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TERMS AND CONDITIONS ####1. DELIVERY OF APPIRIO PRODUCTS ##1.1. Access to Products. Appirio shall make available to Customer the Appirio Products specified in the applicable Order Form for the Subscription Term and for use by the number of Users specified in such Order Form. “User” means a unique, named employee or Contractor (as defined below) of Customer who is authorized by Customer to access and use the applicable Appirio Product. Customer may permit its independent contractors and consultants who are not competitors of Appirio (“Contractors”) to serve as Users, provided Customer remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement and any such use of Appirio Products by such Contractor is for the sole benefit of Customer. ##1.2. Passwords and User IDs. Customer shall require that all Users keep any user ID and password information strictly confidential. User IDs are granted to individual, named persons and may not be shared. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords. ##1.3. Additional Users. Customer may add Users by entering into additional Order Forms with Appirio. Unless otherwise specified in the applicable Order Form: (i) the Subscription Term for such additional Users’ Subscriptions shall be coterminous with the latest expiration of the Subscription Term in effect at the time the additional Users are added; and (ii) pricing for the additional Users’ Subscriptions shall be Appirio’s then current Subscription rates, pro-rated for the remainder of the Subscription Term in effect at the time the additional Users are added. ##1.4. Support. During the Subscription Term of each Appirio Product, Appirio shall provide support and maintenance (“Support”) for such Appirio Product in accordance with the terms set forth on Exhibit A (Customer Support). ##1.5. Remote Hosting. Customer acknowledges and agrees that the Appirio Products may operate on or with a hosted application platform operated by a third party (such as salesforce.com Google, or Amazon), and Appirio shall not be responsible for the operation of such service, nor the availability or operation of the Appirio Products to the extent such availability and operation is dependent upon the availability and operation of the such service. Customer shall be solely responsible for procuring any rights necessary for Customer to access such service and for complying with any applicable terms or conditions. Appirio does not make any representations or warranties with respect to any third-party providers or any of their products or services. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider. ##2. LICENSE ##2.1. Grant of License. Subject to the terms and conditions of this Agreement, Appirio hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable, limited right to access and use the Appirio Products specified in an Order Form, only in accordance with (a) any technical specification documentation generally made available by Appirio with regard to such Appirio Product (“Documentation”), (b) the applicable Subscription Term and (c) any User or other field of use restrictions set forth in the applicable Order Form. “Appirio Products” shall also include any Documentation and any Support releases of the same Appirio Product made available to Customer under this Agreement. ##2.2. License Restrictions. Customer shall not: (a) rent, lease, copy, provide access to or sub-license Appirio Products to a third party, (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or any non-public APIs to Appirio Products (c) modify any Appirio Product (provided that, for the avoidance of doubt, configuration or customization of the Appirio Product using the tools provided in the Appirio Product shall not be considered a prohibited modification), or create any derivative product from any of the foregoing, (d) circumvent or disable any security or other technological features or measures of the Appirio Product, (e) remove or obscure any product identification, proprietary, copyright or other notices contained in Appirio Products (including on any reports or data generated by the Appirio Products), (f) incorporate the Appirio Products into any other offering (whether software-as-a-service or otherwise), (g) use the Appirio Products in any unlawful manner or in any other manner that interferes with, disrupts, or disables the Appirio Products or the networks or services on which the Appirio Products operate, or (h) publicly disseminate information or analysis regarding the performance of Appirio Products. For clarity, Appirio reserves the right to suspend or terminate any User’s or Customer’s use of the Appirio Products for violation of any of the foregoing restrictions, as determined by Appirio in its sole discretion. ##3. CUSTOMER DATA ##3.1. Generally. “Customer Data” means any business information or other data of any type that is provided by Customer to Appirio in connection with Appirio providing Appirio Offerings. Customer shall ensure that Customer’s use of Appirio Products and all Customer Data is at all times compliant with all applicable local, state, federal and international law, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data and complies with Customer’s privacy policies. Customer is solely responsible for the accuracy, content and legality of all Customer Data, and Customer shall ensure that a duplicate copy of any Customer Data exists before it is uploaded to or used in connection with the Appirio Products. ##3.2. Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Appirio. Subject to the terms of this Agreement, Customer hereby grants to Appirio a non-exclusive, worldwide, royalty-free right to use, copy store, transmit and display the Customer Data, but only to the extent necessary to provide Appirio Offerings. ##4. OWNERSHIP ##4.1. Ownership. This is a subscription agreement for use of Appirio Products and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to access and use the Appirio Products and that no ownership rights are being conveyed to Customer under this Agreement or otherwise. Appirio or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Appirio Offerings and any and all related and underlying software (including interfaces), databases (including data models and structures) and underlying technology. Further, Customer acknowledges that the Appirio Products are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the Appirio Product itself. ##4.2. Feedback. Customer may submit comments, questions, ideas or other information to Appirio related to Appirio Offerings (“Feedback”). Appirio may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction. ##5. SUBSCRIPTION TERM, FEES & PAYMENT ##5.1. Subscription Term and Renewals. The term of any Subscription shall be one year commencing on the Effective Date of the applicable Order Form (unless otherwise designated in the Order Form). Subscriptions shall automatically renew for additional periods of one (1) year at the list price in effect at the time of renewal unless one party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the relevant Subscription Term. ##5.2. Subscription Fees. Customer shall pay all fees for each Subscription as specified on the applicable Order Form. Except as otherwise specified in this Agreement or in an Order Form: (a) fees are based on Appirio Products and services purchased, not actual usage, (b) payment obligations are non-cancelable, (c) fees paid are non-refundable and (d) the number of Subscriptions purchased cannot be decreased during the relevant Subscription Term. Because fees are based on monthly units, fees for Subscriptions purchased in the middle of a monthly period will be charged for that monthly period in full and going forward based on the number of monthly periods remaining in the Subscription Term. Appirio reserves the right to modify its Subscription fees at any time upon at least thirty (30) days prior notice to Customer. ##5.3. Payment Terms. All payments shall be made in U.S. dollars within thirty (30) days of receipt of invoice, unless otherwise specified in the applicable Order Form. Customer shall be responsible for all sales, use, GST, value-added withholding or similar taxes or levies, whether domestic or foreign, except taxes based on the net income of Appirio. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due. ##5.4. Suspension of Service; Reconnection Fees. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Appirio reserves the right to suspend Customer’s access to the Appirio Products without liability to Customer, until such amounts are paid in full. In addition, Appirio reserves the right to impose a reconnection fee to restore Customer’s access after all amounts have been paid in full. ##6. TERM AND TERMINATION ##6.1. Term. This Agreement is effective as of the Effective Date and unless terminated earlier in accordance with this Agreement shall terminate upon the expiration or termination of all Subscription Terms. ##6.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party. ##6.3. Effect of Termination. Upon any termination of this Agreement, Customer shall immediately cease any and all use of and access to Appirio Products and delete (or, at Appirio’s request, return) any and all copies of any related Documentation, any Appirio passwords or access codes and any other Appirio Confidential Information (as defined below) in its possession. Customer acknowledges that following termination Customer shall have no further access to any Customer Data through the Appirio Products, and that Appirio may delete any such data in its possession at any time after termination. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Appirio shall have no liability from any termination of any Appirio Product or termination of this Agreement in accordance with the terms of this Agreement. ##6.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 2.2 (General Restrictions), 3 (Customer Data), 4 (Ownership), 5.2 (Subscription Fees), 5.3 (Payment Terms), 6 (Term and Termination), 7.2 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Indemnification), 11 (Confidential Information), and 12 (General Terms). ##7. LIMITED WARRANTY ##7.1. Limited Warranty. Appirio warrants, for Customer’s benefit only, that Appirio Products will operate in substantial conformity with the applicable Documentation. Appirio does not warrant that Customer’s use of the Appirio Products will be uninterrupted or error-free or that it will preserve or maintain any Customer Data without loss. Appirio’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Appirio’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Appirio determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of: (a) the pro-rated amount of the applicable monthly Subscription fee allocable to the number of days the Appirio Product was not in conformance with the warranty and (b) any fees pre-paid by Customer for any remaining portion of the terminated Subscription Term. The limited warranty set forth in this Section shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis. ##7.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1, APPIRIO PRODUCTS, SUPPORT, PROFESSIONAL SERVICES OR OTHER OFFERINGS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. APPIRIO AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MINIMUM PERIOD REQUIRED BY LAW. ##APPIRIO SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF APPIRIO. ##APPIRIO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S USE OF THIRD PARTY SERVICES. ##8. PROFESSIONAL SERVICES. Appirio shall provide the professional consulting services (“Professional Services”) (if any) purchased in the applicable Order Form. The parties acknowledge that the scope of the Professional Services consists solely of either: (a) assistance with Appirio Product deployment and usage; or (b) development or delivery of additional related Appirio copyrighted software or code. Customer shall have a license right to use anything delivered as part of the Professional Services subject to the terms of its license to use the Appirio Products, but Appirio shall retain all right, title and interest in and to any such work product, code or deliverable and any derivative, enhancement or modification thereof. The scope of Professional Services shall be as set forth in a Statement of Work (“SOW”) executed by both parties describing the work to be performed, fees, dependencies and other technical specifications or related information. Customer shall pay Appirio at the per-hour rates set forth in the Order Form (or, if not specified, at Appirio’s then-standard rates). Customer will reimburse Appirio for reasonable travel and lodging expenses as pre-approved and incurred. ##9. LIMITATION OF REMEDIES AND DAMAGES ##9.1. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. ##9.2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, A PARTY’S ENTIRE LIABILITY RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID (IN THE CASE OF APPIRIO’S LIABILITY TO CUSTOMER) OR PAYABLE (IN THE CASE OF CUSTOMER’S LIABILITY TO APPIRIO) BY CUSTOMER TO APPIRIO DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT. THIS PARAGRAPH SHALL NOT APPLY WITH RESPECT TO ANY CLAIM ARISING UNDER SECTIONS 2.1 (GRANT OF LICENSE), 2.2 (LICENSE RESTRICTIONS), 10 (INDEMNIFICATION) OR 11 (CONFIDENTIAL INFORMATION). ##9.3. The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. ##10. INDEMNIFICATION. ##10.1. Indemnification Obligations of Appirio. Appirio shall indemnify, defend and hold harmless Customer from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim of infringement of a U.S. patent, copyright, or trademark asserted against Customer by a third party based upon Customer’s authorized use of Appirio Products in accordance with the terms of this Agreement. If Customer’s use of any Appirio Product is, or in Appirio’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Appirio may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using Appirio Products; or if (a) and (b) are commercially impracticable; (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term which was paid by Customer but not delivered by Appirio. The foregoing indemnification obligation of Appirio shall not apply: (1) if a Appirio Product is modified by any party other than Appirio, but solely to the extent the alleged infringement is caused by such modification; (2) to the extent such claim arises from any element of any third party product or service or the combination of the Appirio Product with any other third-party product or service; (3) to any unauthorized use of Appirio Products; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within Appirio Products. THIS SECTION 10.1 SETS FORTH APPIRIO’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. ##10.2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Appirio from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from Customer Data (including, but not limited to, any claim of intellectual property infringement) or Customer's use of Appirio Products in violation of this Agreement. ##10.3. Indemnification Procedures. A party’s indemnification obligations hereunder are subject to the indemnifying party having received from the indemnified party: (i) prompt written notice of the claim for which the indemnified party is seeking indemnity hereunder (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of the indemnified party. ##11. CONFIDENTIAL INFORMATION. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Appirio Products shall be deemed Confidential Information of Appirio without any marking or further designation. The terms of this Agreement shall be deemed the Confidential Information of both parties. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would may substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. ##12. GENERAL TERMS ##12.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer all or a portion of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void. ##12.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. ##12.3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California without regard to its conflicts of laws provisions, and without regard to the United Nations Convention on the International Sale of Goods. Unless waived by Appirio in its sole discretion, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Santa Clara County, California and both parties hereby submit to the personal jurisdiction of such courts. ##12.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. ##12.5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee if given by overnight courier service, or by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. ##12.6. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. ##12.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that Appirio Products are on-line, subscription-based products, and that in order to provide improved customer experience Appirio may make changes to Appirio Products. ##12.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. ##12.9. Subcontractors. Appirio may use the services of subcontractors for performance of services under this Agreement, provided that Appirio remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Appirio Products as required under this Agreement. ##12.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. ##12.11. Government End-Users. The Appirio Products are commercial computer software. If the user or licensee of the Appirio Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Appirio Products, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Appirio Products were developed fully at private expense. All other use is prohibited.
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