NOW, THEREFORE, intending to be legally bound hereby, DD TECH and End User agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in this Section 1.
“Confidential Information” shall mean confidential or other proprietary information that is disclosed by either party to the other under this Agreement, including, without limitation, the Subscription Services, software designs and code, product specifications and documentation, product plans, customer information, marketing materials, employee names, and other confidential business information, including, without limitation, the terms of this Agreement and any Orders. Confidential Information shall not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the receiving party; (b) is disclosed by the receiving party with the prior written approval of the disclosing party; (c) was known to the receiving party prior to its disclosure to the disclosing party without breach of any obligation owed to the disclosing party; (d) was independently developed by the receiving party; or (e) is received from a third party without breach of any obligation owed to the disclosing party.
“Documentation” shall mean written documents or other materials relating to use of the Subscription Services which are made available by DD TECH to End User.
“Effective Date” shall mean the date End User signs this Agreement.
“End User” means the party that executes this Agreement as End User.
“Go Live” means the date upon which End User commences use of the Subscription Services to process real data in live operation mode and for running End User’s internal business operations.
“Intellectual Property Rights” shall mean all forms of intellectual property rights and protections that may be obtained for, or may pertain to, the Subscription Services, the Confidential Information, and the Documentation, including, without limitation, all right, title, and interest arising under U.S. common and statutory law and the laws of other countries to all: (a) patents and all filed, pending, or potential applications for patents, including any reissue, reexamination, division, continuation, or continuation-in-part applications throughout the world now or hereafter filed; (b) trade secret rights and equivalent rights; (c) copyrights, other literary property or authors’ rights, whether or not protected by copyright or as a mask work; and (d) proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names adopted from time to time to identify a party or its products or services.
”Material Defect” shall mean any reported malfunction, error, or other defect in the Subscription Services that: (a) can be reproduced by DD TECH; and (b) constitutes a substantial nonconformity with the published specifications for the Subscription Services.
“Order” means any purchase order or other form of writing that is physically or electronically executed by both End User and DD Tech and references this Agreement or otherwise seeks to purchase the offerings subject to this Agreement. The initial Order is set forth on Exhibit A.
“Paid Subscription Services” means Subscription Services purchased under an Order.
“Subscription Fees” has the meaning set forth in Section 5.1.
“Subscription Term” means, as applicable, either the Initial Subscription Term or the Renewal Subscription Term as defined in Section 8.2.
“Subscription Services” means a remotely or locally hosted incidence of DD TECH software provided to End User by DD TECH or an authorized agent of DD TECH pursuant to an Order.
”Users” mean those individuals who are employed or contracted by the End User and who are authorized by End User to use the Subscription Services pursuant to an Order.
2. SUBSCRIPTION SERVICES
2.1 Paid Subscription Services. DD Tech will make the Paid Subscription Services available to End User subject to the terms of this Agreement.
2.2 Restrictions. End User shall not: (a) reverse engineer, decompile, translate, disassemble, or attempt to discover the source code for all or any portion of the Subscription Services; (b) license, distribute, or disclose the Subscription Services, in whole or in part, to any third party; (c) use the Subscription Services for any purpose other than using End User own data in accordance with the terms of this Agreement; (d) use the Subscription Services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purpose; (e) access the Subscription Services in order to build a competitive product or services, or (f) exceed any usage restrictions or quantities set forth in the applicable Order.
3. END USER OBLIGATIONS
3.1 General. End User shall reasonably cooperate with DD TECH, its authorized agents in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required by DD TECH, its agents and authorized agents, and taking such other actions as DD TECH, its authorized agents may reasonably request. End User shall (a) be responsible for the Users’ compliance with the terms of this Agreement; (b) use commercially reasonable efforts to prevent unauthorized access or use of the Subscription Services; and (c) use the Subscription Services in accordance with the Documentation, the terms of this Agreement, and any applicable laws and governmental regulations. End User shall not (a) sell, resell, rent or lease the Subscription Services, and (b) interfere with or disrupt the integrity or performance of the Subscription Services or third-party data contained therein.
3.2 Primary Contacts. End User shall designate an employee liaison to serve as a primary business contact (the “Primary Contact”), one that will serve as “Program Administrator” to be responsible for providing updated content and processes to DD TECH for incorporation in the Subscription Services, and one or more employee liaisons who will be responsible for first tier support of the Subscription Services (i.e., answering questions concerning the functionality of the software and Level 1 support matters). End User may change the individual(s) designated as primary contacts under this Section 3.2 at any time by providing written notice to DD TECH in accordance with the terms of this Agreement.
3.3 Posted Content and Data. End User agrees that End User shall be solely responsible for the content and data transmitted through the Subscription Services by End User or the Users, and that, upon termination or expiration of the Term, End User and the Users will not have access to any content or data posted to the Subscription Services. End User agrees to back up all such content and data. End User shall not (and shall ensure that the Users will not) (a) use the Subscription Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of any third party privacy rights or (b) use the Subscription Services to store or transmit any viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs. End User shall ensure that it is has all necessary appropriate consents and notices in place to enable lawful transfer of its User’s personal data, in accordance with all applicable laws, to DD TECH for the duration and purposes of this Agreement.
4. DD TECH’S OBLIGATIONS
4.1 Hours of Availability. DD TECH shall use commercially reasonable efforts to make the Subscription Services available twenty-four (24) hours per day. Notwithstanding the foregoing, DD TECH reserves the right to suspend End User access to the Subscription Services (a) in the event that End User materially fails to fulfill End User obligations under this Agreement, (b) for purposes of scheduled maintenance, or (c) for purposes of emergency maintenance work at any time as deemed appropriate by DD TECH.
4.2 Upgrades. DD TECH may implement upgrades to the software and infrastructure which support the Subscription Services. End Users will be notified of such upgrades in advance of their deployment. Should the implementation of an upgrade require material effort on the part of End User the End User will have the option to decline the upgrade to the Subscription Services.
4.3 Service Level Agreement. DD Tech will provide support to End User in accordance with the Service Level Agreement are provided in Exhibit B (the “Service Level Agreement”).
5. FEES AND PAYMENTS FOR SUBSCRIPTION SERVICES
5.1 Fees. In consideration of DD TECH providing access to the Subscription Services, End User shall pay to DD TECH (if applicable) the subscription fees set forth in the Order and for any Renewal Subscription Term (the “Subscription Fees”). The Subscription Fees are charged annually.
5.2 No Refunds. ALL SUBSCRIPTION FEES ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART. END USER IS FULLY LIABLE FOR ALL CHARGES TO END USER ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
5.3 Changes to Fees. DD TECH will not increase the Subscription Fee documented in Exhibit A for the Initial Subscription Term. After the Initial Subscription Term, fees and are subject to change from time to time in DD Tech’s sole discretion. DD Tech will notify End User of any change in fees at least nine (90) days in advance of any Renewal Subscription Term. If any change is unacceptable to End User, End User may cancel End User account at any time, but DD TECH will not refund any Subscription Fees that may have accrued to End User account before cancellation. DD TECH will in no event prorate fees under this Agreement.
5.4 Taxes. Fees under this Agreement are exclusive of all taxes, including national, state, or provincial and local use, sales, value added, property, and similar taxes, if any. End User shall pay, or reimburse DD TECH for, all such taxes or duties imposed on End User or DD TECH; provided, however, that End User shall not be liable for any taxes based on DD TECH’s net income or its employees.
Each party agrees not to transfer or otherwise disclose the Confidential Information of the other party to any third party with the exception of authorized agents of either party and authorized agents of DD TECH. Each party shall (a) give access to such Confidential Information solely to those employees and authorized agents with a need to have access thereto for purposes of this Agreement, and (b) take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own confidential information, but in no event shall a party apply less than a reasonable standard of care to prevent such disclosure or unauthorized use. Nothing in this Agreement shall prevent either party from disclosing the Confidential Information of the other party pursuant to any judicial or governmental order, provided that the receiving party gives the disclosing party reasonable prior notice of such disclosure (to the extent it is permitted to do so under such order) to contest such order.
7. INTELLECTUAL PROPERTY RIGHTS
Except as expressly set forth herein, DD TECH shall retain all right, title, and interest in and to, and shall be the sole owner of, all forms of intellectual property rights and protections in and to the Subscription Services, the documentation for the Subscription Services, and DD TECH’s Confidential Information. End User shall maintain all rights in the content and data that End User or the Users provide to DD TECH, as well as all of End User Confidential Information, including, without limitation, information in DD TECH’s databases related to End User and the Users. Neither party shall copy, distribute, reproduce, or use the other party’s property except as expressly permitted under this Agreement.
8. TERM AND TERMINATION
8.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Services hereunder have expired or have been terminated.
8.2 Terms of Subscription Services. The initial subscription term for the Subscription shall be as specified in the initial Order (the “Initial Subscription Term”). Except for as otherwise specified in an Order, Subscription Services will automatically renew for additional subscription terms equal to one year (each a “Renewal Subscription Term”), unless either party gives the other party written notice delivered in accordance with Section 11.3 of its intention to terminate not less than thirty (30) days prior to expiration of the then current Initial Subscription Term or Renewal Subscription Term. Any added subscriptions will terminate on the same date as the underlying subscriptions.
8.3 Termination. Either party may terminate this Agreement and all Orders under it for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by DD TECH, End User shall pay any unpaid fees covering the remainder of the term of the Agreement and all related Exhibits. In no event shall any termination relieve End User of the obligation to pay any fees payable to DD TECH for the period prior to the effective date of termination. Upon the expiration or sooner termination of this Agreement, all rights granted to End User pursuant to Sections 2 of this Agreement shall automatically and immediately cease. The parties’ payment obligations which accrue prior to expiration or termination of this Agreement, DD TECH’s disclaimers of warranties under Section 9, and Sections 6, 7, 8, 10, and 11 shall survive expiration or termination of this Agreement for any reason.
8.4 End User Data. Upon termination of this Agreement any End User data stored in the Subscription Services will be retrieved and provided to the End User within 5 working days.
9. LIMITED WARRANTY
During the Term for any Paid Subscription Services, DD TECH warrants that the Subscription Services when operated on the hardware and software required to operate the Subscription Services, as specified by DD TECH from time to time, will be free from Material Defects. DD TECH’s sole responsibility under this warranty shall be, at DD TECH’s option, to either repair the Material Defect in accordance with the Service Level Agreement, or if DD TECH cannot repair the Material Defect, to return to End User a pro-rata refund of the Subscription Fees paid hereunder, limited to the time period during which the Material Defect impaired End User use of the Subscription Services. The foregoing states End User’s sole and exclusive remedy for a breach of the warranty set forth in this Section 9. DD TECH represents and warrants that: (a) the Subscription Services will perform in accordance with its published specifications; (b) DD TECH is the sole owner of the Subscription Services and has obtained any and all valid software licenses for any of the software DD TECH uses to perform its services related to the Subscription Services. DD TECH does not warrant that the Subscription Services are error-free. DD TECH shall have no liability resulting from (i) the combination, operation, or use of the Subscription Services with equipment, devices, or software not supplied or approved by DD TECH; or (ii) the alteration or modification of the Subscription Services that was not made or authorized (in advance and in writing) by DD TECH. EXCEPT FOR THE WARRANTIES SPECIFICALLY STATED IN THIS SECTION 9, DD TECH HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SUBSCRIPTION SERVICES OR THE DD TECH SOFTWARE OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF SUBSCRIPTION FEES PAID TO DD TECH HEREUNDER DURING THE PRECEDING SIX MONTHS. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO INTENTIONAL MISCONDUCT OR EITHER PARTY’S BREACH OF SECTIONS 6 AND 7 OF THIS AGREEMENT.
11. GENERAL PROVISIONS
11.1 Governing Law. This Agreement shall be governed by the laws of the State of Georgia without reference to its conflicts of law principles, and without regard to the provisions of any state Uniform Computer Information Transactions Act or similar federal or state laws or regulations. The U.S. Federal Court for the Northern District of Georgia and the state courts located within Fulton County, Georgia, shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.
11.2 Entire Agreement. This Agreement and the Orders constitute the complete and exclusive agreement of the parties and supersede all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in a writing signed by both parties.
11.3 Notices. Except as otherwise specified in this Agreement, all notices and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after dispatch by certified mail, postage prepaid; (c) the second business day after sending by confirmed facsimile; or (d) the first business day after sending by e-mail. Notices to End User shall be addressed to the employee liaison designated as End User Primary Contact in accordance with Section 3.2 of this Agreement. Notices to DD TECH shall be sent to the following address (or such other address that DD Tech provides notice of to End User):
Demand Driven Technologies, Inc.
400 Northridge Road
Atlanta, Georgia 30350
Fax: (360) 802-0277
11.4 Force Majeure. Excluding End User obligation to pay the Subscription Fees, nonperformance by either party under this Agreement shall be excused to the extent the performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, acts of terror, Internet service provider failures or delays, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non-performing party.
11.5 Assignability and Binding Effect. End User shall not assign this Agreement, in whole or part, or sublicense the Subscription Services, without DD TECH’s prior written consent. Such written consent will not be unreasonably withheld. Any prohibited assignment or sublicense hereunder shall be null and void. For purposes of this Agreement, any assignment or transfer of this Agreement by merger or otherwise by operation of law shall constitute an assignment of this Agreement by End User for purposes of this Section 11.5.
11.6 Severability. If any provision of this Agreement is held to be invalid or unenforceable under the circumstances, such provision’s application in any other circumstances and the remaining provisions of this Agreement shall not be affected thereby.
11.7 Waiver. No failure or delay on the part of either party in exercising any right hereunder, irrespective of the length of time for which such failure or delay shall continue, will operate as a waiver of, or impair, any such right. No single or partial exercise of any right hereunder shall preclude any other or further exercise thereof or the exercise of any other right. No waiver of any right hereunder will be effective unless given in a signed writing.
11.8 Relationship of the Parties. The relationship established between the parties by this Agreement is that of independent contracts.