LOGICBOX SOFTWARE, INC.
HOSTED SOLUTION LICENSE AND SERVICES AGREEMENT
NOTE: THIS AGREEMENT WILL ONLY APPLY TO THE EXTENT THAT NO BINDING AGREEMENT, WRITTEN OR ELECTRONIC, (THE "OTHER AGREEMENT") IS ALREADY IN PLACE BETWEEN CUSTOMER (DEFINED BELOW) AND LOGICBOX SOFTWARE, INC. PERTAINING TO THE HOSTED SOLUTION TO WHICH THIS AGREEMENT APPLIES. TO THE EXTENT THAT ANY OTHER AGREEMENT IS IN EFFECT, THEN SUCH OTHER AGREEMENT WILL GOVERN CUSTOMER'S USE OF THE HOSTED SOLUTION AND RECEIPT OF PROFESSIONAL SERVICES AND THIS AGREEMENT WILL NOT APPLY.
BY EXECUTING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU SUBMIT TO LOGICBOX SOFTWARE, INC., AN OREGON CORPORATION ("WE" OR "LOGICBOX"), AN OFFER TO OBTAIN THE RIGHT TO USE THE HOSTED SOLUTION AND RECEIVE PROFESSIONAL SERVICES (EACH AS DEFINED BELOW) UNDER THE PROVISIONS OF THIS AGREEMENT (THE "AGREEMENT").
BY SIGNING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE "CUSTOMER") WISHING TO USE THE HOSTED SOLUTION LISTED ON THE ORDER CONFIRMATION PAGE, ORDER FORM, STATEMENT OF WORK, QUOTE AND/OR INVOICE (EACH AN "ORDER FORM") WHICH LOGICBOX OR ONE OF ITS AUTHORIZED RESELLERS (A "RESELLER") PROVIDES TO CUSTOMER IN CONNECTION WITH THE PURCHASE OF LICENSES TO THE HOSTED SOLUTION AND RECEIPT OF PROFESSIONAL DESCRIBED BELOW. THE TERMS OF EACH ORDERING DOCUMENT WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.
IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER OR YOU OR THE CUSTOMER DO NOT AGREE TO ANY OF THE TERMS BELOW, LOGICBOX IS UNWILLING TO PROVIDE THE HOSTED SOLUTION AND PROESSIONAL SERVICES TO THE CUSTOMER, AND YOU SHOULD NOT ACCEPT THE TERMS OF THIS AGREEMENT BY SIGNING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT AND YOU SHOULD DISCONTINUE THE ORDER AND USE OF THE HOSTED SOLUTION AND PROFESSIONAL SERVICES.
1. ORDERING. Under this Agreement Customer may order from LogicBox or one of its authorized resellers (a "Reseller") licenses to hosted instances of LogicBox's software products and any related modules (collectively, the "Hosted Solution"), related support and maintenance services ("Support Services"), and/or consulting, implementation or other professional services (collectively "Professional Services"). The specifics of each Customer order will be set forth on an Order Form that references this Agreement and is executed by both parties. Customer's execution of an Order Form constitutes a binding commitment to purchase the items described on the Order Form under the terms and conditions of this Agreement. All mutually-executed Order Forms are incorporated herein by reference.
2. SOFTWARE, LICENSE GRANTS AND RESTRICTIONS.
2.1 License Grant. Subject to the terms of this Agreement and during the License Term (as defined in Section 2.3 below), LogicBox grants to Customer a limited, worldwide, non-exclusive, non-transferable license, without sublicense rights, to (i) permit individual employees and contractors of Customer (each a "User") to access, use, perform and display the Hosted Solution for Customer's own business purposes, and (ii) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available in connection with the Hosted Solution, if any ("Documentation"). The Hosted Solution is deemed accepted upon Customer's receipt, provided that such acceptance shall not in any way impact the warranties set forth in Section 8.1 below. Upon mutual execution of an Order Form and payment of any initial Fees (as defined in Section 13.1 below) due under such Order Form, LogicBox will make the Hosted Solution available to Customer for download using a password protected account on LogicBox's website. The Order Form will set forth the number of permitted Users.
2.2 License Duration; Renewals. The term of each license to the Hosted Solution purchased by Customer will commence on the date that both parties have executed the Order Form under which the Customer acquires such license, unless a later commencement date is expressly set forth on such Order Form, and will continue for the period set forth on such Order Form, subject to adjustment pursuant to Section 2.3(a) and any renewal, as described in this Section 2.2 (collectively, the "License Term"). Each Hosted Solution license will automatically renew (i) for the renewal period specified on the applicable Order Form, if any, or, if not specified, for a period of one (1) year and (ii) at the same Fees applicable during the immediately preceding term unless either party notifies the other at least thirty (30) days prior to the commencement of the renewal term that it does not intend to renew the License Term upon the same terms. Any increases in Fees for a renewal period will be communicated to Customer at least sixty (60) days prior to the commencement of such renewal period.
2.3 Additional Users. The number of licensed Users may be increased by ordering additional User licenses from LogicBox in accordance with the ordering process set forth in Section 1 above. To the extent that any licenses have been purchased and are in effect ("Existing Licenses") at the time that Customer subsequently purchases additional User licenses under Section 1.0 above (each, an "Additional License"), then the License Term pertaining to the Additional Licenses shall equal the period of time remaining on the then-current License Term pertaining to the Existing Licenses so that the License Term for all licenses shall be coterminous, regardless of when purchased and subject to payment of additional Fees for such Additional Licenses, as set forth in the applicable Order Form.
2.4 Additional License Restrictions. Except as otherwise expressly permitted under this Agreement, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Hosted Solution or any portion thereof; (b) distribute, transfer, grant sublicenses to, or otherwise make available the Hosted Solution (or any portion thereof) to third parties, including, but not limited to, making such Hosted Solution available (i) through resellers or other distributors, or (ii) as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Hosted Solution (or any element thereof) into other applications of Customer or third parties; (d) create modifications to or derivative works of the Hosted Solution; (e) reproduce the Hosted Solution except that Customer may make up to two archival copies of the Hosted Solution solely for backup purposes; (f) attempt to modify, alter, or circumvent the license control and protection mechanisms within the Hosted Solution; (g) use or transmit the Hosted Solution in violation of any applicable law, rule or regulation, including any export/import laws, (h) in any way access, use, or copy any portion of the Hosted Solution code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Hosted Solution or (i) remove, obscure or alter any copyright notices or any name, trademark, service mark, hyperlink or other designation included on any display screen within the Hosted Solution ("LogicBox Marks"). Customer shall not permit any third party to perform any of the foregoing actions and shall be responsible for all damages and liabilities incurred as a result of such actions. The Hosted Solution is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Hosted Solution is provided to U.S. Government End Users (i) only as a commercial end item and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
3. SUPPORT AND MAINTENANCE. Provided that Customer has paid the requisite Fees as set forth on the Order Form, LogicBox will provide Support Services during the License Term as described herein. LogicBox will provide support in the form of email and phone assistance during regular business hours (8am-5pm Pacific Time, Monday through Friday (excluding LogicBox holidays)). Additionally, LogicBox will implement all updates, upgrades and fixes (collectively "Updates") to the Hosted Solution as they are made generally available by LogicBox. LogicBox reserves the right to charge additional fees for implementing Updates into customized instances of the Hosted Solution. If Customer, for any reason, notifies LogicBox that it does not wish to have a particular Update implemented, LogicBox will continue to support the then-current version of the Hosted Solution being used by the Customer for a period of no less than two (2) years after LogicBox's initial release of the then-current version.
4. HOSTING. LogicBox will utilize a third party to host the Hosted Solution. Currently, LogicBox utilizes Rackspace, US Inc's managed hosting service and/or Amazon.com, Inc.'s Elastic Cloud Computing (EC2) hosting services ("Hosting Services") and may change its provider from time to time (Rackspace, Amazon.com or any such other provider referred to as a "Hosting Provider"). All access to the Hosted Solution through Hosting Services will be subject to the terms and conditions and acceptable use policies required by the Hosting Provider ("Hosting Provider Terms"). All Hosting Provider Terms (including those for Rackspace and/or Amazon.com's Hosting Services which are found at and are incorporated herein by reference. Customer's designated administrative users ("Admin Users") will have access to a restricted-access administrative interface feature which allows for configuration, management and monitoring of and restricting access to the Hosted Solution. Customer is solely responsible for all actions taken by Admin Users or through use of the passwords provided to such Admin Users. Customer is responsible for the content and use of all data and information maintained or stored in the Hosted Solution ("Hosted Data") and will indemnify LogicBox for any losses incurred as a result of such Hosted Data. Customer and its Users will not upload as part of the Hosted Data any of the following types of information: (a) information protected under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and (b) personally identifiable information including (i) drivers license numbers, (ii) passport numbers, (iii) social security, tax ID or similar numbers, or (v) bank, checking, credit card, debit card, or other financial account numbers. Customer and all Users will use the Solution and Hosting Services in compliance with applicable laws and in a manner that does not violate or infringe any rights of any third party.
5. PROFESSIONAL SERVICES. LogicBox will perform Professional Services set forth in a mutually agreed upon written statement of work ("SOW"). Each SOW will set forth the following: (a) the Professional Services to be performed, (b) any deliverables resulting from such Professional Services ("Deliverables"), (c) any specifications or other requirements pertaining to such Professional Services or Deliverables ("Specifications"), (d) the schedule for performance of such Professional Services ("Schedule"), (e) Fees for such Professional Services and Deliverables, (f) any applicable assumptions or conditions and (g) any other terms mutually agreed upon by the parties. Multiple Statements of Work may be outstanding at any particular time. All SOWs entered into by the parties will specifically reference this Agreement and are deemed incorporated as part of this Agreement. Customer acknowledges that the timely and successful performance of Professional Services and delivery of the Deliverables requires good faith cooperation by Customer. Therefore, Customer shall (a) furnish information reasonably requested by LogicBox, (b) provide access to Customer personnel, working space, facilities and systems that LogicBox or its personnel may reasonably request if expressly stated in a SOW, and (c) timely perform its obligations as necessary to meet the Schedule in the applicable SOW with tasks and completion of tasks stated in a SOW. In the event that any failure by Customer to comply with the provisions of this Section 5.0 results in any delay or deficiency in the performance of the Professional Services by LogicBox, LogicBox shall not be deemed in breach of this Agreement or the SOW for such delay and Customer shall be responsible for any costs reasonably incurred by LogicBox in addressing and remedying such delay or deficiency.
6. PUBLICITY. During the term of this Agreement, Customer hereby agrees that LogicBox shall have the right, but not the obligation, to include Customer's name and logo as a customer who uses the Hosted Solution on the LogicBox website and in other materials promoting the Hosted Solution. LogicBox will remove Customer's name and logo from any such list within thirty (30) days after any termination of this Agreement.
7. PROPRIETARY RIGHTS. As between the parties, LogicBox and its suppliers will retain all ownership rights in and to the LogicBox Marks, the Hosted Solution, the Deliverables, the Specifications, the Documentation, all Updates, all other derivative works of the Hosted Solution and/or Documentation and all work product that is provided by LogicBox, and all intellectual property rights incorporated into or related to the foregoing (except to the extent any of the foregoing incorporates Customer's Confidential Information or any Hosted Data). Customer acknowledges that the goodwill associated with the LogicBox Marks belongs exclusively to LogicBox. All rights not expressly licensed by LogicBox under this Agreement are reserved. As between the parties hereto, Customer and its Users will retain all ownership rights in and to the Hosted Data.
8. WARRANTIES AND DISCLAIMER.
8.1 Hosted Solution Warranties. LogicBox warrants that the Hosted Solution, as delivered and when used in accordance with the Documentation, (a) will perform in all material respects as specified in such Documentation for a period of one hundred eighty (180) days from Customer's initial receipt of or access to the Hosted Solution, and (b) will not contain, any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus," "preventative routines" or other computer software routines intentionally designed to permit unauthorized access to or use of either the Hosted Solution's or Customer's computer systems ("Viruses"); provided that the Hosted Solution does include functionality that prevents access to and use of the Hosted Solution in the event that Customer fails to pay the applicable Fees when due. In the event of any breach of the warranty in subsection (a) above, LogicBox shall, as its sole liability and Customer's sole remedy, diligently remedy any deficiencies that cause the Hosted Solution to not conform to the foregoing warranty promptly after its receipt of written notice from Customer. LogicBox will not be liable to the extent that any breach of the foregoing warranties are caused by (i) third-party components (including in combination with the Hosted Solution) not provided by LogicBox or any open source components or freeware included within the Hosted Solution; (ii) modifications to the Hosted Solution; (iii) unauthorized use or use of the Hosted Solution other than in accordance with the Documentation or (iv) Viruses introduced by Customer or its agents or Users (collectively, "Exclusions").
8.2 Professional Services. LogicBox warrants that all Professional Services will be performed in a professional and workmanlike manner. In the event of any breach of the foregoing warranty, LogicBox shall, at its own cost and as its sole liability and Customer's sole remedy, diligently remedy any deficiencies that cause the Professional Services to not conform to the foregoing warranty promptly after its receipt of written notice from Customer.
8.3 Disclaimers. THE EXPRESS WARRANTIES IN SECTIONS 8.1 AND 8.2 ARE THE EXCLUSIVE WARRANTIES OFFERED BY LOGICBOX AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. LOGICBOX DOES NOT WARRANT THAT CUSTOMER'S USE THE HOSTED SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
9. INDEMNIFICATION. LogicBox will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Hosted Solution infringes any copyright or misappropriates any trade secret rights and LogicBox will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying LogicBox promptly in writing of such action, Customer giving LogicBox sole control of the defense thereof and any related settlement negotiations, and Customer cooperating and, at LogicBox's reasonable request and expense, assisting in such defense. If the Hosted Solution (or any component thereof) becomes, or in LogicBox's opinion is likely to become, the subject of an infringement claim, LogicBox may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Hosted Solution so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in LogicBox's reasonable opinion, commercially reasonable, LogicBox may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, LogicBox will have no obligation under this Section 9 or otherwise with respect to any infringement claim based upon any Exclusions. This Section 9 states LogicBox's entire liability and Customer's sole and exclusive remedy for infringement claims and actions.
10. LIMITATIONS ON LIABILITY. TO THE EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO (I) FAILURE TO PAY AMOUNTS PROPERLY OWED, (II) BREACHES OF SECTION 11 (CONFIDENTIALITY), (III) VIOLATIONS OF EITHER PARTY'S INTELLECTUAL PROPERTY RIGHTS OR (IV) LOGICBOX'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.0 ABOVE, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER LOGICBOX IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) EACH PARTY'S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER, IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE HOSTED SOLUTION, SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO LOGICBOX BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
11. CONFIDENTIALITY. "Confidential Information" means, with respect to a party (the "disclosing party"), information that pertains to such party's business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the "receiving party") knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party's Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before effective date of the first Order Form without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.
12. TERM, TERMINATION AND EFFECT.
12.1 Term and Termination. This Agreement shall continue in effect until terminated as set forth herein. The initial License Term for each license purchased will be as set forth in the applicable Order Form. This Agreement or any SOW, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five (5) days for breaches of Sections 2 or 11), or (b) as set forth in Section 9.0. Additionally, a particular Order Form may be terminated by LogicBox in the event that Customer fails to pay applicable Fees when due. This Agreement may be terminated by either party by providing written notice at any time that no Order Form or SOW is outstanding.
12.2 Effect. Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required hereunder shall immediately cease; provided that Sections 2.4, 7 through 14 shall survive termination, (b) Customer will promptly delete and destroy all instances of the Hosted Solution in its possession or control, and (c) Customer shall pay to LogicBox any outstanding Fees that have accrued prior to the date of termination.
13. FEES AND PAYMENT.
13.1 Fees. Subject to the terms and conditions below, all fees for access licenses to the Hosted Solution, Support Services, and Professional Services (collectively, the "Fees") will be set forth on the applicable Order Form or the applicable SOW.
13.2 Payment Terms. Unless otherwise agreed to in writing by the parties, Customer will pay to LogicBox or the Reseller, as applicable, all undisputed Fees owed within thirty (30) days after LogicBox's issuance of an invoice pertaining thereto. Payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on LogicBox's income). Each party is responsible for its own expenses under this Agreement. Unless otherwise agreed to in writing by the parties, travel related expenses will be billed to Customer separately by Logicbox and are subject to the provisions of this Section 13.2. Other payment terms will be as set forth on the Order Form or applicable SOW.
14. MISCELLANEOUS. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party's prior written consent except pursuant to a transfer of all or substantially all of such party's business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any SOWs and Order Forms agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by LogicBox. The terms on any purchase order or similar document submitted by Customer to LogicBox will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on at the beginning of this Agreement and are deemed delivered when received.