THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF SERVICE”) GOVERNS ACCESS TO AND USE OF THE SOFTWARE AND SERVICES THAT ARE MADE AVAILABLE TO YOU AND WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE PURCHASE DOCUMENTATION OR BY ACCESSING ANY USER SIGN IN PORTION OF THE WEBSITE THROUGH WHICH THE SERVICES ARE ACCESSED, OR BY ACTUALLY USING THE SERVICES AND SOFTWARE. YOU MAY NOT ACCESS THE SERVICES AND SOFTWARE IF YOU ARE A COMPETITOR OF COMPANY.
Section Headings and Numbers.
Certain Sections may have been renamed and/or renumbered in this document for convenience only and such renaming and/or renumbering shall not affect the validity, construction, or interpretation of the Terms of Service. References in the purchase documentation to any Section names or numbers under this document shall be deemed to be a reference to the identified or corresponding provisions in this document to accomplish the reasonable intent and objectives of such provisions to the greatest extent possible under applicable law.
1. Definitions. In addition to the terms defined elsewhere in this Terms of Service, the terms set forth on Exhibit A shall have the meanings ascribed to such terms.
5.2. Suspension for Ongoing Harm. Company may with reasonably contemporaneous telephonic notice to Customer suspend access to the Service if Company reasonably concludes that Customer’s Service is being used to engage in spamming, or illegal activity, and/or use of Customer’s Service is causing immediate and material harm to Company or others. In the event Company suspends access to the Service, Company will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with Customer to resolve the issues causing the suspension of Service. If Company suspends the Service, Company will promptly restore Customer’s (or applicable User’s) access to and use of the Service after the event giving rise to the suspension has been resolved to Company’s satisfaction.
6.1.Fees. Customer shall pay to Company the fees due for all Subscription(s), Professional Service, and/or Implementation services (collectively “Services”) listed in any Order Form, in accordance with the terms set forth in the Order Form. Company’s invoices shall be deemed correct and acceptable to Customer unless Customer advises Company of disputed items within ninety (90) days of receipt of such invoice. During any renewal term (i.e., only after the Initial Term), subscription fees may increase by no more than five percent (5%) per year (the “Renewal Percentage”).
6.2 Taxes. Company fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including for example, value-added, sales, use or withholding of taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Company is required by Law to pay or collect Taxes for which Customer is responsible under this Section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against Company based on Company’s income, property and employees.
7. Ownership. Company alone shall own all right, title, and interest, including all related intellectual property rights, in and to the Services, Software, and Documentation, and any suggestions, ideas, requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Services, Software, and Documentation.
8. Customer Data.
9. Security. Company will implement and deploy security features, procedures and technologies that will, in accordance with Applicable Law, and best industry practices, provide protection from unauthorized access to or use, disclosure, modification, transmission or destruction of Customer Data and other data hosted in connection with the Services and Applications. More information on particularities of data processing can be found within the Company Data Processing Agreement (DPA) available for review on the Company website homepage or at www.iofficecorp.com/dpa, or such other URL as specified by Company, which is hereby incorporated by reference.
10.1 Limited Warranty. Company warrants to Customer that the Services will substantially conform with generally accepted industry standards of care and competence for other providers of similar hosted solutions. Further, Company commits that the Services will meet or exceed the Service Level Agreement (SLA). Remedies for the SLA commitments are as set forth therein.
10.2 Performance Warranty. The Services shall perform in accordance with their intended purpose as set forth in the Documentation and the Agreement/Order Form. Except for Routine Maintenance, Company shall ensure that the Services, and the Applications provided thereon, are Available at least 99.5% of the time during each month of the Term hereof (“Target Availability Level”). Notwithstanding anything to the contrary herein, Company has no warranty obligations: (a) to the extent that Software or Services were modified by Customer or any third party, unless the modification was approved in writing by Company; (b) for a version of the Software or Services that has since been updated and made available to Customer if the problems would have been avoided by use of the updated version; or (c) for problems caused by any third party software or hardware, (d) by accidental damage or by other matters beyond Company’s reasonable control; or (e) for interruptions to the Service related to emergency maintenance.
10.3 SAVE AS PROVIDED ABOVE, COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE COMPANY DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION. COMPANY DOES NOT WARRANT THE ACCURACY OF ANY CUSTOMER DATA.
11.1 Indemnity and Defense. Company shall defend and indemnify Customer from any claims, suits, actions, or proceedings brought against Customer in a court of competent jurisdiction by a third party which allege that the Customer’s use of the Services otherwise not in violation of any of the terms in this Agreement causes an infringement of such third party’s intellectual property rights and any judgment finally awarded in respect of such Claim, or any final settlement of such Claim, to the extent that such Claim arises solely as a result of Customer’s use of the Services in accordance with the provisions of the Agreement, and provided: (a) the alleged or actual infringement has not been caused by the use of a superseded version of the Services if the infringement would have been avoided by: (i) the use of a then current version the Services, or (ii) the modification of the Services by any party other than Company, or (iii) the combination or use of the Services with software, hardware, firmware, data, or technology not licensed to Customer by Company or approved by Company in writing; and (b) Customer notifies Company in writing within fifteen (15) days of Customer first becoming aware of each such Claim; and (c) Customer does not make any admission against Company’s interests and Customer does not agree to any settlement of any Claim without the prior written consent of Company; and (d) Customer, at the request of Company, provides all reasonable assistance to Company in connection with the defense, litigation, and/or settlement by Company of the Claim; and (e) Company has sole control over the selection and retainer of legal counsel.
11.2 Licensee’s Continued Use. If the Services or their intended use become, or in Company’s opinion is likely to become, the subject of a Claim covered by the indemnity in Section 11.1 above, Company shall, at its option, either obtain for Customer a license to continue using the infringing portion of the Services or replace or modify the infringing portion of the Services without reasonable degradation in functionality in order to make it non-infringing. If neither of these solutions is reasonably available as determined by Company in Company’s absolute discretion, Company shall refund the used, prepaid portion of the Service fees received by Company from Customer under this Agreement.
11.3 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST PROFITS), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COMPANYS’ TOTAL LIABILITY OR OBLIGATION ARISING UNDER THIS AGREEMENT (SPECIFICALLY INCLUDING BUT NOT LIMITED TO CLAIMS FOR A PARTY’S OBLIGATION OF INDEMNIFICATION, OR BREACH OF CONFIDENTIALITY), SHALL NOT EXCEED THE LESSER OF; (a) THREE (3) TIMES THE ANNUAL RECURRING FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT OR; (b) FIVE MILLION DOLLARS ($5,000,000).
12.1 “Confidential Information” in addition to the definition in Exhibit A, means any information, whether disclosed orally, in writing, electronically, visually or otherwise disclosed by one party (the “Disclosing Party”) to the other (the “Recipient”) in connection with this Agreement.
12.2 Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies to seek injunctive relief for any violation of this Agreement, without posting a bond and without prejudice to any other rights and remedies that the Disclosing Party may have for breach of this Agreement.
12.3 Destruction or Return of Confidential Information. Within forty-five (45) days of termination or expiration of the Agreement, or upon Disclosing Party’s written request, Recipient will, at the Disclosing Party’s direction, promptly dispose of or return the other party’s Information. Notwithstanding the foregoing, Recipient will not be required to return to the Disclosing Party or destroy copies of Disclosing Party’s Confidential Information that Recipient is obligated by applicable law or governmental regulations to retain. All copies retained under this Section will remain subject to all confidentiality obligations under this Section.
13. Modifications; Discontinuation of Service.
13.1 To the Service. Company may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications.
13.2 To Applicable Terms. Company may update the Terms of Service only as necessary and will provide Customer notice either directly or by publishing on the Company website.
13.3 If any change mentioned above in 13.1 or 13.2 has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Company via email@example.com within thirty days after receiving notice of the change.
14. Support of the Services. Company will (i) provide Updates to the Services, at no additional charge, and (ii) make available to Customer as part of the Services, and at no additional charge, any upgrade to the Applications when Company makes them generally available to others. Support services are set forth in more detail in the SLA.
15. Service Level Agreement (“SLA”). During the Term, the Service will meet the service level specified in the SLA available on the Company website located at www.iofficecorp.com/sla, or such other URL as specified by Company, which is hereby incorporated by reference. If the Service fails to achieve the Target Availability Level, then Customer will be entitled to a credit for the Service in accordance with the terms set forth in the SLA.
16.1 Assignment. This Agreement is personal to both Parties and neither Party may assign or transfer any of the rights, duties or obligations herein without the prior written consent of the other Party, which shall not be unreasonably withheld. Any attempted assignment will be null and void, with no force or effect. Notwithstanding the foregoing, the Parties shall have the right to assign this Agreement without the other Party’s consent to any Affiliate, to any successor by merger or to the purchaser of substantially all of its assets on a going concern. Subject to the foregoing, this Agreement shall inure to the benefit of and bind the Parties’ successors and permitted assigns.
16.2 No Agency. Company and Customer are not legal partners or agents. Company shall perform the Services as an independent contractor.
16.3 Force Majeure. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, flood, fire, earthquake, riots, and acts of war, strike or other labor problem (other than one involving a Party’s employees (“Force Majeure Event”). A Force Majeure Event shall not include (1) shutdowns, disruptions or malfunctions of the Services or Applications or Internet services other than as a result of general and widespread internet or telecommunications failures, and (2) the delay or failure of any personnel to perform any obligation of Company hereunder unless such delay or failure to perform is itself by reason of a Force Majeure Event. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party. However, the delayed Party shall use commercially reasonable efforts to minimize the delays caused by any such event. The delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed Party will not be considered excused, and the delayed Party shall promptly inform the other Party of its plans to resume performance. If any failure or delay caused by a Force Majeure Event continues for thirty (30) days or longer, the Party unaffected by the event will have the right to terminate this Agreement without cost or liability upon notice to the affected Party and, if such unaffected Party is Customer, to receive a refund of any unused, pre-paid fees for any performance not yet delivered.
16.4 Severability. If any provisions herein are held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
16.5 Survival. The covenants, representations and warrants, confidentiality duties and limitation of liability set forth in this Agreement shall survive the expiration or termination of this Agreement.
16.6 No third-Party beneficiaries. All terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their successors and authorized assigns. Except as otherwise provided in this Agreement, nothing in this Agreement, express or implied, is intended or shall be construed to create any rights in, or confer any benefits upon, any person or entity other than the Parties to this Agreement.
16.7 Governing Law. This Agreement is governed by the substantive and procedural laws of the jurisdiction identified in the affiliated Order Form, but if none (and only then), the State of Texas.
16.8 Notice. Notices to Company must be sent via email to firstname.lastname@example.org with read receipt and the account manager copied.
16.9 Insurance (if applicable). Company shall, at its expense, during the entire Term of the Agreement and at all times while it has any obligations remaining under this Agreement, keep in full force and effect policies of insurance meeting or exceeding the specifications set forth below with respect to the performance of its obligations under this Agreement: (i) Commercial general liability or equivalent insurance with a combined single limit of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, such insurance shall include but not be limited to products/completed operations liability, blanket contractual liability, personal injury liability and broad form property damage. Such insurance shall be (1) primary for all purposes and (2) contain standard cross liability provisions, (ii) Worker’s compensation insurance with statutory limits, and employer’s liability insurance with limits not less than $500,000, (iii) Professional Liability/Errors and omissions liability insurance a professional liability insurance policy and a privacy and network security liability insurance policy, either combined or separate with limits not less than $2,000,000 per occurrence and $5,000,000 in the aggregate; covering liability and defense costs arising out of the acts, errors or omissions, of Company and its agents, contractors and employees, the failures and errors of any products provided by Company, or the failure of Company to protect the security of any computer or other electronic network. Upon reasonable request, Company will provide Customer proof of all insurance in force pursuant to this Section. All policies will be non-cancelable and non-modifiable without at least thirty (30) days prior written notice to Customer.
16.10 U.S. Government Rights (if applicable). The Services and Documentation provided to the U.S. Government 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”, within the meaning of 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, as provided in FAR § 12.212, and DFARS § 227.7202-1(a),§ 227.7202-3(a), § 227.7202-4, as applicable.
“Agreement” means the applicable agreement(s) that provides you with access to the software and products/services.
“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a Party to this Agreement (whether by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party, for so long as such control exists).
“Applications” means the software applications set forth in the Order From or otherwise made available Company for use by Customer under the terms of the Agreement.
“Company” means iOFFICE, LP together with its wholly owned subsidiaries: Hippo Facility Management Technologies, Inc., Teem Technologies, LLC, and ManagerPlus Solutions, LP.
“Confidential Information” means (a) Customer Data; (b) the terms of this Agreement; (c) the Service, and (d) any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this Agreement, that: (i) in the case of information in tangible form, is marked “confidential” or “proprietary;” and (ii) information that under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; Notwithstanding the foregoing, the following shall not be Confidential Information: (1) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party (2) information that was rightfully in the receiving party’s possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a third-party without restriction (4) information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information; and (5) aggregate data collected or generated by Company or on behalf of Company regarding Company’s products and services (for purposes of providing or improving Company products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personal information and other Customer-specific information.
“Customer Page” means the web page through which Customer shall access the Applications and/or Services.
“Customer Data” means all electronic data or information submitted to and stored in the Service by Users.
“Documentation” means on-line or hardcopy, help, guides, and manuals published by Company that relate to the use of the Applications and/or Services that have been provided to Customer. Documentation shall include any updated Documentation that Company provides with Updates. Company agrees that it shall not reduce, in any material respect, the functions described in the Documentation for an Application during the warranty period or while the Application is under maintenance services. Company further agrees that it will not modify the Documentation to avoid responsibility for a reported Application error or issue.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
“Harmful Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form/Statement of Work (SOW)” means a Company estimate, purchase documentation, renewal notification or order form in the name of and executed by Customer or its Affiliate and accepted by Company which specifies the Service and Support Services to be provided by Company subject to the terms of the Agreement.
“Professional Services” means the general consulting, implementation or training professional services to be provided to Customer pursuant to a related Statement of Work (“SOW”) or included in the Customer’s Order Form.
“Service” means, collectively, the Company software suite (and any modules) being provided to Customer on a software-as-a-service (SaaS) basis, as further set forth on an Order Form/ SOW.
“Third-Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than Company that interoperate with the Service, including but not limited to those listed in the Documentation.
“Updates” shall mean (a) subsequent releases of the Applications that (i) add new features, functionality, and/or improved performance, (ii) operate on new or other databases, operating systems, or Customer or server platforms, or (iii) add new foreign language capabilities; (b) bug or error fixes, patches, workarounds, and maintenance releases.
“Users” means individuals who are authorized by Customer or its Affiliate to use the Service pursuant to the Agreement or as otherwise defined, restricted or limited in an Order Form or amendment, for whom subscriptions to a Service have been procured. Users include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors, and agents.