ALLYN INTERNATIONAL SERVICES, INC. SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement (“Agreement”) is by and between Allyn International Services, Inc. (“Allyn”) and you (“Customer”) and governs Customer’s use of the System (as
defined below) provided by Allyn. You must accept and agree to be bound by the terms and conditions of this Agreement in order to access and use the System. If you use the System, then
you have agreed to the terms of this Agreement. If you are an agent or employee of the intended subscriber or user, you individually represent and warrant to Allyn that you are authorized to bind that party to this Agreement. If you do not agree to this Agreement, then you are not authorized to use the System. This Agreement shall become effective on the date that Customer accesses the System (“Effective Date”)
(a) Affiliate. “Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, another entity.
(b) Components. "Components" means the individual modules or products that make up the System. From time to time, new Components or features will be introduced to the System, and those Components or features may be restricted to specific Editions.
(c) Customer. “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) Customer may sometimes be referred to herein as “you,” “your” or “yours.”
(d) Customer Data. "Customer Data" means any of Customer’s information, documents, or electronic files that are provided to Allyn hereunder.
(e) Documentation. "Documentation" means the online documentation provided by Allyn relating to the System, and any other documentation provided to Customer by Allyn in
connection with the System.
(f) Error. "Error" means any reproducible material failure of the System to function in accordance with its Documentation.
(g) Maintenance Windows. “Maintenance Windows” means collectively, standard maintenance and emergency maintenance. Standard maintenance windows will be published in advance on Allyn’s login page within our SaaS solution. Emergency maintenance will occur as needed. Allyn will make reasonable efforts to publish emergency maintenance windows on Allyn’s login page in advance of the emergency maintenance window, but it is possible that advanced notification of an emergency window may not occur.
(h) Proposal. “Proposal” means the Allyn SaaS Solution Proposal prepared by Allyn for Customer, which is hereby incorporated by reference.
(i) System. "System" means the software service for which Customer has paid, including any Updates relating thereto that may be provided hereunder or thereunder, and any derivative works of the foregoing as detailed in the Proposal.
(j) Service Administrator. "Service Administrator" means the person(s) that Customer designate(s) to purchase on behalf of Customer usage of the Service, authorize Users under the Agreement, create accounts for additional Users and otherwise administer Customer's use of System.
(k) Support. "Support" means the ongoing services by Allyn to support the System as defined in Section 3 below.
(l) Update. "Update" means any update, patch, bug fix, release, version, modification or successor to the System.
(m) User. "User" means a named individual to whom Customer has granted access to use the System on Customer’s behalf, regardless of whether or not the User actually accesses the Software. Users may be Customer's employees, consultants, contractors or agents.
(n) Edition. “Edition” means the named configuration of the System that has been licensed to the Customer. An Edition defines what Components, features, limits, and/or usage restrictions are placed on the System licensed to the Customer. From time to time, new Components or features will be introduced to the System, and those Components or features may be restricted to specific Editions. New named Editions may also be introduced from time to time.
(o) Effective Date. “ Effective Date” means the date on which Customer first accepts the terms of this Agreement and accesses the System.
2. Use Rights
(a) Use Rights. During the term and subject to the terms of this Agreement and the Proposal, Allyn hereby grants to Customer a non-exclusive, world-wide, non-transferable, nonsublicensable
right to permit Customer to use the licensed Edition of the System for Customer’s business purposes. Said use rights are non-transferable, except in the event of a merger with or voluntary transfer of substantially all assets by Customer to a transferee which executes Allyn’s form of agreement agreeing to be bound by all of the terms and conditions of this Agreement. All rights in and to the System not expressly granted herein are reserved to Allyn.
(b) License and Use Restrictions. Customer shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the System; (ii) modify, create derivative works based upon, or translate the System; (iii) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the System in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder. You acknowledge and agree that Allyn shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the System and any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any of Customer's Users relating to the System.
(c) System Adm inistrator; User Access. Customer shall designate one or more System Administrators. System Administrators shall be responsible for managing User access, including adding and subtracting Users. The System Administrator shall ensure that multiple Users do not share a password or user name. Customer acknowledges and agrees that it is prohibited from sharing passwords and/or user names with unauthorized users.
(d) Customer Responsibilities. Customer is responsible for ensuring that Customer’s use of the System is in compliance with all applicable laws and governmental regulations and Customer acknowledges that Customer assumes all risk arising from any such use that is not compliant with applicable laws and regulations.
(e) Security. Customer is solely responsible for maintaining the security of all user names and passwords granted to it, for the security of its information systems used to access the System, and for its Users’ compliance with the terms of this Agreement. Allyn will act as though any electronic communications it receives under Customer's user names have been sent by Customer. Customer will immediately notify Allyn if it becomes aware of any loss or theft or unauthorized use of any of Customer's passwords or user names. Allyn has the right at any time to terminate or suspend access to any User or to Customer if Allyn believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the System or Allyn's network.
(a) Services Generally. Subject to the terms of this agreement, Allyn shall use commercially reasonable efforts to make the System available to Customer.
(b) Updates. Allyn shall deliver Updates to the System that apply to the Customer’s currently licensed Edition at no additional charge. From time to time, new Components or features may be released that are applied selectively to different Editions of the System. Only those Updates that apply to the Customer’s currently licensed Edition will be delivered automatically to the Customer at no additional charge.
(c) Support Options and Procedures. Allyn shall provide general support to the Customer for the Customer's currently licensed Edition. Different Editions of the System will
be entitled to different levels of support. In addition, Allyn may offer premium support options to Customer at an additional charge.
(d) Error Correction. Allyn shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during Allyn's normal business hours. Customer shall provide such access, information, and support as Allyn may reasonably require in the process of resolving any Error. This paragraph is Customer's sole and exclusive remedy for Errors.
(e) Support Exclusions. Allyn is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by:
(i) the acts, omissions, negligence or willful misconduct of Customer, including any unauthorized modifications of the System or its operating environment;
(ii) any failure or defect of Customer’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of Allyn's firewall);
(iii) Customer’s use of the System other than in accordance with the System’s documentation; or
(iv) a Force Majeure Event (as defined herein).
(f) Support Fees. Allyn has the right to bill Customer at its standard services rates for any support issues excluded above that have been pre-approved in writing (including in an
email) by Customer.
(g) Limitation of Remedies. Correction of Errors as defined in this Agreement are Customer’s sole remedies for any Errors in the System.
4. Financial Terms
(a) Fees, Payment Terms and Taxes. In return for the products, services and use rights provided by Allyn to Customer hereunder, Customer shall pay to Allyn the fees in the amounts and on the terms set forth in the Proposal. Allyn and Customer shall be responsible for any and all taxes or other charges from any taxing authority in accordance with the terms set forth in the Proposal.
5. Term and Termination
(a) Term. The Term of this Agreement shall begin on the Effective Date and shall remain in effect for the period of time detailed in the Proposal, unless terminated earlier as provided
by this Agreement or in the Proposal.
(b) Termination for Convenience. Either party may terminate this Agreement at any time by giving the other party ninety (90) days advanced written notice of termination. If Customer terminates the Agreement pursuant to this provision, no fees will be refunded to Customer and Customer must pay Allyn all fees due and remaining due for the entire term of the Agreement as detailed in the Proposal. If Allyn terminates the Agreement pursuant to this provision, no further fees or payments will be required from Customer and Allyn will issue Customer a pro-rata refund of any fees paid in advance.
(c) Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party:
(i) if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within 10 days of written notice by the other party specifying the amounts owed in the case of Allyn;
(ii) immediately upon any breach by Customer of Section 2(b) and/or Section 2(e) above;
(iii) immediately upon any breach of any confidentiality obligations owed to such party by the other party;
(iv) if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the non-breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or
(v) upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
(d) Obligations Upon Termination. Upon termination of this Agreement:
(i) provided that Customer has paid all amounts owed to Allyn hereunder, Allyn shall provide Customer with access to the System for a reasonable time, not to exceed thirty (30) days, and shall cooperate with Customer in the exporting or transfer of Customer Data as designated by Customer, and upon completion of the transfer of Customer Data, as certified by Customer, Allyn shall delete all Customer Data from the System;
(ii) Allyn shall, subject to 5(c)(i) above, terminate access to the System by Customer; and
(iii) Customer shall immediately pay Allyn any amounts payable or accrued but not yet payable to Allyn, including any deferred payments or payments originally to be made over time.
(a) Confidential Information. "Confidential Information" means any and all information not being generally known to, and not being readily ascertainable by proper means by, or (B) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation: (i) nonpublic information relating to a party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that Customer or Allyn is obligated to keep confidential; (iii) the material terms and conditions of this Agreement; and (iv) any nonpublic information relating to any activities conducted hereunder.
(b) Exclusions. Notwithstanding the above, the term "Confidential Information" does not include any information that is either: readily discernible from publicly-available products or literature; or approved for disclosure by prior written permission of an executive officer of the disclosing party.
(c) Use of Confidential Information. Each party shall only use Confidential Information furnished to it hereunder in furtherance of the activities contemplated by this Agreement, and, except as authorized in this Agreement, it shall not disclose the Confidential Information to any other persons without the disclosing party’s express written authorization.
(d) Required Disclosures. A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such
information as is required by the governmental entity or otherwise required by law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so
(e) Return of Information. Subject to the specific provisions concerning Customer Data set forth above, including, without limitation Section 5(c), upon expiration or termination of this Agreement, for any reason, or if a disclosing party so requests at any time, the receiving party shall return promptly all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession.
(f) Survival. The parties hereto covenant and agree that this Section will survive the expiration, termination, or cancellation of this Agreement for a period of 3 years, except for Confidential Information constituting a trade secret, with respect to which this Section will survive the expiration, termination, or cancellation of this Agreement for so long as such Confidential Information remains a trade secret.
(a) Indemnification by Allyn. Allyn shall defend, indemnify and hold harmless Customer from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third-party claim, suit or proceeding that arises from Customer and/or the Customer's Users' use of the System in accordance with this Agreement that infringes or misappropriates any U.S. trade secret, trademark, or copyright. Allyn will have no indemnity obligation to Customer if the alleged infringement or misappropriation is based on (i) any combination, operation, or use of the System with products, services, information, materials, technologies, business methods or processes not furnished by Allyn to the extent the infringement or misappropriation is based on such combination, operations or use; (ii) any modification (other than by Allyn) to the System to the extent theinfringement or misappropriation is based on such modification; or (iii) the Customer's failure to promptly install any Update that is provided by Allyn that would have eliminated the actual
or alleged infringement or misappropriation.
(b) Indemnification by Customer. Customer shall defend, indemnify and hold harmless Allyn from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third-party claim, suit or proceeding that arises from the Customer and/or the Customer's Users' use of the System (other than to the extent indemnified by Allyn under Section 7(a) or, in the case of a Customer using only a free Edition of the System, other than to the extent the third-party claim would have been subject to indemnification by Allyn under Section 7(a) if Section 7(a) applied to Customer).
(c) Sole Remedy. Indemnification pursuant to this Section is the parties’ sole remedy for any third party claim against the other party in the nature of intellectual property infringement or misappropriation.
8. Service Level Commitments, Disclaimers and Limitations
(a) Service Level Commitm ents;. Allyn guarantees that the System and all Services provided on the System will be accessible to Customer’s authorized Users 99.5% of the time in any given calendar month, excluding Maintenance Windows. Notwithstanding the foregoing, Allyn does not guarantee network availability between Customer and the Allyn hosting servers, as such availability can involve numerous third parties and is beyond the control of Allyn. Allyn will not be liable for nor provide any service credits hereunder for any downtime caused in whole or part by a third party data center provider nor for any downtime that Customer experiences as a result of Customer or Customer’s Users’ own network connectivity issues. If Customer experiences a System or Service outage and is unable to access the System or any Service, Customer must immediately contact Allyn’s help desk, providing any/all necessary information that may assist Allyn in determining the cause of the outage.
(b) DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, ALLYN MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM, THE SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SYSTEM. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH IN THE LIMITED SERVICE LEVEL COMMITMENTS IN SECTION 8(A), ALLYN DISCLAIMS ANY WARRANTY THAT THE SYSTEM, THE SERVICES PROVIDED BY ALLYN, OR THE OPERATION OF THE SYSTEM ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. ALLYN MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
(c) DISCLAIMER OF CONSEQUENTIAL DAMAGES. ALLYN HAS NO LIABILITY WITH RESPECT TO THE SYSTEM, SERVICES, OR ITS OTHEROBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF Allyn HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) LIMITATIONS OF REMEDIES AND LIABILITY. ALLYN’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO ALLYN BY CUSTOMER IN RESPECT OF USER LICENSES FOR THE SYSTEM DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. THIS LIMITATION SHALL NOT APPLY TO ALLYN’S OBLIGATIONS TO INDMENIFY CUSTOMER IN ACCORDANCE WITH SECTION 7(A) ABOVE.
(e) EXCLUSION FROM LIMITATIONS. THE LIMITATIONS ON LIABILITY AND DAMAGES SET FORTH IN SECTIONS 8(c) AND 8(d) HEREIN SHALL NOT APPLY TO DAMAGES OR LIABILITY ARISING FROM ALLYN’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. NOR SHALL SUCH LIMITATIONS APPLY TO ALLYN’S LIABILITY UNDER SECTIONS 6 or 7(a) OF THIS AGREEMENT.
9. G e n e r a l
(a) Export Compliance. The System and other Allyn technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Allyn and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use the System or Content in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
(b) Notices. Notices regarding this Agreement shall be in writing and sent by first class mail, overnight courier or email to the Parties’ addresses set forth in the Proposal.
(c) Force Majeure. "Force Majeure Event" means any act or event that (a) prevents a party (the "Nonperforming Party") from performing its obligations or satisfying a condition
to the other party’s (the "Performing Party") obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming
Party has not, through commercially reasonable efforts, been able to avoid or overcome. "Force Majeure Event" does not include economic hardship, changes in market conditions, and
insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other
party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is
the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
(d) Assignment. Allyn may assign any of its rights or obligations under this Agreement at any time; provided, however, that Allyn shal l not assign the rights granted to Customer Data in except in connection with the sale (whether by merger, asset sale, equity sale or otherwise) of (i) Allyn, (ii) the System or (iii) a portion of Allyn or the System that would reasonably require the acquirer of said portion to be assigned such rights to the Customer Data. Customer shall not assign any of its rights under this Agreement, except with the prior written approval of Allyn. The preceding sentence applies to all assignments of rights, except in the event of a merger or voluntary transfer of substantially all assets by Customer to a transferee which executes Allyn’s form of agreement agreeing to be bound all of the terms and conditions of this Agreement. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section is void.
(e) Governing Law; Venue. The laws of the State of Florida (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates , including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Lee County, Florida, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court sitting in Lee County, Florida; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.|
(f) Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the successful party its reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which the successful party may be entitled.
(g) Entire Agreement. This Agreement, the Proposal and any exhibits, schedules and agreements referred to herein, constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement.
(h) Amendments. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
(i) Survival of Certain Provisions. Each party hereto covenants and agrees that the provisions in Sections 1, 2(b), 5(d), 6, 7, 8, and 9 in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.