By using the Octiv Services, Customer agrees to be bound by the terms and conditions set forth in this Agreement. Octiv reserves the right to change the terms and conditions of this Agreement at any time without notice, and Customer’s continued use of the Octiv Services constitutes Customer’s consent to such changes.
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“Application Services” shall mean the online, internet-based application provided by Octiv.
“Confidential Information” shall have the meaning set forth in Section 7.
“Customer Data” shall mean all electronic data or information submitted by Customer, or Customer’s recipients of Octiv documents, to the Application Services.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Non-Public Personal Information” shall mean personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers.
“Proposal” shall mean the ordering documents for Customer’s purchases of Services from Octiv that are executed by the parties from time to time. Proposals shall be deemed incorporated herein.
“Professional Services” shall mean the implementation, integration, consulting and similar services described in a Statement of Work.
“Services” shall mean the Application Services and Professional Services collectively.
“Effective Date” shall mean the date on which Octiv shall make the Application Services available to Customer as set forth in an applicable Proposal.
“Statement of Work” or “SOW” shall mean the document describing the scope and schedule of Professional Services to be performed by Octiv for Customer. Each SOW shall be attached to a Proposal and shall be governed by the terms of this Agreement.
“Subscription Term” shall mean the subscription period set forth on an applicable Proposal.
“Term” shall have the meaning set forth in Section 11.1.
“Third Party Materials” shall any and all software, services, components, applications, or content of any kind provided by third parties directly or through Octiv or another party.
Provision of Application Services. Octiv shall, in exchange for Customer’s payment of all applicable fees, make the Application Services available to Customer pursuant to this Agreement and all Order Forms during a Subscription Term. Customer’s purchase of Application Services is not contingent upon the delivery of any future functionality or features except as indicated in Section 11 herein. All rights not expressly granted to Customer hereunder are reserved by Octiv and its licensors.
A. Octiv Responsibilities.
During the Term, Octiv shall: (a) provide Customer access to the Application Services; (b) provide basic support, updates, and releases to Customer at no additional charge and (c) use commercially reasonable efforts to make the Application Services available 24 hours a day, seven days a week, except for: (i) planned downtime or (ii) any unavailability caused by circumstances beyond Octiv’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Octiv employees), computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Octiv’s possession or reasonable control, and denial of service attacks.
B. Customer Responsibilities.
Customer is responsible for all activities of Customer or its authorized users that occur in Customer’s password-protected account(s). Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) exercise commercially reasonable efforts to prevent unauthorized access to, or use of, the Application Services or any Third Party Materials, and notify Octiv promptly of any such unauthorized access or use upon discovery; and (c) comply with all applicable local, state, federal and other laws and regulations of all applicable countries, regions, or other jurisdictions (“Laws”) in Customer’s use of the Application Services and Third Party Materials. Customer shall not upload to, or store within, the Application Services (and the Customer Data shall not contain) any Non-Public Personal Information. Customer understands and acknowledges that: (i) Octiv may, in its reasonable discretion, refuse to make available any document that Octiv reasonably and in good faith believes is unlawful; (ii) Octiv has no obligation to review document content or other Customer Data; and (iii) Customer is solely responsible for the creation of documents via the Application Services, including, but not limited to, the content of such documents.
C. Use Guidelines.
Customer shall use the Application Services solely for its internal business purposes as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application Services available to any third party (including any affiliates of Customer) except as expressly agreed in a duly executed written agreement; (b) knowingly send via or store within the Application Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party intellectual property, proprietary, or privacy rights; (c) knowingly send via, upload to, or store within the Application Services any Malicious Code; (d) interfere with or disrupt the integrity or performance of the Application Services or the data contained therein; (e) use the Services in violation of any Laws or (f) attempt to gain unauthorized access to the Application Services or its related systems or networks.
A. Who May Order.
Customer may obtain Professional Services from Octiv as the parties may agree in writing. Each Customer entity purchasing Professional Services, as well as the entities providing Professional Services, shall perform its respective obligations in accordance with the terms and conditions of this Agreement and the relevant SOW.
B. Personnel; Use of Subcontractors.
Except as otherwise specified in the applicable SOW, Octiv will provide the personnel and materials, and equipment necessary to provide the Professional Services. Octiv may use subcontractors to perform the Professional Services. Octiv shall be responsible for all acts and omissions of any such subcontractor to the same extent as if Octiv had performed the Professional Services.
A. Service Fees.
Customer shall pay all agreed-upon fees specified in all signed Proposals hereunder. Except as otherwise specified in a Proposal, fees are based on the Services purchased and not actual usage and fees paid are non-refundable (unless such fees are paid in connection with a negligent act or omission of Octiv or its contractors, or are refunded as a credit due to a defect in or lack of availability of the Application Services).
B. Professional Services Fees and Expenses.
Customer shall pay Octiv upon receipt of a correct invoice and in accordance with invoices issued for the performance of Professional Services, including reimbursement of pre-approved reasonable travel and out-of-pocket expenses incurred in conjunction with the provision of Professional Services on-site at Customer’s headquarters.
C. Invoicing and Payment.
Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced in advance and in accordance with the applicable proposal (or SOW). Customer shall pay invoices as stated in the proposal (or SOW if applicable).
D. Overdue Payments.
Customer’s failure to pay as set forth herein, except in a Force Majeure event, shall constitute a material breach of this Agreement. If Customer’s30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), Octiv shall provide Customer with written notice of the alleged failure to pay any amounts validly due and owing and attempt to resolve the same in a meeting between executive representatives of each party. If such failure to pay has not been30 days of the date written notice has been received by Customer, then upon written notice Octiv may terminate this Agreement and any or all outstanding Proposals. In the event of such termination, Octiv will follow the Effect of Termination procedures in Section 11.
Unless otherwise stated, Octiv’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Octiv’s net income or property. If Octiv has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Octiv with a valid tax exemption certificate authorized by the appropriate taxing authority.
A. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, Octiv reserves all rights, title and interest in and to the Application Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Customer shall not (a) modify, copy or create derivative works based on the Application Services; (b) frame or mirror any content forming part of the Application Services, other than on Customer’s own intranets or otherwise for its own internal business purposes; (c) reverse engineer the Application Services; or (d) access the Application Services in order to (i) build a competitive product or service, or (ii) copy any novel ideas, features, functions or graphics of the Application Services.
C. Customer Data.
As between Octiv and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Octiv shall not access Customer’s user accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request.
Octiv shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Application Services or any new programs, upgrades, modifications or enhancements developed by Octiv in connection with rendering the Application Services to Customer, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Octiv by virtue of this Agreement or otherwise, Customer hereby transfers and assigns to Octiv all rights, title, and interest which Customer may have in to such refinements and improvements.
E. Professional Services Deliverables. Octiv hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable (except to a related entity, subsidiary or affiliate), royalty-free license to use for its internal business purposes anything developed by Octiv for Customer under a Statement of Work (“Deliverables“). Octiv shall retain all ownership rights to the Deliverables.
F. Publicity; Trademarks.
Neither party may issue press releases or any other public announcement of any kind relating to this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, during the Term, either party may include the name and logo of the other party in lists (including on its website) of customers or vendors in accordance with the other party’s standard logo and/or trademark usage guidelines. In addition, Octiv may use the trademarks and trade names of Customer solely in connection with its authorized provision of the Application Services. Except as set forth herein, neither party may use the trademarks and trade names of the other party without the prior written consent of the other party.
A. 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“) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Proposals hereunder), the Customer Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) 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.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
C. 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.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section shall extend for a period of two years after such expiration or termination.
A. Mutual Warranties.
Each party represents and warrants that it has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.
B. Customer Warranties.
Customer represents and warrants that: (a) the Customer Data shall not infringe on any copyright, patent, trade secret or other proprietary right held by any third party; (b) Customer shall not use the Application Services in a manner that violates any Laws, including without limitation those relating to individual privacy.
C. Octiv Warranties.
i. Application Services. Octiv represents and warrants that: (a) the functionality of the Application Services will not be materially decreased during a Subscription Term; and (b) Octiv shall utilize software and other security means to prevent the Application Services from containing or transmitting Malicious Code.
ii. Professional Services.
Octiv represents and warrants that the Professional Services and resulting deliverables will perform materially in accordance with written specifications that may be set forth in the applicable SOW. Customer must report any deficiencies in the Professional Services to Octiv in writing within 90 days of performance of such Professional Services in order to receive warranty remedies. For any breach of the warranty in this Section3(B), Customer’s exclusive remedy, and Octiv’s entire liability, shall be the timely re-performance of the Professional Services at no additional cost to Customer. If Octiv is unable to successfully re-perform the Professional Services as30 days of receipt of notice of breach, Customer shall be entitled to recover the fees paid to Octiv for the deficient Professional Services.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, Octiv PROVIDES THE SERVICES AS-IS, WITHOUT WARRANTY OF ANY KIND, AND Octiv EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, COVENANTS AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND LOSS OR CORRUPTION OF DATA. Octiv MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS OR NEEDS, WILL BE PROVIDED TIMELY OR WITHOUT INTERRUPTION, OR WILL BE SECURE. Octiv DOES NOT SUPPORT AND PROVIDES ALL THIRD PARTY MATERIALS AS-IS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. CUSTOMER’S EXCLUSIVE REMEDY SHALL BE, IF AT ALL, OBTAINED FROM THE THIRD PARTY PROVIDER OF SUCH THIRD PARTY MATERIALS, REGARDLESS OF ANY INTEGRATION, LINKS OR OTHER INTEROPERABILITY BETWEEN THE SERVICES AND THE THIRD PARTY APPLICATIONS.
A. By Octiv.
Octiv shall defend Customer against claims, demands, suits or proceedings (“Claims“) made or brought against Customer by a third party alleging that the Application Services as used within the scope of this Agreement infringes the intellectual property rights of such third party, and pay damages, costs and attorney fees finally awarded against Customer for such Claims; provided, however, that Octiv shall have no such obligations to the extent such infringement: (a) relates to use of the Application Services or Deliverables in combination with Third Party Materials or other software, data products, processes, or materials not provided by Octiv and the infringement would not have occurred but for the combination; (b) arises from or relates to modifications to the Services or Deliverables not made or authorized by Octiv; (c) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by Octiv provided that Octiv provides Customer with a workaround or refunds Customer any fees paid for the infringing Services; or (d) where the Application Services or Deliverables are customized in accordance with specific instructions from Customer, and the infringement would not have occurred but for following such instructions. Customer shall provide Octiv all reasonable assistance in the defense of Customer, and full control over the selection of counsel and settlement, compromise, and defense of the Claim.
B. By Customer.
Customer agrees to indemnify, defend and hold Octiv and its partners, attorneys, employees, agents and affiliates harmless from any liability, loss, claim and expense including reasonable attorneys’ fees, arising out of or related to a third party claim of Customer’s violation of these Terms and Conditions, or any service provided or performed by Customer, or any product sold by Customer, its agents, employees or assigns which results in a third party claim.
A. Limitation of Liability. IN NO EVENT SHALL Octiv’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER IN THE SIX MONTHS PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
B. Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
C. The parties agree that the allocation of risk set forth in this Agreement, and specifically as provided in the limitations and disclaimers set forth in Sections 8 and 10 hereof, represent a reasonable allocation of the risk between the parties given the fees charged by Octiv for the Services provided to Customer.
A. Term of Agreement.
This Agreement commences on the Effective Date and continues for a period of one (1) year, or such other Subscription Term as the parties may agree in an Order Form, unless earlier terminated as set forth in this Section 11 (the “Term“).
B. Effect of Termination.
In the event of termination or expiration of this Agreement, Octiv shall ensure, at no additional cost, that Customer receives copies of any and all completed or pending documents (including proposals, NDAs, MSAs, and so forth), and any other requested files, in the format specified by Customer, within thirty (30) business days.
C. Term of Subscriptions.
Subscriptions to the Application Services commence on the Effective Date and continue for the Subscription Term specified in the applicable proposal.
D. Surviving Provisions.
Section 1 and Sections 53 shall survive any termination or expiration of this Agreement.
E. Termination for Cause.
This Agreement may be terminated at any time if either party fails to perform any of its material obligations hereunder and such failure continues uncured for (30) days following written notice from the non-breaching party.
During the Term and for a period of six months from the date of termination of this Agreement (the “Non-Solicitation Period“), Customer will not solicit or cause to be solicited for employment, directly or indirectly, any person who is employed by Octiv and directly involved in providing Professional Services hereunder without Octiv’s prior written consent. Notwithstanding the foregoing, Customer may (a) hire any such person who has been terminated by Octiv before the commencement of employment discussions; (b) solicit and hire such person through general public advertisements that are not primarily targeted at such person; and/or (c) hire such person that Customer can prove was engaged in employment discussions with it prior to the Effective Date.
A. Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
B. No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
C. 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.
Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Proposals), without consent of the other party, to an affiliate or subsidiary, or in connection with a merger, acquisition, change of control, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
F. Governing Law.
This Agreement shall be governed exclusively by the internal laws of the State of Indiana, without regard to its conflicts of laws rules. The state and federal courts located in Indianapolis, Indiana shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
G. Attorneys’ Fees.
If either party hereto resorts to legal action for the redress of a breach of this Agreement, each party shall pay its own costs and attorneys’ fees.
Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal counsel and shall be deemed to be given by electronic mail with transmission acknowledgment, to the Customer representative designated in the applicable Order Form (or otherwise as provided to Octiv) if to Customer, to firstname.lastname@example.org if to Octiv, or to such other email address or mailing addresses as the parties may designate from time to time by notice satisfactory under this section.
I. Entire Agreement.
This Agreement, including all Exhibits, Proposals and Statements of Work, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. 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. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Exhibit, Proposal, or Statement of Work, the terms of this Agreement shall prevail unless expressly stated otherwise in such Exhibit, Proposal, or Statement of Work. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Proposals and Statements of Work), nor any electronic terms residing on Octiv’s website(s) or presented via click-through functionality, shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.
This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
IN WITNESS WHEREOF, the authorized representatives of the parties hereto have executed and delivered this Agreement with the intent to be bound as of the Effective Date.