THESE TERMS OF SERVICE (THE "TERMS") CONSTITUTE A LEGAL AGREEMENT BETWEEN EPERNICUS LLC, A DELAWARE LIMITED LIABILITY COMPANY, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 35 HIGHLAND CIRCLE, SUITE 300, NEEDHAM, MA 02494 ("EPERNICUS") AND THE CUSTOMER DEFINED BELOW. THESE TERMS SHALL GOVERN ALL USE OF THE SERVICES (AS DEFINED BELOW) BY SUCH CUSTOMER.
1. Definitions.
1.1 "Agreement" shall mean any Order that expressly incorporates these Terms by reference.
1.2 "Confidential Information" shall have the meaning established in Section 9.1 of this Agreement.
1.3 "Consulting" shall mean installation support, configuration, custom development of modules or applications, or other professional services that Epernicus may offer to its customers.
1.4 "Customer" shall mean the customer that counter-signs the Order.
1.5 "Customer Data" shall mean any electronic data or information that Customer stores, processes or generates using the Software Service.
1.6 "Field of Use" shall mean the geographic, organizational or subject-matter limitation on the permitted scope of use of the Software Service, if any, as set forth in the applicable Order.
1.7 "Order" shall mean Epernicus’ standard form for ordering Services that (i) is signed by both Epernicus and Customer and (ii) expressly incorporates these Terms by reference.
1.8 "Professional Services" shall comprise Consulting, Training and Technical Support.
1.9 "Services" shall comprise the Software Service and the Professional Services.
1.10 "Software" shall mean the Epernicus software modules identified in the applicable Order.
1.11 "Software Service" shall mean Epernicus providing Customer with access to the Software in accordance with Section 2 of this Agreement.
1.12 "Statement of Work" shall mean any document that (i) is attached to, or expressly incorporated by, an Order and (ii) defines the scope of any Professional Services.
1.13 "Technical Support" shall have the meaning established in Section 3 of this Agreement.
1.14 "Training" shall mean the educational services that Epernicus may offer to its customers.
2. The Software Service.
2.1 Right to Use. Subject to the terms and conditions of this Agreement, Epernicus hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable right to access and use the Software Service in accordance with this Section 2, solely for Customer’s internal use within the Field of Use.
2.2 Restrictions. The Software Service shall not be used for any purpose other than as expressly authorized by this Agreement. In particular, but without limitation, Customer agrees that it will not:
2.3 Service Level Agreement. Epernicus shall provide the Software Service in accordance with Epernicus’ then-current Service Level Agreement, available at http://www.epernicus.com/service_level_agreement.
2.4 Reservation of Rights. Nothing in this Agreement shall be deemed to grant Customer, either directly or by implication, estoppel, or otherwise, any license or rights other than those expressly granted in Section 2.1 of this Agreement. By virtue of this Agreement, Customer acquires only the right to use the Software Service and does not acquire any other rights or ownership interests. Epernicus shall retain all right, title, and interest in and to the Software. Epernicus reserves all rights to the Software Service not expressly granted to Customer under this Agreement.
3. Technical Support. Epernicus shall use commercially reasonable efforts to provide Customer with the support services for the Software described in Epernicus’ then-current Technical Support Policy, available at http://www.epernicus.com/technical_support_policy ("Technical Support").
4. Consulting. From time to time during the term of this Agreement, Customer may request that Epernicus provide certain Consulting services. The scope of any such Consulting shall be set forth in the applicable Statement of Work. Unless the Statement of Work expressly provides otherwise, all Consulting shall be subject to Epernicus’ then-current consulting policy.
5. Training. From time to time during the term of this Agreement, Customer may request that Epernicus provide certain Training services. The scope of any such Training shall be set forth in the applicable Statement of Work. Unless the Statement of Work expressly provides otherwise, all Training shall be subject to Epernicus’ then-current Training Policy.
6. Customer Dependencies.
6.1 Background. Customer acknowledges that Epernicus’ performance is dependent in part on Customer’s cooperation and assistance. Accordingly, Customer will provide Epernicus, on a timely basis, with all items, material and assistance reasonably necessary to perform the Services, including, but not limited to, such assistance as is expressly enumerated in this Section 6. Customer’s compliance with this Section 6 shall be a condition precedent to Epernicus’ obligations under this Agreement. Any dates or time periods applicable to Epernicus’ performance under this Agreement shall be appropriately and equitably extended to account for any delays resulting from any failure by the Customer to fully comply with its obligations under this Section 6.
6.2 Specific Obligations. Customer shall perform all tasks, and provide all other inputs, that (i) are identified as Customer’s responsibility in the Order or the Statement of Work or (ii) are reasonably required in order for Epernicus to provide the Services.
6.3 Customer Data. Customer shall provide to Epernicus all Customer Data reasonably required by Epernicus in order to perform the Services. If such Customer Data is in the possession or control of a third party, Customer shall sign, execute, make and do all such deeds, documents, acts and things as may be reasonably required to cause such Customer Data to be provided to Epernicus.
7. Fees & Payment.
7.1 Fees. Customer shall pay to Epernicus all fees set forth in the applicable Order.
7.2 Terms. All payments to Epernicus hereunder shall be paid in U.S. dollars. Unless expressly provided in the applicable Order, no fees are refundable or cancelable. Customer shall pay any amounts owed to Epernicus on the date specified and according to the terms of this Agreement. If no due date is specified for a payment, then that payment shall be due and payable net thirty (30) days after the earlier of (i) the date on which the Service in question was delivered by Epernicus, or (ii) the date of Epernicus’ invoice therefor. If Customer fails to make any payment when due, Epernicus may suspend delivery of any Service until payment has been made in full. Customer shall pay to Epernicus interest on any amount payable to Epernicus hereunder which is not paid promptly and when due at a rate equal to the lower of (i) 12% per annum or (ii) the maximum rate of interest allowable under applicable law. All costs of collection (including reasonable attorney fees) shall be paid by Customer.
7.3 Taxes. Customer shall pay all import duties, levies or imposts, and all sales, use, value added, property, or other taxes of any nature, assessed upon or with respect to any products or services provided to Customer by Epernicus, which are imposed by any community of nations or any nation, or any political subdivision of any nation, but excluding United States taxes based on Epernicus’ net income. Customer shall pay on or before their due dates all such taxes, fees, duties and charges which arise out of or in connection with this Agreement or any license or sublicense granted herein or any use of the Service. In the event that Epernicus is required at any time to pay any such tax, fee, duty or charge, Customer shall promptly reimburse Epernicus therefor. If Customer is required by law to make any deduction or to withhold from any sum payable to Epernicus by Customer hereunder, then the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after all deduction and withholding, Epernicus receives and retains, free from liability for any deduction or withholding, a net amount equal to the amount Epernicus would have received and retained in the absence of such required deduction or withholding.
8. Proprietary Rights.
8.1 Epernicus Technology. Except as expressly provided otherwise in this Agreement, Epernicus shall retain all right, title, and interest in and to the Software, the Services, (including without limitation, any deliverables provided to Customer in the course of providing the Services), the Epernicus Confidential Information, and any improvements to any of the foregoing (including without limitation any improvements suggested by Customer or by Customer’s usage of the Services), as well as any other discovery, design, development, improvement, modification, process, algorithm, software, documentation, formula, data, technique, know-how or other invention, innovation or work of authorship, or any interest therein (whether or not patentable or registrable under copyright or similar statutes or subject to analogous protection) discovered, conceived of, reduced to practice, authored or otherwise developed by Epernicus or its agents (collectively, the "Epernicus Technology"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Epernicus Technology are granted to Customer, and all such licenses and rights are hereby expressly reserved.
8.2 Customer Data.
8.3 Non-Exclusivity. Customer acknowledges that Epernicus provides services and products to other customers that are similar to the Services provided hereunder. Customer agrees that nothing in this Agreement is intended or should be interpreted to prevent or inhibit Epernicus from continuing or commencing to provide and/or customize such services and products to others. Epernicus may, in its sole discretion, develop, use, market or license any software or services that are similar to those that were developed or delivered by Epernicus for Customer hereunder, if any.
8.4 Non-Competition. For the term of this Agreement and for one (1) year thereafter, Customer shall not develop or market any commercially available product or service that in any way competes with the Service, or assist any third party in developing or marketing such a product or service.
8.5 Non-Solicitation. For the term of this Agreement and for one (1) year thereafter, neither party shall solicit, recruit, induce to leave his employment, or hire any person who was an employee of the other party at any time during the twelve (12) months preceding such solicitation.
9. Confidentiality.
9.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally, in writing, or otherwise, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Epernicus hereby designates the Epernicus Technology and the terms and conditions of this Agreement as the Confidential Information of Epernicus. Customer hereby designates the Customer Data as the Confidential Information of Customer. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
9.2 Confidentiality. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party, or use such Confidential Information for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
9.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
9.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
9.5 General. All Confidential Information shall be returned by the Receiving Party to the Disclosing Party when it is no longer needed or at the termination of this Agreement, whichever comes first. The parties’ obligations under this Section 9 shall continue for a period of three (3) years after termination of this Agreement.
10. Warranty.
10.1 Software Warranty. Epernicus warrants to Customer that the Software Service will perform substantially in accordance with its documentation. Epernicus’ sole responsibility, and Customer’s exclusive remedy, under the warranty set forth in this Section 10.1 shall be for Epernicus to use commercially reasonable efforts to correct any substantial non-conformity to such documentation by the Software Service.
10.2 Services Warranty. Epernicus warrants to Customer that all Professional Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards and practices. This warranty shall be valid for ninety (90) days from completion of the applicable Service. The re-performance of Professional Services shall be Epernicus’ sole obligation in the event of a defect. If, after re-performance of the Professional Service by Epernicus, such Professional Service still does not satisfy the foregoing warranty, then Customer shall, as its sole remedy and Epernicus’ sole liability, be entitled to recover the fees paid to Epernicus for the deficient Professional Service.
10.3 Limitations on Warranties. Epernicus’ warranties shall not apply to any claims which (a) result from acts or omissions caused by persons other than Epernicus, (b) result from hardware, software, firmware or other products not provided by Epernicus, or (c) are not reported to Epernicus in writing within the warranty period.
10.4 Disclaimer. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10 ARE THE ONLY WARRANTIES MADE BY EPERNICUS WITH RESPECT TO THE SOFTWARE OR THE SERVICES, AND ARE IN LIEU OF, AND EPERNICUS HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INFORMATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT EPERNICUS KNOWS OR HAS REASON TO KNOW OF SUCH PURPOSE), WHETHER ARISING BY LAW, CUSTOM, USAGE IN THE TRADE OR BY COURSE OF DEALING. EPERNICUS SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. IN ADDITION, EPERNICUS EXPRESSLY DISCLAIMS ANY WARRANTIES TO ANY PERSON OTHER THAN CUSTOMER.
11. IP Infringement.
11.1 Infringement Indemnity. Epernicus shall defend or, at its option, settle, any claim, action or proceeding brought against Customer based upon a claim that the Software infringes a United States patent, copyright or trade secret, and shall indemnify Customer against all damages and costs finally awarded by a court of competent jurisdiction against Customer in any such action or proceeding. Epernicus shall have no liability under this Section 11.1 unless Customer (a) promptly notifies Epernicus in writing of the claim, (b) gives Epernicus sole control of the defense of such claim and all negotiations for the compromise or settlement thereof and (c) provides Epernicus with all reasonable cooperation, information and assistance in connection with the claim. If the Software or any part thereof becomes, or in Epernicus' opinion is likely to become, the subject of a valid claim of infringement or the like, Epernicus shall have the right, at its option and expense, either to obtain for Customer a license permitting the continued use of the Software or such part, to replace or modify it so that it becomes non-infringing, or to refund an amount equal to the depreciated fee paid by Customer for the Software Service (calculated on a straight line basis over the term of this Agreement) and to terminate the license therefor. Epernicus shall have no liability hereunder for any costs incurred or settlement entered into without its prior written consent.
11.2 Disclaimer. THE PROVISIONS OF THIS SECTION 11 STATE THE EXCLUSIVE LIABILITY OF EPERNICUS AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE SOFTWARE, ANY PART THEREOF OR THE USE THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF NONINFRINGEMENT, AND INDEMNITIES WITH RESPECT THERETO.
12. Limitation of Liability.
12.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500,000 OR THE AMOUNTS ACTUALLY PAID BY OR DUE FROM CUSTOMER HEREUNDER.
12.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
12.3 Limitation of Action. No action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.
12.4 Exclusions. The provisions of this Section 12 shall not apply to any breach of Sections 2.2, 8 or 9 of this Agreement.
12.5 General. The limitations contained in this Section 12 shall survive the termination of this Agreement and apply notwithstanding any failure of essential purpose or any invalidity of the limited remedies provided for in this Agreement.
13. Term & Termination.
13.1 Term. Each Order shall be effective for the term set forth in such Order, unless earlier terminated in accordance with this Agreement. If there are multiple Orders, each Order shall be deemed to be a separate and divisible Agreement.
13.2 Termination for Cause. Either party may terminate this Agreement for cause (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period or if such breach cannot reasonably be cured within such thirty (30) day period, if reasonable steps have not been taken to cure such breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
13.3 Effect of Termination. Termination of this Agreement shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that accrued prior to such termination. Neither party shall be liable to the other party for any costs or damages of any kind, including incidental or consequential damages, or for indemnification, solely on account of the lawful termination of this Agreement, even if informed of the possibility of such damages.
13.4 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason: Sections 7, 8, 9, 12, 13 and 14.
14. General Provisions.
14.1 Compliance with Laws. Customer shall comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in connection with this Agreement, including without limitation, compliance with all export control laws and regulations of the United States. Customer shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses and other consents necessary to the conduct of its activities hereunder.
14.2 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent or representative of the other party and neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability, or otherwise bind, the other party. The Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
14.3 No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.
14.4 Notices. All notices to be given in connection with this Agreement shall be effective upon receipt, shall be made in writing and shall be sufficiently given if personally delivered or if sent by courier or other express mail service, postage prepaid, addressed to the party entitled or required to receive such notice at the address for such party set forth on the first page of this Agreement. Either party may by such notice to the other change such address.
14.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.7 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors and permitted assigns. Customer may not assign this Agreement without the prior written consent of Epernicus, which consent shall not be unreasonably withheld. Epernicus may assign any of its rights or delegate any of its duties under this Agreement to any person or entity.
14.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, including all matters of construction, validity, performance and enforcement, without giving effect to its conflicts of laws provisions. Application of the U.N. Convention on Contracts for the International Sale of Goods is expressly excluded.
14.9 Jurisdiction. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in the Commonwealth of Massachusetts, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.
14.10 Equitable Relief. The covenants of each party in Sections 2.2, 8 and 9 hereof are of a special and unique character, and each party acknowledges that money damages alone will not reasonably or adequately compensate the other party for any breach of such covenants. Therefore, the parties expressly agree that in the event of the breach or threatened breach of any such covenants, in addition to other rights or remedies which the non-breaching party may have, at law, in equity, or otherwise, such party shall be entitled to injunctive or other equitable relief compelling specific performance of, and other compliance with, the terms of such Sections.
14.11 Force Majeure. Neither party shall be liable for any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, war, riot, civil disturbance, acts of any civil or military authority, judicial action, terrorist act, fire, flood, earthquake, strike, delays in transportation, unavailability or shortages of labor, materials or equipment, failure or delays in delivery of vendors and suppliers, interruption or failure of telecommunication or digital transmission links, Internet disruptions, common carrier interruptions, breakdown in facilities, power failure or other accidents or unforeseen circumstances. The obligations and rights of the party so excused shall be extended on a day to day basis for the period of time equal to that of the underlying cause of the delay.
14.12 Entire Agreement. These Terms, including all Orders and Statements of Work, constitute the entire agreement between the parties as to their subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. In the event of any conflict between these Terms and the provisions of any Order or Statement of Work, the provisions of such Order or Statement of Work shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.