; and (b) when an Incident is deemed to be Resolved.
3.2 Response Time and Resolution. Datawire will use commercially reasonable efforts to: (a) Respond within the applicable Response time; and (b) Resolve an Incident, but does not guarantee that it will be able to Respond within that specific time period or that any Incident will be Resolved.
3.3 Effect of Customer Failure or Delay. Datawire is not responsible or liable for any delay or failure of performance caused in whole or in part by any delay or failure to perform any of Customer’s obligations under the Software License Agreement or this Agreement in accordance with the respective terms and conditions of these agreements (each, a “Customer Failure”).
3.4 After Hours Support Requests. If Customer has not purchased 24x7 support from Datawire and Customer escalates an Incident after Datawire business hours and Datawire responds to such Incident after Datawire business hours, then Customer agree to pay, upon demand, the then current fee for 24x7 support (currently 40% of the Customer annual subscription license fee for the Software).
4. Exceptions. Datawire has no obligation to provide Services relating to Errors that, in whole or in part, arise out of or result from any of the following (each a “Service Exception”):
(a) Software that is modified by or on behalf of Customer (other than by Datawire);
(b) any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation, unless otherwise expressly permitted in writing by Datawire;
(c) any negligence, abuse, misapplication or misuse of the Software other than by Datawire personnel, including any Customer use of the Software other than as specified in the Documentation;
(d) any Customer Failure, including Customer’s failure to promptly install any Maintenance Release that Datawire has previously made available to Customer;
(e) the operation of, or access to, Customer’s or a third party’s system or network (e.g., cloud provider); or
(f) any Force Majeure Event (including abnormal physical or electrical stress).
5. Customer Obligations.
5.1 Notification. Customer shall promptly notify Datawire of any Error and provide Datawire with reasonable detail of the nature and circumstances of the Error.
5.2 Compliance. Customer shall comply with all terms and conditions of this Agreement and the Software License Agreement.
5.3 Use. Customer shall use the Software solely in accordance with the terms and conditions set forth in the Software License Agreement and the Documentation. Customer is solely responsible for the operation, supervision, management and control of the Software, including but not limited to providing training for its personnel, instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use. Customer is solely responsible for its data, its database and for maintaining suitable backups of the data to prevent data loss in the event of any hardware or software malfunction.
5.4 Environment. Customer shall set up, maintain and operate in good repair and in accordance with the Documentation all environmental conditions and components, including all networks, systems and hardware, in or through which: (a) the Software operates; and/or (b) the Customer accesses or uses any of the Services.
5.5 Access. In connection with the performance of the Services, Customer shall provide Datawire personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable Datawire to perform its obligations (including the provision of the Services), and exercise its rights, under and in accordance with the terms and conditions of this Agreement, including:
(a) reasonable, uninterrupted access, both physical and virtual, to the Software and Customer’s premises, systems, networks and facilities;
(b) a safe working environment;
(c) reasonable access to the appropriate Customer personnel, including network, systems, operations and applications personnel; and
(d) all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing.
5.6 Technical Contact. Customer shall designate and maintain throughout the applicable Subscription Term one or more individuals, up to the maximum number as specified in the Order Form, to serve as its primary point of contact for day-to-day communications, consultation and decision-making regarding the Services (each, a “Technical Contact”). The Technical Contact(s) shall be the sole contact(s) between Customer and Datawire in connection with day-to-day matters relating to the provision of Services and be responsible for reporting Incidents, providing day-to-day consents and approvals on behalf of Customer, and communicating with and providing timely and accurate information and feedback to Datawire in connection with the Services. Customer shall ensure its Technical Contact(s) have the requisite organizational authority, skill, experience and other qualifications to perform these duties. Customer shall use commercially reasonable efforts to maintain the same Technical Contact(s) in place throughout the applicable Subscription Term and provide at least 3 days’ prior written notice to Datawire of any replacement or change in the name or contact information of any Technical Contact.
5.7 Information. Customer shall provide Datawire with all information reasonably requested by Datawire from time to time relating to Customer’s use of the Licensed Program Material or Services, including information on Customer’s hardware, network, systems and any related Third Party Software.