BY CLICKING ON THE “I ACCEPT” OR SIMILARLY LABELLED BUTTON OR BY
USING OR OTHERWISE EXERCISING ANY RIGHTS PROVIDED BELOW TO USE THE
A&I PRODUCTS (AS DEFINED BELOW) OFFERED BY A&I SOLUTIONS, INC.,
(“A&I”), INCLUDING, FOR EXAMPLE, BY ACCESSING OR USING THE A&I
PRODUCTS OR RECEIVING SERVICES PERFORMED BY OR ON BEHALF OF A&I
(INCLUDING ANY PROFESSIONAL SERVICES (AS DEFINED BELOW)), THIS
ENTITY, INDIVIDUAL OR ORGANIZATION (“CUSTOMER”) CONSENTS TO BE BOUND
BY THIS AGREEMENT, OR, IF APPLICABLE, BY THE TERMS OF A CURRENTLY
EFFECTIVE WRITTEN AGREEMENT REGARDING THE USE OF THE PRODUCT AND
SIGNED BY AN AUTHORIZED AGENT OF CUSTOMER AND BY A&I.
- LICENSE
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License. During the Term defined below, A&I grants to Customer a
non-exclusive, non-transferable, non-sublicensable license to
use the A&I Products specified on an Order Form (as defined
below) for Customer’s internal business purposes for the scope
set forth on the Order Form executed by Customer and A&I or
A&I’s authorized reseller. (each, a “A&I Order Form). “A&I
Products” means the proprietary software and hosted products of
A&I and its licensors. “Order Form” means any statement of work,
order form or other document (including an online document),
website or form specifying A&I Products and services to be
performed by A&I.
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Restrictions. Customer shall not, and shall not authorize any
third party to: (a) sublicense, use or duplicate the A&I
Products, or any portion thereof, except as expressly authorized
in this Agreement; (b) use the A&I Products by, or for the
benefit of any third party; (c) modify, translate, or prepare
derivative works based upon the A&I Products; (d)
reverse-compile or decompile, disassemble or otherwise reverse
engineer the A&I Products, except to the extent expressly
required to be permitted by applicable law; (e) rent, lease,
loan, sell, transfer, or distribute the A&I Products or any copy
or portion thereof, to any other person or entity; (f) alter,
remove, or obscure any copyright, trademark, or other
proprietary notices or confidentiality legend on or in the A&I
Products; (g) use the A&I Products to process, store or transmit
infringing, libelous, or otherwise unlawful or tortious
material, or to store or transmit material in violation of
third-party privacy or other rights; and/or (h) use the A&I
Products to process, store or transmit viruses, worms, time
bombs, Trojan horses and other harmful or malicious code, files,
scripts, agents or programs. Except for the license expressly
granted by A&I to Customer under this Agreement A&I reserves all
right, title and interests in and to the A&I Products and any
derivative works thereof, and all intellectual property rights
therein. Customer shall be responsible and liable for any action
or inaction of any individual who obtains access to the A&I
Products as a result of Customer’s acts or omissions.
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Third Party Products. If the A&I Products licensed by Customer
include Third Party Products, Customer acknowledges that its use
of the Third Party Products are pursuant to the relevant
provisions of A&I’s agreement with A&I’s licensor of those
products (the “Third Party Terms”) which is incorporated by
reference and which A&I will make available to Customer upon
request. In addition to the provisions of this Agreement,
Customer agrees to comply with the Third Party Terms.
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Hardware Subscription. If the A&I Products include any hardware
subscription, the terms and conditions located at
shall govern that hardware.
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PROFESSIONAL SERVICES. If Customer has elected
to purchase professional services, including services related to
the A&I Products (“Professional Services”), A&I will provide
those Professional Services in accordance with the SOW provided
by A&I. A&I may need to rely on Customer for access to certain
hardware, software, systems, data and personnel to provide the
Professional Services. A&I’s responsibility to provide the
Professional Services will be adjusted equitably to reflect
Customer’s actions or inactions or changes to Customer’s
systems.
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CUSTOMER DATA. “Customer Data” means Customer’s
data pertaining to Customer’s employees, customers, users or
other individuals provided by Customer to A&I. Customer shall
own all intellectual property rights in and to the Customer Data
provided that Customer grants A&I a worldwide unlimited, license
to use the Customer Data for the purposes of performing under
this Agreement including, without limitation, the right to make
the Customer Data available to A&I’s vendors and to third
parties authorized or selected by Customer in the course of
using the A&I Products. A&I will provide reasonable security
measures for any hosted services related to the A&I Products.
Upon any expiration or termination of this Agreement, A&I will
unless legally prohibited, delete all Customer Data in its
possession. Any Customer Data will be subject to A&I’s Privacy
Policy as set forth at
- CONSIDERATION.
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The Fee for the A&I Products during the Term shall be as set
forth on the A&I Order Form subject to modification as set forth
herein. A&I or its authorized reseller may change the Fee for
any Renewal Term (as defined below) by providing Customer
notice. Except as otherwise set forth in an Order Form, all fees
paid under this Agreement (collectively “Fees”) shall be payable
in U.S. dollars. Excluding taxes based on A&I’s income, Customer
is liable for all taxes, duties and customs fees associated with
the Fees, whether or not A&I or its authorized reseller invoices
Customer for those taxes, duties or customs fees.
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Except as otherwise set forth in an Order Form, payments of Fees
are due within 30 days of the date of the invoice issued by A&I
or its authorized reseller. Past due payments shall be subject
to interest on a monthly basis, calculated at one and one-half
percent (1.5%) per month of the unpaid balance or the maximum
rate allowable by law. Any dispute of an invoice by Customer
must be received within in writing with a reasonably detailed,
good faith explanation of the dispute within 5 days of
Customer’s receipt thereof or the invoice shall be deemed
correct. Except as otherwise expressly provided in this
Agreement, Customer shall not be entitled to any refund of any
Fees. If Customer disputes an invoice within the 5-day period
set forth above, Customer may withhold payment of the disputed
portion of the invoice until the dispute is resolved. The
parties shall use good faith efforts to resolve the dispute as
quickly as possible. An invoice dispute shall not entitle
Customer to withhold payment for any undisputed portion of any
invoice, which shall remain payable upon its terms.
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A&I or its resellers may invoice Customer the Fees applicable to
any use of the A&I Products or Professional Services in excess
of the quantity for which Customer has previously paid Fees,
prorated for the remainder of the Initial Term or then-current
Renewal Term at A&I’s then-current rates (except as otherwise
set forth in the applicable Order Form).
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TERM AND TERMINATION. The term of this
Agreement shall commence on the earlier of the date this
Agreement is accepted by the Customer or the date Customer
installs or otherwise accesses the A&I Products or A&I beings
performing any Professional Services (the “Effective Date”) and
shall continue for the term set out on the A&I Order Form or, if
the parties have not executed a A&I Order Form, for 30 days (the
“Initial Term”). Upon the expiration of the Initial Term or any
Renewal Term, this Agreement will automatically renew for an
additional term of equal duration to the Initial Term (each, a
“Renewal Term”) subject to A&I’s then-current pricing, terms and
conditions unless (i) A&I provides Customer with notice of its
intent not to renew at least 5 days before the end of the
Initial Term then-current Renewal Term; or (ii) Customer
provides A&I notice of its intent not to renew at least 5 days
before the end of the Initial Term then-current Renewal Term.
(The Initial Term and any Renewal Terms are the “Term”.) This
Agreement may be terminated by either party: (a) upon ten (10)
days written notice if the other party materially breaches any
provision of this Agreement and the breach remains uncured
within that ten (10) day period; or (b) effective immediately,
if the other party ceases to do business, or otherwise
terminates its business operations; or (c) effective
immediately, if the other party becomes insolvent or seeks
protection under any bankruptcy, receivership, trust deed,
creditors arrangement, composition or comparable proceeding, or
if any proceeding of that nature is filed against it; or (d)
immediately, upon any breach of Section 2 or Section 9 of this
Agreement. Upon any expiration or termination of this Agreement:
(x) all licenses and rights granted by A&I to Customer hereunder
shall terminate; and (y) Customer will cease all use of the A&I
Products; and (z) and Customer shall immediately return to A&I
the A&I Products and any A&I Confidential Information. The
provisions of Sections 1.2, 4, 5, 6, 8, 9 and 10 shall survive
and remain effective after the effective date of termination or
expiration of this Agreement.
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INDEMNIFICATION. Customer shall defend,
indemnify and hold harmless A&I, its licensors, vendors,
employees, consultants and officers (including payment of
attorneys’ fees, expert fees and court costs) from any damages
or third-party claims arising out of (a) any breach by Customer
of this Agreement; (b) any breach by Customer of the CA Terms;
or (c) any claims that any Customer Data infringes or violates
any laws or regulations or any third-party intellectual property
or other proprietary rights.
- CONSIDERATION.
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A&I Products Warranty. If A&I Products are provided pursuant to
a A&I Order Form for any purpose other than Customer’s
evaluation, A&I warrants to Customer that, during the Term the
A&I Products will materially perform in accord with their
Documentation. A&I’s entire liability and Customer’s sole and
exclusive remedy for any breach of the preceding warranty will
be for A&I to remedy the non-conformity or, if A&I is unable to
do so in a timely manner, to terminate the relevant Order Form
and provide a refund of any Fees applicable to any period of the
non-conformity and any prepaid, unused Fees applicable to the
period after the date of termination. The foregoing warranties
do not cover non-conformances due to: (x) any modification,
reconfiguration or maintenance of the A&I Products performed by
anyone other than A & I; (y) any use of the A&I Products on a
system that does not meet A&I’s minimum standards; or (z) any
software or hardware not provided by A&I.
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A&I Professional Services Warranty. A&I warrants that all
Professional Services shall be performed in a manner conforming
to generally accepted industry standards and practices for
similar Professional Services. A&I will have no liability for
any failure to provide Professional Services resulting from
Customer’s failure to provide any resources set forth in the
Order Form. A&I’s entire liability and Customer’s sole remedy
for any breach of the preceding warranty will be for A&I to
re-perform the nonconforming Professional Services
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Warranty Notice. A&I shall be responsible under the warranties
in this Agreement only if Customer provides A&I with a written
warranty claim detailing the non-conformity within (a) 10 days
of the non-conformity in the case of the A&I Products; and (b)
10 days of the original performance of the non-conforming
Professional Services in the case of Professional Services.
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DISCLAIMER; LIMITATION OF LIABILITY. EXCEPT AS
EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY
LAW, THE A&I PRODUCTS, PROFESSIONAL SERVICES AND ANY OTHER
PRODUCTS, MATERIALS OR SERVICES PROVIDED BY A&I ARE PROVIDED
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER’S
SOLE REMEDY AND A&I’S SOLE LIABILITY FOR ANY BREACH OF THIS
AGREEMENT SHALL BE TO TERMINATE THE AGREEMENT, CEASE ALL USE OF
THE A&I PRODUCTS AND IMMEDIATELY RETURN TO A&I THE A&I PRODUCTS
AND ALL DUPLICATES, AND ANY A&I CONFIDENTIAL INFORMATION. IN NO
EVENT SHALL A&I BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY,
PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS,
INCLUDING LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE
GOODS, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF
THOSE DAMAGES OR COSTS. IN NO EVENT WILL THE AGGREGATE LIABILITY
OF A&I OR ANY OF ITS THIRD-PARTY LICENSORS UNDER ANY THEORY OF
LIABILITY EXCEED THE GREATER OF (a) THE FEES RECEIVED BY A&I
FROM CUSTOMER IN THE 6 MONTHS PRIOR TO WHICH THE CLAIM AROSE; OR
(b) ONE HUNDRED DOLLARS ($100). THE LIMITATIONS IN THIS SECTION
SHALL APPLY REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN
FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE. A&I MAKES NO
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY
SITES, SERVICES OR CONTENT WHICH ARE MADE AVAILABLE THROUGH THE
A&I PRODUCTS (“THIRD-PARTY CONTENT”). A&I DISCLAIMS ALL
LIABILITY WITH RESPECT TO ANY THIRD-PARTY CONTENT.
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CONFIDENTIAL INFORMATION.
Customer acknowledges that it may receive from A&I confidential
information relating to A&I. That information shall belong
solely to A&I and includes, but is not limited to, the terms of
this Agreement and other technical, business, marketing and
financial information, and any data not previously known that
could reasonably be considered confidential or proprietary
(“Confidential Information”). Confidential Information shall not
include information which: (a) is already known to Customer
prior to disclosure by A & I; (b) becomes publicly available
without fault of Customer; (c) is rightfully obtained by
Customer from a third party without restriction as to
disclosure; or (d) is approved for release by written
authorization of A&I. During and after the term of this
Agreement, Customer shall: (y) not use (except as expressly
authorized by this Agreement) or disclose Confidential
Information without the prior written consent of A & I; and (z)
take all reasonable measures to maintain the Confidential
Information in confidence. Information shall not be deemed
confidential if it becomes public without breach of this
Agreement by Customer. The A&I Products and all technical
information relating thereto shall be considered Confidential
Information of A&I. Customer may disclose Confidential
Information to the extent required by law, provided that
Customer gives A&I reasonable advance notice of the required
disclosure and the opportunity to obtain appropriate
confidential treatment for the Confidential Information. A&I may
disclose aspects of this Agreement to its licensors to the
extent required under the agreement with the licensor. A&I will
be free to use any data, metadata and information it so collects
relating to the A&I Products and may allow others to do so.
- GENERAL.
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Compliance with Laws; Export Control. Customer shall use the A&I
Products in compliance with all applicable laws, statutes, rules
and regulations. Except as expressly permitted in this
Agreement, Customer shall not export or import the A&I Products
(including any Documentation) or any technical information
provided under this Agreement.
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U.S. Government End-Purchaser. As defined in FAR section 2.101,
DFAR section 252.227-7014(a)(1) and DFAR section
252.227-7014(a)(5) or otherwise, all A&I Products and
accompanying documentation provided by A&I are “commercial
items,” “commercial computer software” and/or “commercial
computer software documentation.” Consistent with DFAR section
227.7202 and FAR section 12.212, any use, modification,
reproduction, release, performance, display, disclosure or
distribution thereof by or for the U.S. Government shall be
governed solely by these terms and shall be prohibited except to
the extent expressly permitted by these terms.
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Miscellaneous. Customer consents to A&I’s use of Customer name
and logo and general description of Customer’s relationship with
A&I in press releases and other marketing materials and
appearances. Customer agrees to receive marketing communications
and other solicitations and materials from A&I, as determined by
A&I in its sole discretion. Neither this Agreement, nor any
rights, licenses nor any obligations hereunder, may be assigned
by Customer without the prior written consent of A&I. Any
attempted assignment in violation of this Agreement shall be
void and without effect. Should any term of this Agreement be
declared void or unenforceable by any court of competent
jurisdiction, that provision shall modified, limited or
eliminated to the minimum extent necessary and the declaration
shall have no effect on the remaining terms hereof, which shall
continue in full force and effect. The failure of either party
to enforce any rights granted hereunder or to take action
against the other party in the event of any breach hereunder
shall not be deemed a waiver by that party as to subsequent
enforcement of rights or subsequent actions in the event of
future breaches. This Agreement shall be governed by and
construed in accordance with the laws of the United States and
the State of Georgia, excluding rules governing conflict of law
and choice of law. The federal and state courts within Gwinnet
County, Georgia shall have exclusive jurisdiction to adjudicate
any dispute arising out of this Agreement. Each party hereto
expressly consents to the personal jurisdiction of, and venue
in, those courts and service of process being affected upon it
by registered mail sent to the address set forth at the
beginning of this Agreement in the case of A&I, and by
registered mail to any address provided by Customer to A&I in
the case of Customer. The parties agree that the UN Convention
on Contracts for the International Sale of Goods (Vienna, 1980)
and the Uniform Computer Information Transaction Act or similar
federal or state laws or regulations shall not apply to this
Agreement. This Agreement sets forth the entire agreement of the
parties with respect to the subject matter contained herein, and
no oral or written statement or representations not contained in
this Agreement shall have any force or effect. Customer’s
representative identified herein represents and warrants that
all information provided hereunder is true and accurate and that
he/she has the authority to bind Customer to the terms herein.
This Agreement may be amended only upon the written consent of
both parties. In the event the parties enter into, or have
entered into a formal written agreement, including, without
limitation an agreement which the parties have electronically
signed, the terms of that agreement shall control over the terms
of this Agreement.