THIS SOFTWARE AS A SERVICE SUBSCRIPTION AGREEMENT (“Agreement”) is entered by and between ASI Datamyte Inc., a Minnesota corporation, located at 2800 Campus Drive, Suite 60, Plymouth, Minnesota, USA 55441 (“ASI”), and the Client identified herein (“Customer”). ASI and Customer are referred to individually as a “Party” and collectively herein as the “Parties.”
1. ASI provides access to certain cloud-deployed software, namely, Digital Clipboard.
2. Customer wishes to subscribe to ASI’s services pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the above premises, the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Access and Use.
1.1. Authorization. In consideration for, and conditioned upon, timely payment of all fees and compliance with all other terms and conditions set forth in this Agreement, ASI authorizes Customer and its Authorized Users to access and use the Software and the Documentation during the Term of this Agreement for its own internal business purposes. “Software” means the software identified as Digital Clipboard. “Documentation” means user guides, manuals, and other documents related to the Software that ASI may also provide to Customer during the term of this Agreement.
1.2. Authorized Users. The authorization granted under this Agreement shall allow Customer to provide access to Software for Customer’s employees (“Authorized Users”). The Customer is responsible for maintaining the total number of Authorized Users and payment of related Authorized Users’ Fees. ASI will provide Customer with the necessary number of user names and passwords (or provide the opportunity to create user names and passwords) to allow Customer, through its Authorized Users, to access the Software.
1.3. Use Restrictions. Customer and its Authorized Users shall not use the Software for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or Documentation; (v) knowingly interfere with the operation of the Software or other computers or network connections; (vi) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
1.4. Reservation of Rights. ASI reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third-party any intellectual property rights or other right, title, or interest in or to the Software, the Documentation, or related trademarks, copyrights, patents, trade secrets, confidential information, or other intellectual property (collectively “ASI IP”).
1.5. Suspension. Notwithstanding anything to the contrary in this Agreement, ASI may temporarily suspend Customer’s and Authorized Users’ access to any portion or all of the Software if: (i) ASI reasonably determines that (A) there is a threat or attack on any of the Software or other ASI IP; (B) Customer’s or any Authorized User’s actions or use of the or Software disrupts or poses a security risk to the ASI IP or to any other customer or vendor of ASI; (C) Customer, or any Authorized User, is using the ASI IP for fraudulent or illegal activities; (D) subject to applicable law, 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 become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) ASI’s provision of the Software or other services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of ASI has suspended or terminated ASI’s access to or use of any third-party services or products required to enable Customer to access the Software; or (iii) in accordance with Section 4.4 (any such suspension described in subclause (i), (ii), or (iii), a “Suspension”). ASI shall use commercially reasonable efforts to provide written notice of any Suspension to Customer and to provide updates regarding resumption of access to the Software following any Suspension. ASI shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Suspension is cured. ASI will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Suspension.
2. Customer Responsibilities.
2.1. General. Customer is responsible and liable for all uses of the Software, Documentation, or other services provided by ASI resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, (a) Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer; and (b) Customer shall be solely responsible for any and all activities made under Customer’s account that are a result of Customer’s negligence, including, but not limited to, exceeding the agreed-upon number of Authorized Users. Customer shall use reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions.
2.2. Security Responsibility. Customer is responsible for maintaining the confidentiality of the user names, password(s), or other access credentials assigned to, or selected by, Customer and its Authorized Users (the “Credentials”). Customer, on behalf of itself and its Authorized Users, agrees that the Credentials shall not be shared with anyone. Customer agrees to immediately notify ASI if a password is lost, stolen, disclosed to an unauthorized third-party, or has otherwise been compromised.
2.3. Third-Party Products. ASI may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and may include applicable flow-through provisions referred. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer shall inform ASI of such refusal and should not install or use such Third-Party Products.
2.4. Equipment. Customer shall be solely responsible for providing, maintaining and ensuring all hardware, software, electrical and other physical requirements for Customer’s use of the Software, including, without limitation, telecommunications, Internet access connections, Web browsers or other equipment, programs and services required to access and use the Software. Customer is responsible for maintaining regular data backups or redundant data archives.
3. Fees and Payment.
3.1. Fees. Customer agrees to pay ASI for the Software and other services according to the prices and fees agreed upon at time of sign-up. ASI will issue an annual invoice for the Subscription Fees and implementation fees. THE IMPLEMENTATION FEE IS NONREFUNDABLE. ASI will issue additional invoices for the annual subscription fees (“Subscription Fees”). The term “Fees” shall collectively refer to the implementation fee and Subscription Fees. Payment is due 30 days subsequent to invoice date.
3.2. Disputes and Overdue Invoices. Customer must notify ASI, in writing, of any disputed amounts within fifteen (15) days of the invoice date or Customer hereby waives said dispute. ASI may assess a service charge of one and one half percent (1.5%) interest compounded monthly for all amounts past due by at least thirty (30) days. CUSTOMER HEREBY UNDERSTANDS AND AGREES THAT PAYMENT OF FEES IS NECESSARY FOR ACCESS TO THE SOFTWARE, AND FAILURE TO REMIT PAYMENT AS SET FORTH UNDER THIS AGREEMENT SHALL CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT.
3.3. Taxes. ASI’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If ASI has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, ASI will invoice Customer and Customer will pay that amount unless Customer provides ASI with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ASI is solely responsible for taxes assessable against it based on its income, property, and employees.
3.4. Audit Right. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. ASI may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid ASI with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest as set forth in Section 3.2. Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.
4. Term and Termination.
4.1. Term. This Agreement shall remain in effect for a period of three (3) years following the Effective Date (the “Initial Term”) and will automatically renew for successive three (3) year periods (the “Renewal Term”).
4.2. Termination. ASI may terminate this Agreement for any reason by giving the other Party written notice of the termination of the Agreement at least ninety (90) days in advance of the effective date of termination. Either party may terminate this Agreement in the event of the other party’s material breach, and such material breach has not been cured within thirty (30) days after such party receives notice of such material breach.
4.3. Effect of Termination. Upon termination of this Agreement for any reason, Customer shall pay all amounts owed to ASI prior to the effective date of termination, within thirty (30) days of the effective date of termination, provided however that no genuine dispute between Customer and ASI exists regarding services provided or amounts owed. UPON THE EFFECTIVE DATE OF TERMINATION OF THIS AGREEMENT FOR ANY REASON, THE ACCESS GRANTED TO CUSTOMER UNDER THIS AGREEMENT CEASES AND CUSTOMER IS NO LONGER AUTHORIZED TO ACCESS THE SOFTWARE FOR ANY PURPOSE. CUSTOMER FURTHER AGREES THAT CUSTOMER’S ACCESS OF ASI’S SOFTWARE, SERVERS AND COMPUTER NETWORK FOLLOWING THE EFFECTIVE DATE OF TERMINATION OF THIS AGREEMENT IS WITHOUT AUTHORIZATION. Upon termination of this Agreement for any reason, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term, Initial Term or Renewal Term, will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees, on receipt of ASI’s invoice therefor.
4.4. Access to Software and Services. If Customer fails to pay any fees due under this Agreement, ASI may suspend Customer’s access to the Software after fifteen (15) days’ written notice to Customer (the “Suspension Date”). Notwithstanding ASI’s right to terminate this Agreement in accordance with this Agreement, Customer will have thirty (30) days from the Suspension Date to cure the breach and pay ASI all amounts owed to ASI to reinstate access to the Software. After the expiration of the thirty (30) day period, if Customer has not paid all fees due under this Agreement, ASI may terminate this Agreement and destroy all copies of Customer’s Data within ninety (90) days from the Suspension Date.
4.5. Survival. Notwithstanding the termination of this Agreement, the Parties shall be required to carry out any provision hereof that contemplates performance subsequent to such termination, and such termination shall not affect any liability or other obligation that has accrued prior to such termination, including, but not limited to, any liability for loss or damage on account of a prior breach. Without limiting the generality of the foregoing, the Parties specifically agree that the rights and duties contemplated in Sections 6, 7, 8 and 10 shall survive termination or expiration of this Agreement for any reason.
5. Support. ASI will provide Customer with the service support described in Exhibit A. Certain levels of support and training services may require additional fees, as outlined in Exhibit A or as agreed up on by the Parties from time to time.
6. Confidential Information and Intellectual Property.
6.1. Confidential Information. The term “Confidential Information” shall include, but is not limited to the source code for the Software, underlying methods and processes of operation, whether patented or not, documentation, cost and pricing information, and any other information or documentation designated as confidential, or that, based on the circumstances, Customer has reason to know that such information or documentation is confidential. Confidential Information does not include information which Customer establishes by clear and convincing evidence (i) became generally available to the public other than as a result of disclosure by Customer in breach of this Agreement; (ii) was available to Customer on a non-confidential basis as shown in written records prior to its disclosure to Customer by Licensor; (iii) became available to Customer on a non-confidential basis from a source other than Licensor; provided that such source is not bound by a confidentiality agreement with Licensor or is otherwise prohibited from transferring the information to Customer by a contractual, legal or fiduciary obligation; or (iv) is independently developed by Customer without any use or benefit of the Confidential Information and such independent development can be documented by Customer with written records.
6.2. Non-Disclosure and Non-Use. Neither Party shall make Confidential Information available in any form to any person other than its employees, authorized manufacturers, or authorized contractors whose job performance requires access and who have agreed to the same obligations of confidentiality set forth in this Agreement. Notwithstanding the foregoing, Customer shall not make ASI’s Confidential Information available to any of ASI’s competitors including any person or entity. Customer shall take appropriate action to protect the confidentiality of Confidential Information and ensure that any person permitted access does not disclose or use Confidential Information except as permitted by this Agreement. Customer shall give Licensor immediate written notice of any unauthorized disclosure or use of the Confidential Information as soon as Customer learns or becomes aware of such unauthorized disclosure or use.
6.3. Customer Intellectual Property. To the extent Customer provides ASI with its trademarks, copyrighted-protected works, or other intellectual property (collectively “Customer’s Intellectual Property”), Customer hereby grants ASI a limited, non-exclusive, non-transferable, revocable, royalty free, and fully paid up right to use, reproduce, and make derivative works of Customer’s Intellectual Property for the purpose of complying with its obligations under the Agreement and related marketing purposes. Customer represents that Customer owns or has the necessary licenses, rights, consents, and permissions to use and authorize ASI to use Customer’s Intellectual Property. ASI acknowledges and agrees that Customer shall exclusively retain all ownership, rights, title, and interest in and to Customer’s Intellectual Property. Upon termination of this Agreement, ASI will discontinue the use of Customer’s Intellectual Property.
6.4. ASI’s Intellectual Property. Customer acknowledges and agrees that ASI shall exclusively retain all ownership, rights, title, interest, in and to the Software, all copyrights, trade secrets, works of authorship, inventions, know how, and source identifying matter and all other intellectual property and improvements developed by ASI prior to and following the Effective Date of this Agreement (collectively “ASI Intellectual Property”). Customer acknowledges that, as between Customer and ASI, ASI owns all right, title, and interest, including all intellectual property rights, in and to the ASI IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
6.5. Feedback. If Customer or any of its Authorized Users, employees or contractors sends or transmits any communications or materials to ASI by mail, email, telephone, or otherwise, suggesting or recommending changes to the ASI IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), ASI is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to ASI on Customer’s behalf, and on behalf of its Authorized Users, employees, contractors and/or agents, all right, title, and interest in, and ASI is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although ASI is not required to use any Feedback.
6.6. Customer Data. ASI acknowledges that, as between ASI and Customer, Customer owns all right, title, interest in and to the Customer Data. “Customer Data” is all data, documents, email or other materials entered into storage by or for Customer by any means, including but not limited to through the website(s) or via direct data import. Subject to the terms of this Agreement, Customer grants to ASI the non-exclusive, non-transferable, revocable, royalty free, and fully paid up right to use, copy, store, transmit, and display Customer Data solely in connection with the Software. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, and ASI is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Customer acknowledges and agrees that: (i) no computer, network, storage or other security is risk free or impenetrable; (ii) the Service should not be relied upon as the sole repository of Customer Data; and (iii) Customer is responsible for maintaining back-up and archival copies of all Customer Data. Customers warrants and represents that its provision of Customer Data to ASI does not violate any laws, regulations, contracts, or proprietary rights of any third-parties.
6.7. Aggregated Data. Notwithstanding anything to the contrary in this Agreement, ASI may monitor Customer’s use of the Software and collect and compile data and information related to Customer’s use of the Software that is used by ASI in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software (“Aggregated Data”). As between ASI and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by ASI. Customer acknowledges that ASI may compile Aggregated Data based on Customer Data input into the Software. Customer agrees that ASI may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law; provided that such Aggregated Data do not identify Customer.
7. Indemnification. Customer shall indemnify, hold harmless, and, at ASI’s option, defend ASI from and against any Losses resulting from any Third-Party Claim that the data, information, trademarks, works, or other materials provided by Customer to ASI infringes or misappropriates such third-party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Software in a manner not authorized by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment, or technology not provided by ASI or authorized by ASI in writing; (iv) inaccurate, mis-entered, or otherwise incorrect data provided, or entered into any database or system, by Customer or at Customer’s direction; or (v) modifications to the Software not made by ASI, provided that Customer may not settle any Third-Party Claim against ASI unless ASI consents to such settlement, and further provided that ASI will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
8. Limitations and Disclaimers.
8.1. Accessibility. Customer acknowledges and agrees that at times the Software may be inaccessible or inoperable for any reason whatsoever, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that ASI may undertake from time to time; or (iii) causes that are beyond the control of ASI or that are not reasonably foreseeable.
8.2. The Software Does Not Provide Legal Advice. The Software and any other information or services provided by Licensor, whether as part of the Software or otherwise provided to Customer is provided solely for general educational and information purposes only and does not to be considered legal advice. LICENSOR IS NOT A LEGAL PROFESSIONAL AND THE SOFTWARE AND LICENSOR’S SERVICES ARE NOT A SUBSTITUTE FOR LEGAL ADVICE. Always seek the advice of your legal counsel with respect to compliance with any legal questions or other compliance issues. Licensor specifically disclaims any and all liability with respect to Customer’s compliance with any laws, regulations, or other legal requirements.
8.3. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ASI AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE SOFTWARE “AS IS WITH ALL FAULTS” WITHOUT ANY OTHER WARRANTY OF ANY KIND, AND ASI HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SATISFACTORY QUALITY. ASI DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SOFTWARE, THE AVAILABILITY OF THE USER CONTENT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ALL OF CUSTOMER REQUIREMENTS, THAT THE SOFTWARE IS FREE OF VIRUSES, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASI OR A ASI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY.
8.4. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST TIME, LOST SAVINGS, LOSS OF DATA, DAMAGED DATA, INACCURATE DATA, FAILURE OF TELECOMMUNICATION SERVICES, LOST CONFIDENTIAL OR OTHER INFORMATION, OR FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (TORT, CONTRACT OR OTHERWISE) AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.5. Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ASI AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO ASI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.6. Faulty or Incorrect Data. Customer acknowledges and agrees that Licensor is not responsible for the accuracy of Customer Data, or any other information or data provided by Customer in connection with this Agreement. Customer is solely responsible for ensuring that all Customer Data and any other information or data provided, entered, or otherwise created by Customer or any individual or affiliate of Customer is accurate, correct, and properly entered into any software, systems, or other databases.
9. Interpretation. To the extent there is any conflict between a provision of this Agreement and an Exhibit, the wording of the Exhibit shall control. The section and subsection headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof. The exhibits referred to herein, are incorporated herein to the same extent as if set forth in full herein. For the purposes of interpreting this Agreement, no Party shall be considered the author or drafter, and this Agreement shall not be construed against a Party on that basis. The covenants, agreements and remedies provided herein are in addition to, and are not to be construed as a replacement for or limited by, the rights and remedies otherwise available to ASI and/or Customer.
10.1. Governing Law, Jurisdiction and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts in the State of Minnesota. The Parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each Party by the federal and/or state courts in the State of Minnesota. The Parties hereby irrevocably waive any and all objections which any Party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the State of Minnesota and to the venue of any such suit, action, or proceeding brought in any such federal or state court in the State of Minnesota.
10.2. Attorney’s Fees. In the event of a breach any of the terms of this Agreement, the breaching Party hereby agrees to pay all the reasonable attorneys’ fees incurred by the non-breaching Party in enforcing the terms of this Agreement. The attorneys’ fees shall be paid by the breaching Party irrespective of any damages recovered or any relief afforded to the non-breaching Party.
11. Notice. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when personally delivered, sent by facsimile or overnight express delivery, or mailed by first class United States mail, postage prepaid, return receipt requested. Notices, demands and communications to the parties will, unless another address is specified in writing, be sent to the principal executive office of the other party.
12.1. Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted, or prevented by reason of any act of God, act of terrorism, fire, natural disaster, act of government, strikes or labor disputes, inability to provide raw materials, power or supplies, or any other act or condition beyond that Party’s reasonable commercial control.
12.2. Successors and Assigns. This Agreement is binding upon the Parties and each Party’s respective successors and permitted assigns.
12.3. Entire Agreement. This Agreement states the Parties’ entire agreement and understanding of the subject hereof. This Agreement supersedes all prior understanding and agreements. Any prior agreement or understandings between the Parties is null and void.
12.4. Modification. ASI shall have the right to add to or modify the Software and other serviced provided hereunder, provided it will not substantially and materially diminish the Software. Other than such modifications to the Software and related services, the terms of this Agreement may only be modified by a writing signed by the Parties.
12.5. Third-Party Beneficiaries. There are no intended third-party beneficiaries of this Agreement.
12.6. Waiver; Severability. No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. If any provision or clause of this Agreement as applied to either Party or to any circumstances, shall be adjudged by a court of competent jurisdiction to be invalid or unenforceable, said adjudication shall in no way affect any other provision of this Agreement, the application of such provision in any other circumstances, or the validity or enforceability of this Agreement.
12.7. Assignment. Customer may not assign its rights or obligations under this Agreement without Licensor’s written consent provided, however, that Customer may assign its rights and obligations, in whole only, without such consent to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Licensor may freely assign its rights and obligations, in whole only, to another party without the consent of Customer.
12.8. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
12.9. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Software or any data outside the US.
12.10. US Government Rights. Each of the Documentation, Software, and any components that constitute the Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Software and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
ASI SUPPORT SERVICES
ASI Support Services. ASI will use reasonable efforts to provide the following services for Customer during the hours of 8:00 am and 5:00 pm, Eastern U.S. Time on the regular business days of ASI:
1.1. Technical Support. ASI will provide standard e-mail and telephone technical support for the Licensed Software for any Authorized User.
1.2. Updates, Upgrades, Etc. ASI will provide to the Customer all updates, upgrades and new releases of the Licensed Software that ASI, at its discretion, makes generally commercially available without additional charge.
1.3. Fixes and Workarounds. ASI will make reasonable efforts to repair or replace object or executable versions of the Licensed Software to remedy errors therein that are reported to ASI by Customer and that significantly impair the functionality of the Licensed Software as compared to its published product documentation. If a remedy for the error is not possible within a reasonable time, ASI will make reasonable efforts to provide the Customer a workaround.
1.4. Backups. ASI or its Third Party Provider will maintain weekly full system backups and daily differential backups of Customer Data, and will retain of a copy of each full backup for fourteen (14) days and all differential backups performed after the latest full backup. ASI will not be responsible for maintaining copies of, and may delete or destroy, any backups older than fourteen (14) days. ASI will not be responsible for any loss of data or data integrity in any backup, so long as ASI or its Third Party Provider performed the backup in a commercially reasonable manner.
1.5. Restoration of Customer Data. To the extent Customer Data remains available as provided in this Agreement, ASI or its Third Party Provider will restore Customer Data upon the Customer’s request. If the Customer Data to be restored no longer resides on the Service Provider Servers, or if the data restoration requires ASI or Third Party Provider personnel to travel offsite to retrieve backup copies, ASI may charge Customer a reasonable fee for such restoration services.
1.6. Copies of Customer Data. Upon termination of this Agreement, ASI shall deliver to Customer one copy of all Customer Data then available on one or more CDs or other suitable media. ASI shall retain such Customer Data for a period of fifteen (15) days to allow Customer to confirm that there are no issues with the copy provided. After such fifteen (15) day period, if Customer has not notified ASI of any issues with the copy, ASI may erase all Customer Data and discard any copies or backups without any liability or further obligation to Customer.
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