IMPORTANT: DO NOT USE THE SERVICE OR SOFTWARE UNTIL YOU HAVE READ AND AGREED TO THESE TERMS.
Note: If Customer’s use of the Service is on a trial, evaluation, or proof of concept basis, the terms of the separate Evaluation Agreement (“Evaluation Agreement”) apply.
BY (A) SIGNING A DOCUMENT THAT REFERENCES THIS AGREEMENT, OR (B) ISSUING A PURCHASE ORDER AGAINST A QUOTATION THAT REFERENCES THIS AGREEMENT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SERVICE, SOFTWARE OR CONSULTING SERVICES THE PURCHASE OF WHICH REFERENCED THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS LEGALLY ENFORCEABLE.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR OTHER ENTITY, THEN YOU MUST BE AUTHORIZED TO BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, do not place an Order and/or terminate your access to the Service (or in connection with an installation process do not click “I accept” and terminate the installation process).
Modifications to this Agreement: The terms of this Agreement may not be modified with respect to the Order to which they apply except as follows: (a)in writing and signed by both parties, (b) unless otherwise specified by Precisely, changes to this Agreement become effective upon (i) any extension of the then-current Term, or (ii) upon the Commencement Date of a new Order after the effective date of the updated version of this Agreement. Continued use of any Service after the updated version of this Agreement goes into effect as noted above will constitute Customer’s acceptance of such updated version.
This is an agreement between Customer and Precisely (both as defined below).
1.1 For the purposes of this Agreement, the following terms will have the corresponding definitions:
“Affiliate” means an entity that Controls, is Controlled by or is under common Control with a party, where “Control” for purposes of this Agreement means the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise, with direct or indirect ownership of more than fifty percent (50%) of the voting securities or other equivalent interests of an entity.
“Agreement” means exclusively this Subscription Agreement document, any applicable Data Protection Addendum, the Support Terms, and the Service Description applicable to the Service to which Customer has a subscription.
“Allotment” means the number of Transactions to which Customer is entitled to use or other agreed metric during a given Term as reflected in an Order.
“AUP” means the provisions set out in Section 3 (Customer’s Use of the Service and Software) governing acceptable use of the Service and Software.
“Commencement Date” means the date specified as the start of a Service subscription in the Order or if none is specified then the date on which Precisely first makes the Service available to Customer for access.
“Confidential Information” means all confidential and proprietary information of either party, including but not limited to, each party’s and its Affiliates: (a) customer and prospect lists, names or addresses, existing agreements with Discloser and business partners; (b) pricing proposals, financial and other business information, data processes and plans; (c) research and development information, analytical methods and procedures, hardware design, technology (including the Service), tests, benchmarking, scripting languages or routines;; (d) business practices, know-how, marketing or business plans; (e) this Agreement, Orders, and Service Information; and (f) any other information identified in writing as confidential or information that the Recipient knew or reasonably should have known was confidential, in each case that is disclosed to the Recipient or to which the Recipient gains access in connection with this Agreement.
“Consulting Services” has the meaning given in Section 5.1 but does not include the use of Precisely’s software as a service (defined herein as a Service).
“Customer” or “You” means the entity(ies) specifically named in the Order as the approved customer(s) of the applicable Service.
“Customer Data” means information, data sets, or other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer to a Service in connection with the use of such Service. For purposes of clarity, Customer Data does not include Data Products or Data Output.
“Customer Personal Data” and “Personal Data” have the respective meanings given in an applicable Data Protection Addendum.
“Customer Persons” has the meaning given in Section 12.1.
“Customer System” means the software, hardware and communications infrastructure comprising the Customer’s information technology system owned or controlled by Customer.
“Data Output” means the data generated through the use of the Service and/or through analyzing or processing Data Products, excluding Customer Data.
“Data Product” means data files, including postal, census, geographic, demographic, and other data, that are commercially licensed to Customer as identified in an Order or otherwise licensed with certain Software or as part of a Service.
“Data Protection Addendum” means the document of the same name set out in the Service Information covering data privacy and data security terms if and to the extent applicable in accordance with its terms.
“Deliverables” means the tangible work product and output of Consulting Services (excluding Customer Data) as set forth in a SOW.
“Discloser” means the entity whose Confidential Information is disclosed to the Recipient in accordance with Section 10 (Confidentiality).
“Effective Date” means the date specified as such in the Order, or if no date is specified, the earlier of (a) the date on which the Order is executed by Customer, (b) the Commencement Date, or (c) the date Precisely’s quotation has been accepted by Customer’s issuance of a purchase order referencing the quotation by number.
“Evaluation” of a Service and/or Software means that a Service and/or Software, as applicable, is being made available by Precisely for a limited duration to Customer on a trial, evaluation, or proof of concept basis for the fees, if any, described in an Order.
“Force Majeure Event” means an event beyond the reasonable control of a party, including, but not limited to: acts of God; government actions; fire; labor difficulties; civil disturbances; transportation interruptions; interruptions or failures of telecommunications, digital transmission links, or power; hostile network attacks; unforeseen pandemics; failure of the Hosting Service Provider; or other natural or supervening disasters.
“Hosting Service Provider” means a third-party infrastructure provider of the information technology systems upon which the Service is installed in a production environment.
“Order” means the Precisely provided document referencing this Agreement pursuant to which Customer acquires a license to access the Service, Software, and/or Consulting Services, as evidenced by (a) a written agreement signed by Customer and Precisely (including a SOW), (b) Customer’s acceptance of applicable online ordering terms, or (c) Precisely’s quotation that has been accepted by Customer’s issuance of a purchase order referencing the quotation by number.
“Precisely” means Precisely Software Incorporated or its Affiliate as identified on an Order for Services, Software and/or Consulting Services, as applicable.
“Recipient” means the entity receiving Confidential Information of the Discloser in accordance with Section 10 (Confidentiality).
“Security Addendum” means the document of the same name set out in the Service Information if and to the extent applicable in accordance with its terms.
“Service” means an individually branded module within Precisely’s software as a service offering known as the Data Integrity Suite made available by Precisely to Customer as identified in an Order and more fully described in the Service Description, including the Evaluation of a Service but excluding Consulting Services.
“Service Description” means the current version of the document set out in the Service Information describing the technical and functional capabilities of the Service and containing any additional terms applicable to the use of the Service by Customer, as updated by Precisely from time to time.
“Service Information” means the information about the Services located at www.precisely.com/dis-terms including the Data Protection Addendum, the Security Addendum, the Service Descriptions, Support Terms, and the SLA.
“Service Level Availability” or “SLA” means the document set out in the Service Information describing Precisely’s policies relating to service levels in relation to each Service.
“Site” has the meaning given in Section 6.2(a).
“Software” means any software in object code form (and/or Data Products) provided by Precisely and installed by Customer on the Customer System.
“SOW” means a Statement of Work or other mutual agreement between Customer and Precisely for the purchase of Consulting Services.
“Suggestions” means any suggestions, enhancement requests, recommendations or other feedback provided by Customer and/or Users relating to the operation of the Services, Software and/or Consulting Services, whether before, during or after the Term.
“Support” means the technical support and maintenance services provided by Precisely or its authorized agents in accordance with the Support Terms.
“Support Terms” means the support and maintenance policies with respect to the same, including those set out in the Service Information.
“Term” means the term of this Agreement or the Order, as applicable, set out in Section 15 (Term).
“Territory” means the jurisdiction of the geographical territory in which the Service is authorized to be accessed which shall be the geographical territory comprising one or more states, countries or other geographic regions in which Customer is located unless otherwise specified in the Order.
“Third-Party Platform” means any platform, add-on, service, code (including open source) or product not provided by Precisely that Customer elects to integrate, connect to, or enable for use with the Service or Software.
“Third-Party Products” means products and/or services provided by third parties included in the Service, Software, and/or Consulting Services, including software (and any derivative work(s) thereof) that is distributed under an open-source license approved by and identified on https://opensource.org/licenses or any successor website thereof.
“Transaction” means, as applicable to a Service and as noted in the applicable Service Description and Order, the number of transactions, observed columns, active rows, Users, or other metric to which Customer is entitled pursuant to an Order.
“User” means an individual Customer employee or individual subcontractor who is authorized by the Customer to use the Service in accordance with this Agreement and the applicable Order.
1.2 In the event of any conflict or ambiguity between the provisions of this Agreement, any Order and any document referred to in this Agreement, the conflict or ambiguity shall be resolved in the following descending order of precedence: the Data Protection Addendum; the Security Addendum; Orders (with the most recent taking precedence); the Service Description; the SLA; the terms of any separate Evaluation Agreement; and the main body of this Agreement.
1.3 Words in the singular include the plural and vice versa and words in one gender include any other gender. Headings are for convenience only and shall not affect the interpretation of this Agreement. A reference to legislation or a legislative provision includes any subordinate legislation made under it and any legislative provision which modifies, consolidates, re-enacts or supersedes it. A reference to any party includes its successors in title and permitted assigns.
2. SUBSCRIPTION AND LICENCES
2.1 Where Customer purchases a subscription for a Service pursuant to an Order, Precisely hereby grants to Customer and Customer’s Users during the applicable Term a limited, non-exclusive, non-sublicensable, non-transferable subscription license to access and use such Service for Customer’s internal business operations, subject to the terms of this Agreement.
2.2 Where Customer purchases a subscription for Software (including for Data Products) pursuant to an Order or purchases a subscription to a Service that requires Software to correctly function, Precisely hereby grants to Customer and Customer’s Users during the applicable Term a limited, non-exclusive, non-sublicensable, non-transferable subscription license to use the object code form of such Software for Customer’s internal business operations, subject to the terms of this Agreement.
2.3 Where Precisely has agreed to provide an Evaluation of a Service and/or Software, the terms of the separate Evaluation Agreement will control Customer’s temporary use of the Service and associated Software.
2.4 Service-specific terms applicable to certain of the Services are set out in the Service Description and form part of this Agreement.
2.5 Unless otherwise set forth in the applicable Order, Customer is granted a perpetual license to continue to use the Data Output upon expiration or termination of the license to the Service or Data Products, as applicable to where the Data Output was generated, which will continue to be governed by this Agreement and the applicable Order.
2.6 Customer hereby grants to Precisely and its sub-contractors a limited, non-exclusive right and license during the Term to access and use the Customer Data solely to provide the Service, Evaluation of a Service and/or Software, and/or Consulting Services, as applicable. Customer controls whether Customer Data is submitted to a Service.
2.7 In this Agreement, an obligation of Customer shall be deemed to include a requirement that Customer procure the compliance of its Users with such obligation.
3. CUSTOMER’S USE OF THE SERVICE AND SOFTWARE
3.1 Except as otherwise provided in an Order, Customer will use the Service, Software and Data Output generated from either solely for its internal business purposes and will not use the Service or Software on behalf of or make the Service or Software available to any third party (other than Customer’s Users).
3.2 Customer will comply with applicable laws, rules and regulations governing use of the Services and Software, including, without limitation, any data protection or privacy laws. Customer will be solely responsible for the accuracy and legality of all Customer Data submitted to the Service and will comply with all laws, rules and regulations relating to the use, disclosure, and transmission of such Customer Data, including providing such to Precisely. Customer represents and warrants it has the legal right to provide the Customer Data to Precisely for the purposes set out in this Agreement and such disclosure of Customer Data is in accordance with Customer’s privacy policies and does not infringe the intellectual property rights or personal rights (including copyright, trademark, trade dress, patent, or other rights) of any third party. Customer will promptly remove from the Service any Customer Data which is the subject of a complaint made by a third party.
3.3 Customer will not: (a) reverse engineer, decompile or disassemble the Service or Software (except to the minimum extent permitted by applicable law); (b) license, sell, rent, lease, transfer or assign the Service or Software (except to the limited extent expressly permitted under this Agreement); (c) repackage, re-brand, white label or otherwise use the Service or Software for inclusion in any product and/or service which the Customer sells or provides to any third party; (d) copy, modify, create derivative works from, frame, mirror, republish or distribute the Service or Software; (e) access the Service or Software (or use Data Output) for the purpose of building a product or service which competes with or performs the same or similar functions as any Service or Software; (f) undertake benchmarking or performance analysis for Customer’s development or improvement of its own products and services; (g) attempt to bypass copy protection devices, security or access controls; or (h) alter, remove or obscure any patent, copyright or trademark notice contained in the Service or Software; or (i) use any Third-Party Product that is provided with the Services or Software independently from the Services or Software, as applicable.
3.4 Customer will not use or permit the use of the Service or Software to provide: (a) real-time navigation or route guidance synchronized to the position of a person’s sensor-enabled device; (b) in-flight navigation; or (c) a digital map database (a database containing road geometry and street names, routing attributes enabling turn by turn directions, or latitude and longitudes of individual addresses and house number ranges). Additionally, Customer will not use or permit the use of the Service or Software in configuring, supporting, or otherwise servicing on-line control equipment in hazardous environments requiring fail-safe performance such as, but not limited to, nuclear facilities, aircraft communications or traffic control, emergency response or law enforcement use, life support machines or weapons systems in which failure of the Service could lead directly to death, personal injury, or severe physical or environmental damage.
3.5 Customer will not use or permit use of the Service or Software to: (a) store or display adult content; (b) promote unlawful or illegal activities; (c) send or store infringing, obscene, threatening, or unlawful or tortious material; (d) unlawfully store, process or transmit Personal Data; or (e) knowingly disrupt other users of the Service, network services or network equipment. Disruptions include, but are not limited to, denial of service attempts, distribution of unsolicited advertising or chain letters, propagation of computer worms, security exploits, trojans and viruses, or use of the Service or Software to make unauthorized entry to any other device accessible via the network or Service and/or Software.
3.6 Customer shall take all reasonable measures to avoid and reduce damages attributable to loss, corruption, or destruction of Customer Data, including conducting security checks for the purpose of defending or detecting viruses and other disruptive programs within Customer Systems. In addition, Customer is responsible for maintaining regular (at least daily) backups of all Customer Data. Where Precisely has caused loss, corruption, or destruction of Customer Data, Precisely’s liability and Customer’s sole remedy is restoration of such data from last known daily backup.
3.7 Customer will not use Data Output outside of the Service or Software, as applicable, or disclose Data Output to third parties except as authorized in the applicable Order(s), including with respect to any geocoding data, the longitude and latitude or “x,y” coordinates contained therein. Any authorized disclosure of Data Output to third parties must prohibit those third parties from selling, sublicensing, or disclosing the Data Output to additional third parties and from using the Data Output for any purpose other than as authorized in the applicable Order(s). Customer may use Data Output to derive conclusions or recommendations that form part of Customer’s services to its customers, but Customer may not provide Data Output as part of those services. Customer may translate Data Output into other data formats within any applicable limits of this Agreement and the applicable Order(s). Customer will not store or append to Customer’s database vector data (including latitude/longitude or “x,y” coordinates) for any purpose or provide such vector data to third parties.
3.8 The Service and/or Software may include Third-Party Products which may be subject to additional terms and conditions specific to use of the Service and/or Software. To the extent required by any license that accompanies any Third-Party Products, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Third-Party Products, including, without limitation, any provisions governing access to source code, modification or reverse engineering. Such additional terms may also be set out or referenced in the Service Description and/or Order.
4. PROVISION OF SERVICES
4.1 Precisely will use commercially reasonable efforts to make the Services available in accordance with the SLA. Support for the Service and the Software will be available as described in the Support Terms.
4.2 Precisely will not materially decrease the overall functionality of the Service during a Term. However, Precisely may make changes to the Service at any time provided that the changes apply to Precisely’s customers of the Service generally. Precisely will use reasonable efforts to give prior written notice of any such material changes in accordance with Section 25.2.
4.3 Customer is responsible for registering Users and issuing usernames and passwords to Users for use of the Service. Customer shall ensure that Users provide accurate information in the registration process and keep usernames and passwords secret to prevent any unauthorized access to and use of the Service. If a User ceases to be an employee or contractor of Customer, Customer shall promptly revoke that User’s account to prevent further access by that User. Customer shall immediately notify Precisely if it knows or suspects any loss, theft or unauthorized use of the login details or other breach of security relating to access to and use of the Service. Customer is responsible for all acts and omissions of its Users as if such acts and omissions were made by Customer.
4.4 All Customer Data submitted to the Service must be submitted in Precisely’s submission format in accordance with the Service Information or any other format agreed to by the parties.
4.5 Customer’s use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Precisely does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use Customer Data. If Customer enables a Third-Party Platform with the Service, Precisely is granted the right and license to access and exchange Customer Data with the Third-Party Platform on Customer’s behalf.
5. PROVISION OF CONSULTING SERVICES
5.1 Precisely, upon Customer’s request, may perform additional consulting and professional services for Customer (“Consulting Services”). Any Consulting Services performed by Precisely relating to the set-up and implementation of a new Service will be detailed in the applicable Service Description or an Order. Any other Consulting Services performed by Precisely will be detailed in a separate SOW which will include additional terms relating to the provision of such Consulting Services. Unless otherwise set out in the SOW or as agreed to by the parties, Precisely will commence performance of the Consulting Services fifteen (15) business days following execution of the SOW and the Consulting Services will be performed remotely or from Precisely’s offices. Unless otherwise stated in the SOW, Consulting Services will be performed and billed in contiguous eight (8) hour increments.
5.2 For a time and materials engagement, Precisely estimates that the Consulting Services will be completed in approximately the number of hours set out in the SOW. Precisely does not represent, however, that the Consulting Services will be completed within the number of hours specified therein. Any estimates provided in the SOW, including expected hours to complete the Consulting Services and any timeline provided by Precisely, are based on known functional requirements and technical environments as of the effective date of the SOW.
5.3 Any modifications to the Consulting Services must be in writing and signed by authorized representatives of each party. The modifications may be set forth in a project change request or other document agreed to by the parties in writing. Changes or delays in the work schedule originating with Customer will be subject to a project change procedure and may result in an increase in fees.
5.4 Precisely personnel performing Consulting Services at Customer’s offices will comply with Customer’s reasonable policies and procedures in effect at such location that have been provided to Precisely in advance and that are not inconsistent with Precisely’s own policies.
5.5 Deliverables and Consulting Services are deemed accepted upon delivery unless otherwise set forth in a SOW.
6. SOFTWARE PROVISIONS
6.1 This Section 6 shall only apply where (a) an Order includes Software to be installed and operated on the Customer System, or (b) a subscription to a Service requires Software to correctly function.
6.2 Where specified in the Order, the Software shall be subject to license metrics and other restrictions (“License Metrics”), which may include the following:
(a) Where the Order specifies a site for the installation of the Software (“Site”), Customer shall only install the Software on the Customer System at that Site. Customer shall not transfer the Software to any location other than the Site (including from an on-premises location to a cloud location) without Precisely’s prior written consent. Customer will ensure that the Site is a suitable environment for the Customer System.
(b) If the Order designates a specific part of the Customer System for installation (“Licensed Platform”) then the Software may only be used on that Licensed Platform.
(c) If the Software is installed in a virtual environment on the Customer System, Customer must license the entire number of the applicable License Metric within the environment that may be allocated or used, in whole or in any part, to access the Software.
6.3 Customer will only use the Software during the Term in accordance with the terms of this Agreement and any user guides and instructions contained within the Service Information or other applicable documentation.
6.4 SOFTWARE PROVIDED TO CUSTOMER MAY REQUIRE A LICENCE KEY AND PRECISELY RETAINS ACCESS CONTROL RIGHTS IN RELATION TO THE SOFTWARE: (A) TO COMPLY WITH REQUIREMENTS OF REGULATORY AUTHORITIES; (B) TO PREVENT USE OF THE SOFTWARE BEYOND THE TERM OF AN ORDER; AND/OR (C) TO PREVENT USE OF THE SOFTWARE IN EXCESS OF ANY TRANSACTIONS (OR OTHER RESTRICTIONS) SET OUT IN THIS AGREEMENT OR IN AN ORDER.
6.5 Customer may make a reasonable number of copies of the Software and associated documentation solely at any Customer owned or third-party disaster recovery facility for the purpose of testing Customer’s disaster recovery plan for passive/cold disaster recovery purposes (“DR Copies”). Licensee must reproduce all copyright, trademark, trade secret and other proprietary notices in the DR Copies. The DR Copies can only be used to perform disaster recovery testing or if the Licensed Platform becomes inoperative, in which event all License Metrics limitations specified in the Order shall apply. Except to perform disaster recovery procedures, Customer is not permitted to use the DR Copies for non-production concurrently with the production copies of the Software. Use of the DR Copies for more than ninety (90) days requires Precisely’s prior consent. For avoidance of doubt, this Section 6.5 does not apply to copies of Software licensed in an Order for use specifically in active-active / warm situations and in such cases the terms of such Order shall instead control.
6.6 Customer shall maintain the Customer System in accordance with good industry practice and shall ensure that Customer System meets the security standards required by applicable law and good industry practice. Customer is responsible for implementing all system vulnerability updates, patches and upgrades to ensure the security of the Software and data processed on the Customer System. Customer shall comply with any requirements set out in the Service Information regarding the encryption and security of communications between the Software and the Service.
6.7 Customer shall keep the Software updated with any updates, patches, and fixes (“Updates”) which Precisely may make available to Customer. Precisely may provide Customer with Software Updates as part of Precisely’s update release cycle which Customer agrees to install within a reasonable period (not exceeding (thirty 30) days). Customer may install, for a period of up to fifteen (15) days from the date of installation, a copy of the Software and Updates in a test environment for the sole purpose of determining if such Updates will be deployed by Customer in the licensed production environment. At the end of such period, Customer will uninstall and delete all instances of the Software and the Updates from the temporary test environment unless a separate license for such environment is obtained.
6.8 Where specified in the Order, Precisely may agree to provide maintenance services in relation to certain Software and Updates for Data Products. Such maintenance services are provided in accordance with the Support Terms and the Order.
6.9 Precisely may deliver the Software electronically via the Internet or permit Customer to download the Software from a Precisely website or FTP site.
7.1 Precisely warrants to Customer that it has the right to grant to Customer a license to use the Service and/or Software in accordance with Section 2 (Subscription and Licenses).
7.2 Precisely warrants to Customer that the Service will materially conform to the Service Description during the Term of the applicable Order when used in accordance with this Agreement. Precisely does not warrant the operability or accuracy of any part of the Customer System or any Customer Data or Data Output processed by Precisely.
7.3 Precisely represents and warrants that during the thirty (30) days following delivery of the Software, or such other period set forth in the Order, the Software will perform all material functions set out in the Software’s documentation and otherwise operate in substantial accordance with such documentation.
7.4 If the Service or Software fails to comply with the above warranties, Customer must notify Precisely in writing of any alleged non-conformities, in which event Precisely will make reasonable efforts to correct the non-conformance as provided in the Support Terms. If Precisely is unable to correct the non-conformance for reasons for which Precisely is responsible, then Customer may, as applicable: (a) terminate the Service and receive a refund of any pre-paid fees for the Service that will not be provided as a result of the termination, and/or (b) elect to terminate the subscription to the non-conforming Software and receive a refund of all fees previously paid for such Software less any value received. The above is Precisely’s entire liability and Customer’s exclusive remedies.
7.5 Precisely warrants to Customer that the Consulting Services will be performed in a professional manner in accordance with generally accepted industry standards for the software consulting industry. Precisely will use reasonable commercial efforts to complete the Consulting Services in accordance with the Order. If the Consulting Services fail to comply with this warranty, Customer will promptly notify Precisely in writing specifying in reasonable detail any alleged non-conformities in the Consulting Service. Upon such notice, Precisely will, as Customer’s remedy, promptly re-perform any such Consulting Service in accordance with the Order and this Agreement.
7.6 PRECISELY DOES NOT WARRANT THAT THE SERVICE OR SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE OR THAT PRECISELY WILL CORRECT ALL ERRORS IN THE SERVICE OR SOFTWARE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT IN RELATION TO SERVICES AND CONSULTING SERVICES, THE SERVICE AND SOFTWARE AND ANY CONSULTING SERVICE ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRECISELY AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF THE SERVICE, CONSULTING SERVICE AND SOFTWARE, INCLUDING, BUT NOT LIMITED TO, (A) ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF PRECISELY IS INFORMED OF THE PURPOSE), ACCURACY, RELIABILITY, OR NON-INFRINGEMENT, OR (B) ANY WARRANTIES ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.
8. PROPRIETARY RIGHTS
8.1 All right, title and interest in the Software, Services, and Third-Party Products (including any modifications to and derivative works of the same) shall belong to Precisely or its licensors. Customer agrees that where it provides Suggestions to Precisely in relation to the Service, Customer grants to Precisely a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate Suggestions into its products and services without obligation or restriction. Precisely retains all right, title and interest to the Deliverables except for those rights expressly granted to Customer and reserves all rights not otherwise expressly granted herein.
8.2 Customer will retain all right, title and interest in and to all Customer Data (including any modifications to and derivative works of the same but not Data Output).
8.3 Precisely retains the right to use non-Personal Data derived from Customer’s use of the Service for the purposes of performing analytics on the Service, or for improving or enhancing the Service or other products or services offered by Precisely to its customers generally in accordance with Section 11.4 of this Agreement.
8.4 Precisely grants Customer a non-exclusive, non-transferable, royalty-free, perpetual license to use the Deliverables arising from Consulting Services on behalf of and for the benefit of Customer to the extent necessary for Customer to get the intended value from the Consulting Services.
9.1 Customer will pay to Precisely, or Precisely’s authorized designee or agent, the fees set out in each Order. All fees and any applicable taxes are due and payable by Customer in the currency specified in the Order by the latter of (a) the number of days from the date of invoice set forth in the Order, or if none, (b) within thirty (30) days from the date of invoice which Precisely may submit in accordance with the Order. The fees set out in an Order are the Customer’s payment for the purchase of a subscription for a Service or Software for the specified Term (or Consulting Services for the Term of a SOW). Except as otherwise specified herein or in an Order, (a) fees are based on Services or Software subscriptions purchased and not actual usage, (b) payment obligations are non-cancelable, (c) fees paid are non-refundable, and (d) quantities purchased cannot be decreased during the relevant subscription term.
9.2 The fees do not include any amount for taxes. Customer will pay all national, state and local sales, use, property, excise, privilege, ad valorem, Internet-related, and other taxes imposed on or with respect to this Agreement. If any sales, use, excise or other taxes (except for taxes based on Precisely’s net income) are assessed against or required to be collected in connection with this Agreement, Precisely will itemize such taxes on its invoices and Customer will pay such taxes unless it provides Precisely with a valid tax exemption certificate authorized by the taxing authority in the Territory or demonstrates through documentation to Precisely’s reasonable satisfaction that such itemized taxes do not apply.
9.3 Allotments purchased may be used at any time during each twelve (12) month period during the Term of the Order. Unused Transactions may not be carried over into subsequent twelve (12) month periods. Some Services will provide information detailing the current number of Transactions charged against Customer’s Allotment. If such information is not available, upon request (not more than once per calendar quarter), Precisely will issue Customer a report detailing the current number of Transactions charged against Customer’s Allotment. Customer shall pay for all use in excess of the purchased Allotments in any Term, at such rates and frequency as may be provided in an Order, or if none, at standard rates and as invoiced by Precisely. Customer and Precisely may execute a further Order to cover excess use and Customer’s projected use for the remainder of the subscription Term.
9.4 Customer will pay Precisely the fees set out in the SOW for Consulting Services in accordance with the payment terms set forth in this Agreement. Fees will be invoiced to Customer based on one of the following billing options, as indicated in the SOW:
(a) Time and Materials: For engagements with a time and materials billing schedule, invoices will be issued monthly in arrears as Consulting Services are performed, based on the hourly or daily rate set forth in the SOW. If a minimum number of hours are indicated on the SOW (“Minimum Hours”), Customer will pay for and permit Precisely to perform the indicated number of Minimum Hours. Should any Minimum Hours not be performed within ninety (90) days of the effective date of the SOW due to delay, unavailability, or other reason within Customer’s control, Customer will promptly pay the fees for such Minimum Hours upon receipt of an invoice by Precisely, which will then be credited against the balance of fees due for completed Consulting Services as they are performed. If Precisely performs Consulting Services at Customer’s request on a weekend or national holiday (for the country where the Consulting Services are being performed or if off-site the country where the Precisely resources are performing the Consulting Services), Customer will pay Precisely one and a half (1.5) times the hourly or daily rate for all Consulting Services performed on such weekend or national holiday.
(b) Retainer Hours: Invoices will be issued to Customer based on the number of hours or days indicated as Retainer Hours prior to commencement of any Consulting Services, based on the rates set forth in the SOW. Retainer Hours are then allocated to Consulting Services performed upon execution until the Retainer Hours are depleted. All Retainer Hours will be consumed in eight (8) hour increments and must be used within twelve (12) months of the effective date of the original SOW purchasing the Retainer Hours. If Customer fails to use the Retainer Hours within such time period, Precisely will not refund the unused pre-paid fees and will be under no obligation to perform the Consulting Services.
(c) Fixed Cost: Invoices will be issued upon delivery of milestones, or in accordance with a billing schedule set forth in the SOW.
9.5 Customer will also pay for all reasonable travel-related and out-of-pocket expenses incurred by Precisely in the performance of the Consulting Services in accordance with Precisely’s corporate travel and expense policy (provided to Customer upon request), which will be billed monthly and due thirty (30) days following date of invoice.
9.6 Where Customer fails to pay the fees by the due date and has not reasonably and in good faith disputed those fees then Precisely may, without limiting its other rights and remedies: (a) charge interest on the late payment of one and a half percent (1.5%) per month or the highest amount permitted by law; and/or (b) suspend performance of the Services until such overdue amounts have been paid in full.
10.1 During the term of this Agreement, each party may receive Confidential Information of the other party.
10.2 The Recipient agrees: (a) to hold the Discloser’s Confidential Information in strict confidence, and apply at least the standard of care used by the Recipient in protecting its own Confidential Information, but not less than a reasonable standard of care, and not to disclose such Confidential Information to any third party; and (b) without the written permission of the Discloser, not to use any Confidential Information of the Discloser except as reasonably required to exercise its rights or perform its obligations under this Agreement. Each party agrees to cause its employees, subcontractors, agents and, if permitted, Affiliates, who require access to such information to abide by such obligations.
10.3 The foregoing obligations do not apply to information that: (a) is already public or becomes available to the public through no breach of this Section 10; or (b) was in the Recipient’s lawful possession before receipt from the Discloser; or (c) is lawfully received independently from a third party who is not bound by a confidentiality obligation; or (d) is independently developed by or on behalf of the Recipient without use of the Discloser’s Confidential information.
10.4 A Recipient may disclose Confidential Information where it is compelled to do so by a governmental agency or a court of law having proper jurisdiction, in which event the Recipient will give the Discloser reasonable notice to enable the Discloser to try to protect the confidentiality of the Confidential Information (unless the Recipient is prohibited from giving such notice by applicable law).
10.5 Upon written request of the Discloser, the Recipient agrees to promptly return or destroy all Confidential Information in its possession and certify its destruction in writing provided that the Recipient may retain one (1) copy of the returned or destroyed items for archival purposes in accordance with its records retention policies and subject to this Section 10.
10.6 Discloser may be irreparably damaged in the event of a breach by Recipient of its obligations hereunder. The parties agree, therefore, that Discloser is entitled to seek, in addition to other available remedies, an injunction restraining any actual, threatened or further breaches of the Recipient’s obligations under this Section 10 or any other appropriate equitable order or decree.
10.7 The obligations in this Section 10 shall continue to apply to the Recipient until the earlier of: (a) three (3) years following the disclosure of the Confidential Information; or (b) the date on which the Recipient is no longer in possession of any Confidential Information belonging to the Discloser.
11. DATA PROTECTION
11.1 Information Security. Precisely shall provide the Service in accordance with the technical and organizational measures described in the Security Addendum, including any updates during the Term of an Order. Customer is responsible for applying appropriate security measures for all Customer Systems. In addition, Customer shall take proper security precautions with respect to the Service, including (a) allowing only appropriate persons access to the Service as Users; (b) properly configuring the Service; (c) ensuring the security of Customer Data; and (d) backing up all Customer Data.
11.2 Data Processing. If Precisely Processes any Customer Personal Data and the Data Protection Addendum is applicable as set forth therein, each party shall comply with its respective obligations set out in the Data Protection Addendum. Customer is solely responsible for providing any necessary legal notices to Customer Persons and obtaining any legally required consents and lawful bases related to Customer’s use, collection, disclosure, sharing, cross border data transfer, and processing of Customer Personal Data (including the transfer of such Customer Personal Data to Precisely and its sub-processors for processing for the purposes of and in accordance with this Agreement).
11.3 Prohibited Data.
(a) “BAA” means a business associate agreement signed by Customer and Precisely governing the parties’ respective obligations with respect to any HIPAA Data uploaded by Customer to the Service in accordance with the terms of this Agreement. Upon mutual execution of a BAA, the BAA is incorporated by reference into this Agreement and is subject to its terms.
(b) “HIPAA Data” means any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act, as amended and supplemented (“HIPAA”), or any similar national or state laws, rules, or regulations.
(c) “Prohibited Data” means (i) HIPAA Data unless Customer has signed a BAA with Precisely, (ii) payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”), and (iii) any similar types of data regulated by national or state laws, rules, or regulations.
(d) To the extent Customer has signed a BAA with Precisely, Customer is permitted to submit HIPAA Data to the Service; provided that HIPAA Data may only be submitted to the Service by Customer uploading it as Customer Data.
(e) Customer shall not upload any Prohibited Data to the Service and Customer acknowledges that the Service is not intended to meet any legal obligations for Prohibited Data or the activities covered by Section 3.4.
(f) Precisely will have no liability under this Agreement for Prohibited Data, notwithstanding anything to the contrary in this Agreement, HIPAA, PCI DSS, or any similar national or state laws, rules or regulations, other than as may be set forth in a BAA.
11.4 Telemetry Data. Precisely may collect certain information related to the Service including, diagnostic information, usage data, performance information, and other telemetry data and information (“Telemetry Data”). Telemetry Data does not include any Customer Personal Data (as such term is defined in the Data Protection Addendum). By using the Service, Customer permits Precisely to collect and use the Telemetry Data for its internal business purposes, including the following: (a) to provide the Service in accordance with this Agreement, (b) to bill and collect Customer for use of the Services, (c) sales and marketing activities, whether to Customer or third parties, (d) comply with Precisely’s legal and regulatory obligations (including to respond to any court order, subpoena, warrant, or law enforcement demand), (e) research, development and/or support of Precisely’s product offerings, or (f) any other legally permitted purpose.
12.1 Export Restrictions. Customer acknowledges that the Software, Third Party Products, Customer Data, content, data or other materials are subject to the export control and sanctions laws and regulations of the United States (“U.S.”) and may also be subject to the laws and regulations of any country in which the Software, Third Party Products, Customer Data, content, data or other materials is provided, accessible, incorporated, transferred, or received. Customer, Users, and any other users of the Software, Third Party Products, Customer Data, content, data, or other materials (including, but not limited to, your employees, contractors, or other third parties acting on your behalf) (“Customer Persons”) will comply with all applicable export control and sanctions laws and regulations. Customer represents and warrants that Customer and all Customer Persons (i) are not an entity, citizen, or resident of, or located within, a country or territory that is subject to a U.S. Government embargo or designated by the U.S. Government as a state sponsor of terrorism (including without limitation, Cuba, Iran, North Korea, Syria, the Crimea Region, and the Donetsk People’s Republic and Luhansk People’s Republic located in Ukraine) (“Embargoed Countries”); (ii) are not acting on behalf of, or directly or indirectly owned or controlled by any governmental entity of any Embargoed Country; (iii) are not identified on any prohibited party list maintained by the U.S. Government, including the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identification List maintained by the Office of Foreign Assets Control of the U.S. Treasury Department, and the Denied Persons List, Entity List, and Unverified List maintained by the Bureau of Industry and Security of the U.S. Commerce Department (collectively, the “Prohibited Party Lists”); (iv) are not 50% or more owned (individually or in the aggregate), or otherwise controlled, by persons designated on a Prohibited Party List; (v) are not acting on behalf of the government of Venezuela, including any person or entity employed or owned or controlled, directly or indirectly, by any political subdivision, agency, or instrumentality of the government of Venezuela; and (vi) will not utilize the Software or portion thereof for military purposes or end uses, or in the design, development or production of nuclear, chemical, or biological weapons. Customer agrees that it will not export, re-export, or transfer the Software except in compliance with U.S. law. Customer specifically agrees not to, and shall not allow Customer Persons to, export, re-export, transfer, or download the Software, including its source or object code, the underlying information or technology, or any related encryption: (a) to any Embargoed Country or to any national of any such country when such embargoes or restrictions are in effect; (b) to any end user who you know or have reason to know will utilize the Software or portion thereof for military purposes or end uses, or in the design, development or production of nuclear, chemical, or biological weapons; (c) to any person who is designated on a Prohibited Party List or who is 50% or more owned (individually or in the aggregate), or otherwise controlled by, persons designated on a Prohibited Party List; or (d) without a license or other governmental authorization if required by law. Customer is solely responsible for complying with local laws in its jurisdiction that might impact its right to import, export or use the Software. Customer understands and acknowledges that Precisely shall have the right to direct Customer to terminate any Customer Persons who are in violation of, or who cannot make the representations provided in, this Section 12, and Customer warrants that it shall take steps to then immediately terminate and prohibit such Customer Persons from accessing or using the Software, Third Party Products, content, data, or other materials. If Customer does not terminate such Customer Persons, Precisely reserves the right to terminate its relationship with Customer.
12.2 Anti-Bribery Compliance. Customer warrants that it has not taken and will not take, any action, directly or indirectly, in violation of (i) the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. §§ 78dd-1, et seq.), (ii) the UK Bribery Act 2010, or (iii) any other applicable anti-corruption or anti-bribery laws.
13.1 Precisely will (a) defend Customer against a claim by an unrelated third party alleging that Customer’s use of the Service or Software in accordance with this Agreement infringes any copyright, trademark, or patent registered or valid within the Territory or misappropriates any trade secret (“IP Claim”) and (b) indemnify Customer in respect of a final award made by a court of competent jurisdiction or the amount agreed to by Precisely in settlement of the IP Claim; provided that: (i) Precisely will have exclusive control of the defense and negotiation of any settlement of the IP Claim; (ii) Customer notifies Precisely promptly of any such claim; (iii) Customer provides reasonable cooperation to Precisely in relation to the defense, settlement and mitigation of the IP Claim, and (iv) Customer does not make any admission or otherwise compromise the defense or settlement of the IP Claim. Precisely will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of Customer not otherwise covered by this indemnification without Customer’s prior consent, which consent shall not be unreasonably withheld or delayed. Customer may elect to participate in the defense of any claim with counsel of its choosing at its own expense.
13.2 If the Service or Software is subject to a claim of infringement or misappropriation as noted above, or if Precisely reasonably believes that the Service or Software may be subject to such a claim, Precisely reserves the right to: (a) modify the Service and/or Software so that they are non-infringing or offer a non-infringing replacement Service and/or Software, at no cost to Customer, which modified or replacement service will be functionally equivalent; (b) procure, at no cost to Customer, the right to continue to use such Service and/or Software; or (c) terminate Customer’s use of such Service and/or Software. If Precisely terminates use of such Service or software, Customer’s remedies, in addition to the indemnification set out herein, will be limited to a refund of any prepaid but unused fees for the Service or Software, as applicable.
13.3 Precisely will not indemnify Customer or be liable for claims arising from: (a) Customer Data, Third-Party Products, or any Service or Software provided on a Trial basis; (b) the use of the Service or Software in combination with data, hardware or software not provided by Precisely; or (c) Customer’s use of the Service or Software other than as permitted in this Agreement; or (d) any modification to the Service or Software other than by Precisely.
13.4 Customer will (a) defend Precisely against a claim by an unrelated third party: (i) alleging that Customer Data or any other data, files or other materials provided by Customer to Precisely infringes any copyright, trademark, or patent or misappropriates any trade secret; or (ii) arising out of Customer’s violation of Section 12 (Compliance) and (b) indemnify Precisely in respect of a final award made by a court of competent jurisdiction or the amount agreed to by Customer in settlement of such claims; provided that: (i) Customer will have exclusive control of the defense and negotiation of any settlement of such claims; (ii) Precisely notifies Customer promptly of any such claim; (iii) Precisely provides reasonable cooperation to Customer in relation to the defense, settlement and mitigation of such claims, and (iv) Precisely does not make any admission or otherwise compromise the defense or settlement of such claims. Customer will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of Precisely not otherwise covered by this indemnification without Precisely’s prior consent, which consent shall not be unreasonably withheld or delayed. Precisely may elect to participate in the defense of any claim with counsel of its choosing at its own expense.
13.5 This Section 13 sets out Precisely’s entire liability and Customers exclusive remedy for IP Claims.
14. LIMITATION OF LIABILITY
14.1 DISCLAIMER. SUBJECT TO SECTION 14.3, NEITHER PARTY (NOR PRECISELY’S THIRD PARTY SUPPLIERS) WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, GOODWILL OR REPUTATION, OR BUSINESS INTERRUPTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
14.2 MAXIMUM LIABILITY. SUBJECT TO SECTION 14.3, IN ANY EVENT, EACH PARTY’S (AND PRECISELY’S THIRD PARTY SUPPLIER’S) MAXIMUM LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER OR SOW (IN TORT, CONTRACT OR OTHERWISE) WILL BE LIMITED TO THE AMOUNT OF FEES PAID BY CUSTOMER TO PRECISELY UNDER THE APPLICABLE ORDER OR SOW DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF SUCH CLAIM.
14.3 EXCLUSIONS. THE DISCLAIMER IN SECTION 14.1 AND THE MAXIMUM LIABILITY IN SECTION 14.2 DO NOT APPLY TO: (A) THE EXTENT PROHIBITED BY APPLICABLE LAW; (B) CUSTOMER’S BREACH OF THE AUP OR SECTION 12 (COMPLIANCE); (C) CUSTOMER’S OBLIGATIONS TO PAY AMOUNTS DUE UNDER AN ORDER OR SOW; (D) EITHER PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY); (E) EITHER PARTY’S LIABILITY UNDER SECTION 13 (INDEMNIFICATION); (F) EITHER PARTY’S MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
14.4 SUBJECT TO APPLICABLE LAW, CLAIMS IN RELATION TO THE SERVICE OR THIS AGREEMENT MUST BE MADE WITHIN 18 MONTHS OF THE EVENT GIVING RISE TO THE CLAIM.
15.1 This Agreement is effective on the Effective Date of the Order referencing this Agreement and will remain in effect for the subscription period set out in such Order, as may be extended and/or renewed (the “Term”).
15.2 Each Order will commence on the Commencement Date and will remain in effect during the Term identified in the Order. Except as set forth in an Order, each Order will automatically renew for twelve (12) month Terms unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the applicable Term of the Order.
16.1 Except to the extent limited by law or regulation, Precisely may suspend or restrict Customer’s or any User’s use of the Services if Precisely reasonably believes that Customer is in breach of this Agreement while Precisely investigates the suspected breach. Precisely will carry out any such investigation promptly and Customer agrees to cooperate with Precisely in connection with any such investigation. A suspension under this Section 16.1 shall apply to all Services except in the case of non-payment where suspension shall be limited to the affected Service. Precisely will lift the suspension when the cause of the suspension has been remedied to Precisely’s reasonable satisfaction.
16.2 Precisely may suspend or restrict Customer’s or any User’s use of the Services at any time where Precisely is required to by a governmental or regulatory body or a court of competent jurisdiction or in situations where a User is found to be on a Prohibited Party List.
16.3 Precisely may suspend or restrict the Service in accordance with the Support Terms.
16.4 Except where the suspension has arisen as a result of Precisely’s breach of the Agreement, suspension of the Service in accordance with this Section 16 will not affect Precisely’s other rights under the Agreement or Customer’s payment obligations in relation to the Service.
17. NO CANCELLATION BY CUSTOMER.
Except to the extent otherwise required by applicable law or as specifically set forth in an Order, Customer cannot cancel or terminate any Order prior to the expiration of the applicable Term. Customer may stop using the Service or Software at any time, but Customer is liable for all remaining charges for the Term, regardless of whether Customer actually uses the Service and/or Software for the entire Term.
18.1 Either party may terminate this Agreement or any Order or SOW by written notice if the other party: (a) commits a material breach of this Agreement or the applicable Order or SOW which is capable of remedy and fails to cure such breach within thirty (30) days after receipt of such notice, or an additional period of time as agreed to by the parties; (b) is unable to pay its debts when they become due or becomes bankrupt, insolvent or goes into liquidation or enters into a voluntary arrangement or has a receiver or an administrator appointed over any or all of its assets or suffers an analogous event in any jurisdiction. For clarity, any termination of Consulting Services or a SOW will not result in termination of this Agreement or any other Order.
18.2 Precisely may terminate this Agreement and any or all Orders and SOWs immediately by written notice if Customer is in material breach of the AUP or Section 12 (Compliance). Customer understands and acknowledges that a violation of Section 12 by Customer or any of its Customer Persons shall be deemed a material breach of this Agreement and will entitle Precisely to: (a) terminate this Agreement immediately for cause; (b) terminate or suspend any Customer Persons that are on any Prohibited Party List; and (c) be indemnified by Customer for and held harmless by Customer against any and all damages, fines, penalties, disgorgements, settlements, determinations, or claims faced by or imposed on Precisely or its Customer Persons to the extent attributable to the material breach of Section 12 by Customer or any of its Customer Persons, including Users.
18.3 Upon termination of this Agreement or expiration/termination of an Order or SOW as set forth in this Agreement: (a) Customer will immediately cease use of the Service (including any Evaluation of a Service and/or associated Software) or the Software except to retrieve the Customer Data and Data Output during the period set out in Section 18.4; (b) Precisely and Customer will promptly return all Confidential Information of the other party (except in the case of Customer Data which shall be deleted from the Service by Precisely at the end of the period set out in Section 18.4); provided that a party may retain a copy of the other Party’s Confidential Information where it is obliged to do so by applicable law or regulations or as part of its archival process in accordance with Section 10.5; and (c) Customer shall delete and/or remove all copies of the Software from its computers, virtual environments, servers, terminals and other computer systems and promptly destroy all copies of the Software and if requested, Customer will certify in writing that it has done so.
18.4 Where the Customer has purchased a subscription for a Service, Precisely shall permit the Customer to download its Customer Data and Data Output stored on the Service for a period of 14 days following termination or expiry of the Term of the Order in relation to the Service. Customer is responsible for ensuring that it has exported and retrieved all Customer Data and Data Output used in connection with a Service before the termination or expiry of the Service.
18.5 Sections 8 (Proprietary Rights), 9 (Fees), 10 (Confidentiality), 11.3 (HIPAA Data), 13 (Indemnification), 14 (Limitation of Liability), 23 (Applicable Law and Jurisdiction), and 24 (Verification) and any other provisions which by their nature are intended to survive such termination or expiry will survive termination of this Agreement indefinitely or to the extent set out therein.
19. FORCE MAJEURE
Except for Customer’s payment obligations, neither party will be liable for, and each is excused from, any failure to perform hereunder or delay in such, to the extent that such failure or delay is due to a Force Majeure Event. The occurrence of a Force Majeure Event will not operate to terminate this Agreement, but if the non-performance of either party continues more than thirty (30) days as a result, the party hereto not affected thereby may, at its option, terminate this Agreement upon the giving of thirty (30) days’ notice in writing to the other party.
Neither party shall be entitled to assign or otherwise transfer this Agreement, in whole or in part without the prior written consent of the other party which shall not be unreasonably withheld or delayed; provided that each party may assign this Agreement to a purchaser of all or a substantial part of the business assets of its company or as part of a bona fide group reorganization by giving the other party written notice.
21.1 Precisely shall be entitled to appoint subcontractors to perform some or all of its obligations under this Agreement, including the Hosting Service Provider with respect to the Service. Consulting Services and Support Services may also be provided by subcontractors. Precisely is responsible for all acts and omissions of subcontractors performing services in connection with a Service as if such acts and omissions were made by Precisely.
21.2 Customer acknowledges and agrees that the Service is hosted on a platform provided by a third-party Hosting Service Provider. Precisely may change its Hosting Service Provider; provided such change does not have a material adverse effect upon the Service.
Precisely is permitted to list: (a) Customer’s name and logo in in accordance with Customer’s trademark guidelines; and (b) the Service licensed by Customer, in public statements and Customer lists. Specific details related to Customer’s use of the Service, and other marketing material such as press releases, case studies and other collateral using quotes or requiring active participation of Customer to create will be subject to Customer’s consent.
23. APPLICABLE LAW AND JURISDICTION
This Agreement shall be governed by and construed under the laws of the Governing Law jurisdiction in the table below without regard to conflict of laws provisions thereof and without regard to the United Nations Convention on Contract for the International Sales of Goods. Customer hereby irrevocably consents to the exclusive jurisdiction of, and confers such jurisdiction upon, the courts in the Jurisdiction shown in the table below in connection with any action, suit, or other proceeding arising out of, or relating to this Agreement, and all claims, counterclaims and crossclaims in any actions, suits or proceedings. The Precisely entity named in the applicable Order is noted below.
|Precisely Entity||Governing Law||Jurisdiction|
|Precisely Software Incorporated (or any entity not listed below)||New York, USA||A federal or state court of competent jurisdiction located in New York County in the State of New York, USA|
|Precisely Software and Data Canada Inc.||Province of Ontario, Canada||General Division of the Ontario Court of Justice|
|Precisely Software Limited||England and Wales||English Courts|
|Precisely Software GmbH||Germany||Competent courts in Munich, Germany|
|Precisely Software S.A.S.||France||Competent courts in Paris, France|
|Precisely Software Pty Ltd||NSW, Australia||Courts of NSW and/or the Commonwealth of Australia|
|Precisely Software and Data Singapore Pte. Ltd.||Singapore||Courts of Singapore|
During the Term and for a period of six (6) months following its termination or expiry, Precisely or its designated third party may verify Customer’s compliance with the terms of the Agreement and applicable Orders with respect to Customer’s use of or access to the Software or a Service upon ten (10) days written notice to Customer. Such verification will take place no more than one (1) time per twelve (12) month period during normal business hours in a manner which minimizes disruption to Customer’s work environment. Precisely may use an independent third party under obligations of confidentiality to provide assistance. Precisely will notify Customer in writing if any such verification indicates that Customer has used the Service in excess of the use authorized by this Agreement. Customer agrees to promptly enter into an amendment and pay all associated fees directly to Precisely for the charges that Precisely specifies for such excess use (including Precisely’s reasonable costs associated with the verification).
25.1 No waiver of or failure to act regarding any breach of this Agreement by either party or the failure of either party to insist on the exact performance of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by the party issuing the waiver.
25.2 Any notice alleging a breach of this Agreement will be in writing and will be sent by overnight courier or delivered in person to the party’s address set forth in this Agreement. Any notice from Precisely relating to the Service (including changes to the Service, Service Description and Service Information) and applying to Precisely’s Service customers generally may be by electronic notice published in the Service Information, shown as a notice to Users within the Service itself, or sent to the email address for the primary point of contact on file at Precisely. Any other notice required to be provided by Precisely under this Agreement may be sent by postal mail or e-mail to the individual designated by Customer, and to Precisely at the e-mail addresses designated in the applicable Order; provided such notice is also sent to email@example.com.
25.3 No person who is not a party to this Agreement shall be entitled to rely its terms provided that Precisely’s third party suppliers may rely on Sections 7.6 (Warranty) and 14 (Limitation of Liability) of this Agreement.
25.4 If any provision of this Agreement, or portion thereof, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of the Agreement will remain in full force and effect.
25.5 Each party will act as an independent contractor and employees of each party will not be considered employees of the other party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other.
26. ENTIRE AGREEMENT
This Agreement, any associated Evaluation Agreement, and all appendices, exhibits, schedules, addenda and attachments thereto constitute the entire agreement between the parties with regard to the subject matter, may not be modified or amended except by a writing signed by both parties hereto except as otherwise indicated herein, and supersedes all proposals, understandings, representations, prior agreements or communications relating to Customer’s use of the Service. All documents referenced in this Agreement by hyperlink are incorporated into the Agreement in its entirety. This Agreement also supersedes any preprinted terms contained on a purchase order or similar document issued by Customer and any such terms will have no force or effect. Customer has not been induced to enter into this Agreement by any representations or promises not specifically stated herein. This Agreement will not be construed against the party that prepared it, but instead will be construed as if both parties prepared it.