PerformSmart Online subscription agreement
This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous discussions, agreements and understandings of every kind and nature between the parties. Neither party will be bound by any representation, warranty, covenant, term or condition other than as expressly set forth in this Agreement. Without limiting the foregoing: (a) requests for information, requests for proposal and responses thereto, sales collateral, and background information provided by either party to assist the other in evaluating their relationship are not contractual materials and are not binding; and (b) no purchase order from Customer relating to this Agreement shall be binding in any respect on PerformSmart.
1. Certain Defined Terms. The following terms have the following meanings. Other terms are defined elsewhere in this Agreement.
a. “Authorized Users” means those employees of Customer and those independent contractors to Customer who use the Licensed Materials through Customer (with Customer’s authorization and consent) after being issued valid User IDs for the Licensed Materials.
b. “PerformSmart Online” means the PerformSmart Online software that PerformSmart maintains and makes available to licensees thereof through the Web Site.
c. “Licensed Software” means (i) PerformSmart Online, (ii) any other PerformSmart software that PerformSmart makes available and provides to Customer under this Agreement, and (iii) any all associated updates, enhancements and content provided to Customer hereunder and associated with the foregoing; in each case solely in the form and format made available by PerformSmart to Customer hereunder Notwithstanding anything else, no source code of PerformSmart Online or any other PerformSmart software is or shall be part of the Licensed Software hereunder.
d. “Licensed Materials” means the Licensed Software, the Professional Services provided to Customer (including any and all associated deliverables and materials provided to Customer in connection with such Professional Services), and the associated PerformSmart then-designated user documentation (“Documentation”); provided that the term “Licensed Materials” shall not include any third party software, third party content or third party service other than Third Party Components, whether or not the third party software, third party content or third party service at issue accompanies, is provided with, is made available or is accessed through, or operates in conjunction with, the Licensed Software and/or any other Licensed Materials.
e. “Term” means that period of time for which Customer has fully paid all Subscription Fees as identified by PerformSmart.
f. “Third Party Components” means software, interfaces and firmware, in each case licensed by PerformSmart from a third party and which is incorporated as an integral part into any of the Licensed Software.
g. “User ID” means, with respect to any particular Authorized User, the User Name, user identification and associated password through which such Authorized User is able to gain access to and use the Licensed Materials.
h. “Web Site” means PerformSmart’s web site located at www.performsmart.com or any other website designated by Insperity to access the Licensed Material.
2. License; Limitations and Restrictions.
a. License. Subject to the other terms and conditions of this Agreement, PerformSmart grants Customer a limited, non-sublicensable, non-exclusive, non-transferable right and license, solely during the period for which Customer maintains hereunder a paid subscription to the Licensed Materials, to access and use the Licensed Materials, and to permit and have Authorized Users access and use the Licensed Materials, but only in accordance with the Documentation and this Agreement; provided that, with respect to the PerformSmart Online licensed hereunder to Customer, Customer’s and its Authorized User’s access and use of PerformSmart Online shall be initiated in each instance only through the login page of the Web Site. If PerformSmart provides Customer with media or access to any software or associated documentation, content or materials that is/are not expressly licensed pursuant to this Agreement (“Unlicensed Software”), the provision of such media or access shall not constitute a license to use any such Unlicensed Software and Customer shall ensure that it and its Authorized Users do not use any such Unlicensed Software. The Licensed Materials to which Customer is provided access (or which are furnished to Customer) under this Agreement are licensed, not sold, to Customer. No use of the Licensed Materials, other than expressly and unambiguously permitted by this Agreement, is permitted.
b. Subscription Basis Only. For the avoidance of doubt: (i) all licenses granted hereunder to the Licensed Materials (including, without limitation, any Licensed Software) are granted on a subscription basis solely during the period for which Customer maintains hereunder a paid subscription to the Licensed Materials; and (ii) upon any termination of the Term, all such licenses shall terminate and Customer and its Authorized Users shall have no further right to access or use any of the Licensed Materials. Additional effects of termination of this Agreement, and additional restrictions and limitations regarding the Licensed Materials, are set forth elsewhere in this Agreement.
c. Use for Internal Business Purposes Only; Web Access. Customer and its Authorized Users shall use the Licensed Materials solely for Customer’s own internal business purposes in the field of use of Customer’s ordinary business activities. Without limiting in any way the foregoing sentence, Customer shall not allow any third party (except Authorized Users and then only in compliance with the confidentiality and other provisions of this Agreement) to access, operate or otherwise use in any way the Licensed Materials. Customer understands that it and its Authorized Users will access the Web Site via the World Wide Web. Customer, and not PerformSmart, is solely responsible for obtaining and maintaining all computer hardware, telecommunications equipment, other electronic equipment, software and services (including, without limitation, Internet connectivity) necessary for accessing and using the Internet and the World Wide Web.
d. Customer Responsible for Authorized Users. Customer shall be responsible for the acts and omissions of each of the Authorized Users and each such act or omission shall be attributable to Customer as if done (or omitted to be done, in the case of an omission) directly by Customer. Further, Customer shall ensure that each Authorized User at all times fully complies with all terms and conditions in this Agreement (except those pertaining to the payment by Customer of fees and to indemnification by Customer of PerformSmart) to the fullest extent this Agreement applies to Customer or such Authorized User. Subject to the foregoing sentence, any non-compliance with any provision of this Agreement by any Authorized User shall constitute a breach of this Agreement by Customer.
e. Certain Restrictions and Limitations. Customer shall not (and shall not allow any other person to): (i) reverse engineer, translate, decompile or disassemble any portion of the Licensed Materials (or any products or processes accessible through the Web Site), or otherwise discover or duplicate any content, data, technology, routines, computer software, algorithms, methods or underlying ideas or design or user interface techniques included in any of the Licensed Materials, or attempt to do any of the foregoing, except and only to the extent that this limitation is expressly prohibited by applicable law notwithstanding this limitation; (ii) rent, lease, license, sublicense, export, sell, resell, lend, commercialize, transfer, assign, distribute, grant a lien, encumbrance or option, or make available, to any third party, any of the Licensed Materials (or any of the intellectual property and proprietary rights therein) in any way, whether or not for payment or other consideration, or attempt to do any of the foregoing, except that Customer may permit Authorized Users to access and use the Licensed Materials as expressly authorized under Section 2 of this Agreement; (iii) without limiting in any way clause (ii) immediately preceding, use any of the Licensed Materials to provide, or to assist in or further the provision of, any remote processing, service bureau services or other commercial services to any third party; (iv) alter or modify in any way any of the Licensed Materials (including, without limitation, any source, object or other code thereof) or make any derivative work based in any way upon any of the Licensed Materials; (v) create Internet “links” to any of the Licensed Materials or the Web Site or “frame” or “mirror” any of the Licensed Materials on any server or wireless or Internet-based device; (vi) use any device, software or routine to interfere or attempt to interfere with the proper working of any of the Licensed Materials; (vii) take any action that imposes an unreasonable or disproportionately large load on the Licensed Materials infrastructure; (viii) use any data mining, robot, spider, crawler, cancelbot, Trojan horse, or any data gathering or extraction method or manual process in connection with use of any of the Licensed Materials; (ix) remove, alter, add to, or obscure any copyright, trade secret, or trademark notice or any user notice, warning, disclaimer, consent or advisory pertaining to or included in any of the Licensed Materials; (x) delete or revise any material posted by any other person or entity without their prior written consent or proper authority; (xi) post, transmit or store any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable or harmful, or that infringes on PerformSmart’s or any third party’s intellectual property or other rights; (xii) post, transmit or store any personal or confidential information about individuals or entities without the authorization to do so; or (xiii) print out or otherwise copy or use any personally identifiable information about users for purposes other than as intended by this Agreement.
f. Third Party Content and Third Party Services. As part of the Licensed Software, third party content and/or third party services may be made available to Customer or its Authorized Users. Customer and its Authorized Users may also have access to links (either by way of hyperlinks, icons or bookmarks) to specific third party web sites. Customer acknowledges and agrees that, notwithstanding that PerformSmart may provide links to third party web sites and may make available third party services and/or third party content through the Licensed Materials, SUCH THIRD PARTY WEB SITES, THIRD PARTY SERVICES AND THIRD PARTY CONTENT ARE NOT UNDER THE CONTROL OF PERFORMSMART AND ARE IN NO WAY ENDORSED BY OR THE RESPONSIBILITY OF PERFORMSMART.
g. Third Party Software and Third Party Components. The Licensed Software may include Third Party Components, and other third party software may be provided in conjunction with the Licensed Software, in each case either when the Licensed Software is originally licensed hereunder or otherwise made available to Customer and its Authorized Users from time-to-time. The use of the Third Party Components (including, without limitation, any updates or upgrades thereto) and other third party software may be subject to separate or additional terms and conditions. These separate or additional terms and conditions, if any, will be made available as specified in Section 2.h below. All third party software, including all Third Party Components, is provided by PerformSmart “AS IS” with no express or implied conditions, endorsements, guarantees, representations or warranties. Any acquisition by Customer or any of its Authorized Users of third party software other than any Third Party Component, and any exchange of data between Customer and any third party provider, is solely between Customer and the applicable third party provider. No separate purchase of third party products or services is required to use the Licensed Software.
h. Additional License Terms for Licensed Materials. Notwithstanding anything else, separate and/or additional terms and conditions may apply with respect to the Licensed Software, including any Third Party Components included therein and PerformSmart’s Desktop software (if purchased separately). These separate and/or additional terms and conditions, if any, will be made available within click-through license agreement(s) made available through the Licensed Software when using the Licensed Software for the first time or, in the case of third party software other than any Third Party Component, when Customer or its Authorized Users use or install suchthird party software for the first time. Such separate and/or additional terms and conditions shall be binding upon Customer, and shall govern in the event of any conflict with any other provisions of this Agreement except with respect to Section 2.b (Subscription Basis Only) above, which shall govern and control in the event of any conflict between it and any such separate or additional term or condition.
3. Professional Services.
a. PerformSmart Obligations. PerformSmart shall provide or arrange for the provision to Customer of the Professional Services, as agreed to by PerformSmart. As used herein, “Professional Services” means any technical, consultation or other professional services that PerformSmart agrees to provide (directly or indirectly through contractors) to Customer.
b. Customer Obligations. Customer shall perform its responsibilities in a professional and workmanlike manner, and, in addition to Customer’s other responsibilities under this Agreement, Customer shall cooperate with PerformSmart with respect to the Professional Services to the extent reasonably requested by PerformSmart or otherwise reasonably necessary for the provision to Customer of the Professional Services. In addition, Customer shall assign, and upon PerformSmart’s request, make available to PerformSmart, sufficient numbers of qualified Customer employees who are able to, and who work diligently and reasonably to, coordinate and fulfill performance of Customer’s responsibilities hereunder and facilitate performance by PerformSmart of the Professional Services. PerformSmart’s obligations with respect to the Professional Services at all times shall be subject to and conditioned upon Customer providing PerformSmart with all data and cooperation reasonably requested by PerformSmart or otherwise reasonably necessary for the provision to Customer of the Professional Services.
c. Rates for Professional Services. Any Professional Services provided shall be provided at the rates communicated by PerformSmart or, if such rates are not so communicated, at PerformSmart’s then prevailing rates.
d. Remote Provision. Unless otherwise agreed by PerformSmart, none of the Professional Services will take place physically at any of Customer’s facilities, and all Professional Services shall be conducted either at PerformSmart’s facilities or via telephone, email or other form of electronic communication or connection as determined by PerformSmart.
a. User IDs. Customer shall comply with the procedures specified by PerformSmartfrom time to time regarding User IDs. Customer is solely responsible for maintaining the confidentiality of User IDs and restricting use of the Licensed Materials to only Customer and its Authorized Users. Without limiting the foregoing or any of its other obligations under this Agreement: (a) Customer at all times will be responsible for all use of the Licensed Materials accessed through any User ID; (b) Customer will use its best efforts to prevent any third party from obtaining any User ID or using any User ID not assigned to such third party; and (c) Customer will notify PerformSmart immediately of any actual or potential unauthorized access to or use of any such User ID, or access to or use of any of the Licensed Materials, of which Customer becomes aware.
b. User Content. PerformSmart has no obligation to monitor the Web Site or site-related services, including any forum, or any materials that Customer, its Authorized Users or other third parties transmit or post on to the Web Site. However, Customer acknowledges and agrees that PerformSmart has the right (but not the obligation) to monitor the Web Site and Web Site related services, and the materials Customer or its Authorized Users transmits or posts, to alter or remove any such materials (including, without limitation, any posting to the Web Site, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Web Site properly, to protect itself, its sponsors, its registered users and visitors, and to comply with legal obligations or governmental requests. PerformSmartreserves the right to refuse to post or to remove any information or materials, in whole or in part, that it deems in its sole discretion to be unacceptable, offensive or in violation of this Agreement. PerformSmart also reserves the right, in its sole discretion, to prohibit any Authorized User who violates the terms of this Agreement from using the Licensed Software and Professional Services. Such prohibition may occur without notice to Customer or the Authorized User.
5. Customer Data.
a. Generally. During the Term of this Agreement, PerformSmart will store on its, or its designated third parties, servers any Customer Data which Customer or its Authorized Users input into the Licensed Software. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data. Customer owns all right, title and interest in and to all of its Customer Data, and, as between PerformSmart and Customer, such Customer Data shall be Customer’s Confidential Information. PerformSmart makes no warranty of any kind with respect to any of the Customer Data. ANY DATA STORAGE IS SUBJECT TO HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA THAT MAY RESULT IN LOSS OR DAMAGE TO CUSTOMER AND/OR CUSTOMER DATA, AND/OR CUSTOMER’S DETRIMENTAL RELIANCE ON MALICIOUSLY MANIPULATED DATA. PERFORMSMART SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, MANIPULATION, OMISSIONS, DELAYS, DAMAGES OR LOSSES.
b. Data Accessibility. Customer may, at any time during the Term, run reports or otherwise access the Customer Data from the Web Site. Customer understands and agrees, however, that PerformSmart’s obligations and Customer’s rights under this Section 5.b at all times shall be subject to application of all applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally. Customer further understands and agrees that PerformSmart may delete or erase any or all Customer Data at any time following the Term of this Agreement.
c. Monitoring of the Web Site. PerformSmart does not evaluate or censor the information posted to the Web Site and is not involved in the actual use of the Licensed Materials. Consequently, PerformSmart has no control over the quality, safety or legality of the information posted to the Web Site, or the truth or accuracy of such information.
d. Authentication. Because user authentication on the Internet is difficult, PerformSmart cannot and does not confirm that users are who they claim to be. Because PerformSmart does not and cannot be involved in user-to-user transactions or control the behavior of the Web Site’s users, in the event of a dispute with one or more Authorized Users, Customer releases PerformSmart (and its subsidiaries, suppliers, affiliates, agents, officers, directors and employees, both current and former) from all claims, demands and damages (actual and consequential, direct and indirect) of any kind and nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. Customer assumes all risks related to its Authorized Users use with the Licensed Software.
e. Accuracy of Information. Customer acknowledges and agrees that Customer is solely responsible for the form, content and accuracy of any Customer Data and any information or material posted to the Web Site.
6. Payment Terms.
a. Subscription Fee Payment Terms. Customer shall pay to PerformSmart all Subscription Fees for the Licensed Materials prior to the use of any Licensed Materials. As used herein, “Subscription Fees” means the periodic subscription fees payable by Customer for the licensing and use of Licensed Materials and for certain related services provided hereunder.
b. Professional Services Payment Terms. Professional Services shall be invoiced separately. Customer shall pay in full each invoice rendered by PerformSmart in accordance with this Agreement within the time period set forth in the invoice, or if no time period is specified, Customer shall pay such invoice in full within thirty (30) days after the date of such invoice.
c. General Payment Terms. All payments shall be made by check, credit card (but only those then-currently accepted by PerformSmart), electronic funds transfer or other method of payment acceptable to PerformSmart. Notwithstanding the foregoing provisions or anything else in this Agreement, the failure by PerformSmart to invoice Customer for any particular amount owing by Customer shall not relieve Customer in any way of its obligation to pay such amount. Except as otherwise expressly provided in this Agreement, all amounts paid to PerformSmart are non-refundable. Unless otherwise mutually agreed by the parties in writing, all fees are expressed in U.S. dollars and all payments will be made in U.S. dollars.
d. Fee Adjustments. Subscription Fees may be adjusted by PerformSmart at any time by posting the new Subscription Fees to the Web Site or otherwise communicating such Subscription Fees to the Customer. Any adjustments to the Subscription Fees shall not apply to Subscription Fees already paid by the Customer.
e. Expenses. Customer shall pay or reimburse to PerformSmart all out-of-pocket expenses (including, without limitation, travel expenses) actually incurred by or on behalf of PerformSmartin performance of its obligations under this Agreement. Subject to those express limitations, PerformSmart will incur costs for Customer’s account in accordance with the same travel and expense policies then-applicable to PerformSmart’s reimbursement of PerformSmart personnel. PerformSmart’s general corporate overhead will not be considered to be an expense that is reimbursable by Customer hereunder.
f. Additional Products and Services. Notwithstanding anything else, if Customer requests and PerformSmart provides or arranges for any products or services outside the scope of those specified in this Agreement, Customer will pay PerformSmart for such additional products or services at PerformSmart’s then prevailing rates.
g. Audit. Customer shall maintain complete and accurate records relating to its obligations under this Agreement or to any amounts payable to PerformSmart in relation to this Agreement, which records shall contain sufficient information to permit PerformSmart to confirm Customer’s compliance with this Agreement. Customer shall retain such records throughout the Term and for at least two (2) years after termination of this Agreement, during which time PerformSmart, or PerformSmart-appointed auditors (which auditors shall be reasonably acceptable to Customer and shall agree to maintain the confidentiality of Customer information obtained by them in the course of their audit work), shall have the right, at PerformSmart’s expense, upon thirty (30) days’ prior written notice, no more frequently than one (1) time per calendar year, to inspect such records and Customer’s facilities during normal business hours to verify Customer’s compliance with this Agreement. Without limiting in any way the foregoing provisions of this paragraph, PerformSmart shall also have the right, at any time during and throughout the Term, to (i) without further notice to Customer, monitor and audit usage of the Licensed Materials for the purpose of determining compliance with this Agreement, and (ii) request via written notice that Customer certify its compliance with the license restrictions and limitations in this Agreement; and Customer shall fully comply with each such request within thirty (30) days after receipt of the associated notice from PerformSmart.
h. Taxes. Customer shall pay all (or shall reimburse PerformSmart if PerformSmart pays any) taxes, customs, duties and assessments (exclusive of taxes based on the net income of PerformSmart), however designated, including, but not limited to, excise, sales and use taxes now or hereafter imposed under the authority of any federal, state or local taxing jurisdiction with respect to this Agreement or any of the Licensed Materials or Professional Services provided hereunder. However, if Customer claims an exemption from any taxes, then (i) Customer shall provide to PerformSmart appropriate evidence of such exemption, prior to payment of such taxes, (ii) PerformSmart shall not charge or withhold tax from which Customer is exempt, and (iii) Customer shall be responsible for any taxes that should have been withheld and any associated penalties, and will promptly reimburse PerformSmart for any such amounts incurred by PerformSmart.
i. Suspension of Use; Late Charge; Costs of Collection. Without limiting any of PerformSmart’s other rights or remedies, if Customer is thirty (30) or more days past-due on any amount owing to PerformSmart, PerformSmart shall have the right to suspend Customer’s and its Authorized Users’ access to and use of the Licensed Materials and access to the Customer Data in PerformSmart’s possession or under its control, in each case until Customer pays in full the amount past-due. In addition, all amounts not paid when due are subject to a late payment charge of ten percent (10%) per annum simple interest (or, if less, the maximum rate allowed by applicable law) from the due date until the date of payment. Customer shall be responsible for all reasonable costs of collection, including but not limited to reasonable attorney’s fees, that PerformSmart may incur with respect to unpaid amounts due and payable by Customer under this Agreement.
7. Availability, Maintenance and Support.
a. Availability. PerformSmart will use reasonable efforts to make PerformSmart Online and the Documentation therefore, as licensed to Customer hereunder, available twenty four (24) hours per day, seven (7) days per week (except for scheduled maintenance downtime, as posted from time to time on the Web Site). PerformSmart will maintain the Licensed Materials as PerformSmart, in its sole discretion, deems necessary and advisable.
b. Errors. PerformSmart will promptly investigate any Error in any of the Licensed Software that is reported to PerformSmart via its telephone support number or email support address by any of the Support Contacts (either as initially designated to PerformSmart or any succeeding Support Contacts) and provide the following error correction services for Errors (as defined below):
For Critical Errors –PerformSmart will initiate work within five business days to verify the Error and diligently pursue an Error Correction. A “Critical Error” is an Error that materially impairs substantial functions of the Licensed Software.
For Non Critical Errors –PerformSmart will use reasonable commercial efforts to correct the Error in future releases. A “Non-Critical Error” is any Error other than Critical Error.
PerformSmart does not warrant or represent that all Errors can be corrected.
c. Assistance. Customer will reasonably assist PerformSmart in verifying, reproducing, and correcting Errors. For example, assistance may include providing telecommunications connections to Customer’s computer equipment and providing sample output and other diagnostic information. PerformSmart’s assistance and support regarding the Licensed Materials (limited to that outlined above in this Section 7) will be provided only to the Support Contacts and only during PerformSmart’s normal support hours (as posted on the Web Site), Monday through Friday (weekends and holidays excluded).
d. Definitions. As used herein: “Error” means any Critical or Non-Critical Error, which failure PerformSmart is able to verify and reproduce under conditions substantially identical to those reported by Customer; “Error Correction” means either (i) a Licensed Software modification that corrects the Error at issue in all material respects, or (ii) a procedure or routine that, when included in the regular operation of such Licensed Software, eliminates the adverse effect of the Error at issue in all material respects; “Specifications” means the written functional performance specifications prepared by or on behalf of PerformSmart for the applicable Licensed Software, which are identified by PerformSmart as the specifications therefore; and “Support Contacts” means those Customer employees (not to exceed two at any given time, unless agreed upon by both parties) designated in writing by Customer hereunder to be its technical support contacts for the purposes of reporting Errors and interacting and communicating with PerformSmart regarding Errors; Customer shall provide PerformSmart with at least three (3) business days’ prior written notice of any change in the Support Contacts, and Customer shall ensure that each Support Contact is at all times trained and competent with respect to the Licensed Software and efficiently interfaces with PerformSmart on support matters.
e. Force Majeure. PerformSmart shall not be liable for failure to perform any of its obligations under this Agreement if such failure is caused by an event outside of its reasonable control, including but not limited to, an act of God, war, terrorism or natural disaster.
8. Term and Termination.
a. Term. This Agreement is effective from the earliest of (i) Customer’s use of any Licensed Materials, or (ii) the date Customer accepts this Agreement. This Agreement shall remain in effect until terminated in accordance herein or until Customer fails to pay any Subscription Fees when due.
b. Termination for Cause. Either party may terminate this Agreement, effective upon written notice of termination to the other party, upon any of the following: (i) the failure of the other party to remedy, within thirty (30) days after written notice of the breach, such other party’s breach of this Agreement; or (ii) the insolvency, bankruptcy, reorganization under the bankruptcy laws, or assignment for benefit of creditors of the other party. Without limiting in any way the preceding provisions of this paragraph or any of PerformSmart’s other rights or remedies under this Agreement, upon any Customer breach of this Agreement, PerformSmart shall have the right to suspend its performance under this Agreement and to suspend Customer’s and the Authorized Users’ access and use of the Licensed Materials and access to the Customer Data in PerformSmart’s possession or under its control.
c. Payment and Renewal. Provided that the Licensed Materials are still made available to Customer, Customer may renew this Agreement by paying the Subscription Fees, as identified by PerformSmart prior to the expiration of any then current Term.
d. Effect of Termination. Upon termination of this Agreement for any reason, (i) all licenses granted to Customer under this Agreement shall immediately terminate, (ii) Customer shall immediately discontinue all use of the Licensed Materials and shall ensure that all Authorized Users discontinue all use of the Licensed Materials, and (iii) subject to Section 5 (Customer Data) of this Agreement, each party will return or, at the request of the other party destroy all Confidential Information belonging to the other party. Termination of this Agreement will not affect any rights or obligations of the parties which are intended to survive its termination including, but not limited to, (A) Customer’s payment obligations arising under this Agreement, (B) all license restrictions set forth in this Agreement (C) the applicable provisions of Section 2.b and Sections 5 through 13, and (D) the terms defined in Section 1 and elsewhere in this Agreement (but only for the purposes of interpreting other surviving provisions of this Agreement). Further, any rights or obligations which are expressly stated in this Agreement as surviving any termination hereof shall so survive. Additionally, except in connection with a termination of this Agreement by Customer due to PerformSmart’s breach or a termination by PerformSmart under Section 7 (Availability, Maintenance and Support) above, in connection with or as a result of any termination of this Agreement PerformSmart will not provide any refund to Customer of any prepaid Subscription Fees or other fees prepaid by Customer.
9. Intellectual Property.
a. Intellectual Property Rights. As between the parties, Customer will retain all Rights in and to all content and information originating with Customer and its Authorized Users and provided or submitted by Customer or its Authorized Users to PerformSmart through PerformSmart Online (“Customer Data”) (excluding Customer Feedback) and Customer’s Confidential Information (collectively, the “Customer Property”); subject only to PerformSmart license rights pursuant to this Agreement. As between the parties, PerformSmart shall exclusively own all right, title and interest (“Rights”) in and to the Licensed Materials and PerformSmart’s Confidential Information and all derivative works and modifications thereof, Customer Feedback, and intellectual property rights related to any of the foregoing (collectively, the “PerformSmart Property”); subject only to Customer’s license rights hereunder. Without any additional consideration, Customer hereby automatically and irrevocably assigns to PerformSmart all Rights in and to all PerformSmart Property. Subject to PerformSmart’s confidentiality obligations under this Agreement, Customer grants PerformSmart a non-exclusive, worldwide, non-transferable, fully-paid-up, royalty-free right and license to reproduce, distribute, store, transmit, modify and otherwise use Customer Property as reasonably required for PerformSmart to perform its obligations hereunder during the Term. Nothing herein restricts or limits PerformSmart’s rights to create, distribute, or otherwise use any elements of the Licensed Materials or any modifications thereof.
b. Customer Feedback. Customer hereby grants PerformSmart a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets or equity), sublicensable license to use, copy, modify or distribute, including by incorporating into the Web Site or Licensed Materials, any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorized Users relating to the operation of the Web Site or the Licensed Materials.
a. Confidential Information Defined. The term “Confidential Information” means the provisions of this Agreement (which shall be the Confidential Information of both parties, subject to the following sentence), and any and all information, written or oral, provided or made available by or on behalf of one party or its affiliates, contractors, or vendors to the other party or its affiliates, contractors, or vendors in connection with this Agreement, whether or not designated as confidential. PerformSmart may disclose an accurate summary of the relationship formed hereunder, provided that PerformSmart does not reveal any associated pricing information, or other relationship details not included in prior disclosures that Customer has previously and expressly designated as being excluded from this disclosure right. Information of a third party to whoma party owes a duty of confidentiality will be treated as Confidential Information of that party if it meets the description above. However, (a) Confidential Information does not include information that: was or is publicly available other than as a result of breach of this Agreement by Recipient; was or is lawfully received by the Recipient free of any obligation of confidentiality; or is independently developed by or on behalf of the Recipient without use of the Discloser’s Confidential Information
b. Restrictions on Use and Disclosure. Each party (“Recipient”) will not access or use the Confidential Information of the other (“Discloser”) for any purposes other than performance of its obligations or receipt of benefits hereunder and shall maintain such information in the strictest confidence. Recipient may disclose the Discloser’s Confidential Information to Recipient’s employees, attorneys, advisors, and contractors who have a legitimate “need to know”, provided that Recipient ensures that all such entities and persons are obligated to and do comply with confidentiality obligations consistent with (and no less restrictive than) this Section 10, but in no event may Customer disclose any of PerformSmart’s Confidential Information to any competitors of PerformSmart or any known employees or contractors of any competitors of PerformSmart. Recipient may disclose the Discloser’s Confidential Information to the extent such disclosure is necessary in connection with the enforcement of this Agreement; or necessary to comply with any legal or regulatory requirements, provided that the Recipient gives the Discloser prompt notice when permissible of the compelled disclosure and reasonably cooperates with the Discloser in seeking a protective order or any other protections available to limit the disclosure of the Discloser’s Confidential Information.
c. Equitable Relief. Each party agrees that its compliance with its obligations under this Section 10 are necessary to protect the business, goodwill and proprietary interests of the other party, and that such first party’s breach of any such obligations may give rise to irreparable injury to the other partythat cannot be adequately compensated with monetary damages. Therefore, each party agrees that the other party shall be entitled to seek injunctive relief against the breach or threatened breach of such provisions or seek specific enforcement of such provisions, without posting a bond, in addition to any other legal or equitable remedies that may be available.
11. Disclaimer of Warranties.
NOTWITHSTANDING ANYTHING ELSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO PERFORMSMART’S EXPRESS WRITTEN WARRANTIES SET FORTH IN THIS AGREEMENT, ALL LICENSED MATERIALS, SERVICES, AND OTHER PERFORMSMART-SUPPLIED MATERIALS ARE PROVIDED “AS IS”, AND PERFORMSMART EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT PERFORMSMART KNOWS, HAS REASON TO KNOW, OR HAS BEEN ADVISED OF ANY SUCH PURPOSE); (B) ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED BY CUSOTMER AS A RESULT OF PROVISION OR USE OF THE LICENSED MATERIALS, SERVICES, OR OTHER MATERIALS PROVIDED HEREUNDER; (C) ANY WARRANTY OF UNINTERRUPTED, TIMELY, OR ERROR-FREE OPERATION OF ANY LICENSED MATERIALS OR PROVISION OF SERVICES; AND (D) ANY WARRANTY REGARDING INTEGRITY OR RELIABIITY OF ANY DATA.
12. Limitation of Liability and Damages.
NOTWITHSTANDING ANYTHING ELSE, PERFORMSMART SHALL NOT BE LIABLE WITH RESPECT TO ANY SOFTWARE, SERVICES AND/OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES OF ANY CHARACTER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS OR LOST BUSINESS, EVEN IF PERFORMSMARTHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OF ANY KIND. FURTHER, NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF PERFORMSMART AND ANY OF ITS SUPPLIERS OR LICENSORS UNDER ANY PROVISION OF THIS AGREEMENT, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER, SHALL BE LIMITED TO CUSTOMER’S ACTUAL DIRECT DAMAGES, NOT TO EXCEED IN THE AGGREGATE, FOR ALL CAUSES OF ACTION IN CONNECTION WITH THIS AGREEMENT, THE SUBSCRIPTION FEES PAID BY CUSTOMER TO PERFORMSMART UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT, ACTION, OR OMISSION GIVING RISE TO LIABILITY FOR WHICH DAMAGES ARE RECOVERED. THE FOREGOING LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
13. General Provisions.
a. Governing Law; Disputes; Venue and Jurisdiction. This Agreement shall be construed, governed and enforced in all respects in accordance with the laws of the state of Texas and any applicable federal laws of the United States of America, without regard to the application of principles of conflicts of laws of any state and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties hereby submit to the jurisdiction of the state and federal courts located in Harris County, Texas, and agree that said courts have the sole and exclusive jurisdiction over any and all disputes and causes of action that arise out of or relate to this Agreement. Subject to Section 12 of this Agreement, the prevailing partyin any such dispute or action will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorneys’ fees. This Section will survive any termination of this Agreement.
b. Assignment; Binding Effect. Neither this Agreement, nor any of the rights or obligations set forth herein or arising hereunder, may be assigned or delegated in whole or in part by Customer without the prior written consent of PerformSmart. Any purported assignment in violation of the preceding sentence shall be null and void and shall have no effect. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties, their legal representatives, permitted transferees, successors, and assigns.
c. Notices. Except as otherwise expressly provided by this Agreement, all notices and other communications which are required to be given by this Agreement or which are otherwise made pursuant to this Agreement will be in writing and delivered either by hand, certified or registered mail, overnight courier, or confirmed facsimile, addressed in case of the Customer to the address or facsimile number provided by Customer and in case of PerformSmart to the attention of the General Counsel, 19001 Crescent Springs Drive, Kingwood, TX 77339. All communications will be deemed received (i) upon actual delivery, if delivered by hand or confirmed facsimile, (ii) on the next business day, if properly addressed and sent by overnight courier, or (iii) three business days after delivery with the U.S. Postal Service, if properly addressed and sent by certified or registered mail. Notices and communications may be sent by email, but any such emailed notice or communication must be copied and confirmed to the other party by way of one of the other methods described above in this paragraph, and such notice or communication, when copied and confirmed by way of such other method, will be deemed received in accordance with the above provisions of this paragraph.
d. U.S. Government Rights. Each of the Licensed Materials is a “commercial item,” as that term is defined in 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, if Customer is or acts on behalf of an agency or other instrumentality of the U.S. federal government , then Customer acquires only those rights in the Licensed Materials that are expressly provided by this Agreement.
e. Export Restrictions. Customer acknowledges that the Licensed Materials are subject to U.S. export jurisdiction. Customer agrees to comply with all applicable international and national laws that apply to the Licensed Materials, including, but not limited to, the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
f. Waiver of UCITA. THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE IN ANY FORM (“UCITA”), SHALL NOT APPLY TO THIS AGREEMENT AND, TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT-OUT OF ITS APPLICABILITY PURSUANT TO ITS PROVISIONS.
g. All Services Performed in the US. Customer acknowledges and agrees that all obligations of PerformSmart are limited to the governing laws of the United States and that all Licensed Materials including the Licensed Software and any services provided by PerformSmart are made available in the United States and delivered or accessed in the United States.
h. Headings and Captions; Certain Definitions. Headings and captions used in this Agreement (including in any Delivery Order) are for convenience only and are not to be used in the interpretation of this Agreement. For purposes of interpreting this Agreement: (i) the terms “herein,” “hereof,” “hereto,” “hereunder,” “hereinafter,” and similar terms shall refer to this Agreement as a whole and not merely to the specific section, subsection, paragraph or clause where such terms may appear; (ii) the terms “includes” and “including,” whether or not following by “without limitation” or “but not limited to” shall mean “including, without limitation,”; (iii) references to Sections are to the referenced Section of this Agreement, unless otherwise noted; and (iv) the term “or” is used in this Agreement in the inclusive sense of “and/or,” unless the context dictates otherwise.
i. Legal Advice. Customer acknowledges that PerformSmart is not providing any legal advice and use of the Licensed Materials does not ensure compliance with any local, state or federal governing employment laws. Customer should contact its HR advisor or attorney for any questions regarding the applicability of any policies contained in the Licensed Material.
j. Other. In the event that any provision of this Agreement are held to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. The parties are independent contractors under this Agreement. A party shall not be liable for any delays or failure to perform (other than any license, payment, or confidentiality obligations) as a result of causes beyond the reasonable control of such party and not due to the negligence on the part of the party claiming excuse for delay or failure; the party claiming excuse must promptly notify the other of the event and its expected duration and use its reasonable efforts to mitigate its effects and perform hereunder. Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. Except as otherwise expressly set forth in this Agreement, any stated remedies are not exclusive, the exercise thereof shall not constitute an election of remedies, and the aggrieved party shall in all events be entitled to seek whatever additional remedies may be available in law or equity. No waiver of this Agreement will be binding unless in writing and signed by the party waiving its rights. Each party represents that it has received legal advice from its own attorney(s) regarding this Agreement; it has not received or relied upon any legal or other comments, advice, or work product from any of the other party’s attorneys; and it has read and fully understands this Agreement. No provision of this Agreement, because of any ambiguity or otherwise, shall be construed against a party because such party or its legal counsel drafted that provision, and any rule of law or any legal decision that would otherwise require such a construction has no application and is expressly waived by the parties. This Agreement may be executed electronically and will have the same effect as original manual signatures.