SUBSCRIPTION AND SERVICES AGREEMENT
THIS SUBSCRIPTION AND SERVICES AGREEMENT (this “Agreement”) is made and entered into as of the Effective Date (as defined below) by and between Seismic LLC, a New Jersey limited liability company with its principal place of business located at 1026 Summerfield Ave, Asbury Park, NJ 07712 (“Company”), and Customer (as defined below).
WHEREAS, Company is the owner of a certain proprietary computer product known as Serv360 that provides end to end network service management features spanning remote monitoring and management, ticketing, reporting, security information and event management, and automation of patching and moves, adds and changes (the “Product”); and
WHEREAS, Customer desires to use the Services for Customer’s internal business purposes, and to provide Customer with direct access to the Product through Provider’s website www.serv360.us (the “Product Site”); and
WHEREAS, Company desires to provide certain services to Customer and to host the Product Site, subject to the terms, conditions and restrictions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto, intending to be legally bound, hereby agree as follows:
- Subscription.
(a) Subscription. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a limited, non-exclusive, non-transferable right to access and use the Services for Customer’s internal business purposes.
(b) Restrictions. Customer will not copy the Product. Customer may duplicate the documentation associated with the Product (the “Documentation”) as reasonably necessary for Customer’s exercise of its rights and under this Agreement. Customer will include all copyright and other proprietary rights notices included on the Documentation on all copies of the Documentation prepared by or for Customer. In no event will Customer remove, modify, or obscure any such notices. Further, Customer will not: (a) reverse engineer, reverse assemble, decompile or otherwise attempt to derive the source code (or underlying structure or algorithms) from the Product or decode any data files created by or associated with the Product; or (b) modify the Product or otherwise create any derivative works from or based on the Product.
- Term. This Agreement will commence upon the Effective Date and, unless terminated earlier as provided herein, will continue for a period of one (1) year (the “Initial Term”). Upon expiration of the Initial Term or any Renewal Term, this Agreement will automatically renew for an additional one (1) year renewal term (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless either party gives the other party written notice of termination at least thirty (30) days prior to the last day of the then current Term.
- Support and Maintenance.
(a) Standard Support and Maintenance. During the Term of this Agreement, provided that Customer is current in its payment of fees under this Agreement, Company will provide Customer with its standard technical support and maintenance, at no additional charge. Standard technical support and maintenance will include the following:
(i) Company support personnel will be available to provide support and assistance to Customer via telephone and e‑mail as per the support hours defined in the applicable signed service description or statement of work;
(ii) Company will implement all enhancements, updates and upgrades to the Product and the Product Site that Company makes generally and commercially available to other customers without charging Customer any additional fee; and
(iii) Company will implement standard error correction and maintenance modifications to the Product and the Product Site.
(b) Out-of-Scope Services. Notwithstanding the foregoing, if Company makes a reasonable business determination that the technical support requested by Customer pursuant to this Section are outside the scope of the support and maintenance services provided hereunder and/or would entail detailed, specialized maintenance and/or support services different in kind or amount from those provided to other similar customers of the Product (including, but not limited to, assistance to enable the interfacing or operation with a non-supported, unusual or proprietary system), then Company will notify Customer that the requested support is considered an additional service which will be subject to additional fees, to be negotiated.
(c) Security. Company, or its hosting partner, will offer access to the Product Site using the Internet, by hosting its application. Company, or its hosting partner, will operate and maintain the Product server (the “Server”) in good working order, with access restricted to qualified employees or contractors of Company. Company, or its hosting partner, will employ commercially reasonable efforts to ensure the security, confidentiality and integrity of all Customer Data (as hereinafter defined) and other proprietary information transmitted through or stored on the Server, including, but not limited to,: (i) maintenance of independent archival and backup copies of the Product Site and all Customer Data; and (ii) protection from any network attack and other malicious, harmful or disabling data, work, code or program. Notwithstanding the foregoing, Customer acknowledges and agrees that Customer will be fully responsible: (A) for all data that is entered into and displayed through the Product; and (B) for restricting access to the Product and any data stored therein to only Customer’s authorized personnel.
(d) Assistance From Customer. Customer agrees to make available appropriate personnel to advise Company in the performance of its obligations under this Agreement and to provide Company with any Customer Data required for the successful operation and/or functioning of the Product and/or the Product Site.
(e) Downtime. Customer and Company acknowledge and agree that the ability to provide trouble-free operation of the Product Site is dependent on a combination of factors, including, but not limited to, reliability, proper hardware configuration, including backup hardware configurations, backup power sources and backup communication facilities, a virus-free environment, appropriate system backup procedures, and Customer’s adherence to Company’s recommended practices and procedures. Notwithstanding the foregoing, Customer understands and acknowledges that, from time to time, the Product and the Product Site may be inaccessible or inoperable for various reasons, including, but not limited to, equipment malfunctions, upgrades or modifications, or causes beyond the control of Company which are not reasonably foreseeable by Company, including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively, “Downtime”). Company will use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Product Site and, in the case of any scheduled Downtime, if reasonably practicable, Company will provide Customer with at least twenty-four (24) hour advance notice, unless a shorter period of time is necessary or appropriate under the circumstances, as reasonably determined by Company, in its sole discretion. The provisions as fully set forth in this Section 3(f) may be subject to revision and amendment as the needs of Customer may change from time to time during the term of this Agreement.
(f) Internet Software. Customer will be solely responsible for obtaining, installing and maintaining such software as may be necessary to enable Customer to access the Internet and for obtaining its own Internet connection.
- Acceptance of Product Site. Customer will have thirty (30) business days from the date of activation to formally accept the Product and the terms of this Agreement. Customer’s failure to notify Company that it does not accept the Product within such period will automatically constitute acceptance.
- Payment Terms.
(a) Fees. In consideration of the grant of rights set forth in this Agreement, Customer agrees to pay to Company the fees set forth in the applicable signed service description or statement of work.
(b) Late Payments. Any sum not paid when due will bear interest at the rate of one and one-half percent (3%) per month or the highest rate permitted by applicable law, if less. If Customer should fail to pay any sum required to be paid under this Agreement within forty-five (45) days after its due date, then Company may, upon written notice to Customer, either terminate this Agreement under Section 11 or remove or disable Customer’s ability to use and access the Product Site, or both.
(c) Rate Increases. Company may increase any of the fees set forth in the applicable signed service description or statement of work hereto by giving at least thirty (45) days’ prior written notice thereof to Customer; provided, however, that no such fee increase will be effective for at least Six (6) months from the Effective Date.
(d) Taxes. The fees to be paid under this Agreement do not include any federal, state or local sales, use or other taxes arising from or relating to this Agreement, or any other taxes or duties whether presently in force or imposed in the future, all of which taxes and/or duties will be assumed and paid by Customer (other than net income or franchise taxes imposed on Company). The amount of any such taxes may be included in invoices issued by Company. If further taxes are determined to be payable, Customer will promptly pay them upon demand by Company. If Customer is exempt from the payment of any such taxes, Customer will provide Company with a valid tax exemption certificate.
- Proprietary Rights.
(a) Ownership. Customer acknowledges and agrees that neither this Agreement nor Customer’s use of the Product or the Product Site conveys or will convey any title or ownership in or to the Product or the Product Site and is not a sale of any rights in either the Product or the Product Site. The Product and the Product Site are owned by Company and are protected by copyright law and international copyright treaty. Customer will not, at any time, take or cause any action to be taken which would be inconsistent with or tend to impair the rights of Company or its hosting partner in the Product or the Product Site, or any aspect thereof.
(b) Copyrights and Trademarks. Company will have and retain sole ownership of any and all Company copyrights and trademarks, including, but not limited to, any goodwill relating thereto. Customer will not remove or alter any of Company’s proprietary or copyright notices, trademarks or logos.
- Data.
(a) Ownership of Data. All rights in any data input into the Product Site by or on behalf of Customer will belong to and remain with Customer. Such data will include without limitation Customer’s corporate data, including, but not limited to, registration data, that is supplied and input by or on behalf of Customer (“Customer Data”). Company agrees not to use any Customer Data for any purpose other than to perform its obligations under this Agreement, or to make any Customer Data available to any third party without Customer’s prior written consent.
(b) Analysis. Company reserves the right to perform statistical analyses of the Product Site and/or Customer’s use of the Product. Company does this to measure the effectiveness of the Product and the Product Site, to optimize the performance of the Product and the Product Site, and to ensure compliance with the terms of this Agreement. Customer will not have any right or ability to obtain or learn the results of any such analysis.
- Confidentiality.
(a) Customer acknowledges that the Product and Product Site are unique and valuable and have been developed or otherwise acquired by Company at great expense, and that any unauthorized disclosure or use of the Product and/or the Product Site or any component thereof would cause Company irreparable injury and loss, for which damages would be an inadequate remedy.
(b) Company and Customer each acknowledge that all information and materials relating to the business and operations of the other which it learns or acquires or has learned or acquired during or prior to the term of this Agreement are valuable properties of the party providing or disclosing the same. Company and Customer each acknowledge the need to preserve the confidentiality and secrecy of such information and materials, and agree that, both during the term of this Agreement and at all times after any expiration or termination hereof, it will not use or disclose any such information or materials, except to perform its obligations under this Agreement and as provided herein, and it will take all steps necessary to ensure that any use of any such information or materials by it or by its employees or agents (which use will be solely as necessary for, and in connection with, the performance of such party’s obligations under this Agreement) will preserve in all respects such confidentiality and secrecy.
(c) The provisions of this Section will not apply with respect to any information or materials which have entered or subsequently enter the public domain through no fault of the receiving party. Each party hereby indemnifies the other against any damage of any kind which may be suffered by such party as a result of any willful breach by it of the provisions of this Section.
- Limited Warranties.
(a) Each party represents and warrants that it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder.
(b) Company gives the following LIMITED WARRANTIES to Customer: (i) that Company is the owner of the Product and the Product Site or otherwise has the right to grant to Customer the rights set forth in this Agreement; (ii) that the Product and the Product Site will perform substantially in accordance with their accompanying electronic product documentation during the Term of this Agreement; and (iii) that the services to be performed under this Agreement will be performed using generally accepted industry standards.
(c) As Customer’s SOLE remedy in the event any breach or threatened breach of the foregoing LIMITED WARRANTIES, Company will, at its sole option, either: (i) procure, at Company’s expense, the right for Customer to use the Product and the Product Site; (ii) replace the Product and the Product Site (or any part thereof that is in breach hereof) with a product and/or website, as the case may be, of comparable functionality that does not cause any such breach; or (iii) refund to Customer the amount of any fees paid by Customer to Company under this Agreement. THE FOREGOING WILL BE CUSTOMER’S SOLE REMEDIES, AND COMPANY’S SOLE OBLIGATIONS, IN THE EVENT OF ANY BREACH OF COMPANY’S OBLIGATIONS UNDER THIS AGREEMENT.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCT, THE PRODUCT SITE, ANY DOCUMENTATION PROVIDED OR MADE AVAILABLE TO CUSTOMER, AND ANY OTHER PRODUCTS AND RELATED MATERIALS AND/OR SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
(e) Company will not be responsible for any delay in the delivery of any services provided under this Agreement, including, but not limited to, any support or maintenance services, which is due to Customer’s failure to provide assistance as provided under this Agreement.
- LIMITATION OF LIABILITY.
(a) LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR FOR ANY LOST PROFITS, LOST BUSINESS OR LOST INFORMATION, SUFFERED OR INCURRED BY CUSTOMER AS A CONSEQUENCE OF THE USE OR PERFORMANCE OF THE PRODUCT OR THE PRODUCT SITE OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY LOSS, COST, EXPENSE OR DAMAGE TO CUSTOMER IN AN AMOUNT EXCEEDING THE AGGREGATE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) PRIOR MONTHS UNDER THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM.
(b) Acknowledgement. The parties acknowledge that the limitations and disclaimers set forth in this Agreement were an essential element in inducing the parties to enter into this Agreement.
- Termination.
(a) In addition to such other rights and remedies as may be available in law or in equity, either party (the “Terminating Party”) may terminate this Agreement if the other party (the “Breaching Party”) should breach any of its obligations under this Agreement in any material respect, or if any of the representations or warranties made in this Agreement by the Breaching Party should prove to be untrue in any material respect, and the Breaching Party fails to remedy such breach within thirty (30) days after the Breaching Party receives written notification of such breach, which notice specifies the nature of the breach in reasonable detail.
(b) No expiration or termination of this Agreement will affect any accrued rights or liabilities of either party hereunder, nor will it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after such expiration or termination.
(c) Sections 6, 7, 8, 9, 10, 12 and 13 of this Agreement will survive any expiration or termination of this Agreement and will remain binding on the parties.
(d) Upon any expiration or termination of this Agreement, Customer will immediately cease all use of the Product and the Product Site and return or destroy any and all components thereof, including, but not limited to, by returning or destroying or causing to be destroyed any and all copies of any documentation, notes and other materials comprising or regarding the Product and/or the Product Site.
- Force Majeure. Each party will be excused from the performance of any of its obligations under this Agreement for any period and to the extent that it is prevented from performing such obligations, in whole or in part, as a result of delays caused by the other party or by an act of God, war, civil disturbance, terrorism, court order, fire, explosion, strike, freight embargo, labor dispute, act of any government, de jure or de facto, or any agency or official thereof, third-party nonperformance, default of manufacturer or supplier as a subcontractor, extended unavailability of public utility service, unavailability or delay in telecommunications, third party internet service providers or non-Company servers, or any other cause beyond its reasonable control, and such nonperformance will not be a breach hereunder or a ground for termination hereof. Notwithstanding the foregoing, however, no such event of force majeure will act so as to extend the term of this Agreement.
- Dispute Resolution.
(a) Equitable Relief. Each party agrees that either party’s violation of the terms of this Agreement may cause immediate and irreparable harm to the other party for which money damages may not constitute an adequate remedy at law. Therefore, the parties agree that, if either party breaches or threatens to breach such provisions or covenants, the other party will have the right to seek, in any court of competent jurisdiction, an injunction to restrain such breach or threatened breach, without any obligation to post any bond or other security.
(b) Dispute Resolution. Whenever either party desires to institute legal proceedings against the other concerning this Agreement, it will provide written notice to that effect to such other party. The party providing such notice will refrain from instituting such legal proceedings for a period of thirty (30) days following the date of provision of such notice. During such period, the parties will attempt in good faith to amicably resolve their dispute by negotiation among their executive officers. This Section will not prohibit either party from seeking, at any time, injunctive relief as permitted under Section 13(a).
- Miscellaneous.
(a) Relationship of the Parties. Nothing contained in this Agreement will be construed to constitute the parties hereto as partners or as joint venturers, or either as the agent of the other, and Customer will have no power to obligate or bind Company in any manner whatsoever.
(b) Notices. All notices provided for or permitted under this Agreement will be deemed effective upon receipt and will be in writing and sent by confirmed electronic mail.
(c) Amendment and Modification. This Agreement may not be changed, amended or modified in any way except by a writing signed by both of the parties hereto.
(d) Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument. Original signatures transmitted and received by means of facsimile or other electronic transmission of a scanned document, (e.g., pdf or similar format) shall constitute true and valid signatures for all purposes hereunder and shall have the same force and effect as the delivery of an original.
(e) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, inducements and conditions, whether express or implied, oral or written, except as herein contained. The express terms hereof will control and supersede any course of performance and/or usage of trade inconsistent with any of the terms hereof.
(f) Assignment; Binding Effect. Neither party may assign, delegate or transfer this Agreement, in whole or in part, or any of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed). Notwithstanding the foregoing, Company may assign, delegate or transfer this Agreement without Customer’s consent to any of Company’s Affiliates or in connection with a merger or sale of all or substantially all of Company’s stock or assets. Any assignment, delegation or transfer in violation of this provision will be void and without legal effect. Subject to the foregoing restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(g) Governing Law. This Agreement and the legal relations among the parties hereto will be governed by and construed in accordance with the laws of the State of New Jersey, regardless of the laws that might otherwise govern under applicable principles of the conflicts of law thereof.
(h) Waiver. No term or provision of this Agreement will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party that has given such waiver or excused such breach.
(i) Venue. Any action which in any way involves the rights, duties and obligations of either party hereto under this Agreement will be brought in the state courts sitting in Monmouth County, New Jersey, and or the United States District Court for the District of New Jersey, and the parties to this Agreement hereby submit to the personal jurisdiction of such courts. The parties waive any and all rights to have any dispute, claim or controversy arising out of or relating to this Agreement tried before a jury.
(j) Third Party Beneficiaries. Except as expressly stated herein, nothing in this Agreement will confer any rights upon any person other than the parties hereto and their respective successors and permitted assigns.
(k) Exhibits and Schedules. All exhibits and schedules to this Agreement (if any) are hereby incorporated herein by reference.
(l) Currency. All sums set forth in this Agreement and any appendices, exhibits or schedules hereto are, and are intended to be, expressed in United States dollars.