SOFTWARE SERVICES AGREEMENT
THIS AGREEMENT is entered into between Flex Rental Solutions, LLC, a Utah limited liability company with its principal office located at 826 S. 325 W., Orem, UT 84058 ("Flex"), and Flex in-trial and active customers ("Customer").
WHEREAS, Flex has the right to license rights to access and use the Services (defined below); and
WHEREAS, Customer desires to access and use the Services, all in accordance with the terms and conditions hereof;
NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual agreements contained herein, the parties agree as follows:
- 1.1. "Services." The web services described and specified on the applicable Proposal and any updates or
upgrades to such services which may be generally released by Flex to all customers from time to time.
- 1.2. "Flex Technology." The computer hardware, software and other tangible equipment and intangible computer code necessary to deploy and serve the Services via the Site.
- 1.3. "Site." Flex's http://flexrs.wpengine.com/ website including the Flex Technology.
- 1.4. "Authorized Users." The number of identifiable unique persons consisting of Customer's personnel and outside consultants who are authorized to access and use the Services, as specified in the applicable Proposal(s). Authorized Users may include Customer's third party consultants, outsourcers, contractors and other service providers and are unlimited for the customer under the Flex business location based pricing model.
- 1.5. "Affiliate." With respect to Customer, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with Customer, which agrees in writing to be bound by all the obligations of Customer hereunder.
- 1.6. "Internet Data Centers." Any of the facilities owned or controlled by Flex and used by Flex to provide the Services. These facilities house the Flex Technology used for the provision of Services.
- 1.7. "Customer Data." Customer's information or other data processed, stored or transmitted by, in or through the Services, including without limitation personal information relating to the Customer's personnel, customers, and prospective customers such that the identity of such persons is apparent or can reasonably be determined from such personal information.
- 1.8. "Proposal." A document indicating that it is a "proposal" which incorporates the terms of this Agreement either (i) in written form if mutually agreed upon and duly executed by the parties, or (ii) by email if the email is transmitted and received between email addresses previously designated by the parties for purposes of Proposals and the email consists of at least one message from each party that indicates complete agreement on all terms described in the email and the intention to be bound by such terms. In order to be binding, a "Proposal" must comply with the above requirements.
- 1.9. "Proprietary Rights." Any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
2. SUBSCRIPTION LICENSE GRANT. Subject to the terms and conditions hereof, during the term hereof, Flex hereby grants to Customer and its Affiliates only to the extent of Authorized Users and solely for Customer's internal business purposes a non-exclusive, non-transferable, worldwide right and license to access the Site and use the Services. All rights not expressly granted to Customer herein are expressly reserved by Flex.
3. USE RESTRICTIONS. Customer covenants and agrees that its use of the Services will be in a manner consistent with this Agreement and with all applicable laws and regulations, including trade secret, copyright, trademark, and export control laws. Without limiting the generality of the foregoing, Customer shall not, nor shall it permit or assist others, (i) to abuse or fraudulently use the Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Services; and (iii) to attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codes of any part of the Flex Technology; or (iv) to access, alter, or destroy any information of any customer of Flex by any fraudulent means or device, or attempt to do so.
4. SECURITY. Customer shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its local link to the Internet. As part of the Services, Flex shall implement reasonable security procedures consistent with industry standards to protect Customer Data from unauthorized access, including without limitation, maintaining a security program with an identified security official,
security policies, access controls, firewalls, wireless and mobile device and storage security, virus scanning/protection software, anti-malware software, encryption of data in transport, network security intrusion protection systems, technical assessments (which have been acted upon), and Internet Data Centers housed in a secure location in the United States (the "Data Security Standard"). Provided that Flex is in compliance with the Data Security Standard, the parties agree that Flex shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to Flex at the time. Flex will promptly report to Customer any unauthorized access to Customer Data upon discovery by Flex, and Flex will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such Customer Data is required, Customer shall be solely responsible for any and all such notifications at its expense.
5. BUSINESS CONTINUITY PLAN/DISASTER RECOVERY PROGRAM. Flex shall establish and execute a business continuity plan that provides for continued operation in the event of a disaster or business interruption affecting Flex. The business continuity plan shall provide that Internet Data Centers be configured consistent with prevailing industry standards for fireproofing, power and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions. In addition, Internet Data Centers shall be secured against physical and electronic intrusion in a manner consistent with prevailing industry standards. Force majeure shall not apply.
6. OUTSOURCING INTERNET DATA CENTER OPERATIONS. Flex may outsource its Internet Data Center operations to subcontractors; provided, however, that Flex shall be responsible for the performance of such subcontractors, and Flex shall be liable for any action or inaction by such subcontractors as if performed by Flex.
7. SET-UP OF SERVICES. On or before the "go live" date specified in the applicable Proposal, Flex will complete all tasks required to make the Services accessible to Customer, including (i) implementing in the Flex Technology any interfaces required in the applicable Proposal, (ii) delivering to Customer any proprietary software and related documentation necessary to access the Flex Technology to access and use the Services, (iii) assigning security access, passwords and user IDs necessary to access the Flex Technology to access and use the Services, and (iv) preparing data that may be specified on the applicable Proposal for use with the Services.
8. ACCESS CODES FOR SERVICES. Flex will permit access to the Services only over the Internet using access codes assigned by Flex. Access codes will be deemed the Confidential Information of both parties.
9. TECHNICAL REQUIREMENTS FOR SERVICES.
- 9.1. Capacities. The Services shall be rendered in a manner that will support the Authorized User requirements and other requirements provided in the applicable Proposal.
- 9.2. Scalability. The Services shall be scalable in a manner that allows the Services to meet any forecasted increase provided in the applicable Proposal. Customer acknowledges that increasing the Authorized User requirements and/or data storage requirements may lead to increases in the fees charged for the Services.
- 9.3. Internet Data Centers. The Services will be provided through Internet Data Centers that are configured consistent with prevailing industry standards for fireproofing, power and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions. In addition, the facility shall be secured against physical and electronic intrusion in a manner consistent with prevailing industry standards. Flex may outsource its Internet Data Center operations to subcontractors; provided, however, that Flex shall be responsible for the performance of such subcontractors, and Flex shall be liable for any action or inaction by such subcontractors as if performed by Flex.
- 9.4. Multiple Telecommunications Providers. Unless otherwise specified in the applicable Proposal, the facility shall be served by no less than two separate high-speed telecommunications providers and Flex shall have the ability to switch between telecommunications providers to reduce outages.
10. BACKUPS. At no additional charge to Customer, Flex shall make daily full backups (the "Full Backups") of Customer Data archived with the Flex Technology. The Full Backup shall be stored off-site in a secure facility designed to store and maintain backups for emergency use. Customers can access their own backups at any time, and they shall be made available to Customer by electronic delivery.
11. MONITORING OF CUSTOMER'S USE. Flex reserves the right to internally monitor Customer's usage of the Site and Services.
12. NO COMMINGLING OF CUSTOMER DATA. The Services shall be operated in an environment where (i) all Customer Data shall be stored on files totally separate from those of other customers of Flex, or (ii) all files containing Customer Data are partitioned sufficient to protect the security and privacy of Customer Data.
13. PURCHASE OF ADDITIONAL SERVICES. Customer may elect to purchase rights for additional Authorized Users and/or additional services by Proposal from time to time. Such additional purchases shall be governed by the terms and conditions hereof. Customer agrees that, absent Flex's express written acceptance thereof, the terms and conditions contained in any Proposal or other document issued by Customer to Flex for the additional purchases, shall not be binding on Flex to the extent that such terms and conditions are additional to or inconsistent with those contained in this Agreement.
14. SUBSCRIPTION FEES. Customer shall pay to Flex periodic subscription fees for the Services and technical support services provided hereunder in accordance with the applicable Proposal.
15. TAXES. All fees are exclusive of taxes or duties. If Flex is required to pay or collect any federal, state, local, value added, tax or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Flex's net income, then such taxes and/or duties shall be billed to and paid by Customer immediately upon receipt of Flex's invoice and supporting documentation for the taxes or duties charged.
16. TECHNICAL SUPPORT, TRAINING, AND CONSULTING SERVICES. During the term hereof, Flex shall provide technical support in the form of responses to questions by email or telephone at no additional charge. If additional services are required for the proper use and operation of the Services or if training or consulting services are requested, Flex shall provide such services on a time and materials ("T&M") basis; that is, (i) Customer shall pay Flex for all the time spent performing such services (including all travel time), plus materials, taxes, and reimbursable expenses; and (ii) the rates for such services shall be Flex's then-current standard rates when such services are provided. Any monetary limit stated in an estimate for T&M services shall be an estimate only for Customer's budgeting and Flex's resource scheduling purposes. If the limit is exceeded, Flex will cooperate with Customer to provide continuing services on a T&M basis. Flex shall invoice Customer on a per use basis for T&M services. Charges shall be payable upon receipt of invoice by Customer. Flex reserves the right to require a non-refundable fee and/or cost deposit prior to commencement of services as well as a work order.
17. PROPRIETARY RIGHTS OWNERSHIP. Ownership of the Proprietary Rights embodied in the Site, Services, and Flex Technology shall remain exclusively vested in and be the sole and exclusive property of Flex and its licensors. In addition Customer hereby transfers and assigns to Flex any rights Customer may have to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer personnel relating to the Service. The http://flexrs.wpengine.com/ domain name, product names and logos associated with the Services are trademarks of Flex or third parties, and no right or license is granted to use them.
18. MUTUAL EXCHANGE OF CONFIDENTIAL INFORMATION. During the course of our dealings, both past and future, you have provided or may provide us or we may be in a position to obtain information or material, relating to certain “Confidential Information” (the term “Confidential Information” is defined herein). In this context, in order to protect your interests and for valuable considerations, we legally bind ourselves to following covenants and assurances, which we give you unconditionally and irrevocably:
- 18.1. “Confidential information” as mentioned herein means any and all information disclosed by you relating to business and activities of your Company as well as your customers/clients, suppliers and other entities with whom you do business or technology or any other information which, under the circumstances surrounding disclosure, should be treated as confidential, regardless of whether you provide such information to us in tangible form or it is retained in our intangible memory. “Confidential Information” includes, for example and without limitation, your business or technical information, such as names of your customers/clients, your business as well as business of your customers/clients, data, financial information, marketing techniques and material, business plans and strategies, business operations and systems, software, specifications, techniques, processes, technology, scripts, pricing policies, information concerning employees, vendors, trade secrets, wholesale pricing, transaction systems, discoveries, inventions, improvements, research, development, know-how, designs, products, compositions, prototypes, physical materials and other information disclosed or submitted orally, or in writing, or by any other media, to us.
- 18.2. We shall hold all “Confidential Information” completely confidential and in trust for you and not disclose to any person, firm or enterprise, or use this information for our own benefit or for the benefit of any other party, unless authorized by you. “Confidential Information” will be disclosed only to our employees, who have executed non-disclosure agreement with our company/firm, on need-to-know basis.
- 18.3. The information, observations and data concerning your Company and/or your Customers provided to us, shall continue to be the property of your Company and/or your Customers, as the case may be, and that we shall not be entitled to any right or license in relation to the said information, nor shall we copy, reproduce, publish, distribute, adapt, modify or amend any part thereof, without the prior written consent of your Company.
- 18.4. We will destroy and make no further use of all “Confidential Information” received from you or from your employees, upon cessation/ termination of our dealings with you, if you so require, and we will certify in writing to you about the same.
- 18.5. We agree that your provision of “Confidential Information” to us is not in any way intended by you to be deemed to be a public disclosure, public use, or otherwise a publication of that information. The “Confidential Information” will be used by us solely for the purpose of performing our assignment in a better manner and will not be used in any way, directly or indirectly, detrimental to your interests.
- 18.6. The “Confidential Information” shall be and remain the confidential, proprietary, and trade secret property of your company. Further, any and all enhanced, modified, or other derivative information resulting from the “Confidential Information” shall be governed by the same terms as if it were original “Confidential information” supplied by you.
- 18.7. We shall deliver to you, upon cessation/completion of our dealings with you, or at any other time your Company may so require, all memoranda, notes, plans, records, reports, computer tapes and other documents and data (and copies thereof) relating to the said “Confidential Information” which we shall then possess or have under our control.
- 18.8. We hereby undertake to comply and perform all / any obligation undertaken herein to the best of our capabilities and in the unlikely event of any breach on our part we agree hereby to indemnify you against any loss suffered by you. Further, in such an event, your company will also be fully entitled to approach a court of law for seeking injunctive relief and/or any other remedies permitted under the law to ensure and enforce our compliance with the obligations undertaken herein.
- 18.9. Notwithstanding the cessation/ termination of our dealings, the confirmations and undertakings given herein shall always continue in full force and effect.
- 18.10. Limitation of Liability for Data Security Breach. The provisions of this Section are subject to the limitation on Flex's liability set forth in the Section titled "Security", but only to the extent that a breach of this Section results from an unauthorized third party using illicit means to access the Services or Flex’s Technology. A breach of this Section that results from access to the Services or our Technology by our current or former personnel or any of our subcontractors or providers, shall not be subject to the limitation on Flex’s liability set forth in the Section titled "Security".
19. GENERAL SKILLS AND KNOWLEDGE. Notwithstanding anything to the contrary in this Agreement, Customer agrees that Flex is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Flex.
20. CUSTOMER REPRESENTATIONS AND WARRANTIES.
- 20.1. Customer represents and warrants that (i) the performance of its obligations and use of the Services (by Customer and its Authorized Users) will not violate any applicable laws, or regulations, including without limitation any and all laws and regulations regarding the transfer of personal information of residents of the European Union outside the European Union, or (ii) cause a breach of any agreements with any third parties or unreasonably interfere with the use by other Flex customers of Flex services.
- 20.2. Customer acknowledges that (i) Flex does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance, and (ii) Customer will use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force.
- 20.3. In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Flex will have the right to suspend immediately any Services if deemed reasonably necessary by Flex to prevent any harm to Flex and its business. Flex will provide notice to Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, Flex will promptly restore the Services.
21. FLEX REPRESENTATIONS AND WARRANTIES. Flex represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations and delivery of the Services to Customer will not violate any applicable laws or regulations of the United States or cause a breach of any agreements between Flex and any third parties. In the event of a breach by Flex of the foregoing warranties, Customer's sole remedy is termination of this Agreement upon written notice to Flex.
22. LIMITED WARRANTY. Flex represents and warrants that the Services will: (i) conform to all material operational features as described in the applicable Proposal, and (ii) be free of errors and defects that materially affect the performance of such features ("Limited Warranty"), provided that Customer notifies Flex of any non- conformity, error, or defect. Customer's sole and exclusive remedy for breach of this Limited Warranty shall be the prompt correction of non-conforming Services at Flex's expense.
23. SERVICE LEVEL AGREEMENT. The service level agreement set forth in Exhibit A ("Service Level Agreement") states Customer's sole and exclusive remedy for any performance failure of the Services in terms of levels of service.
24. WARRANTY DISCLAIMERS. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, NEITHER FLEX NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND FLEX AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE SERVICE, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT. FLEX DOES NOT WARRANT THAT THE SERVICE OR SITE WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE SERVICE OR SITE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, OR THAT THE OPERATION OF THE SERVICES OR SITE WILL BE UNINTERRUPTED, OR ERROR-FREE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR 100% SECURE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THAT FLEX HAS NO CONTROL OVER THE INTERNET, AND THAT FLEX IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICES.
25. DISCLAIMER OF ACTIONS OF THIRD PARTIES. Flex does not and cannot control the flow of data to or from Flex's Technology and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer's connections to the Internet (or portions thereof). Although Flex will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Flex cannot guarantee that such events will not occur. FLEX DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES WHICH ARE NOT FLEX's SUBCONTRACTORS.
26. INTELLECTUAL PROPERTY INDEMNITY. Except for third party software including without limitation open source software, Flex will indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against Customer that the Flex Technology or Services infringe on any U.S. intellectual property right of a third party; provided, however, that Flex is notified in writing of such claim promptly after such claim is made upon Customer. Flex shall have the right to control any defense of the claim. In no event shall Customer settle any such claim without Flex's prior written approval. Flex shall have no liability or obligation if the claim arises from (i) any alteration or modification to the Flex Technology or Services other than by Flex, (ii) any combination of the Flex Technology or Services by Customer with other programs or data not furnished by Flex, or (iii) any use by Customer of the Flex Technology or Services that is prohibited by this Agreement or otherwise outside the scope of use for which the Flex Technology or Services are intended.
27. OPTIONS FOR INFRINGEMENT CLAIMS. If any party is enjoined from using the Flex Technology, or if Flex believes that the Flex Technology may become the subject of a claim of intellectual property infringement, Flex, at its option and expense, may: (i) procure the right for Customer to continue to use the Services; (ii) replace or modify the Flex Technology so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided in the applicable Proposal; or (iii) terminate this Agreement, in which case Flex shall refund to Customer any and all subscription fees paid in advance by Customer for those Services not provided by Flex and provide, at Customer's request and free of charge, the Customer Data in a database document format. This Section and the preceding Section sets forth the entire liability of Flex to Customer for any infringement by the Flex Technology or Services of any intellectual property right of any third party. Notwithstanding the foregoing, this Section does not apply to third party software including without limitation open source software.
28. DISCLAIMER OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR INDEMNITY OBLIGATIONS EXPRESSLY PROVIDED HEREIN AND ANY VIOLATION OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA AND/OR UNAUTHORIZED ACCESS OR ACQUISITION OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THIS SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
29. LIABILITY CAP. Except for Flex's indemnity expressly provided herein and Flex's confidentiality obligations, Flex's aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of subscription fees payable by Customer for the six (6) billing periods immediately preceding the claim for such liability.
30. TERM OF AGREEMENT. The initial term of this Agreement shall commence as of the terms of the executed Client Proposal. The initial term hereof shall automatically renew in accord with the Subscription terms unless either party notifies the other in writing not less than fifteen (15) days prior to the expiration of the current term of its intention not to renew. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein. Either party may choose not to renew this Agreement without cause for any reason.
31. TERM OF PROPOSAL. Any Proposal created under this Agreement shall commence immediately upon execution by both parties, and shall continue thereafter as provided in the Proposal; provided, however, that notwithstanding anything to the contrary herein or in any Proposal, all existing Proposals shall also terminate upon the expiration or termination of this Agreement.
32. AUTOMATIC TERMINATION. Unless Flex promptly after discovery of the relevant facts notifies Client to the contrary in writing, this Agreement and all Proposals will terminate immediately without notice upon the institution of insolvency, bankruptcy, or similar proceedings by or against Flex, any assignment or attempted assignment by Flex for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for Flex.
33. TERMINATION FOR CAUSE. If either party fails to comply with any of the material terms and conditions of this Agreement or Proposal, including without limitation the payment of any subscription license fee or reimbursement due and payable to Flex under this Agreement, the non-defaulting party may terminate this Agreement and/or any or all Proposals and any and all license rights upon fifteen (15) days' written notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied.
34. TERMINATION BY FLEX FOR END OF LIFE. Flex intends to continue to provide and support the Services for so long as Customer renews in accordance with the applicable Proposal; provided, however, if, Flex determines in its sole discretion that it is no longer feasible to support the Services, Flex may terminate this Agreement for end of life at any time by providing one hundred eighty (180) days written notice to Customer.
35. RETURN OF MATERIALS. Within ten (10) days of the expiration or termination of any license under any Proposal, Customer shall return to Flex any materials provided by Flex.
36. TRANSITION SERVICES. If Customer is current in all payments due to Flex at the time of expiration or termination hereof, Flex shall provide to Customer its Customer Data in a standard database document format readily available to Flex at no additional charge. If Customer requests the Customer Data in a non-standard format, Customer shall pay to Flex a reasonable fee for technical services as determined by Flex.
37. ARBITRATION. Except for actions to protect Proprietary Rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Orem, Utah. The arbitrator shall apply the laws of the State of Utah to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
38. NOTICES. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received.
39. ASSIGNMENT. Customer shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without Flex's prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
40. CONTINUING OBLIGATIONS. The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (iv) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the Confidential Information of either party, or any remedy for breach thereof, and (v) the payment of taxes, duties, or any money to Flex hereunder.
41. U.S. GOVERNMENT END-USERS. Flex Technology and the Flex software incorporated therein, this Site, and the Services all consist of "commercial items," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "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), all U.S. Government end users of this site acquire only those rights set forth herein.
42. MISCELLANEOUS. This Agreement shall be construed under the laws of the State of Utah, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
SERVICE LEVEL AGREEMENT
- 1.1. "Service Level." The measurements upon which the quality of Services is measured.
- 1.2. "Basic Service Level." Any Service Level set forth in this Agreement or an applicable Proposal that is not a Critical Service Level.
- 1.3. "Critical Service Level." Any Service Level that is described as "critical" in this Agreement or an applicable Proposal.
- 1.4. "Downtime." Any period where the Services are not available to the end users, regardless of reason.
- 1.5. "Exempt Downtime." Downtime where the parties have previously agreed upon the time and duration of such Downtime. Exempt Downtime may also consist of regularly scheduled events, periodic systems maintenance, periodic release version updates, and any additional events as described in an applicable Proposal.
- 1.6. "Performance Credit." A single Performance Credit shall be one day of subscription fees calculated on a monthly basis assuming a 30-day month.
- 1.7. "Unscheduled Downtime." All Downtime that is not Exempt Downtime.
2. PROCEDURES. The establishment of Service Levels will be accomplished as follows:
- 2.1. Commencement. Service Levels are established as provided herein and will be measured starting on the "go live" date for the Services. Service Level reporting will be put into effect starting on the "go live" date for the Services.
- 2.2. Service Level Changes. The Parties may agree to add, delete or modify Service Levels. All such changes must be mutually agreed to in writing. Should new technology or improved measurement capabilities be deployed by Flex that impact the Service Level reports, Flex and Customer will agree upon a new measurement process and amend this Exhibit as appropriate. Should Flex and Customer agree to implement a new reporting mechanism, Flex and Customer will establish new Service Levels to be aligned with the new reporting mechanism.
- 2.3. Downtime Incident Reporting. Upon receipt of a written request from Customer for a prior calendar month requesting information regarding a specific instance of Downtime, Flex will provide Customer with a related incident report from which Customer may determine any Downtime. In order to receive a Performance Credit in connection with a particular instance of Downtime, Customer must notify Flex within thirty (30) days from the time Customer receives the incident report. Failure to comply with this requirement will forfeit Customer's right to receive a Performance Credit for the applicable instance of Downtime.
- 2.4. Excused Failures. Failure to meet Service Levels will not be deemed to be a failure by Flex if one of the following conditions exist: (i) the failure is mutually agreed not to be the fault of Flex; (ii) the failure of Customer to carry out relevant obligations causing the failure; (iii) failure of equipment not provided by or maintained by Flex; or (iv) Force Majeure Events.
- 2.5. Performance Credits. Performance Credits shall accrue due to Basic Service Level Failures (defined below) and Critical Service Level Failures (defined below). All Performance Credits are cumulative and issuance of Performance Credits shall not be deemed to waive any other right of Customer under the Agreement.
- 2.6. Basic Service Level Failure. If, in any given month, Flex fails to meet a Basic Service Level for the services described herein (each, a "Basic Service Level Failure"), Flex shall issue one (1) Performance Credit to Customer, which may, in Flex's sole discretion, either be paid to Customer in a cash payment to be received within thirty (30) days of any such request or be applied to the next billing period's charges.
- 2.7. Critical Service Level Failure. If, in any given month, Flex fails to meet a Critical Service Level for the services described herein (each, a "Critical Service Level Failure"), Flex shall issue three (3) Performance Credits to Customer, which may, in Flex's sole discretion, either be paid to Customer in a cash payment to be received within thirty (30) days of any such request or be applied to the next billing period's charges.
3. SERVICE LEVEL METRICS. In addition to any Service Levels described in detail in the Proposal, and unless these Service Levels are expressly modified in the Proposal, the following Service Levels are deemed to be default metrics and will apply to the Agreement.
- 3.1. Availability. The Services shall be online and available 99% of the time, excluding Exempt Downtime, as calculated for each calendar month. If the Services are available between 98.75% and 98.99% of the time, a Basic Service Level Failure shall be deemed to have occurred. If the Services are available between 98.25% and 98.74% of the time, two Basic Service Level Failures shall be deemed to have occurred. If the Services are available between 97.75% and 98.24% of the time, a Critical Service Level Failure shall be deemed to have occurred. If the Services are available less than 97.75% of the time, two Critical Service Level Failures shall be deemed to have occurred, and no fees shall be due to Flex from Customer for the month that such failures have occurred.
- 3.2. Backups. Failure by Flex to produce an Incremental Backup shall result in one Basic Service Level Failure. Failure by Flex to produce a Weekly Backup shall result in one Critical Service Level Failure.
4. MAXIMUM PERFORMANCE CREDITS. Notwithstanding the foregoing, the aggregate maximum number of Performance Credits to be issued by Flex to Customer for events that occur in a single calendar month shall not exceed five (5) Performance Credits.
5. TERMINATION OPTION FOR CHRONIC PROBLEMS. Either party may terminate this Agreement and without liability or penalty by notifying the other party within ten (10) days following the occurrence of either of the following: (i) Customer experiences more than five (5) Unscheduled Downtime periods in any three (3) consecutive calendar month period; or (ii) Customer experiences more than eight (8) consecutive business hours of Unscheduled Downtime due to any single event. Such termination will be effective thirty (30) days after receipt of such notice by the terminating party.
6. SUSPENSION. If Flex is materially hampered in fully performing hereunder for any reason outside of Flex's reasonable control including without limitation any Force Majeure Event (all of which events are herein called "Disability") Customer may suspend use of the Services and its obligations to make subscription fee payments to Flex during the period of such Disability.