TERMS AND CONDITIONS
This Agreement governs Your acquisition and use of the Application Services (as defined below), as well as Our provision of the Application Services.
“Affiliate(s)” means any entity which directly or indirectly, is Controlled by, or is under common Control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity. For clarification purposes, the use of the word “You”;in this Agreement is inclusive of Your company and Your Affiliates, provided You have the authority to bind such Affiliate to the terms and conditions of this Agreement.
“Application Services” means the generally available Web-based, on-line, hosted software listed on an online Order Form including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Us.
“Documentation” means Our then current guides and manuals that We publish and make generally available for the Application Service.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents for Your purchases from Us that are executed hereunder by You and Us from time to time. All Order Forms shall be deemed incorporated herein.
“Start Date” means the date on which the Application Service specified in an Order Form is first made available to You.
“Subscription Term” means the period of time that You may use and access the Application Services beginning on the Start Date and as set forth in the applicable Order Form. The Application Services may automatically deactivate and become non-operational at the end of the Subscription Term, and You shall not be entitled to access the Application Services unless the Subscription Term is renewed.
“Users” means individuals who are authorized by You to use the Application Services, for whom subscriptions to the Application Services have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, Affiliates, or third parties with whom You transact business. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Application Services.
“Your Content” means all electronic data or information submitted by You to the Application Service.
Grant of License.
Grant. Subject to the terms and conditions of this Agreement, We hereby grant to You a non-exclusive and nontransferable license to, during any Subscription Term, (a) access and use the Application Services via the internet, and (b) use the Documentation provided by Us. You agree that Your purchase of User subscription(s) for the Application Services is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Us with respect to future functionality or features.
Restrictions. The license granted in the Section above is conditioned upon Your compliance with the terms and conditions of this Agreement. You may use the Application Services solely for Your own internal business purposes, in compliance with applicable law, and shall not: (a) permit any third party to access the Application Services except as permitted herein or in an Order Form, (b) license, sub-license, sell, resell, rent, lease, transfer, distribute, use the Application Services for commercial time sharing, outsourcing or otherwise commercially exploit the Application Services; (c) create derivative works based on the Application Services; (d) modify, reverse engineer, translate, disassemble, or decompile the Application Services, or cause or permit others to do so; (e) copy, frame or mirror any content forming part of the Application Services, other than on Your own intranets or otherwise for Your own internal business purposes; (f) access the Application Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Application Services; and (g) remove any title, trademark, copyright and/or restricted rights notices or labels from the Application Services or Documentation.
Reserved Rights. We hereby reserve all rights in and to the Application Services not expressly granted in this Agreement. Nothing in this Agreement shall limit in any way Our right to develop, use, license, create derivative works of, or otherwise exploit the Application Service or to permit third parties to do so.
Use of Services.
Our Responsibilities. The services provided to You herein are subject to Our then current Service Level Addendum set forth at https://noni.digital.com/sla and we may review and change this Addendum over time but cannot materially reduce Our obligations herein without Your prior written approval. Additionally, We will routinely backup (not less frequently than once per day) all Your Content and use industry standard security measures to maintain Your Users’s; login information (e.g., User IDs and passwords) for the Application Services in confidence. All storage, backup and archival media, containing Your Content, shall be (a) physically stored in a secure area, (b) logically separated from any other customer data, and (c) protected by industry standard encryption methods.
Your Responsibilities. You shall be responsible for User compliance with this Agreement and for Your Content. You shall not (i) use the Application Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Application Services to store or transmit Malicious Code, (iii) interfere with or disrupt the integrity or performance of the Application Services, or (iv) attempt to gain unauthorized access to the Application Service or its related systems or networks. Any conduct by You that in Our discretion restricts or inhibits any of our other customers from using or enjoying the Application Services is expressly prohibited. You will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application Services, and notify Us promptly of any such unauthorized access or use. You shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Application Services and all charges related thereto.
Payment. You agree to pay Us fees in accordance with the amounts and dates specified on the applicable Order Form. Except as otherwise provided: (i) the subscription fees set forth in each Order Form hereunder shall be fixed during the Subscription Term of such Order Form, including for purchases of additional Users; (ii) the Subscription Term and services fees set forth in each Order Form hereunder will be invoiced upon execution of such Order Form. Except as otherwise specified herein, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, payment terms are quoted from the date of invoice and fees paid are non-refundable. Any payment not received from You by the due date may accrue, at Our discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; from the date such payment was due until the date paid.
Taxes. If We have the legal obligation to pay or collect taxes for which You are responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of Our performance under this Agreement, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
Suspension of Services. If any amount owed by You is thirty (30) days or more overdue, We may, with seven (7) days’ prior notice to You, without limiting Our other rights and remedies, suspend Application Services until such amounts are paid in full. We shall not exercise Our rights under this Section if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute. If You believe, in good faith, that an invoice contains incorrect fee information, You shall send a written notice to Us within fifteen (15) days of receipt of invoice (Dispute Period) providing a reasonably detailed explanation of the nature of the dispute, which explanation shall set forth the dollar amounts withheld and the reasons for withholding such amounts. If We do not respond to the notice within thirty (30) days, Your determination as to the correct fee information set forth in the written notice shall be final. If You do not dispute the applicable invoice during the Dispute Period, any such dispute shall be deemed waived. For clarity, You remain obligated to pay Us for all portions of the applicable invoice that are not under reasonable and good faith dispute. The Parties shall work together expeditiously and in good faith to resolve all fee disputes.
Intellectual Property Rights.
General. All right, title, and interest in and to the Application Services, Our Confidential Information and Documentation, including, without limitation, all modifications, enhancements and intellectual property rights thereto shall belong solely to Us and/or Our applicable suppliers.
Ownership of Your Content. You exclusively own all right, title and interest in and to Your Content and Your Confidential Information. In the event of termination or expiration of this Agreement or any applicable Order Form, and if legally permissible and requested by You within ninety (90) days of such termination or expiration, We agree to: (a) return to You Your Content; or (b) destroy or permanently erase Your Content. After such 90-day period, We will have no other further obligation to maintain or provide access to Your Content.
Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Application Services any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the Application Services.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (Disclosing Party) disclosed to the other Party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), Your Content, the Application Services, business and marketing plans, technology, financial and technical information, product designs, and business processes. Confidential Information (except for Your Content) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). We shall notify You promptly in the event a security breach related to Your Content.
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
Representations and Warranties.
Mutual Warranties. Each Party represents and warrants that (a) it has the legal power to enter into this Agreement, and (b) it will not transmit to the other Party any Malicious Code.
Our Warranty. We warrant during the Subscription Term that the Application Services will be free of material defects and will function in substantial conformance to Our Documentation. Our professional services warranty is set forth in Exhibit A. To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND WE DISCLAIM ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE FURTHER DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. No action for breach of the limited warranty set forth in this Section may be commenced more than one (1) year following the expiration of the applicable Subscription Term.
Damages and Limitation of Liability.
Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE APPLICATION SERVICES. EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Liability. IN ALL EVENTS, OUR AGGREGATE LIABILITY TO YOU FOR CLAIMS RELATING TO THIS AGREEMENT OR THE APPLICATION SERVICES, WHETHER FOR BREACH OF CONTRACT OR IN TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY BEFORE THE CLAIM WHICH GAVE RISE TO THE LIABILITY, OR (B) THE ANNUALIZED SUBSCRIPTION VALUE AT THE TIME OF SUCH CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Indemnification by You. Subject to this Agreement, You shall defend, indemnify and hold Us harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Us by a third party alleging that Your Content, or Your use of the Application Services in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that We (a) promptly give written notice of the Claim to You; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle or defend any Claim unless it unconditionally releases Us of all liability); and (c) provide to You, at Your cost, all reasonable assistance.
Exclusive Remedy. This Mutual Indemnification Section contains the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section.
Access and Monitoring. We may access Your account and Your Content as necessary to identify or resolve technical problems or respond to complaints about the Application Services with your permission. We shall also have the right, but not the obligation, to monitor the Application Services to determine Your compliance with the license grant and restrictions set forth herein. Without limiting the foregoing and with two (2) days prior written notice, We shall have the right to remove any material submitted to the Application Services that We find to be in violation of the provisions hereof.
Term and Termination.
Term of Agreement. The term of this Agreement commences on the Effective Date and continues until all Subscription Terms expire or are otherwise terminated.
Subscription Term and Renewal. You may use and access the Application Services during the Subscription Term. Subscription Terms shall automatically renew for additional periods of one (1) year unless either Party gives the other notice of non-renewal at least thirty (30) days prior to the end of the relevant Subscription Term. Subscription pricing for each renewal term will not increase by more than ten percent (10%) as compared to the prior term.
Termination. A Party may terminate this Agreement for cause (i) upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other Party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein.
Effects of Termination. Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term if You do not renew in accordance with the Section Subscription Term and Renewal, the rights and licenses granted hereunder will automatically terminate, and You may not continue to use the Application Services.
General. This Agreement is intended for the sole and exclusive benefit of the Parties and is not intended to benefit any third party. Only the Parties to this Agreement may enforce it. The Parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Headings in this Agreement are for the convenience of the Parties only. Accordingly, they shall not constitute a part of this Agreement when interpreting or enforcing this Agreement.
Severability. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
Assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without our prior written consent. Notwithstanding the foregoing, you may assign this Agreement in its entirety (including all Order Forms), without our consent to Your Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Entire Agreement; Breach and Waiver; Amendment. This Agreement, including all exhibits and addenda hereto and Order Forms constitute the complete and exclusive understanding and agreement between the Parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the Party against whom the waiver, modification or amendment is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or in any other ordering documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms shall be null and void. No waiver of any breach of this Agreement shall constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers shall be strictly construed. No delay in enforcing any right or remedy as a result of a breach of this Agreement shall constitute a waiver thereof. Accordingly, no course of conduct shall constitute an amendment or modification of this Agreement.
Force Majeure. Subject to the further provisions of this Section, any delays or failures by either Party hereto in the performance of the obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such Party’s reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such Party. The period of excused performance pursuant to the foregoing shall be (and only shall be) the actual period during which such an occurrence continues. Accordingly, neither Party hereto shall have the right to terminate this Agreement for cause on account of a failure of the other Party timely to perform its obligations hereunder during the period of such excused performance pursuant to the foregoing.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Virginia, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal actions or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Alexandria, VA and the Parties hereby consent to personal jurisdiction and venue therein.
Survival. The Parties’s rights and obligations under the Sections Fees, Intellectual Property Rights, Confidentiality, Damages and Limitation of Liability, Mutual Indemnification, Term and Termination and Miscellaneous), shall survive the termination of this Agreement for any reason.Notices. All notices required or contemplated by this Agreement shall be in writing. Notices from You to Us shall be delivered or mailed to Sunset Technologies, Inc., 8577 Sudley Road, Suite D, Manassas, VA 20110, Attention: CEO , or emailed to legal@Sunset.Technologies.it, and notices from Us to You shall be delivered or mailed to You at the address given above. Any notice to be given or served hereunder by either Party shall be deemed given and received hereunder when delivered personally, emailed, sent by nationally recognized overnight delivery service, or three (3) days after being mailed certified mail, postage prepaid, to You or Us in accordance with this Section.