IMPORTANT-READ THIS AGAVE® SYSTEMS, INC. AS A SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICES.
Agreement Definitions “You” and “your” refers to the individual or entity that has ordered software as a service from Agave® Systems, Inc. (“Agave”) or an authorized distributor by executing the Ordering Document that accompanies and incorporates this Agreement or otherwise purchased such services via an online purchase process that incorporates this Agreement. The term “Ordering Document” refers to the ordering document signed by the parties that accompanies and incorporates this Agreement, including the services policies and any other document referenced or incorporated into the ordering document. Software as a service consists of system administration, system management, and system monitoring activities that Agave® performs for Software (as defined below), and includes the right to use the Software (as defined below), support services for such Software (as defined below), as well as any other services provided by Agave®, as defined in the Ordering Document (collectively, the “Services”). The term “Documentation” refers to the Software user manual as well as any other materials provided by Agave® as part of the Services. The term “Software” refers to the software products owned or distributed by Agave® to which Agave® grants you access as part of the Services, including Documentation, and any Software updates provided as part of the Services. The term “Users” shall mean those individuals authorized by you or on your behalf to use the Services, as defined in the Ordering Document. The term “Customer Data” refers to the data provided by you that resides in your Services environment.
Applicability of Agreement This Agreement is valid for the Ordering Document which this Agreement accompanies.
Rights Granted Upon Agave®’s acceptance of your order and for the duration of the Services term defined in the Ordering Document, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your internal business operations and subject to the terms of the Agreement. You may allow your Users to use the Services for this purpose and you are responsible for your Users’ compliance with the Agreement. The Services are provided as described in, and subject to, the services policies referenced in the Ordering Document. You acknowledge that Agave® has no delivery obligation and will not ship copies of the Software to you as part of the Services. You agree that you do not acquire under the Agreement any license to use the Software specified in the Ordering Document in excess of the scope and/or duration of the Services. Upon the end of the Agreement or the Services the reunder, your right to access or use the Software specified in the Ordering Document and the Services shall terminate.
Ownership and Restrictions You retain all ownership and intellectual property rights in and to Customer Data. Agave® or its licensors retain all ownership and intellectual property rights to the Services and Software. Agave® retains all ownership and intellectual property rights to anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some Software is specified in the Documentation or Ordering Document as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by Agave and not under the Agreement. You may not:
remove or modify any program markings or any notice of Agave®’s or its licensors’ proprietary rights;
make the programs or materials resulting from the services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired);
modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Agave®;
disclose results of any services or program benchmark tests without Agave®’s prior written consent; and
license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Software or materials available, to any third party other than, as expressly permitted under the terms of the Agreement. The rights granted to you under the Agreement are also conditioned on the following:
the rights of any User licensed to use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license);
except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
Warranties, Disclaimers and Exclusive Remedies Agave® shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimize errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Agave® or by third-party providers, or because of other causes beyond Agave®’s reasonable control, but Agave® shall use reasonable efforts to provide advance notice in writing or by email of any scheduled Service disruption. AGAVE® DOES NOT WARRANT THAT THE SERVICES WILL ERROR-FREE OR UNINTERRUPTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND AGAVE® DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.YOU ACKNOWLEDGE THAT AGAVE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. AGAVE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Indemnification If a third party makes a claim against either you or Agave® (“Recipient” which may refer to you or Agave® depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or Agave® (“Provider” which may refer to you or Agave® depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
gives the Provider sole control of the defense and any settlement negotiations; and
gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim. If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Agave®’s ability to meet its obligations under the relevant order, then Agave® may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink). Agave® will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Agave®. Agave® will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. Agave® will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
Term and Termination Services provided under this Agreement shall be provided for the period defined in the Ordering Document unless earlier terminated in accordance with the Agreement. The term of the Services and any renewal years are collectively defined as the “Services Term.” At the end of the Services Term, all rights to access or use the Services, including the Software listed in the Ordering Document, shall end. If either party breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Ordering Document under which the breach occurred. If Agave® ends the Ordering Document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. If Agave® ends the Services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the Agreement, you may not use the Services ordered. In addition, Agave® may immediately suspend your password, account, and access to or use of the Services (i) if you fail to pay Agave® as required under the Agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within sections C, D, M or Q of this Agreement. Agave may terminate the Services hereunder if any of the foregoing is not cured within 30 days after Agave®’s initial notice thereof. Any suspension by Agave® of the Services under this paragraph shall not excuse you from your obligation to make payment(s) under the Agreement. You agree and acknowledge that Agave® has no obligation to retain Customer Data and that Customer Data may be irretrievably deleted following the termination of the Ordering Document. Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
Fees and Taxes You agree to pay for all Services ordered as set forth in the applicable Ordering Document. All fees due under the Agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed byapplicable law that Agave® must pay based on the Services you ordered, except for taxes based on Agave®’s income. You will reimburse Agave for reasonable expenses related to providing any on-site portion of the Services. Fees for Services listed in an Ordering Document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the Ordering Document; however, the preceding does not relieve Agave® of its obligation to deliver Services that you have ordered per the terms of the Agreement.
Nondisclosure By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Each party agrees to disclose only information that is required for the performance of obligations under the Agreement. Confidential Information shall be limited to the terms and pricing under the Agreement, Customer Data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. Each party agrees to hold the other party’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, each party agrees to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the Agreement. Nothing shall prevent either party from disclosing the terms or pricing under the Agreement in any legal proceeding arising from or in connection with the Agreement or from disclosing the Confidential Information to a governmental entity as required by law.
Entire Agreement You agree that the Agreement (including the information which is incorporated into the Agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete Agreement for the Services ordered by you, and that the Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement. It is expressly agreed that the terms of the Agreement, including any Agave Ordering Document, shall supersede the terms in any purchase order or other non-Agave document and no terms included in any such purchase order or another non-Agave® document shall apply to the Services ordered. The Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted by authorized representatives of you and of Agave.
Limitation of Liability NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. AGAVE’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO AGAVE FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST AGAVE SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THELIMITATION OF LIABILITY.
Export Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern your use of the Services (including technical data) and any services deliverables provided under the Agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemedre-export” regulations). You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Other
Agave® is an independent contractor and the parties agree that no partnership, joint venture, or agency relationship exists between the parties. Each party will be responsible for paying its own employees, including employment related taxes and insurance.
You shall obtain at your sole expense any rights and consents from third parties necessary for Agave® and its subcontractors to perform the Services under the Agreement.
The Agreement is governed by the substantive and procedural laws of California and you and Agave® agree to submit to the exclusive jurisdiction of, and venue in, the courts in Orange County, California in any dispute arising out of or relating to the Agreement.
If you have a dispute with Agave® or if you wish to provide a notice under the Indemnification section of this Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Agave Systems, Inc., 27122 Paseo Espada Ste 901, San Juan Capistrano, CA 92675 . Agave® may give notice applicable to Agave®’s Service customer base by means of a general notice on the Agave® portal for the Services, and notices specific to you by electronic mail to your e-mail address on record in Agave®’s account information or by written communication sent by first class mail or pre- paid post to your address on record in Agave’s account information.
You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity.
Except for actions for nonpayment or breach of Agave®’s proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
Agave® may audit your use of the Services. You agree to cooperate with Agave®’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the Services in excess of your rights. If you do not pay, Agave® can end your Services and/or the Agreement. You agree that Agave® shall not be responsible for any of your costs incurred in cooperating with the audit.
The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it. You understand that Agave®’s business partners, including any third party firms retained by you to provide computer consulting services, are independent of Agave® and are not Agave®’s agents. Agave® is not liable for nor bound by any acts of any such business partner.
Force Majeure Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
Customer Data In performing the Services, Agave® will comply with the Agave® Services Privacy Policy, which is available on its website and incorporated herein by reference. The Agave® Services Privacy Policy is subject to change at Agave®’s discretion; however, Agave® policy changes will not result in a material reduction in the level of protection provided for Customer Data during the period for which fees for the Services have been paid. The services policies referenced in your Ordering Document specifies our respective responsibilities for maintaining the security of Customer Data in connection with the Services. Agave® reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide. You agree to provide any notices and obtain any consents related to your use of the Services and Agave®’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Customer Data.
Restrictions on Use of the Services You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Agave® under the Agreement, Agave® reserves the right to remove or disable access to any material that violates the foregoing restrictions. Agave® shall have no liability to you in the event that Agave takes such action. You agree to defend and indemnify Agave® against any claim arising out of a violation of your obligations under this section.
Services Tools Agave® may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the services and to help resolve your Agave® service requests. The tools will not collect, report or store any of Customer Data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the Service. Data collected by the tools (excluding production data) may also be used to assist in managing Agave®’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the Agreement. If Agave® provides you with access to or use of any tools in connection with the Services, your right to use such tools is governed by the license terms that Agave® specifies for such tools; however, if Agave® does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of the Agreement. Any such tools are provided by Agave® on an “as is” basis and Agave® does not provide technical support or offer any warranties for such tools. Your right to use such tools will terminate upon the earlier of Agave®’s notice (which may be through posting on URL designated by Agave®), the end of the services term, or the date that the license to use such tools ends under the license terms specified for such tools.
Statistical Information Agave® may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify your Confidential Information or include your company’s name. Agave® retains all intellectual property rights in such information.
Third Party Web Sites, Content, Products and Services The Services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Agave® is not responsible for any third party Web sites or third party content provided on or through the Services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.
Customer Reference You agree (i) that Agave® may identify you as a recipient of Services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Agave® on its website for promotional purposes.
