Software as a Service (Saas) Agreement
Download as a PDF . Last update v061219
By registering for any Service, authorizing and placing an Order for Service, or signing in and utilizing the Service, you (Subscriber”) agree to the terms of THIS SOFTWARE AS A SERVICE (SAAS) AGREEMENT (as amended, renewed, restated, extended, supplemented, superseded, replaced, substituted or otherwise modified from time to time, this “Agreement”), between you and marketRelay, LLC. (or marketRelay or mR), a Virginia limited liability company, having an address at 9012 Three Chopt Road, Henrico, VA 23229 (“Licensor”).
NOW, THEREFORE, the parties intending to be legally bound agree as follows:
1. Definitions. In addition to the defined terms set forth in other Sections of this Agreement, the following terms used in this Agreement (including the Order Form and other exhibits to this Agreement) have the meanings set forth below.
1.1 “Accounts/ Master Accounts / Sub-Accounts”- An Account is a singular instance of mR, where users can manage their product content and pricing, and all assigned users can access any and all related product information and features on behalf of that one account. Master Accounts are accounts that have Sub Accounts. Sub-Accounts are distinctly separate accounts that are child accounts of a Master Account, for the purposes of decentralized account access, distinct product content and pricing distribution or publishing, or for uniquely separate product marketing purposes. These accounts can also share common information, for instance, overlapping products. Unless otherwise agreed, Master Accounts will pay for sub-accounts under one Master Account Subscription Agreement and can have user groups that have varying and sometimes overlapping access to the sub-accounts. Examples may include:
Retail Chain with Multiple Distinct Locations
Franchise with Franchise Owned Locations
Authorized Reseller that manages product content and the mR software on behalf of their customers
Marketing agency or website/ecommerce company that manages product content and the mR software on behalf of their customers
Manufacturer with multiple distinct divisions- for instance, a manufacturer may need distinct accounts for divisions such as healthcare, food service, hospitality, entertainment, commercial service.
1.2 “Add-On Set-Up Charges” - Certain aspects of the Service may or may not require Add-On Set-up Charges related to setting up and configuring the specific Add-On feature, functionality, integration, as well as mapping and integrating of the agreed upon data configurations that the Subscriber requires. These charges are due with the Order. Custom or intricate set-ups, as well as on-premise, or integrations with custom software applications, or applications that do not provide industry standard integration APIs or Connectors may be subject to price quotation prior to implementation, at the discretion of mR. Custom Add-On Set-Up Charges will not be performed without an advance estimate to subscriber and a signed Statement of Work for Professional Services.
1.3 “Agreement” mean this Software as a Service (SaaS) Agreement, together with the Order Form, and any written amendments signed by both parties.
1.4 “API(s)”- (Application Programming Interface, whether Inbound, Outbound, or Bi-directional APIs)- API(s) are a set of definitions protocols, and tools for building application software. In general terms, it is a set of clearly defined methods of communication between two or more software applications, or software components. Certain Account subscriptions may or may not include a limited number of API(s) as a part of their Subscription Agreements.
1.5 “API Connector Add-On-“ (whether Inbound, Outbound, or Bi-directional API Connectors) means a pre-configured set of definitions, protocols, and tools for building or connecting application software. In general terms, it is a set of clearly defined methods of communication between two or more software applications or specific software components. Certain mR account subscriptions may or may not include a limited number of API Connector(s) included as a part of their subscriber license agreement. API Connector Add-ons are only available on an a la carte basis, and may be subject to set up fees, terms and conditions specific to the connector or connected software application or business, as well as charges related to Subscriber Data Transmitted between mR and API Connector Add-ons, whether inbound, outbound or bi-directional Syncs. By utilizing this aspect of the Service, the Subscriber understands that they are obligated and subject to any and all terms and conditions of the related Connector or Software Application, including utilizing the mR Service properly and professionally. Additionally, Subscribers take full responsibility for reviewing and approving the product information and pricing that they elect to publish through the Service.
1.6 “Application” means either the Licensor-developed application or the Vendor-provided application used by Subscriber for the Service under this Agreement.
1.7 “Authorized Users” mean Subscriber’s employees and independent contractors working for Subscriber in the ordinary course of Subscriber’s business who: (a) agree to be bound by the terms of this Agreement; and (b) are specifically authorized by Subscriber to access the Service.
1.8 “Billing Start Date” means the date identified on the Order Form as the date from which billing will be calculated (which under no circumstances will be later than the Service Start Date, as defined below).
1.9 “Channel Partner” means a Subscriber’s trading partners, whether upstream feeds or downstream feed recipients), and other business partners of a Subscriber where Subscriber’s Account provides a limited functionality free trial Account for the purposes of exchanging data, whether as a sender or receiver of data, with the Subscriber. Certain mR Account subscriptions may include a limited number of free Channel Partners as a part of their Subscription Agreement.
1.10 “Confidential Information” means non-public information disclosed by the Discloser to Recipient, whether orally or in writing, electronically, digitally, or physically by any media, or visually by inspection of facilities, relating to the business of the Discloser. Confidential Information of Licensor includes, as between the parties, the Services, all software provided with the Services, and algorithms, methods, techniques and processes revealed by the source code of the Services and any software provided with Services.
1.11 “Customization, Integration and Professional Services” has the meaning set forth in Section 7.
1.12 “Discloser” means the party providing Confidential Information to Recipient under or in connection with this Agreement.
1.13 “Display Devices” means any display device used to access and display the Service.
1.14 “Feed” means product data feed for the Service.
1.15 “Fees” means the fees payable pursuant to Section 4.
1.16 “Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service, as developed by Licensor and made generally available in connection with the Service without a separate charge to its customers.
1.17 “Marketplace(s) Add-On”- means a web property, software application, mobile or tablet app, business, or ecommerce site operated by a business outside of mR, where Accounts may want to list or sell their products and pricing via mR third party publishing capabilities. Marketplaces are only available on an a la carte basis, and may be subject to set up fees, terms and conditions specific to the Marketplace Add-On, as well as charges related to data exchange between mR and Marketplaces. By utilizing this aspect of the Service, the Subscriber understands that they are obligated and subject to any and all terms and conditions of the related Marketplace, including utilizing the mR Service properly and professionally. Additionally, Subscribers take full responsibility for reviewing and approving the product information and pricing that they elect to publish.
1.18 “Network Subscriptions” (other mR upstream feed accounts)- means Accounts that are either Channel Partners or other mR subscribers that an account can subscribe to in order to receive their particular mR feed. Certain Account subscriptions may include a limited number of Network Subscriptions as a part of their Subscription Agreement.
1.19 “Network Subscribers” (other mR downstream feed accounts)- means Accounts that are either Channel Partners or other mR subscribers that subscribe to the mR subscriber's Account in order to receive their particular mR feed. Certain Account subscriptions may include a limited number of Network Subscribers as a part of their Subscription Agreement.
1.20 “Office” means the address(es) of Subscriber’s office(s) in which a Display Device is located.
1.21 “Order Form” means the attached Order Form that sets out the commercial terms and is executed by the parties.
1.22 “Product Line(s)”- A Product Line refers to a specific set of products managed, published, and/or distributed for a particular purpose. (Ex. Spring Product Line, Fall Product Line, Hospitality Product Line, Food Product Line or otherwise) Certain Account subscriptions may include a limited number of Product Lines as a part of their Subscription Agreement.
1.23 “Products”- (active, inactive, or total) product(s) refers to a specific item that is sold by a Subscriber or its Channel Partners to businesses or to the public, and that can be differentiated by a unique item number, product number, stock keeping unit (SKU), manufacturer number, Universal Product Code (UPC), Global Trade Identification Number (GTIN), or other unique code of identification. In mR, Products can be Active, meaning active in circulation, in the marketplace, in publishing, in distribution, in mR feeds, whether in consumer or business-to-business marketplaces, and certain Products can be inactive, or not in circulation, the marketplace, publishing, distribution, or mR feeds. For the purposes of establishing SKU or Product counts under this Agreement, Product variants, even though they may utilize the same SKU as their parent product, as well as SKUs that an Account wants to manage in other languages shall be counted as additional Products or SKUs for each variant and language when establishing the total number of Products included on the Order Form. Any increase in the Product or SKU count may affect the cost of the Service, may affect the cost of published feeds to other applications such as Marketplace Add-ons and Shopping Engine Add-ons, Third Party Components, such as software applications and platforms outside of mR, may require Customization, Integration and Professional Services and may affect the cost of Subscriber Data Transmitted or Syncs. Inactive Products are not included in the total count of Products or SKUs included in this Agreement or the Order Form, unless Subscriber elects to require long-term archival of inactive Products and media, beyond a three year history. Certain Account subscriptions may include a limited number of active, inactive, or total product(s) as a part of their Subscription Agreement.
1.24 “Recipient” means the party receiving Confidential Information under or in connection with this Agreement.
1.25 “Service” shall mean Licensor’s information applications subscribed to by Subscriber under this Agreement.
1.26 “Service Start Date” means the date from which Subscriber receives the applicable Service.
1.27 “Shopping Engines Add-On”- means another web property, software application, mobile or tablet app, business, or ecommerce site operated by a business outside of mR, where Accounts may want to simply list their products and pricing via mR third party publishing capabilities for promotion on and by the Shopping Engine. Shopping Engines are only available on an a la carte basis, and may be subject to set up fees, terms and conditions specific to the Marketplace Add-On, as well as charges related to data exchange between mR and Marketplaces. By utilizing this aspect of the Service, the Subscriber understands that they are obligated and subject to any and all terms and conditions of the related Shopping Engine, including utilizing the mR Service properly and professionally. Additionally, Subscribers take full responsibility for reviewing and approving the product information and pricing that they elect to publish through the Service
1.28 “Subscriber Data” means electronic data or information submitted to the Service by Subscriber or Authorized Users.
1.29 “Subscriber Data Stored”- means electronic data or information submitted to the Service by Subscriber or Authorized Users that is stored, including data exchanged between one Feed to another, to Shopping Engine, Marketplace, ecommerce Application or other software platform, whether Active, Inactive or Total Subscriber Data Stored on mR servers or other third-party data services associated with the Service, such as AWS Hosting Services. Certain Account subscriptions may include a limited volume of Subscriber Data Stored as a part of their Subscription Agreement.
1.30 “Subscriber Data Transmitted”- (Sync(s))- means Subscriber Data that is transmitted from one API to another, one API Connector to another, one file to another, one application to another, or otherwise via the mR Service. A Sync is singular, whether an inbound or outbound transmission, and a bi-directional Sync includes two Sync(s), one Sync in each direction. Certain Account subscriptions may or may not include a limited volume of Subscriber Data Transmitted (Syncs) as a part of their Subscription Agreement. Should Account require transmission of personally identifiable customer data, order and shipping transactions, or inventory data on a constant and ongoing basis, this service would require a separate estimate, and would be subject to charges related to volume and frequency of Syncs, including any Customization, Integration, and Professional Services required to facilitate and manage the related Syncs.
1.31 “Subscriber Input” means suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, its employees and/or Authorized Users relating to the operation or functionality of the Service.
1.32 “Term” means the period identified in the Order Form, or any renewal term, as applicable.
1.33 “Third-Party Components” means embedded or non-embedded products and program code delivered as part of the Service or the Customization, Integration and Professional Services that are provided by third parties which may be incorporated into the Service or interoperate with or be used in connection with the Service. Third-Party Components include products, services, and other applications available from third parties, including through links made available through the Service. Licensor makes no warranties or representations regarding Third-Party Components. Subscriber may or may not be required to enter into separate agreements with the third-parties licensing or providing these products or services, and Licensee’s use thereof shall be subject to such agreements.
1.34 “Vendor” means the single distributor that delivers the Service to Subscriber as identified on the Order Form, subject to Licensor’s continuing authorization of such Vendor’s Application.
2. License to Receive the Service.
2.1 Grant. Licensor hereby grants the Subscriber identified on the Order Form attached to this Agreement a limited, non-exclusive and non-transferable license, without the right of sublicense, during the Term to access, via either a Vendor or the Feed, and display on Subscriber’s Display Devices within the United States, the Service, and to permit Authorized Users to use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted under this Agreement are reserved to Licensor.
2.2 Scope. The license granted to Subscriber under this Agreement is limited to a single, authorized Application for the display and retrieval of the Service on an Authorized User’s Display Device. The license does not extend to multiple applications for the display or retrieval of content within the Services. Subscriber will have no right pursuant to this Agreement to distribute the Service in whole or in part over the Internet, or via email or instant messaging (other than as set forth in Section 13.6), via an Intranet, personal digital assistant, wireless application protocol, short message service or radio system. An enhanced license encompassing such applications is available as a supplement to this Agreement. Nothing in this Agreement will obligate Licensor to continue providing access to any Service beyond the date when Licensor ceases providing such Service to subscribers generally.
2.3 Restrictions on Use. Subscriber may not edit, alter, abridge or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to:
reverse engineer, decompile, decode, decrypt, disassemble or in any way derive source code from, the software or Service;
modify, translate, adapt, alter or create derivative works from the Service;
copy, distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Service; or
distribute, sublicense, rent, lease, loan or grant any third-party access to or use of the Service to any third party, other than limited function access to the Service with the prior written consent of Licensor.
3. AWS Hosting Services. By execution of this Agreement Client agrees to the terms and conditions of the AWS Customer Agreement, which can be found at https://aws.amazon.com/agreement/.
4. Fees and Payment.
4.1 Fees. In exchange for the license granted above, commencing on the Billing Start Date, the Subscriber will pay Licensor for each Term the Fees, in advance, based on the Services and the number of Users identified in the Order Form, and on any other commercial terms contained in this Agreement. Subscriber must inform Licensor of any increases in the number of Users no later than seven days after the date of such increase and the Order Form will be deemed amended accordingly. All Fees are non-refundable.
4.2 Late Payments. If Subscriber fails to pay the Fees by the due date specified on the invoice, Licensor shall be entitled to interest from the day on which the Fees are due. Both parties agree that the rate of interest on overdue invoices will be 1.5% per month.
4.3 Taxes. Subscriber will be responsible for, and will promptly pay or reimburse Licensor for, the payment of all sales, use, excise, value-added or similar taxes, assessments or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Licensor that is in accordance with the direction or request of Subscriber) that are based on or with respect to any Services or goods provided by Licensor to Subscriber, or the amounts payable to Licensor therefore.
5. Trial Periods, Trial Accounts. Licensor may agree, pursuant to an Order Form or otherwise, to provide an account, for a period of time, for, or during which no Fees are charged or certain Fees are waived. Anyone registering for or using the Service is a “Subscriber” and is subject to all provisions of this Agreement (other than Fees Licensor has agreed not to charge), whether or not Fees are payable.
6. Channel Partners and Referral Fees
6.1 In the event Licensor has agreed in writing to provide a referral fee to the Subscriber for referrals of third parties who enter into paid Subscription Agreements, the following shall apply:
The referral fee shall be applicable only to the first year of Fees paid by the referred party.
Licensor shall determine, in good faith whether a particular referral is attributable to a particular Subscriber, and Licensor’s decision shall be final.
If Subscriber earns a referral fee, the referral fee shall be credited against the Subscriber’s subsequent Fees. In no event will the referral fee be payable in cash.
6.2 Licensor shall be entitled to change its policies or commitments with respect to referral fees at any time upon notice to Subscriber, provided no such change shall apply to a referral that has been registered prior to notice of such change.
6.3 Licensor shall be entitled to change its policies or commitments with respect to Channel Partner Accounts at any time, including changes with respect to Fees and the number of Channel Partner Accounts Subscriber may maintain, as well as the Services that are included with Channel Partner Accounts, and such changes shall become effective upon posting of notice on marketrelay.com.
6.4 Subscriber is responsible for all activities of anyone Subscriber invites or allows to utilize the Service who is not specifically utilizing the Service to exchange Subscriber Data with the Subscriber, is not a legitimate Channel Partner of the Subscriber (as determined by Licensor in its discretion) or is utilizing the Service without becoming subject to this Agreement. Any Channel Partner that utilizes the Service outside of the specific intended purpose as solely determined by the Licensor may be removed or disconnected from the Service.
7. Customization, Integration and Professional Services.
7.1 During the term of this Agreement, Subscriber may request Licensor to perform computer professional services in the nature of software development, customization, add in, project management, consulting, documentation and/or integration services (hereinafter, “Customization, Integration and Professional Services”). Upon receipt of a request for Customization, Integration and Professional Services, Licensor may provide Subscriber with a written proposal, and when the parties agree to all requirements of the proposed Customization, Integration and Professional Services, a Statement of Work for Customization, Integration and Professional Services, in the form of Exhibit B, will be executed by the parties. All Statement of Works shall be subject to the terms and conditions of this Agreement. Customization, Integration and Professional Services performed by Licensor are not exclusive to Subscriber, and Licensor may perform services of any type or nature for any other person or entity at any time.
7.2 In the course of providing Customization, Integration and Professional Services and/or deliverables under this Agreement, Licensor may, in its discretion, draw on the resources of and subcontract to third parties.
8. Intellectual Property Rights.
“Background Intellectual Property” means all intellectual property that is owned or controlled by Licensor and that is created prior to this Agreement or contemporaneously with this Agreement, but not arising from the performance of Customization, Integration and Professional Services.
“Foreground Intellectual Property” means all intellectual property arising from the performance of Customization, Integration and Professional Services.
8.2 License to Background Intellectual Property. Upon final payment by Subscriber of all amounts due under the applicable Statement of Work, and provided that Subscriber is not otherwise in default of any provision of this Agreement, Licensor shall grant to Subscriber a perpetual, non-exclusive, transferable, royalty-free, paid-up, worldwide license with the right to sublicense, under all of Background Intellectual Property necessary for Subscriber and its subsidiaries to use and freely exploit Foreground Intellectual Property without restriction.
8.3 License to Foreground Intellectual Property. Upon final payment by Subscriber of all amounts due under the applicable Statement of Work, and provided that Subscriber is not otherwise in default of any provision of this Agreement, except as otherwise provided in an Order Form or Statement of Work, Licensor shall grant to Subscriber a perpetual, non-exclusive, transferable, royalty-free, paid-up, worldwide license with the right to sublicense, under all of Licensor’s Foreground Intellectual Property.
8.4 Retention of IP Rights.
Nothing in this Agreement will be deemed to restrict or limit Licensor’s right to perform similar Customization, Integration and Professional Services for any other party or to assign any employees or subcontractors to perform similar Customization, Integration and Professional Services for any other party or to use any information incidentally retained in the unaided memories of its employees providing Customization, Integration and Professional Services.
Licensor shall have a royalty-free, worldwide, transferable, sub- licensable, irrevocable, perpetual license to use or incorporate into the Service or any Customization, Integration and Professional Services, without paying any compensation to Subscriber, any Subscriber Input that does not include Confidential Information of Subscriber or the Subscriber Data. Licensor shall have no obligation to make Subscriber Input an Improvement. Subscriber shall have no obligation to provide Subscriber Input.
9.1 Vendor. If the Service is delivered to Subscriber via a Vendor, Subscriber acknowledges that the fees of the Vendor may be charged to Subscriber by the Vendor or by Licensor on behalf of the Vendor.
9.2 Licensor Feed. The Service is made available to Subscriber via a Feed. Subscriber must acquire, install, operate and maintain, at the Subscriber’s expense, all communications lines, equipment, software, services and related technology necessary to receive the Service via the Feed and must block access to and discard all other potential feeds on the Feed other than the Service.
9.3 Delivery and Acceptance. If the Service is delivered to Subscriber via the Display Device, Licensor will make the Service available to Subscriber as indicated on the Order Form. The Service will be deemed accepted upon the Service Start Date. Any Improvements to the Service will be deemed accepted by the Subscriber on the day such Improvements are delivered.
10. Monthly Reports; Records.
10.1 Vendors. If the Services are delivered to Subscriber by a Vendor, Subscriber agrees that Licensor may rely on such third-party vendor’s monthly entitlement reports for billing purposes. Alternatively, Licensor may elect in its sole discretion to rely for billing purposes on Subscriber’s submission of monthly reports as described in Section 10.3.
10.2 Feed. If the Service is made available to Subscriber via a Feed, upon Licensor’s request Subscriber will supply Licensor within 20 days after the end of each month, with monthly reports containing the information described in Section 10.3, in a form reasonably prescribed by Licensor and certified by an authorized representative of Subscriber. Additional Fees may apply.
10.3 Subscriber Reports and Records. Subscriber must maintain accurate records containing the following information, copies of which Licensor shall be entitled to request upon seven days prior written notice: (a) the Office where at least one Display Device is located; and (b) the total number of Display Devices at each Office; and (c) the Services received by Subscriber on each Display Device.
11. Authorized Users and Display Devices.
11.1 For the purpose of verifying compliance with this Agreement, Licensor (and Licensor’s authorized representatives) will have the right, during normal business hours upon reasonable advance notice and without material disruption to Subscriber’s business, to audit use made of the Service via the Service, and the manner in which each Display Device accesses the Service.
11.2 If Licensor’s records pursuant to this Section or otherwise indicate that (a) more Users are accessing the Service than Subscriber has paid for, or (b) more Services are being accessed by Users than Subscriber has been billed for, Subscriber shall pay Licensor the shortfall in Fees retrospectively to the date of the applicable increase.
12. Mergers and Acquisitions.
12.1 For the purpose of calculating the Fees, it is not the intention of the parties that the Fees charged under this Agreement will include Display Devices, Authorized Users, and Services added through a merger or acquisition.
12.2 Accordingly, in the event of any merger or acquisition that would result in Subscriber’s ownership or control of Display Devices formerly owned or controlled by another entity, such additional Display Devices, additional Authorized Users, and Services will not be covered by the Fees charged under this Agreement.
12. 3 Subscriber agrees that such Display Devices, Authorized Users and Services will be subject to additional Fees, based upon the then current listed price for the additional Display Devices and/or Services resulting from the acquisition or merger. For the avoidance of doubt a merger and/or acquisition will not entitle Subscriber to terminate this Agreement other than in accordance with its terms.
13. Copyright Protection; Use Restrictions; Security.
13.1 Subscriber agrees that the Service and Feed specifications, including without limitation the editorial coding and metadata contained therein, are the property of Licensor or Licensor’s licensors.
13.2 The works and databases included in the content of the Service, or posted by Authorized Users, are protected by applicable copyright laws.
13.3 Subscriber agrees that only Authorized Users shall be permitted access to the Service.
13.4 Except as set forth in this Agreement, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users.
13.5 Subscriber is without authority to, and agrees it will not, reverse engineer, decompile or disassemble any part of the Service.
13.6 Subscriber further agrees that neither Subscriber nor any Authorized User will store (except as permitted under Section 2.2 for retrieval and display purposes only), copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works (including, without limitation, trading algorithms), test algorithms in conjunction with, or distribute by any means the Service in whole or in part to anyone, including, but not limited to, other employees of Subscriber, without Licensor’s express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the Service (a) in oral and (with proper attribution to the respective Service) non-electronic written communications with clients and other employees, and (b) in email and instant messaging communications with other employees and/or securities professionals.
13.7 Without limiting the foregoing, under no circumstances may distribution under this Section by Subscriber be permitted if such distribution may be viewed as a substitute for a subscription to the Service itself. Subscriber agrees that when using the Service in this way, the facts, content and intent of the Service will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the Service or Licensor.
14. 1 Licensor affirmatively disclaims any and all warranties, conditions or representations (express or implied, oral or written), of any kind or nature with regard to the services or any professional services provided by licensor including implied warranties of fitness for a fitness or suitability for any purpose (whether or not the licensor knows, has reason to know, has been advised, or is otherwise in fact aware of any such purpose), merchantability, non-infringement, conditions of title, quiet enjoyment, integration, satisfactory quality, whether arising by law or by reason of custom of the trade. no advice, statement or information given by licensor, its affiliates, contractors or employees will create or change any warranty provided in this agreement or order form or statement of work. licensor does not warrant that the services will be error-free, will operate without interruption, will be compatible with any hardware or software, will meet subscriber’s requirements, or operate in all combinations selected by an authorized user.
14. 2 The parties have agreed that the limitations set forth in this agreement will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose, and regardless of whether subscriber has accepted any service under this agreement.
14.3 The services are not fault-tolerant and are not designed, manufactured or intended for use as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or aircraft communication systems, mass transit, air traffic control, direct life support machines, or weapons systems, in which the failure of the services could lead directly to death, personal injury or severe physical, or environmental damage (“high risk activities”). accordingly, licensor disclaims any express or implied warranty of fitness for high risk activities. subscriber agrees that licensor will not be liable for any claims or damages arising from or related to the use of the services for high risk activities.
14.4 Third-Party Components and Services. The Service may incorporate or rely on Third-Party Components and/or services. Licensor makes no representations regarding, and disclaims any responsibility or liability for, the accuracy, reliability or availability of such Third-Party Components and/or services and any information provided by the Service in reliance on such Third-Party Components and/or services.
14.5 Third-Party Components. The Service and Customization, Integration and Professional Services may use or include Third-Party Components, which Third-Party Components may be subject to change from time to time, including files, software code, components and functionality, data storage, data management, data hosting and data distribution and transmission services that are subject to open source and/or third-party license terms, whether listed in this Agreement, and SOW or determined to be needed during the course of Customization, Integration and Professional Services provided. In the event of failure of any such Third-Party Components, whether identified as a part of the Service, embedded as a part of the Service offerings, or identified within the Service as an additional offering or extension, Licensor’s sole responsibility will be to locate a similar Third-Party Component or Service, and facilitate replacement of the similar Third-Party Components or Services or functionality in a reasonable timeframe, as compared with similar efforts, considering the complexity, software development labor and process requirements, as well as the testing required to replace the failed Third Party Component in a professional manner. Subscriber’s right to use such Third-Party Components as part of, or in connection with, the Service and Customization, Integration and Professional Services is subject to any applicable acknowledgements and license terms accompanying such Third-Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third-Party Components and this Agreement, the licensing terms of the Third-Party Components will prevail in connection with the related Third-Party Components. Such Third-Party Components are provided on an “AS IS” basis without any warranty of any kind and are subject to any and all limitations and conditions required by such third parties. Under no circumstances will the Service or Customization, Integration and Professional Services or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software.
15.1 Licensor will defend or settle, any action, suit or proceeding brought against Subscriber that the Service or Customization, Integration and Professional Services infringe the intellectual property rights of a third party (“Infringement Claim”).
15.2 Licensor will reimburse Subscriber for all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such Infringement Claim.
15.3 The obligations of Licensor in Sections 15.1 and 15.2 are conditioned on Subscriber (a) giving Licensor prompt written notice of any such Infringement Claim (“Claim Notice”); (b) affording Licensor full and complete control over the defense of any such Infringement Claim; (c) providing reasonable cooperation to Licensor in the defense of any such Infringement Claim, at the cost and expense of Licensor; and (d) taking all reasonable steps to mitigate any potential damages that may result.
15.4 Notwithstanding the foregoing, Licensor will have no obligation under this Section 15 or otherwise with respect to any Infringement Claim based upon: (a) any use of the Service or Customization, Integration and Professional Services not strictly in accordance with this Agreement; (b) any use of the Service or Customization, Integration and Professional Services in combination with other products, equipment, software or data not supplied, recommended or approved by Licensor; (c) any modification of the Service or Customization, Integration and Professional Services by any person other than by or at the direction of Licensor; or (d) infringement or misappropriation attributable any specifications, materials, methods or technology furnished by Subscriber, its customer or any end-user to Licensor for use or reference in providing Services or Professional. Notwithstanding any other provision of this Agreement, Licensor is not responsible for any fees (including attorneys’ fees), expenses, costs, judgments or awards that are incurred prior to Licensor’s receipt of the Claim Notice.
15.5 this section 15 states licensor’s entire obligation to purchaser and purchaser’s sole remedy for any infringement claim.
16 Limitation of Liability. except for licensor’s obligations under section 15, licensor and its subsidiaries, affiliates, shareholders, directors, officers, employees and third party licensors (“licensor parties”) will not be liable (jointly or severally) to subscriber, authorized users or any third party, for indirect, consequential, special, incidental, punitive or exemplary damages, including, without limitation, lost profits, lost savings and lost revenues, whether or not characterized in negligence, tort, contract or other theory of liability, even if any of the licensor parties have been advised of the possibility of or could have foreseen any of the excluded damages, and irrespective of any failure of an essential purpose of a limited remedy. in no event will the collective and cumulative liability of the licensor parties for any claim arising from, relating to or in connection with this agreement exceed the aggregate amount paid by subscriber under this agreement in the three months immediately preceding the event giving rise to such claim. if any applicable authority holds any portion of this section to be unenforceable, then the collective and cumulative liability of the licensor parties will be limited to the fullest possible extent permitted by applicable law. subscriber will indemnify, defend and hold harmless licensor for any loss, damage or cost in connection with any claim or action which may be brought by any third party against licensor relating to any breach of this agreement by subscriber.
17. Term; Early Termination.
17.1 This Agreement will become effective when Subscriber signs the Order Form and, unless terminated earlier in accordance with this Agreement, will continue from the Billing Start Date for the period specified in the Order Form (the “Term”).
17. 2 Following the initial Term set forth in the Order Form, the Term of this Agreement will automatically renew for subsequent like period unless either party gives the other written notice of its intention not to renew at least 30 days prior to the end of the then-current Term. For the avoidance of doubt: (a) if Subscriber executes the Order Form after the Billing Start Date then this Agreement will be deemed effective from the Billing Start Date, and (b) if Subscriber receives the Service before the Order Form is executed, then this Agreement shall be deemed effective from the Service Start Date.
17.3 Modifications in any ongoing Fees in connection with direct access to a Feed will be communicated to Subscriber at least 90 days prior to their effective date, and such modified Fees will be deemed to replace those previously stated in the Order Form.
17.4 Either party may terminate this Agreement if the other party materially breaches this Agreement and (if such breach is curable) fails to cure such breach within 30 days of being notified in writing to do so (“Notice of Breach”); provided, however, the obligation of Subscriber to pay Fees is not subject to notice or a right to cure, as time is of the essence for the payment of Fees by Subscriber.
17.5 Either party may terminate this Agreement immediately if the other party (a) becomes insolvent or admits its inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) is dissolved or liquidated or takes any corporate action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
17.6 Upon termination of this Agreement the licenses granted under this Agreement will terminate.
17.7 If this Agreement is terminated before the end of its then current Term for any reason other than by Subscriber pursuant to Sections 17.5(a) or (b), then Subscriber will pay to Licensor as liquidated damages the amount due by Subscriber for the previous calendar month times the number of months remaining in such Term (“Liquidated Damages”) within 30 days after such termination. The parties agree that the Liquidated Damages under this Section are not intended to be and will not be a penalty and that the Liquidated Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if Subscriber receives any notice of late payment under this Agreement in any form, written or electronic, from Licensor including any business division (e.g., Licensor’ Credit Department), such notice will be deemed to be a Notice of Breach.
18. Confidential Information.
18.1 Duty. Recipient agrees to retain the Confidential Information in confidence until such time as the information no longer qualifies as Confidential Information. During this period Recipient will not disclose Discloser’s Confidential Information to any third party, will limit dissemination of such Confidential Information to such of its employees and agents who have a need to know of the Confidential Information, and will not use Discloser’s Confidential Information for any purpose other than meeting either parties’ obligations under this Agreement. Recipient further agrees to use the same degree of care, but no less than a reasonable degree of care, with Discloser’s Confidential Information as it would with its own confidential information.
18.2 Exceptions. Notwithstanding any other provisions of this Agreement, each party acknowledges that Confidential Information will not include any information that: (a) is or becomes, publicly known through no wrongful act on Recipient’s part; (b) is already known to Recipient, or becomes known to Recipient without restriction on disclosure; (c) is independently developed by Recipient or (d) is furnished by Discloser to a third party without an obligation of confidentiality.
18.3 Compelled Disclosure. A party is not in violation of this Section if required to disclose Confidential Information to a court or under operation of law provided that Recipient notifies Discloser of such requirement prior to disclosure, except where such notice would be prohibited by law, that Recipient discloses only that information required and that Recipient allows Discloser the opportunity to object to such court or other legal body requiring such disclosure or seek to obtain a protective order.
19.2 Notice. Any notices, requests, demands and other communications that are required or may be given under this Agreement must be in writing, may be sent in any commercially reasonable manner that provides proof of delivery (or refusal to accept delivery) to the address set forth in the first paragraph above and will be considered to have been given when received, when delivery is refused or when the sender can otherwise demonstrate delivery or refusal to accept delivery. A party may change such party’s address by giving notice of the change to the other party in accordance with this Section.
19.3 Amendment. The parties acknowledge that Subscriber is responsible for notifying Vendor directly of any Vendor-related issues. This Agreement may not be amended except in a writing executed by authorized representatives of Subscriber and Licensor.
19.4 Assignment. This Agreement is not transferable, assignable, delegable or sub-licenseable by Subscriber in whole or in part, without the prior written permission of Licensor. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.
19.5 Survival. The following obligations of the parties will survive termination or expiration of this Agreement for any reason: Sections 4, 14, 166, 177, 188 and 199.
19.6 Independent Contractor. Licensor is acting in the performance of this Agreement as an independent contractor, and its relationship to Subscriber will, during the Term, be that of an independent contractor, and not that of an employee, partner, or joint-venture of or with Subscriber. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties.
19.7 Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other party. No third party is a beneficiary of this Agreement.
19.8 Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and nonexclusive. A waiver or failure of either party at any time to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter.
19.9 Injunctive Relief. If Subscriber breaches Section 2 of this Agreement, Licensor will be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
19.10 Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
19.11 Choice of Law and Venue. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, United States of America (“Virginia”), applicable to contracts made entirely within Virginia and wholly performed in Virginia, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in Virginia. The parties explicitly acknowledge and agree that the United Nations Convention on Contract for the International Sale of Goods does not apply to this Agreement.
19.12 Force Majeure. Any failure or delay by Licensor in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of Licensor.
19.13 Entire Agreement. This Agreement contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter.
19.14 Exhibits. The following Exhibits, if applicable, are attached to this Agreement and incorporated in this Agreement by this reference:
Exhibit “A”: Order Form: This form is included as a part of the online Subscription set up process, and the same Order Form information is included on the marketRelay Invoice for payment, where applicable.
Exhibit “B”: Service Level and Support Services Agreement, where applicable.
Exhibit “C”: Form of Statement of Work, where applicable.
The parties have caused this Agreement to be executed as of the Effective Date which shall be the date in which the order was accepted online, or the date in which assigned users have agreed to the terms of the Agreement by registering as a user, signing in and utilizing the service, whichever comes first.