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CONFIDENTIAL
This Application Service Provider Agreement (the "Agreement") is made as of 10/05/2024 (the "Effective Date") by and between Workforceable, LLC ("Provider"), a limited liability corporation organized and existing under the laws of the State of Wyoming, with its principle office located at 30 N Gould St Ste R, Sheridan, WY 82801, and the User identified in the Registration Form ("Customer").
WHEREAS Provider owns Workforceable™ ("Platform"), described as web-based software generally used for organizing storage spaces for keeping track of the location of physical items within them, and for managing the movement of physical items from one location to another and keeping track of the physical items while in transit;
WHEREAS Customer desires to obtain access to the Platform and Provider's application services; and
WHEREAS Provider is willing to enter into an agreement with Customer whereby Customer and Customer's users will obtain access to the Platform.
NOW, THEREFORE, the parties agree as follows:
DEFINITIONS
The following terms, when capitalized, will have the meanings designated in this Definitions section:
Access: An event in which Customer or one of Customer's users logs on to the Platform using an identifying electronic mail address and a "password".
Affiliate: Any entity or person directly or indirectly controlling, controlled by or under common control with Customer or any entity or person with whom Customer has a business relationship. For the purpose of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as used with respect to Customer, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Customer, whether through the ownership of voting securities or by contract or otherwise.
Confidential Information: Any and all information disclosed by either party to the other that is marked "confidential" or "proprietary," including orally conveyed information designated confidential at the time of disclosure provided that it is reduced to a written summary marked "confidential" that is supplied to the other party within 30 days of the oral disclosure, pricing, terms, attachments, exhibits and all information related to the software associated with this Agreement. Confidential Information shall be deemed to include the Platform and Provider's Services. "Confidential Information" does not include any information that the receiving party can demonstrate is: (a) rightfully known prior to disclosure; (b) rightfully obtained from a third party authorized to make such a disclosure, without breach of the terms and conditions of this Agreement; (c) independently developed by the receiving party as demonstrated by contemporaneous documents; (d) available to the public without restrictions; (e) approved for disclosure with the prior written approval of the disclosing party; or (f) disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
Copyright Protected Material: Any text or electronic file that is the copyrighted property of a third party.
Customizations: Programming that is performed by Provider at the request of Customer which may be billed at Provider's hourly programming rate, with prior written approval from Customer, and shall remain the sole intellectual property of the Provider and may be used without restriction by the Provider.
Downtime: The period in which packets are not being sent and received from Provider's Servers.
Licensed Software: Provider's Platform comprises proprietary software, including database models, hosted on Provider's Servers.
Permitted Users: Individuals employed or retained by Customer; or its users who have been identified to Provider and given a password to Access the Platform Licensed Software pursuant to this Agreement.
Provider's Servers: Computer hardware servers controlled by Provider, or computer hardware servers leased by Provider from a third-party which Provider retains administrative control over.
Sandbox: The area of the Provider's Server where Customer's electronic files will reside and be accessed.
Support Services: General technical assistance and training made available by Provider to Customer and its users free of charge, or advanced technical assistance and training which may be billed at Provider's rates upon prior approval from Customer.
Trade Secrets: Provider's proprietary "secret sauce", including but not limited to how Provider does business and the methods by which Provider's Platforms function and operate, which Customer may gain access to through the use of Provider's Platform.
User Copyright Protected Materials: All information and electronic documents entered by Customer's users utilizing the Provider's Platform shall remain the copyrighted property of said user and shall be distributed only at their will.
TERMS AND CONDITIONS
1. Services.
1.1
Provider Services: Subject to the terms of this Agreement, Provider will provide Customer with Support Services as set forth in Exhibit A.
1.2
Scheduled Available Time: Provider shall use reasonable efforts to make the Platform available twenty-four (24) hours per day, seven (7) days a week, excluding:
1.2.1
Scheduled downtime for Platforms maintenance, including without limitation diagnostics, upgrades, and operations reconfiguration.
1.2.2
Unscheduled downtime caused by other forces beyond the immediate control of Provider, including software defects, hardware failures, or downtime caused by Customer's (or Customer's users) network or the Internet.
1.3
Unscheduled Downtime: In the event that Provider Servers experience Downtime, then Customer may be entitled to a credit, as set forth in Exhibit B. The credit described in this paragraph is Customer's sole and exclusive remedy related to Downtime.
1.4
Training and Development Services. Training and software development are not included in the Provider Support Services. If Customer desires to obtain such services, Provider may provide them free of charge or pursuant to Provider's standard Professional Services Agreement at Provider's discretion with prior approval from Customer.
2. Licenses.
2.1
Licensed Software: Subject to the terms of this Agreement, Provider hereby grants to Customer a nonexclusive, limited, personal license to allow the Permitted Users to use the Licensed Software via the Internet. As part of its licensed use of the Licensed Software, Customer (or its users) may incorporate text or electronic files which may be Copyright Protected Materials. Customer and its users are solely responsible for adherence to all relevant copyright laws and to the protection of their own User Copyrighted Materials. Provider reserves all rights and licenses in and to the Licensed Software not expressly granted to Customer under this Agreement.
2.2
License Restrictions. Unless otherwise provided for in this Agreement, Customer may not, nor permit any third party to: (a) copy the Licensed Software; (b) modify, translate or otherwise create derivative works of the Licensed Software; (c) disassemble, decompile or reverse engineer the object code or source code of the Provider Licensed Software; (d) publish, or otherwise make available to any third party, any benchmark testing information or results; or (e) export or re-export the Licensed Software in violation of any United States export law or regulation.
2.3
Responsibility for Information. Customer acknowledges that Provider has no control over Customer's (and Customer's user's) entry of text beyond the filtering capabilities provided for within the software and further has no control over the content of any electronic files uploaded to Provider's Servers. Customer acknowledges that it is solely responsible for any consequences of the content of text and electronic files uploaded by it or its users; and assumes all risk associated with such operation, and furthermore Customer agrees that Provider shall have no responsibility and no liability to Customer or its users for any loss or damage of information or electronic files.
2.4
Backups of Information. Provider regularly makes back up copies of its databases and all electronic files uploaded to its Servers. As a courtesy, Provider will make one back up copy of Customer's database entries and electronic files uploaded to Provider's Servers per month upon request and make them available for download by Customer; Provider may charge a service fee for making further backups at Customer's request. Copies of Customer's database entries shall not include the database header row.
3. Intellectual Property.
3.1
Provider's Intellectual Property: Provider and its licensors (if any) exclusively own all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation or techniques Provider provides under this Agreement, and all technology available on the Provider Servers. Customer agrees and acknowledges that no title to the Licensed Software or any aspect of the Provider's Services shall pass to Customer under this Agreement.
3.2
Customer's Copyright Property: Customer (and its users) shall exclusively own all copyright rights, title and interest in the content of text and electronic files entered into the databases and Sandbox using the Provider Licensed Software. If Customer uses any Copyright Protected Material that is owned by a third party, Customer shall submit to Provider proof of the third party's approval, along with any restrictions on, the use of the Copyright Protected Material immediately upon request.
3.3
Retained Know-How. Customer acknowledges that Provider provides professional services and monitoring, configuring and testing services for other parties, and agrees that nothing herein will be deemed or construed to prevent Provider from carrying on such services. Nothing in this Agreement will preclude Provider from developing for itself, or for others. Provider will have the right to use techniques, methodologies, tools, ideas and other know-how gained during the performance of the services in the furtherance of its own business and to perfect all other intellectual property rights related thereto, including patent, copyrights (except as otherwise stated above) trademark and trade secrets.
4. Permitted Users.
Customer shall identify Customer employees and users who are Permitted Users. All of Customer's Permitted Users shall adhere to Provider's Terms of Use for the Licensed Software. Each user will use a combination of a unique verified electronic mail address and password to access the Licensed Software for the purposes permitted by this Agreement. Customer will take such actions as are necessary in order for it to maintain the confidentiality of, and prevent the unauthorized use of, each password, including entering into appropriate agreements with its Permitted Users. Customer will immediately notify Provider in writing if Customer determines, or has reason to believe, that an unauthorized party has gained access to a password. Customer authorizes Provider to rely upon any information and/or instructions set forth in any data transmission using the assigned password, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of the Licensed Software. Use of the registered password, whether or not authorized by Customer, shall be solely the responsibility of and the risk of Customer. Customer shall indemnify, defend, and hold harmless Provider from any claim, proceeding, loss or damages based upon any use, misuse, or unauthorized use of Customer's or its Permitted Users' passwords. Customer or its Permitted Users may select to have their login credentials saved to cookies in order to keep them logged in to the Licensed Software; a total of three cookies will be saved for this purpose.
5. Payment Obligations.
Payment and Invoicing terms and obligations shall be as set forth on Exhibit C attached hereto.
6. Confidential Information.
6.1
Agreement Terms: Under no circumstances may either party disclose any pricing or business terms related specifically to this Agreement, or any negotiations thereof, to any third party (including, but not limited to, competitors, industry analysts, press or media).
6.2
Obligation: Neither party will use any Confidential Information of the disclosing party except as expressly permitted in this Agreement or as expressly authorized in writing by the disclosing party. Each party shall use the same degree of care to protect the disclosing party's Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither party is allowed to disclose the other party's Confidential Information to any person or entity other than the receiving party's officers, employees, consultants and legal advisors who need access to such Confidential Information to effect the intent of the Agreement. Each individual or entity receiving Confidential Information pursuant to this subsection must have entered into a written confidentiality agreement the sole objectives of which are to further the intent of this Section 6. Customer shall not disclose, orally or in writing, any in-development additions of the Licensed Software to any third party. Each party agrees to notify the other of any unauthorized use or disclosure of Confidential Information and to provide reasonable assistance to such other party, and its licensors, in the investigation and prosecution of such unauthorized use or disclosure.
6.3
Deemed Confidential Information. The Licensed Software, pricing, users, and business practices shall be deemed the Confidential Information and trade secrets of Provider.
7. Term and Renewal.
Subject to the survival provision set forth below in Section 13, either party may terminate this Agreement upon 30-days' prior written notice. The payment terms of this Agreement set forth in Exhibit C shall be effective for a period of one year starting from the Effective Date ("Initial Term"). Upon expiration of the Initial Term, this Agreement may be renewed for successive one-year terms at Provider' then-current rates.
8. Termination.
This Agreement, and any Exhibit referencing this Agreement, may be terminated as follows:
8.1
If Customer fails to make any payment due hereunder, and fails to cure such breach within 10 days after receiving written notice from Provider, then Provider may immediately and without further notice terminate this Agreement and declare all sums due, and to become due hereunder, immediately payable.
8.2
Except as set forth in Section 8.1 above, if either party materially breaches any term or condition of this Agreement and fails to cure such breach within 30 days after receiving written notice of the breach, the non-breaching party may terminate this Agreement on written notice at any time following the end of such 30-day period.
8.3
This Agreement may terminate immediately upon notice by Provider if a receiver is appointed to Customer, an assignee is appointed for the benefit of creditors of Customer, or in the event of Customer insolvency or Customer's inability to pay debts as they become due, except as may be prohibited by applicable bankruptcy laws. Such termination shall not be deemed a material breach of this Agreement, and Customer shall not incur any additional liability due to such termination.
8.4
Software: Upon termination or expiration of this Agreement, all Customer rights to Provider Services and Licensed Software, including but not limited to the rights to use and Access, automatically terminate immediately.
8.5
Return of Data: Subject to payment of all amounts due hereunder, and upon written request, Provider will provide to Customer such contents of the databases and Sandbox that are owned by Customer, as such contents exist on the date of termination, in the standard backup format described in Section 2.4.
8.5
Refund of Prepaid Licensing Fee: As long as Termination is not due to a material breach of this Agreement, Provider will remit to Customer a refund for any unused portion of the Licensing Fee, based on a monthly calculation, for all months subsequent to the month of actual Termination.
9. Limitation of Liability.
9.1
IN NO EVENT WILL PROVIDER'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE ALLEGED LIABILITY AROSE. IN NO EVENT WILL PROVIDER, ITS LICENSORS, OR ITS SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER OR ITS PERMITTED USERS FOR ANY CONSEQUENTIAL OR INCIDENTAL LOSSES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE OR OF DATA, ANY UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER'S OR ITS PERMITTED USERS' COMPUTERS, COMPUTER PlatformS, DATA FILES, PROGRAMS OR INFORMATION, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES AGREE THAT THE TERMS IN THIS LIMITATION OF LIABILITY SECTION REPRESENT A REASONABLE ALLOCATION OF RISK.
9.2
Disaster Recovery: Provider will make commercially reasonable efforts to create and protect back-up copies of Customer data and electronic files. Subject to the above, Provider shall have no liability or duty of indemnification related to lost or corrupted Customer data or electronic files. This limitation of liability eliminates any duty or liability on the part of Provider related to lost or corrupted Customer data or electronic files resulting in part or in whole from third-party software or networking goods or services or from actions or events outside of its control.
10. Warranty.
10.1
Mutual Warranty: Each party warrants to each other that it has the right and authority to enter into, and to grant the rights and perform the obligations described in, this Agreement.
10.2
Limited Warranty. Each party will perform its obligations hereunder in a good and workmanlike manner.
10.3
Disclaimer: Provider specifically does not warrant that the Licensed Software or Services will meet all of Customer's requirements, that the use of the Licensed Software or Provider Services will be uninterrupted or error-free. Provider disclaims any and all liability resulting from or related to any breach of Internet security or disruption of Customer's connections to the Internet, due to any reason beyond Provider's control.
10.4
Exclusive Warranty: THE ABOVE WARRANTY IS EXCLUSIVE. PROVIDER MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE TERMS OF THE SOFTWARE, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
10.5
As-Is Basis: THE SOFTWARE AND SERVICES ARE PROVIDED TO CUSTOMER UNDER THIS AGREEMENT ON AN "AS-IS" BASIS. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
11. Indemnity.
11.1
Provider Indemnity: Provider will indemnify Customer from and against any loss, damage, liability or expense (including, but not limited to reasonable attorney's fees) incurred by or awarded against Customer, to the extent that it is based upon a claim that the Licensed Software, as provided by Provider to Customer under this Agreement and used within the scope of this Agreement, infringes any U.S. patent or copyright issued as of the Effective Date, or incorporates any misappropriated trade secrets. Provider' obligations to Customer under this Section shall only be valid provided that Customer: (a) promptly notifies Provider in writing of the claim; (b) grants Provider sole control of the defense and settlement of the claim, provided that Provider will not settle a pending matter without first notifying Customer; and (c) provides Provider with all assistance, information and authority required for the defense and settlement of the claim.
11.2
Injunctions. If Customer's use of any of the Provider Products hereunder is, or in Provider's opinion is likely to be, enjoined due to the type of infringement specified above, Provider may terminate Customer's rights and Provider's obligations hereunder with respect to such Licensed Software with no further liability.
11.3
Exclusions. Provider will have no indemnification obligation for any claim of infringement or misappropriation to the extent that it results in whole or part from: (a) modification to the Licensed Software; (b) failure of Customer to use updated or modified Licensed Software provided by Provider to avoid a claim of infringement or misappropriation; (c) combination of the Licensed Software with other Platforms, products, processes or materials to the extent that such claim would have been avoided without such combination use of the Licensed Software; or (d) compliance by Provider with designs, plans or specifications furnished by or on behalf of Customer.
11.4
Customer Indemnity: Customer will indemnify Provider from and against any loss, damage, liability or expense (including, but not limited to reasonable attorney's fees) incurred by or awarded against Provider, to the extent that it is based upon a claim that Customer information or electronic files, or other Customer Platforms, materials or software, infringe any U.S. patent or copyright issued as of the Effective Date, or incorporate any misappropriated trade secrets. Customer's obligations to Provider under this Section shall only be valid provided that Provider: (a) promptly notifies Customer in writing of the claim; (b) grants Customer sole control of the defense and settlement of the claim; and (c) provides Customer with all assistance, information and authority required for the defense and settlement of the claim.
12. Audit Rights.
12.1
Upon request from Provider from time to time, Customer shall provide Provider with reasonable-access during normal business hours to audit Customer's records evidencing (a) Customer's use of the Licensed Software and (b) amounts paid by Customer to Provider pursuant to this Agreement. Any information received by Provider as the result of such an audit shall be deemed Confidential Information of Customer.
12.2
If it is determined as a result of any such audit that there has been an underpayment by Customer of fees due Provider pursuant to this Agreement in an amount equal to five percent (5%) or more of the total amounts that were due for the period audited, then Customer shall reimburse Provider for any costs and expenses reasonably incurred by Provider to conduct such audit. Any fees found to have been incorrectly computed or paid shall be corrected in the next regular payment to Provider by Customer with late charges assessed as provided in Exhibit C.
13. General.
13.1
Purchase Orders and Forms: The terms, provisions or conditions of any purchase order or any associated documentation used by Customer will be governed solely and exclusively by the terms of this Agreement, regardless of any failure of Provider to object to those terms, provisions or conditions.
13.2
Publicity: Customer understands that the domain name "workforceable.com" will appear throughout the Licensed Software. Customer agrees to the display of Provider's information related to the Licensed Software including, but not limited to, the name, Terms of Use, intellectual property rights, training, contact information, and marketing information; such information shall not appear in a manner that will unreasonably distract users from Customer's content. Provider and Customer may issue a mutually agreed upon press release announcing the relationship established by this Agreement, as well as other press releases as may be mutually agreed upon from time to time. Provider will have the right to include quotes from Customer in Provider press releases upon Customer's prior approval of such quotes, which approval will not be unreasonably withheld, conditioned or delayed. Customer agrees that Provider may use Customer's name, trademarks and logos in press releases, product brochures and similar marketing materials, financial reports and prospectuses indicating that Customer is a customer of Provider, and may use Customer as a reference for sales and public relations purposes. Provider agrees that Customer may use Provider's name, trademarks and logos in press releases, product brochures and similar marketing materials, financial reports and prospectuses indicating that Customer is a customer of Provider, and may use Provider as a reference for public relations purposes.
13.3
Assignment: Neither party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other party. Assignment without such consent shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
13.4
Amendment: The terms and conditions of this Agreement, may not be changed except by an amendment in writing, which references this Agreement and is signed by an authorized officer of each party.
13.5
Waiver: No failure or delay by either party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
13.6
Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Wyoming.
13.7
Arbitration and Equitable Relief: The parties agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be settled by expedited arbitration to be held in the city of Sheridan, Wyoming, in accordance with the rules of the American Arbitration Association then in effect. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court having jurisdiction. Provider and Customer shall each pay one-half of the costs and expenses of such arbitration, and each of the parties shall separately pay its counsel fees and expenses. Nothing herein shall prevent either party from seeking emergency equitable relief in a court of law if necessary.
13.8
Notices: All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement. Notices shall be effective upon (a) actual delivery to the other party, if delivered in person, or by facsimile, or by national overnight courier; or (b) five business days after being mailed via U.S. postal service, postage prepaid. All notices shall be sent to the address stated in this Agreement or at such other address as either party may provide by advance written notice in accordance with this subsection.
13.9
Independent Entities: As it relates to this Agreement, the parties are independent entities. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose; and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other, solely as a result of this Agreement.
13.10
Employer/Employee Relationship: Nothing contained within this Agreement constitutes any kind of employer/employee relationship between the two sovereign entities.
13.11
Severability: Any provision of this Agreement that is held to be unenforceable in any jurisdiction shall be ineffective only as to that jurisdiction, and only to the extent of the unenforceability of such provision without invalidating the remaining provisions hereof.
13.12
Force Majeure: Except for Customer's obligations to make payment hereunder, neither party will be deemed to be in breach of this Agreement, or be entitled to damages or credits pursuant to this Agreement, for any failure or delay in performance caused by reasons beyond its reasonable control, caused by the other party or by an act of God, war, civil disturbance, court order, labor dispute, or other cause beyond its reasonable control, including without limitation failures or fluctuations in power, heat, light, air conditioning or telecommunications equipment.
13.13
Complete Understanding: This Agreement, including all Schedules, Exhibits and Attachments, constitutes the final and complete agreement between the parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written.
13.14
Survival: The respective rights and obligations under the Sections headed Confidential Information, Termination, and Limitation of Liability, in addition to any payment obligations incurred pursuant to this Agreement, shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
Accepted and Agreed:
Customer's Authorized Representative upon submission of the Registration Form.
Workforceable, LLC
Exhibit A
SUPPORT SERVICES POLICIES
The following will apply so long as they remain the standard support services terms of Provider and so long as Customer is in full compliance with all applicable license and/or service agreements between Customer and Provider.
SCOPE OF SUPPORT SERVICES: Provider shall use reasonable efforts to provide the following services during Regular Hours as defined below:
- Enable standard e-mail and telephone support for up to 2 Customer employee contacts designated by Customer in writing to have access to the Provider support organization ("Authorized Contact Persons"). Additional contacts may be purchased, if so desired by the Customer. All inquiries to the Provider support organization must be made by an Authorized Contact Person.
- Provide product updates and new releases that Provider, at its discretion, makes generally commercially available without additional charge.
ERROR SEVERITY LEVELS: Provider shall exercise reasonable efforts to correct any Error (as defined below) reported in the current unmodified release of Licensed Software in accordance with the Severity level reasonably assigned to such Error by Provider. Severity levels are defined below in the Definitions section of this Exhibit A.
Severity 1 Errors - Provider shall promptly commence the following procedures upon notification of the problem during Regular Hours and upon confirmation by Provider that the Error is a Severity 1 Error:
1. Within the first four (4) business hours, Provider will document and commence recreation and resolution of the problem;
2. If resolution has not been determined after the initial four business hours, Provider will mobilize a technical team to troubleshoot the problem and define solution options;
a) Provider will assign a company representative to oversee and report on all corrective action activities;
b) A Provider company representative will initially notify Customer of problem resolution status and will report on the status every twenty-four (24) hours thereafter;
Severity 2 Errors - Provider shall exercise reasonable efforts to provide a Fix as soon as an Error has been identified and the appropriate Fix developed.
Severity 3 (or lower) Errors - Provider shall exercise reasonable efforts to include the Fix for the Error in a future release.
Customer is responsible for providing sufficient information and data to allow Provider to readily reproduce all reported Errors. If Provider believes that a problem reported by Customer may not be due to an Error in the Licensed Software, Provider will so notify Customer.
EXCLUSIONS: Provider shall have no obligation to support: (i) Licensed Software problems caused by Customer's negligence, abuse or misapplication, use of Licensed Software other than as specified in the Provider user manual or other training materials, or other causes beyond the control of Provider; (iii) problems arising from the operation of Customer electronic files; (iv) questions and problems associated with accessing Customer's (and its users’) hardware, software, networking Platforms or any other client-side hardware, software, or network.
TERM AND TERMINATION: Provider may elect, on thirty (30) days' notice, to discontinue use of its Services. After such time, any further product support must be negotiated with Provider, at its discretion.
DEFINITIONS:
"Error" means an error in the Licensed Software that significantly impairs such Provider Licensed Software as compared to the Provider published product documentation.
"Fix" means the repair or replacement of object to remedy an Error.
"Severity 1 Error" means an Error that renders the product inoperative. When attempting to use the product, the user is prevented from performing a necessary function and there is no acceptable Workaround.
"Severity 2 Error" means an error in which major functionality is experiencing a reproducible problem that causes major inconvenience to the user. A Workaround may exist but it has high user impact.
"Severity 3 Error" means an Error in which an important function is experiencing an intermittent problem or a common non-essential operation is failing consistently.
"Telephone Support" means telephone or email technical support assistance provided by Provider to the Technical Support Contact during Regular Hours concerning the use of the then-current release of a Provider Licensed Software and the previous sequential release.
"Workaround" means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing use of the Licensed Software.
"Regular Hours" means 8:OO AM to 5:OO PM Mountain Time on the regular business days of Provider.
THESE TERMS AND CONDITIONS DEFINE A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. ALL PRODUCTS AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE APPLICATION SERVICE PROVIDER AGREEMENT BETWEEN THE PARTIES. THESE TERMS AND CONDITIONS DO NOT CHANGE OR SUPERSEDE ANY PROVISION OF ANY SUCH AGREEMENT.
Exhibit B
UP TIME
In the event Customer or its users experience any of the following and Provider determines in its reasonable judgment that such event was caused by Provider's failure to provide Provider Licensed Software for reasons within Provider's reasonable control and not as a result of any action or inaction of Customer or any third party (including Customer equipment and/or third party equipment), Provider will, upon Customer's request in accordance with paragraph C below, credit Customer's account as described below:
A.
Inability to Access the Servers: Except for the exclusions described in Section 1.2 of this Agreement, if Customer or Customer's users are unable to transmit or receive information from Provider Servers to other portions of the Internet because Provider failed to maintain as operational the Provider Servers for more than four (4) consecutive hours, Provider will add one (1) additional day of service to the affected License(s). Provider's scheduled maintenance of the Provider Servers and Provider Licensed Software, as described in the Rules and Regulations, shall not be deemed to be a failure of Provider to provide Provider Servers. This credit is limited to one day of credit per 24-hour service period.
B.
Downtime: If Provider discovers (either from its own efforts or after being notified by Customer) that Customer is experiencing packet loss in excess of eighty percent (80%) that is sustained for a time period of more than fifteen (15) minutes, then such outage will be deemed downtime ("Downtime"), and Provider will take actions necessary to determine the source of the Downtime.
(i)
Remedy of Downtime: If the Downtime remedy is within the sole control of Provider, Provider will use commercially reasonable efforts to remedy the Downtime within four (4) hours of determining the source of the Downtime. If the Downtime is caused from outside of the Provider local area network, Provider will notify Customer and will use commercially reasonable efforts to notify the party or parties responsible for the source and cooperate with it/them to resolve the problem as soon as possible.
(ii)
Failure to Determine Source and/or Resolve Problem: If Provider is unable to determine the source of and remedy the Downtime within the time periods described above (where Provider was solely in control of the source), Provider will add one (1) additional day of service to the affected License(s). This credit is limited to one day of credit per 24-hour service period.
C.
Credit: To receive any of the credits described in this section, Customer must notify Provider Customer Services within two (2) business days from the time Customer becomes eligible to receive a credit. Failure to comply with this requirement will forfeit Customer's right to receive a credit. Credits may only be applied to existing Customer Licenses. The credits described in this Exhibit B shall be Customer's exclusive remedy and Provider sole liability for any unavailability of the Provider Servers or Provider Licensed Software.
D.
Maximum Credit. In the event that Customer is entitled to multiple credits arising from the same event, such credits shall not be cumulative. Customer shall be entitled to receive only the maximum single credit available for such event.
Exhibit C
PRICING
A.
Payment: The following pricing arrangements shall be valid during the term of this Agreement.
B.
Licensing Fee: Free.
C.
Overage Fee: In the sole discretion of Provider, should Customer's usage of the Platform exceed expected norms, Provider will assess an Overage Fee and invoice Customer.
D.
Taxes: Customer shall be responsible for all sales taxes, use taxes and any other similar taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding U.S. federal and state and local taxes based upon Provider's income. Customer shall indemnify, defend, and hold harmless Provider from any losses or liability due to nonpayment of taxes for which Customer is responsible under this Agreement.
E.
Price Increases: Provider may, at any time, increase its fees. If an increase occurs, Customer will be advised prior to the the next billing cycle.
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