Software Service Standard Terms”) set forth the general legal terms governing the relationship between Ironwood and Customer in connection with Ironwood’s provision of the Software Service identified in an Order Form and are an integral part of the Agreement. Capitalized terms not defined herein shall have the meanings set forth in the Order Form of the Agreement.
1. Definitions. Unless otherwise defined, capitalized terms in this Agreement have the meanings set forth below.
1.1. “Confidential Information” means information not generally known or available to the public, disclosed by or on behalf of the Discloser to the Recipient, or permitted by Discloser to be accessed by Recipient, whether directly, indirectly, or through the Software Service, during the Term, regardless of whether such information is labeled or otherwise identified as being confidential. Without limiting the generality of the foregoing, Confidential Information shall include Discloser’s business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, Customer Data, Usage Data, manuals, records, articles, systems, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, design information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, formulae, notes, communications, algorithms, product plans, designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, client lists and manufacturing information. Confidential Information shall not include data or information which (i) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of Recipient; (ii) was known to Recipient at the time of disclosure without an obligation of confidentiality, as evidenced by Recipient’s written records; (iii) was disclosed after written approval of Discloser; or (iv) is independently developed by the Recipient without reference or access to any of the Confidential Information. The term “Discloser” refers to the Party disclosing Confidential Information, and the term “Recipient” refers to the Party receiving Confidential Information.
1.2. “Customer Data” means all data, information, images, and other materials provided to Ironwood or otherwise allowed to be accessed by Ironwood, whether directly, indirectly, or through the Software Service, by Customer.
1.3. “Documentation” means any user instructions and other such instructional information provided by Ironwood for use with the Software Service, which may be updated from time-to-time.
1.4. “Improvement” means any extensions, enhancements, derivative works (as defined in 17 U.S.C. § 101), improvements, or further developments to any Independent Materials or Intellectual Property Rights (to the extent any of the foregoing is protectable under applicable laws), whether conceived or developed alone by either Party or jointly by the Parties, in its performance hereunder, along with all associated Intellectual Property Rights. For the avoidance of doubt, and without limiting the foregoing, Improvements include any of the foregoing resulting at least in part from feedback, suggestions, or recommendations provided by Customer or its personnel.
1.5. “Independent Materials” means any programs, compilers, interpreters, linkers, routines, subroutines, hardware, devices, systems, products, materials or methodologies, reports, studies, data, diagrams, charts, specifications, works or materials created and/or developed by Ironwood prior to or independently of the activities contemplated herein, along with all associated Intellectual Property Rights. For the avoidance of doubt, and without limitation, the Software Service, the Documentation, and associated Intellectual Property Rights in the foregoing are Independent Materials of Ironwood.
1.6. “Intellectual Property Rights” means, collectively, any and all rights and interest in and to: all current and future worldwide patents, patent applications, copyright and trademark registrations and applications therefore, moral rights, inventions, discoveries, utility models, industrial designs, know-how, data, metadata, databases, models, code, software, drawings, mask works, works of visual art and any other work that may be the subject matter of copyright protection, flowcharts, composition of any matter and all intellectual property and/or industrial property rights of the United States or any other state, country or jurisdiction, whether registrable or not.
1.7. “Software Service” means the software service(s) selected in an Order Form and as described in the applicable Documentation provided by Ironwood.
1.9. “Update” means any patch, bug fix, release, version, modification or successor to the Software Service.
1.10. “Usage Data” means performance data, statistics, and other information related to the use of the Software Service by all users. For the avoidance of doubt, Usage Data excludes Customer Data and Works.
1.11. “Works” means any works: (i) created using the Software Service, or (ii) generated from, created using, derived from, or otherwise based upon or evidencing any Customer Data and/or any of Customer’s Confidential Information. Example Works include without limitation reports, tables, figures, data transforms and the like generated using such data. For the avoidance of doubt, Works exclude Usage Data.
1.12. Other terms not specifically defined in this Article 1 shall have the meanings given them elsewhere in this Agreement.
2. Scope of Software Service.
2.1. Software Service. During the Term, and subject to the terms and conditions of this Agreement, Ironwood shall provide Customer access to use the Software Service selected in an Order Form in accordance with the terms and conditions set forth in this Agreement. The Software Service includes any applicable Updates and Documentation. The Order Form is attached hereto and made a part hereof and may be amended from time-to-time as mutually agreed by the Parties.
3. Professional Services.
From time-to-time during the term of this Agreement, Customer may request that Ironwood perform certain services in connection with the Software Service or otherwise related to this Agreement (a “Request”) including, by way of example, (i) modifying, enhancing, adding new features or functionality to, or otherwise changing the Software Service, (ii) configuring the Software Service or Customer’s related IT systems, and (iii) providing training services to Customer (“Professional Services”). Ironwood shall work with Customer in good faith to develop a mutually agreeable plan, timeline, and cost estimate for implementing such Requests, which shall be memorialized in a mutually executed Statement of Work and incorporated into to this Agreement.
4. Fees and Payment.
Subject to Ironwood’s performance of the responsibilities and obligations set forth in this Agreement, and in consideration in full for the Software Service and rights granted herein, Customer shall pay to Ironwood the amounts described in the Order Form (“Fees”) in accordance with the payment terms set forth herein.
4.1 Invoices. During the Term, Ironwood will submit itemized invoices to Customer for the Fees due and payable set forth in the Order Form.
4.2. Payment of Fees. All Fees due under each invoice shall be due upon receipt of the applicable invoice. All Fees are non-cancelable and non-refundable when paid. Ironwood may, after the end of the Initial Term, increase the Fees set forth in the Order Form, in its sole discretion, provided however, that Ironwood shall provide Customer with at least thirty (30) days prior written notice of any such increase.
4.3. Late Charges. Ironwood reserves the right to charge, and Customer agrees to pay, a late charge equal to one and one-half percent (1.5%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance.
4.4. Taxes. All amounts payable under this Agreement shall exclude all applicable sales, use, and other taxes. Customer will be responsible for payment of all such taxes (other than taxes based on Ironwood’s income, for which Ironwood will be solely responsible), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services. Customer will make all payments required hereunder to Ironwood free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on any payments hereunder to Ironwood will be Customer’s sole responsibility, and Customer will, upon Ironwood’s request, provide Ironwood with official receipts issued by the appropriate taxing authority, or such other evidence as Ironwood may reasonably request, to establish that such taxes have been paid.
5.2.1. Obligations. Customer shall:
126.96.36.199. Maintain, and require its personnel to maintain, the confidentiality of its Software Service account login credentials, and shall not allow its personnel to share their Software Service account login credentials with any other individual;
188.8.131.52. Provide all required disclosures to and will obtain and maintain all required consents from its personnel and all other persons using devices on which the Software Service is running or accessing to allow Ironwood’s provision of the Software Service on such devices, and shall provide evidence of such consents upon Ironwood’s reasonable request;
184.108.40.206. Comply and ensure that its personnel comply with this Agreement and any and all applicable laws of any and all applicable jurisdictions throughout the Term of this Agreement, and as required by law or as otherwise required in this Agreement after the Term of this Agreement;
220.127.116.11. Be responsible for Customer’s and its personnel’s compliance under Section 18.104.22.168 hereof and, if Customer becomes aware of any violation, Customer will immediately notify Ironwood; and
22.214.171.124. Keep its registration information, billing information, and login credentials accurate, complete, secure, and current.
5.2.2. Prohibitions. Customer shall not:
126.96.36.199. Access or attempt to access (or permit or assist another in doing so) the Software Service or components thereof by any means other than through an authorized portal;
188.8.131.52. Sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, or otherwise provide access to or make available the Software Service (including Documentation) in any form to any third party. For the avoidance of any doubt, and without limiting the foregoing, third parties include not only companies and persons unrelated to Customer, but also any affiliate or subsidiary of Customer. Notwithstanding the foregoing, Ironwood may, in its sole discretion, permit use of the Software Service by an affiliate or subsidiary, but in each such case, affiliates and subsidiaries will be required to execute a separate agreement with Ironwood. For purposes of this Agreement, an “affiliate” shall mean, with respect to any Party hereto, any person or entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such Party. For purposes of this definition, “control,” “controlled by” and “under common control with,” as applied to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that person or entity, whether through the ownership of voting securities, by contract or otherwise.
184.108.40.206. Disassemble, decompile, port, reverse compile, reverse engineer, translate, or otherwise attempt to separate any of the components of the Software Service or reconstruct the Software Service or components thereof, or attempt to derive or obtain any source code, structure, algorithms, process, technique, technology, know-how, or ideas embodied by, underlying, or contained in the Software Service;
220.127.116.11. Alter, modify or create derivative works of the Software Service (including Documentation) or components thereof in any way, including without limitation customization, translation or localization;
18.104.22.168. Copy, reproduce, republish, upload, post, transmit, “mirror,” or “frame” any part of the Software Service, or create internet links to the Software Service which include log-in information, user names, passwords, and/or secure cookies;
22.214.171.124. Remove any proprietary notices or labels on the Software or Documentation;
126.96.36.199. License the Software Service if you are a direct competitor of Ironwood, or for the purposes of monitoring the Software Service’s availability, performance, or functionality, or for any other benchmarking or competitive purpose including, without limitation, to create a product or service which is similar to or competitive with the Software Service; and
188.8.131.52. Permit or facilitate any other person or entity from taking any actions which Customer is prohibited from taking pursuant to this Agreement.
Customer acknowledges and agrees that Ironwood is permitted to immediately suspend or terminate Customer’s license in response to any such prohibited use.
5.2.4. Export Restrictions. The Software Service and Documentation may be subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside of the U.S. Customer shall abide by all applicable export control laws, rules, and regulations applicable to the Software Service and Documentation. Customer agrees that it will not export, re-export, or transfer the Software Service or Documentation, in whole or in part, to any country, person, or entity subject to U.S. export control restrictions including, without limitation, (i) to any country which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the Software back to such country, or (ii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.
5.2.5. Vicarious Liability. Customer shall ensure that all access and use of the Software Service (including Documentation) by its personnel and other persons within its control or acting on its behalf is in accordance with this Agreement. Customer acknowledges and agrees that any action or breach by its personnel or other persons within its control or acting on its behalf shall be deemed an action or breach by Customer, and Customer waives all of those defenses that it may have as to why it should not be liable for the acts, omissions, and noncompliance of this Agreement by such persons.
5.2.6. Suspension and Account Termination.
184.108.40.206. Delinquent Account and Breach. Ironwood reserves the right to suspend Customer’s access to and/or use of the Software Service for any accounts for which any payment is due but unpaid but only after Ironwood has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. Should Ironwood suspend Customer’s access for failure to pay amounts due and payable, Customer shall be required to pay a reinstatement fee in addition to the past due amounts before Ironwood reinstates access to Customer’s account. Ironwood also reserves the right to suspend Customer’s access to and/or use of the Software Service if Customer is otherwise in material breach of this Agreement.
220.127.116.11. Ongoing Harm. Ironwood reserves the right to suspend and/or terminate access to and/or use of the Software Service if Ironwood believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the Software Service, or to prevent the Software Service from being used to engage in denial of service attacks, spamming, illegal activity, or other activities causing immediate, material, and ongoing harm to Ironwood or others. In the extraordinary event that Ironwood suspends access to the Software Service under these circumstances, Ironwood will use commercially reasonable efforts to limit the suspension to the offending portion of the Software Service and resolve the issues causing the suspension of the Software Service.
18.104.22.168. Bankruptcy or Cessation of Business. Ironwood reserves the right to suspend and/or terminate access to and/or use of the Software Service, subject to applicable law, if Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
22.214.171.124. Termination of Third-Party Licenses. Ironwood reserves the right to suspend and/or terminate access to and/or use of the Software Service if any vendor or licensor of Ironwood has suspended or terminated Ironwood’s access to or use of any third-party services or products required to enable Customer to access and use the Software Service.
126.96.36.199. Liability. Without limiting the limitations of liability or indemnification obligations set forth in Article 10 and Article 11 of this Agreement, Customer agrees that Ironwood shall not be liable to Customer or other third party for any suspension of the Software Service pursuant to this Section 5.2.6. Notwithstanding the foregoing, Customer will not accrue nor be liable for any fees to Ironwood for the period when Software Service is suspended.
5.3. Limited Grant. Nothing contained herein shall be construed as an assignment or grant to Customer of any right, title or interest in or to the Software Service or any Intellectual Property Rights beyond the grant of a license on the terms specifically and expressly provided for in this Agreement. Customer agrees that it will not, directly or indirectly, while this Agreement is in effect or thereafter: (i) attack the title or rights of Customer in and to the subject matter of the licenses granted in Section 5.1 or (ii) do anything that would jeopardize or diminish Ironwood’s rights or to the value of Ironwood’s Intellectual Property Rights, nor shall Customer assist or aid others in so doing. Except for the rights and licenses expressly granted in this Agreement, no other rights are granted by either Party to the other Party, and all other rights are expressly reserved by such Party.
6. Proprietary Rights.
6.1. Software Service. All title to and rights in the Software Service and associated Intellectual Property Rights are the exclusive property of Ironwood and, as applicable, its licensors.
6.2. Customer Data. As between the Parties, all title to and rights in Customer Data are the exclusive property of Customer. To the extent necessary for Ironwood to provide the Software Service, Customer hereby grants to Ironwood, during the Term, a limited, non-exclusive, non-transferable (except as provided in Section 13.3) license under all Intellectual Property Rights therein and thereto, to use relevant Customer Data to provide the Software Service to Customer, in all cases in strict accordance with the terms set forth in this Agreement.
6.3. Works. As between the Parties, all title to and rights in Works are the exclusive property of Customer. To the extent necessary for Ironwood to provide the Software Service, Customer hereby grants to Ironwood, during the Term, a limited, non-exclusive, non-transferable (except as provided in Section 13.3), license under all Intellectual Property Rights therein and thereto, to use relevant Works to provide the Software Service to Customer, in all cases in strict accordance with the terms set forth in this Agreement.
6.4. Usage Data. As between the Parties, all title to and rights in Usage Data are the exclusive property of Ironwood. For the avoidance of doubt, and without limiting the foregoing, Ironwood may use or disclose such Usage Data collected through the Software Service for any purpose; provided that such use is compliant with applicable law.
6.5. Improvements. Title to and ownership of any and all Improvements created or developed in connection with performance under this Agreement, whether conceived or developed alone by either Party or jointly by the Parties, shall be the sole property of Ironwood. Customer shall irrevocably assign, and does hereby irrevocably assign, to Ironwood any and all right, title, and interest it may have in such Improvements. Customer shall promptly disclose any and all Improvements to Ironwood.
6.6. Professional Services IP. Unless otherwise expressly agreed in a corresponding Statement of Work, title to and ownership of all work product, developments, inventions, technology, or materials provided by Ironwood in the course of providing the Professional Services, together will all associated Intellectual Property Rights (collectively, “Professional Services IP”), shall be the sole property of Ironwood, subject to the usage rights granted to Customer under the corresponding Statement of Work. Customer shall irrevocably assign, and does hereby irrevocably assign, to Ironwood any and all right, title, and interest it may have in such Professional Services IP.
6.7. Further Assurances. Each Party agrees to cooperate with the other Party in executing and delivering such documents and other papers in a timely manner as are necessary or desirable to carry out their respective obligations and permit the filing and prosecution of any applications for patents, copyrights or other Intellectual Property Rights. Each Party shall cause its employees and agents to, sign, execute and acknowledge or caused to be signed, executed and acknowledged any and all documents and to perform such acts as may be reasonably requested by the other Party for the purposes of perfecting the foregoing assignments and ownership rights, and enforcing and defending Intellectual Property Rights as set forth herein. Each Party further agrees that its obligation to sign, execute, and acknowledge, or cause to be signed, executed and acknowledged, when it is in its power to do so, any such documents will survive following the termination of this Agreement.
7.1. Each Party retains all right, title and interest in Confidential Information that it as the Discloser provides to the other Party hereto. Neither Party shall (i) disclose to any third party any Confidential Information of the other, (ii) use such other Party’s Confidential Information for any purpose not specified in this Agreement, or (iii) reverse engineer or decompile, or attempt to do either of the foregoing, any hardware, software, or other materials embodying Confidential Information including, without limitation, the Software Service (including Documentation). Each Party agrees to notify the other promptly of any unauthorized disclosure of such other Party’s Confidential Information and to assist it in remedying any such unauthorized disclosure or use. Recipient agrees that all persons having access to the Confidential Information of the other Party under this Agreement will abide by the confidentiality obligations set forth in this Agreement.
7.2. Neither Party shall disclose to the other Party hereto any information which is confidential and/or proprietary to a third party without first obtaining the written consent of such third party.
7.3. If Confidential Information of the Discloser is required to be disclosed by the Recipient pursuant to applicable law, regulation, judicial order or other legal process, the Recipient may disclose such Confidential Information as legally required provided; however, that to the extent the Recipient is permitted to do so under applicable law, Recipient shall: (i) first provide the Discloser advance prompt written notice and an opportunity to seek confidential treatment thereof and/or obtain a protective order therefore, and (ii) cooperate with the Discloser to protect the Discloser’s Confidential Information.
7.4. Upon termination of this Agreement, each Party shall ensure the prompt return to the other Party hereto or destruction of all Confidential Information of the other Party.
7.5. Each Party acknowledges that disclosure of the other Party’s Confidential Information by it, or breach of the provisions contained herein may give rise to irreparable injury to the other Party and such breach or disclosure may be inadequately compensable in money damages. Accordingly, each Party may seek injunctive relief against the breach or threatened breach of the foregoing undertakings. Such remedy will not be deemed to be the exclusive remedy for any such breach but will be in addition to all other remedies available at law or equity.
7.6. Neither Party will disclose the contents of this Agreement without the prior written consent of the other Party.
7.7. The provisions of this Article 7 will survive the termination or expiration of this Agreement for so long as permitted by applicable law including, for example, for so long as such information remains confidential and/or a trade secret.
8. Compliance with Laws and Regulations; Data Security.
8.1. General. During the term of this Agreement, each Party hereto shall comply with all federal, state and local laws and regulations including those pertaining to data protection, privacy, and security laws, as applicable to such Party in its performance under this Agreement. In addition, Customer will ensure that it and other persons within its control or acting on its behalf will not use the Software Service for any illegal activities.
8.2. Data Processing Agreement. The Parties agree that in addition to the provisions set forth in this Agreement, the terms and provisions of the Ironwood Cyber Data Processing Agreement apply and form part of this Agreement.
8.5. The provisions of this Article 8 shall survive the termination of this Agreement.
9. Representations, Warranties, and Covenants.
9.1. Mutual Representations, Warranties, and Covenants. Each Party represents, warrants, and covenants to the other Party that: (a) it is and will remain a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has and will continue to have the full right and power to enter into and fully perform this Agreement in accordance with its terms; (c) this Agreement constitutes a legal, valid and binding agreement of such Party, enforceable against such Party in accordance with its terms; and (d) its execution, delivery and performance of this Agreement throughout its duration does not and will not require consent from any third party and will not violate (with the lapse of time or giving of notice or both) rights granted by such Party to any third party or violate or otherwise interfere with the provisions of any agreement to which such Party is a party or otherwise bound, preclude such Party from complying with the provisions hereof, or violate any applicable law or regulation or judicial order.
9.2. Software Service Warranties. Ironwood represents, warrants, and covenants to Customer that the Software Service will materially conform to the functionality requirements described in the applicable Documentation, and such functionality of the Software Service will not be materially decreased during the Term. Customer’s sole and exclusive remedy for Ironwood’s breach of these warranties shall be that Ironwood will use commercially reasonable efforts to modify the Software Service to restore the functionality described in the Documentation and if Ironwood is unable to restore such functionality, Customer shall be entitled to terminate this Agreement. Ironwood shall have no obligation with respect to a warranty claim unless notified of such claim within thirty (30) days of the first instance of any material non-conformance. The warranties made in this Section 9.2 are made to and for the benefit of Customer only. Such warranties shall only apply if the Software Service has been utilized in accordance with the Documentation, this Agreement, and applicable laws.
9.3. Professional Services Warranties. Ironwood warrants that the Professional Services (if any) will be performed in a professional and workmanlike manner.
9.4. Customer’s Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Ironwood that:
9.4.1. Customer has provided notifications to, obtained consents from, and otherwise has all rights necessary (and will continue to ensure the foregoing) to: (i) transmit, upload, permit access to, or otherwise provide any and all Customer Data and other data it provides to Ironwood (including any Personal Information contained therein), whether directly, indirectly, or through the Software Service, and (ii) for Ironwood to use such Customer Data and other data it provides to Ironwood (including any Personal Information contained therein) in accordance with this Agreement; and
9.4.2. To the extent Customer shares or otherwise permits Ironwood or the Software Service to make use of any credentials to obtain any Customer Data and other data it makes available to Ironwood (including any Personal Information contained therein), such sharing of credentials shall not violate the rights of, or any contractual obligations with, any third party.
9.5. DISCLAIMER OF REPRESENTATIONS, WARRANTIES, AND COVENANTS. EXCEPT FOR THE REPRESENTATIONS, WARRANTIES, AND COVENANTS EXPRESSLY SET FORTH IN THIS ARTICLE 9, IRONWOOD DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS, AND IRONWOOD HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, AND COVENANTS, ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE.
10. LIMITATION OF LIABILITY.
10.1. NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO PARTY SHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF WARRANTY OR OTHERWISE UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
10.2. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, EACH PARTY’S LIABILITY ARISING UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE) SHALL NOT EXCEED: (I) THE TOTAL FEES PAID BY CUSTOMER TO IRONWOOD PURSUANT TO ARTICLE 3 HEREOF IF THE SOFTWARE SERVICE IS LICENSED ON A ONE TIME BASIS, OR (II) THE AGGREGATE FEES PAID BY CUSTOMER TO IRONWOOD WITHIN THE LAST TWELVE (12) MONTH PERIOD PURSUANT TO ARTICLE 3 HEREOF IF THE SOFTWARE SERVICE IS LICENSED ON A SUBSCRIPTION BASIS.
11.1. Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party and its respective officers, directors, employees, agents, advisers and representatives (“Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder (collectively, “Losses”) arising out of or in connection with any third-party claim, suit, action, or proceeding (each a “Third-Party Claim”) relating to any actual or alleged breach by the Party of: (i) the confidentiality provisions set forth in Article 7 of this Agreement; (ii) the compliance with laws and regulations and data security provisions set forth in Article 8 of this Agreement; (iii) the mutual representations, warranties, or covenants set forth in Section 9.1 of this Agreement; and (iv) as to Customer, Customer’s breach or alleged breach of its representations, warranties, or covenants set forth in Section 9.4 of this Agreement.
11.2. Indemnification Procedure. Promptly after receipt by an Indemnified Party of notice of commencement of any action involving the subject matter of the foregoing indemnity provisions under Section 11.1, such Indemnified Party will promptly notify the Indemnifying Party of the commencement thereof. Failure promptly to so notify the Indemnifying Party of any such claim shall not relieve Indemnifying Party of any such duty so to indemnify. Upon proper notification, the Indemnifying Party shall have the right, but not the obligation, to control the defense of the Indemnified Party against any such third-party claims, utilizing counsel chosen in Indemnifying Party’s sole discretion, provided that the Indemnified Party may participate in any such defense, at its own expense, by separate counsel of its choice, and further provided that any such participation shall not limit Indemnifying Party’s right to control such defense. Notwithstanding anything contained in the foregoing sentence to the contrary, the Indemnifying Party (a) shall not be entitled to have sole control over any third party claim that seeks an order, injunction or other equitable relief against any Indemnified Party; or any action that is the subject of such third party indemnification claim in which both the Indemnifying Party and Indemnified Party are named as parties and either the Indemnifying Party or Indemnified Party determines with advice of counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the other party or that a conflict of interest between such parties may exist in respect of such action, and (b) shall obtain the prior written approval of the Indemnified Party before ceasing to defend against any third party indemnification claim or entering into any settlement, adjustment or compromise of such claim involving injunctive or similar equitable relief being asserted against any Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party in the provision of any such defense by providing to the Indemnifying Party all such information, assistance and authority as may reasonably be requested by the Indemnifying Party.
11.3. Infringement. Ironwood shall indemnify, defend, and hold harmless the Customer Indemnified Parties from and against any and all Losses arising out of or in connection with any Third-Party Claim that the Software Service or any other products or services provided by Ironwood infringes a copyright or United States patent issued as of the Effective Date of such third party or misappropriates a trade secret, in each case, under applicable laws of any jurisdiction within the United States. Notwithstanding the foregoing, Ironwood shall not be liable to indemnify, defend, and hold harmless the Customer Indemnified Parties to the extent a claim of infringement is based on: (i) Customer’s misuse or modification of the Software Service; (ii) Customer’s failure to use corrections, enhancements, or other Updates made available to Customer; (iii) Customer’s use of the Software Service in combination with any service, product, software or hardware not expressly directed by Ironwood in writing to be used with the Software Service; or (iv) information, direction, specifications, or materials provided by Customer or any third party. If any portion of the Software Service is, or in Ironwood’s opinion is likely to be, held to constitute an infringing item, Ironwood may at its sole option and expense either: (i) procure for Customer the right to continue using the Software Service under the terms of this Agreement; (ii) replace or modify the Software Service so that it is non-infringing, or (iii) terminate this Agreement and refund to Customer the fees paid for such item, less a reasonable amount for Customer’s use of the item up to the time Ironwood terminates this Agreement. THE PROVISIONS OF THIS SECTION 11.3 CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND IRONWOOD’S ENTIRE OBLIGATION TO THE CUSTOMER INDEMNIFIED PARTIES WITH RESPECT TO INFRINGEMENT AND MISAPPROPRIATION.
12. Term and Termination.
12.1. Term. The Software Service is licensed on one of the following bases: (i) subscription license, or (ii) one time license. The applicable basis is selected by Customer on the Order Form.
12.1.1. Subscription License.
188.8.131.52. Initial Term. This Agreement shall commence on the Effective Date and continue for an initial term set forth in the Order Form (the “Initial Term”), unless sooner terminated in accordance with the terms of this Agreement. The terms and conditions of this Agreement shall be binding for the Term and shall survive in accordance with Section 12.4.
184.108.40.206. Automatic Extensions. This Agreement shall be automatically extended for successive twelve (12) month terms (each an “Extension Term” and together with the Initial Term, the “Term”) unless a Party notifies the other Party of its intent not to extend the Agreement, such notice being provided at least sixty (60) days prior to the end of the Initial Term or an Extension Term, as applicable. If the Term is extended for one or more Extension Terms, the terms and conditions of this Agreement during each Extension Term shall be the same as the terms and conditions in effect immediately prior to such Extension Term, unless otherwise agreed in writing by the Parties.
12.1.2. One Time License.
220.127.116.11. Term. This Agreement shall commence on the Effective Date and continue through the duration of (the “Term”), unless sooner terminated in accordance with the terms of this Agreement. The terms and conditions of this Agreement shall be binding for the Term and shall survive in accordance with Section 12.4.
12.2. Grounds for Termination.
12.2.1. Mutual Termination. This Agreement may be terminated by mutual written agreement of the Parties hereto.
12.2.2. Termination for Material Breach. Without limiting the rights to immediate equitable relief set forth in Section 12.3.3, in the event of a material breach of this Agreement by either Party hereto, the other Party shall provide written notice to the breaching Party (the “Breach Notice”) specifying the nature of the breach. In the event such breach is not cured to the reasonable satisfaction of the non-defaulting Party within thirty (30) days after service of the Breach Notice, this Agreement shall automatically terminate at the election of the non-breaching Party upon the giving of a written notice of termination to the breaching Party not later than sixty (60) days after service of the Breach Notice. Customer acknowledges and agrees that suspension of Customer’s account under Section 5.2.6 hereof shall be counted toward the foregoing thirty (30) day cure period.
12.2.3. Bankruptcy. If either Party hereto shall apply for or consent to the appointment of a receiver, trustee or liquidator of itself or of all or a substantial part of its assets, file a voluntary petition in bankruptcy, or admit in writing its inability to pay its debts as they become due, make a general assignment for the benefit of creditors, file a petition or an answer seeking reorganization or arrangement with creditors or take advantage of any insolvency law, or if an order, judgment or decree shall be entered by a court of competent jurisdiction or an application of a creditor, adjudicating such Party to be bankrupt or insolvent, or approving a petition seeking reorganization of such Party or appointing a receiver, trustee or liquidator of such Party or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for a period of thirty (30) consecutive days, then the other Party may terminate this Agreement upon ten (10) days prior written notice to such Party.
12.2.4. Violation of Law. In the event that legal counsel for either Party hereto determines, based on a thorough assessment and well-reasoned legal opinion, that more likely than not that this Agreement or performance hereunder is in violation of any federal statute, rule or regulation, or any applicable state statute, rule or regulation, then the Parties agree to negotiate, in good faith, amendments to this Agreement to conform to such statute, rule or regulation. If the Parties are unable to negotiate such amendment in good faith within one hundred twenty (120) days, then, in such event, this Agreement may be immediately terminated by either Party upon written notice to the other Party.
12.2.5. Force Majeure. Notwithstanding any provision contained herein to the contrary, neither Party shall not be deemed to be in default hereunder for failing to perform its obligations under this Agreement if such failure is the result of any act, neglect or default of the other Party, or by an embargo, war, act of terror, riot, incendiary, fire, flood, earthquake, epidemic, public health emergency or other calamity, act of God, or governmental act (including, but not restricted to, any government priority, preference, requisition, allocation, interference, restraint or seizure, or the necessity of complying with any governmental order, directive, ruling or request); provided, however, that if such event continues for a period in excess of thirty (30) days, either Party shall have the right to terminate this Agreement by providing the other Party with a written notice of its desire to terminate this Agreement at least thirty (30) days prior to the effective date of any such termination.
12.3. Effects of Termination. Upon termination or expiration of this Agreement for any reason:
12.3.1. Access Rights. The licenses and any other rights granted in Article 5 shall immediately terminate. Customer shall permanently discontinue use of all of the Software Service (including Documentation) except as necessary to retrieve its Customer Data, Works, and other such data as provided in Section 12.3.2 hereof.
12.3.2. Data Access; Return of Materials. For up to three (3) months following termination or expiration of this Agreement (the “Retrieval Period”), Customer shall be permitted to retrieve all Customer Data and Works stored, controlled, or otherwise held by Ironwood and, during the Retrieval Period, Ironwood shall take all actions that are reasonably necessary to maintain the completeness, integrity, and accessibility of all Customer Data and Works. During the Retrieval Period, Customer shall pay Ironwood’s costs for maintaining and hosting Customer’s account(s) Customer Data, and Works. The Parties agree that Ironwood shall have the right, but not the obligation, to store Customer Data and Works beyond the Retrieval Period (subject to the confidentiality provisions set forth herein); provided, however, that Customer has not instructed Ironwood in writing to return or destroy such Customer Data and Works. Upon Customer’s request, Ironwood shall assist Customer in retrieving the Customer Data, Works, and other such data in a format that is acceptable to Customer. Each Party shall deliver to the other Party all of the other Party’s Confidential Information that the Party may have in the Party’s possession or control.
12.3.3. Equitable Relief. Each Party acknowledges that a breach or threatened breach by the other party of this Agreement, including without limitation Article 7 (Confidentiality), Article 7 (Compliance with Laws and Regulations; Data Security), and Section 12.3.3 (Data Access; Return of Materials), may cause the non-breaching Party irreparable harm, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court of competent jurisdiction, in addition to any other remedy to which such Party may be entitled at law or in equity.
12.3.4. Remedies. Termination of this Agreement shall not release or discharge either Party hereto from any obligation, debt, or liability which shall have previously accrued and remained to be performed upon the date of termination. The effects of termination set forth in this Section 12.3 are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
12.4. Surviving Rights. The expiration or termination of this Agreement will not release either Party from any liabilities or obligations set forth herein which (i) the Parties have expressly agreed herein will survive any such expiration or termination or (ii) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination. Specifically, but without limitation, the rights and obligations set forth in this Section 12.4 (Surviving Rights) and in Article 3 (Fees and Payment), Article 6 (Proprietary Rights), Article 7 (Confidentiality), Article 8 (Compliance with Laws and Regulations; Data Security), Article 9 (Representations and Warranties), Article 10 (Limitation of Liability), Article 11 (Indemnification), Section 12.3 (Effects of Termination), and Article 13 (General) shall survive termination or expiration of this Agreement for any reason. Termination or expiration of this Agreement shall not be deemed a waiver of any claims arising from activities occurring prior to termination or expiration.
13.1. Entire Agreement; Modification; Headings. This Agreement, including all attachments hereto, forms the entire agreement between the Parties. All prior agreements, commitments, statements and discussions are merged into and superseded by this Agreement. No waiver, alteration or modification of any of the provisions hereof shall be binding unless made in writing and signed by the Parties. The headings contained in this Agreement are for convenience of reference only and shall not be considered in construing this Agreement.
13.2. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
13.3. Assignment. Ironwood may assign any of its rights or delegate any of its duties under this Agreement. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of Ironwood. Any unauthorized attempted assignment shall be null and void and of no force or effect.
13.4. WAIVER OF JURY TRIAL; BINDING ARBITRATION.
13.4.1. CUSTOMER AND IRONWOOD ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT CUSTOMER WOULD HAVE IF CUSTOMER WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
13.4.2. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND IRONWOOD ARISING FROM OR RELATING IN ANY WAY TO CUSTOMER’S PURCHASE OF PRODUCTS OR SERVICES, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
13.4.3. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures.
13.4.4. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the Parties, and may be entered as a judgment in any court of competent jurisdiction.
13.4.5. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
13.4.6. The foregoing provisions of this Section 13.4 shall not be interpreted to restrict either Party’s right to terminate this Agreement in accordance with Article 12.
13.5. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
13.6. No Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.7. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.
13.8. No Third-Party Beneficiaries. Except as set forth herein, this Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever.
13.9. Deemed Acceptance. Execution of the Order Form and/or use of the Software Service shall constitute acceptance by Customer of these Software Service Standard Terms.
End of Software Service Standard Terms and Conditions