Last Updated: December 6 2023

 

These Terms of Service (the “Terms”), constitute a binding legal agreement between you, as a customer (“you” or “Customer”) and Apostrophe Technologies, Inc., a Delaware corporation (“Provider”, “we,” “us,” or “our”). Customer and Provider are each referred to as a “Party” and collectively the “Parties.”  By agreeing to use Provider’s services (the “Services”), you signify that you have read, understand, and agree to be bound by these Terms.  Please read these Terms carefully.  You should print a copy of these Terms for your records.

Provider may, in its sole and absolute discretion, change or modify these Terms at any time, and such changes or modifications shall be effective immediately upon posting to Provider’s website. Your continued use of the Services after such changes or modifications shall constitute your acceptance of these Terms as last revised.  If you do not agree to be bound by these Terms as revised, do not continue to use the Services and immediately notify Provider of the same.

 

1.    Definitions. Capitalized terms have the meanings set forth or referred to in this Section 1:

“Action” has the meaning set forth in Section 11.2(d).

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise/ownership of more than fifty percent (50 %) of the voting securities of a Person.

“Apostrophe Assembly” means the enterprise platform built using core ApostropheCMS components with the purpose of making it easy to manage many different websites under a single application instance all sharing the same template and application code, including all of the modules for Apostrophe Assembly listed at https://apostrophecms.com/extensions (which may be updated from time to time).

“ApostropheCMS” means the content managing software consisting of the Open-Source License, a number of additional Open-Source Components and cloud-source components.  The software is architect as a modular platform. In addition to the functionality found in the core, many projects leverage some combination of additional modules that exist in the ApostropheCMS ecosystem to extend the functionality.

“Apostrophe Community Edition” means the ApostropheCMS core platform offered for free to the community from time to time. 

“Apostrophe Pro” means the enterprise platform built using core ApostropheCMS components with the purpose of adding additional advanced functionality relevant for business use cases of Apostrophe CMS, including all of the modules for Apostrophe Pro listed at https://apostrophecms.com/extensions (which may be updated from time to time). 

“Authorized User” means each of the individuals who are authorized by Customer to use the Services or Software Offering pursuant to the Terms.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in Philadelphia are authorized or required by Law to be closed for business.

“Confidential Information” has the meaning set forth in Section 6.1. 

“Controlled Technology” means any software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any Law, including the US Export Administration Act and its associated regulations.

“Customer” has the meaning set forth in the preamble.

“Customizations” has the meaning set forth in Section 11.1.

“Disclosing Party” has the meaning set forth in Section 6.1.

“Documentation” means any and all manuals, instructions and other documents and materials that Provider provides or makes available to Customer in any form or medium which describe the functionality, components, features or requirements of the Services, Software Offering, or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“Effective Date” means the date Customer subscribes to any Software Offering or Services.

“Fees” has the meaning set forth in Section 8.2.

“Force Majeure Event” has the meaning set forth in Section 17.1.

“Hosting Services” has the meaning set forth in Section 2.7.

“Indemnitee” has the meaning set forth in Section 14.3.

“Indemnitor” has the meaning set forth in Section 14.3.

“Initial Term” has the meaning set forth in Section 12.1.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“License Fee” has the meaning set forth in Section 8.1.

“Loss” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Software Offering, including any updated Documentation, that Provider may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software Offering, but does not include any Major Release. The Maintenance Release shall modify the Software Offering such that any warranty contained herein shall only be applicable to the Software Offering as updated by the Maintenance Release. A release shall be categorized as Major, Minor and Patchlevel Releases (for instance, if the version number is 5.17.13, the Major Release is 5, the Minor Release is 17, and the Patchlevel Release is 13) and will follow the versioning standard set forth at: (https://semver.org/), as modified and adapted by Provider to accommodate reasonable change and growth in the feature set during the lifetime of the Software Offering, pursuant to the Provider’s policy, which is incorporated herein by reference: (https://apostrophecms.org/support/roadmap, subheading “Semantic Versioning Policy” ).

“Major Release” means any new version of a software component included in the Software Offering which has a distinct Major Release number from the previous release. There is no guarantee that a Major Release of a Software component will have identical functionality or be suitable for all use cases of the prior Major Release of the same Software component. 

“Open-Source Components” means any software component that is subject to any open-source copyright license agreement, including any MIT License or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.

“Open-Source License” has the meaning set forth in Section 2.3.

“Parties” has the meaning set forth in the preamble.

“Party” has the meaning set forth in the preamble.

“Payment Failure” has the meaning set forth in Section 12.3(a).

“Permitted Use” means any use of the Services or Software Offering by an Authorized User solely in or for Customer’s internal business operations.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

“Provider” has the meaning set forth in the preamble.

“Provider Indemnitee” has the meaning set forth in Section 14.2.

“Receiving Party” has the meaning set forth in Section 6.1.

“Reimbursable Expenses” has the meaning set forth in Section 8.2.

“Renewal Term” has the meaning set forth in Section 12.2.

“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, subCustomers, subcontractors and legal advisors. 

“Services” has the meaning set forth in the preamble, including, without limitation, the Support Services and Hosting Services. 

“Service Fee” has the meaning set forth in Section 8.2.

“Software Offering” means, as applicable, the Apostrophe Community Edition, Apostrophe Pro or Apostrophe Assembly package as offered and described on Apostrophe’s website (https://apostrophecms.com/pricing), that Customer has elected to subscribe to, together with any Maintenance Releases provided to Customer pursuant to the Terms. 

“Support Platform” has the meaning set forth in Section 2.6.

“Support Services” has the meaning set forth in Section 2.6.

“Term” has the meaning set forth in Section 12.2.

“Territory” has the meaning set forth in Section 7.

“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Provider, including any third-party: (a) documents, data, content or specifications; (b) Open-source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

“Warranty Period” has the meaning set forth in Section 13.2.

 

2.    License; Authorization; Services

2.1    License Grant. Subject to the terms and conditions of the Terms, and conditioned on Customer’s and its Authorized Users’ compliance therewith, Provider hereby grants to Customer a non-exclusive, non-sublicensable and non-transferable, limited license to use the Software Offering and Documentation solely for the Permitted Use in the Territory during the Term.

2.2    Scope of Licensed Access and Use. Customer may install, use and run the Software Offering on Customer’s network. Authorized User(s) may remotely access and use the Software Offering from any other device. The total number of Designated Site(s) shall not exceed the number set forth under the Terms, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder.

2.3    Open-Source Licenses. The Software Offering includes Open-Source Components licensed under an MIT open source license (each, an “Open-Source License”). Any use of the Open-Source Components by Customer shall be governed by, and subject to, the terms and conditions of the Open-Source License(s). 

2.4    Authorization.  Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all the Terms, Provider hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services (as purchased by Customer) and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications and the Terms. This authorization is non-exclusive and other than as may be expressly set forth in Section 18.8, non-transferable.

2.5    Reservation of Rights. Nothing in the Terms grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Hosting Services, Provider Materials (as defined in Rider 1) or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.

2.6    Support Services.  If Customer has elected to add any support package services (“Support Services”) to its subscription in connection with the Software Offering:

a.    Customer will receive access to the Provider’s support platform (the “Support Platform”) for the purpose of submitting new issues, questions, and requests. Upon Customer’s request, and by mutual agreement, Provider shall use reasonable efforts to follow the software development tools and processes and other standard operating procedures of Customer that have been made available to the Provider by Customer as of the Effective Date or that have otherwise been approved by the Provider.

b.    Provider will use commercially reasonable efforts to provide an initial response to support issues submitted in the Support Platform within the response time that corresponds to the plan selected by Customer.

c.    Included in each month at no additional fee is the number of support hours that corresponds to the Customer’s selected plan, provided that such support hours relate to the functionality of an ApostropheCMS software application.

d.    Additional support hours beyond what is offered under Customer’s selected plan during the month are billed at the rate in effect from time to time that corresponds to the plan selected by Customer.

e.    The Customer acknowledges that if the Provider provides Support Services, the Provider will provide Support Services during the Provider’s regular business hours.

f.    Whenever possible, Customer shall report issues via the method currently recommended by Provider or its Representatives. Provider will provide a timely response to issues reported via such method by appropriate technical personnel. Provider does not guaranty resolution of the issue within a specific timeframe.

g.    Customer acknowledges that the Support Services being provided by Provider include assistance with ApostropheCMS, prioritized development of ApostropheCMS functionality, Node.js-based software development in general, and other services by mutual agreement. In the event that an individual item is estimated to require more than twenty (20) hours of work, Provider may elect to negotiate a separate agreement or statement of work with a separate budget to complete that task, in which case the task will be performed pursuant to such separate agreement or statement of work, which shall be subject to the Terms unless otherwise specified therein.

h.    Code developed by the Provider pursuant to the Terms shall be accompanied by the creation of new unit tests and/or browser-based functional regression tests, as deemed appropriate by the Provider. All tests created for this purpose will be configured to run automatically as part of the automated build processes.

i.    Hours will be tracked in quarter hour increments. Tracking of hours will begin when work starts on a support request, including time spent in the generation of estimates for other work, within reason. If Provider chooses not to track time spent generating estimates, this does not create an obligation for Provider not to do so in the future. Hours will be tracked in a system that is available for periodic Customer review.

j.    Services requests will be fielded and scheduled in accordance with Provider’s resource availability. Provider will be the arbiter of resource planning and work scheduling.

k.    With the exception of reasonable explanation and discussion of newly implemented features created under the terms of the Terms, developer and/or end-user training sessions are priced separately.

l.    Customer agrees to reasonably cooperate with Provider and provide such information as is reasonably requested by Provider in connection with the Provider’s performance of the Support Services and its other obligations hereunder.

2.7    Hosting Services.  If Customer has elected to subscribe to any cloud hosting plans (“Hosting Services”) offered by Provider from time to time, then the provisions of Rider 1 attached hereto and incorporated herein shall also apply.

 

3.    Use Restrictions. Except as the Terms expressly permit, and subject to Section 2.3 with respect to Open-Source Components, Customer shall not, and shall not permit any other Person to:

a.    rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software Offering to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

b.    bypass or breach any security device or protection used for or contained in the Software Offering, Services or Documentation;

c.    remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Software Offering, Services or Documentation;

d.    use the Software Offering 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

e.    use the Software Offering for purposes of: (i) developing, using or providing a competing software product or service; or (ii) any other purpose that is to Provider’s detriment or commercial disadvantage; 

f.    use the Software Offering in or in connection with the design, construction, maintenance, operation or use of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software Offering could lead to personal injury or severe physical or property damage; or

g.    use (i) the Software Offering, Services or Documentation other than for the Permitted use or in any manner or for any purpose or application not expressly permitted by the Terms or (ii) any Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open-Source License.
 

4.    Delivery. Provider shall deliver the Software Offering to Customer electronically by granting Customer access to private repositories and packages online. Provider shall provide reasonable assistance to Customer in the event that Customer loses its electronic access to the Software Offering during the Term.

 

5.    Maintenance. During the Term, Provider will provide Customer with all Maintenance Releases (including updated Documentation) that Provider may, in its sole discretion, make generally available to its customers at no additional charge. All Maintenance Releases, on being provided by Provider to Customer hereunder, are deemed Software Offering subject to the Terms. Customer will install all Maintenance Releases as soon as practicable after receipt.  If Customer accepts a Major Release of the Software Offering, Customer shall follow the maintenance release process documented and provided by Provider, and the warranties contained herein shall apply to that new Major Release rather than the version of the Software Offering previously licensed.  Each Major Release of Software Offering will receive

 

6.    Confidentiality.

6.1    Confidential Information. In connection with the Terms, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 6.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.”  Without limiting the foregoing, except for any Open-Source Components, the Software Offering, Provider Materials, Documentation and any non-public information regarding features, functionality and performance of the Service are the Confidential Information of Provider.

6.2    Exclusions and Exceptions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Terms; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with the Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

6.3    Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: 

a.    not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the Terms; 

b.    except as may be permitted by and subject to its compliance with Section 6.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6.3;

c.    safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; 

d.    promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and

e.    ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 6.

Notwithstanding any other provisions of the Terms, the Customer’s obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to quality for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of Customer or any of its Representatives.

6.4    Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

 

7.    Designated Sites.  The Software Offering and Support Services shall be available world wide (the “Territory”). The Parties agree that Customer and Customer’s Affiliates may use the Software Offering and Support Services (if applicable) in the Territory under the Terms directly with Provider, and in such case the Customer’s Affiliate shall have the rights and benefits set forth in the Terms.

 

8.    Fees and Payment.

8.1    License Fees. Customer shall pay to Provider the license fee for any Software Offering at the then-current standard license fee that Provider charges for the Software Offering from time-to-time (the “License Fee”) in accordance with this Section 8. If the Term is renewed for any Renewal Term(s) pursuant to Section 12.2, Customer shall pay the then-current standard license fees that Customer charges for the Software Offering (and any Support Services, Hosting Services and other Services) during the applicable Renewal Term.

8.2    Additional Fees and Expenses. If Customer elects to purchase any Support Services, Hosting Services or any other Services (including training and maintenance), Customer shall pay to Provider the add-on fees for such Service at the then-current fee that Provider charges for such Services from time-to-time (the “Service Fee,” and together with the License Fee, and the Hosting Fee (if applicable), the “Fees”).  Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services and Software Offering (“Reimbursable Expenses”), in accordance with the Terms.

8.3    Taxes. All Fees and other amounts payable by Customer under the Terms are exclusive of taxes and similar assessments.  Without limiting the foregoing, Customer is responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income. 

8.4    Payment. Customer shall pay a non-refundable License Fee upon purchase of the Software Offering.  Customer shall pay all Fees and Reimbursable Expenses within thirty (30) days after the date of Provider’s invoice therefor. Customer shall make all payments hereunder in US dollars by credit card, check or wire transfer to the address or account specified by Provider from time to time.

8.5    Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available to Provider:

a.    Provider may charge interest on the past due amount at the rate of one percent (1%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;

b.    Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs and collection agency fees; and

c.    if such failure continues for fifteen (15) days following written notice thereof, Provider may: (i) disable Customer’s use of the Software Offering (including by means of a disabling code, technology or device) and any additional Services; (ii) withhold, suspend or revoke its grant of a license and any Services hereunder until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension; and/or (iii) terminate the license, Services and the Terms under Section 12.3(a).

8.6    No Deductions or Setoffs. All amounts payable to Provider under the Terms shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

 

9.    Security Measures. The Software Offering and Services may contain technological measures designed to prevent unauthorized or illegal use. Customer acknowledges and agrees that: (a) Provider may use these and other lawful measures to verify Customer’s compliance with the terms of the Terms and enforce Provider’s rights in and to the Software Offering and/or Services; (b) Provider may deny any individual access to and/or use of the Software Offering and/or Services if Provider, in its sole discretion, believes that person’s use of the Software Offering would violate any provision of the Terms, regardless of whether Customer designated that person as an Authorized User; and (c) Provider and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Customer’s computers, systems and software, that Provider may gather periodically to improve the performance of the Software Offering and Services, or develop Maintenance Releases. This information will be treated in accordance with Provider’s privacy policy, as amended from time to time.

 

10.    Audits.

10.1    Audit Procedure. Provider or its nominee (including its accountants and auditors) may, upon request, inspect and audit Customer’s use of the Services or Software Offering under the Terms at any time during the Term. Customer shall make available all such books, records, equipment, information and personnel, and provide all such cooperation and assistance, as may be reasonably requested by or on behalf of Provider with respect to such audit.

10.2    Cost and Results of Audit. If the audit determines that Customer’s use of the Services or Software Offering exceeded the usage permitted by the Terms by more than three percent (3%), Customer shall pay to Provider all amounts due for such excess use of the Services or Software Offering, plus interest on such amounts, as calculated pursuant to Section 8.5(a). If the audit determines that such excess use equals or exceeds three percent (3%) Customer’s permitted level of use, Customer shall also pay to Provider all costs incurred by Provider in conducting the audit. Customer shall make all payments required under this Section 10.2 within thirty (30) days of the date of written notification of the audit results.

 

11.    Intellectual Property Rights.

11.1    Intellectual Property Ownership. Customer acknowledges and agrees that:

a.    the Software Offering and Documentation are licensed, not sold, to Customer by Provider and Customer does not and will not have or acquire under or in connection with the Terms any ownership interest in the Software Offering, Services or Documentation, or in any related Intellectual Property Rights;

b.    Provider is and will remain the sole and exclusive owner of all right, title and interest in and to the Software Offering and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open-Source Components and the limited license granted to Customer under the Terms; and

c.    Customer hereby unconditionally and irrevocably assigns to Provider, its entire right, title and interest in and to any Intellectual Property Rights that Customer may now or hereafter have in or relating to the Software Offering, Services or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

d.    Notwithstanding the foregoing, Customer shall retain all Intellectual Property Rights in the pre-existing proprietary information of Customer and shall also have all ownership rights to any customizations that Customer specifically requests (and that are agreed to by Provider) in connection with the Software Offering (the “Customizations”), provided, however, Provider shall retain all rights to the know-how, formulae, methodologies, and process in connection with the Customizations. To the extent such Customizations are embedded in or otherwise part of the Services, Software Offering, or Provider Materials, Customer shall grant to Provider a limited, royalty-free, non-sublicensable license to use such Customizations solely for internal business purposes.

11.2    Customer Cooperation and Notice of Infringement. Customer shall, during the Term:

a.    safeguard the Software Offering, Services, and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access; 

b.    take all such steps as Provider may reasonably require to assist Provider in maintaining the validity, enforceability and Provider’s ownership of the Intellectual Property Rights in the Software Offering, Services and Documentation; 

c.    promptly notify Provider in writing if Customer becomes aware of: 

(i)    any actual or suspected infringement, misappropriation or other violation of Provider’s Intellectual Property Rights in or relating to the Software Offering, Services or Documentation; or

(ii)    any claim that the Software Offering, Services or Documentation, including any production, use, marketing, sale or other disposition of the Software Offering, Services or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and

d.    reasonably cooperate with and assist Provider in the conduct of any claim, suit, action or proceeding (each, an “Action”) by Provider to prevent or abate any actual or threatened infringement, misappropriation or violation of Provider’s rights in, and to attempt to resolve any claims relating to, the Software Offering, Services or Documentation, including having Customer’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like. 

11.3    No Implied Rights. Except for the limited rights and licenses expressly granted under the Terms, nothing in the Terms 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 any of the Software Offering, Services or Documentation.
 

12.    Term and Termination.

12.1    Initial Term. The initial term of the Terms commences as of the Effective Date and will continue in effect until twelve (12) months from such date unless terminated earlier pursuant to the Terms (the “Initial Term”).

12.2    Renewal Term. The Terms will automatically renew for additional successive one  (1) month terms unless earlier terminated pursuant to the Terms or if either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).

12.3    Termination. In addition to any other express termination right set forth elsewhere in the Terms, the Terms may be terminated at any time:

a.    by Provider, effective upon written notice to Customer, if Customer fails to pay any amount when due under the Terms, where such failure continues more than five (5) days after Provider’s delivery of written notice thereof (“Payment Failure”) or if Customer breaches any of its obligations under ; 

b.    by either Party, effective on written notice to the other Party, if the other Party materially breaches the Terms and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; 

c.    by either Party, effective on written notice to the other Party, if either Party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, appoints, or consents to the appointment of, a trustee, receiver, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge or sell any material portion of its property or business.

12.4    Effect of Termination or Expiration. Upon the expiration or earlier termination of the Terms (except as expressly provided otherwise in the Terms):

a.    all rights, licenses, consents and authorizations granted by Provider to Customer hereunder will immediately terminate and Customer shall:

(i)    immediately cease all use of and other activities with respect to the Software Offering and Documentation other than those described in Section 12.4(a)(ii) and, where applicable, those expressly permitted by the Open Source Licenses;

(ii)    within thirty (30) days deliver to Provider, or at Provider’s written request destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Software Offering (other than, where applicable, those expressly permitted by the Open Source Licenses), the Documentation and the Provider’s Confidential Information, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials; provided however that Customer shall retain its rights to any customized deliverables provided hereunder;

(iii)    certify to Provider in a signed written instrument that it has complied with the requirements of this Section 12.4; and

b.    all amounts payable by Customer to Provider of any kind under the Terms shall be immediately payable and due no later than thirty (30) days after the effective date of the expiration or five (5) days after Provider’s termination of the Terms under Section 12.3.

12.5    Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under the Terms that, by its nature, should survive termination or expiration of the Terms, will survive any expiration or termination of the Terms: this Section 12.5, Section 1 (Definitions), Section 6 (Confidentiality), Section 10 (Audits), Section 11 (Intellectual Property Rights), Section 13 (Representations and Warranties), for clarity, including Section 13.7 (Disclaimer), Section 14 (Indemnification), Section 15 (Limitations of Liability) and Section 18 (Miscellaneous).

 

13.    Representations and Warranties.

13.1    Mutual Representations and Warranties. Each Party represents, warrants and covenants to the other Party that:

a.    it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

b.    it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under the Terms;

c.    the execution of the Terms by its representative whose signature is set forth at the end of the Terms has been duly authorized by all necessary corporate or organizational action of such Party; and

d.    when executed and delivered by both Parties, the Terms will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

13.2    Limited Warranty. Subject to the limitations and conditions set forth in Section 13.3 and Section 13.4, Provider warrants to Customer that during the Term (the “Warranty Period”):

a.    no Maintenance Release, when installed by Customer in accordance with the Documentation and the Terms will have a material adverse effect on the functionality of the Software Offering; and

b.    the Software Offering will be materially consistent with the specifications specified in any written documentation appended hereto.

13.3    Customer Requirements. The limited warranties set forth in Section 13.2 apply only if Customer: (a) notifies Provider in writing of the warranty breach within the Warranty Period, including detailed descriptions and written evidence of the warranty breach (including, at Provider’s request, a demonstration of the warranty breach in the context of a reference Software Offering component provided by Provider); (b) has promptly installed all Maintenance Releases to the Software Offering that Provider previously made available to Customer; and (c) as of the date of notification, is in compliance with all terms and conditions of the Terms (including the payment of all license fees then due and owing).

13.4    Exceptions. Notwithstanding any provisions to the contrary in the Terms, the limited warranty set forth in Section 13.2 does not apply to problems arising out of or relating to:

a.    Software Offering, or the media on which it is provided, that is modified or damaged by Customer or its Representatives; 

b.    any operation or use of, or other activity relating to, the Software Offering other than as specified in the Documentation, including any incorporation in the Software Offering of, or combination, operation or use of the Software Offering in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation;

c.    Customer’s or any third party’s negligence, abuse, misapplication or misuse of the Software Offering, including any use of the Software Offering other than as specified in the Documentation;

d.    Customer’s failure to promptly install all Maintenance Releases that Provider has previously made available to Customer;

e.    the operation of, or access to, Customer’s or a third party’s system or network;

f.    any Open-Source Components, beta software, software that Provider makes available for testing or demonstration purposes, temfporary software component or software for which Provider does not receive a License Fee;

g.    Customer’s breach of any provision of the Terms; or

h.    any other circumstances or causes outside of the reasonable control of Provider (including any Force Majeure Event and abnormal physical or electrical stress).

13.5    Remedial Efforts. If Provider breaches, or is alleged to have breached, any of the warranties set forth in Section 13.2, Provider may, at its sole option and expense, take any of the following steps to remedy such breach:

a.    replace any damaged or defective media on which Provider supplied the Software Offering;

b.    amend, supplement or replace any incomplete or inaccurate Documentation;

c.    repair the Software Offering; 

d.    replace the Software Offering with functionally equivalent software (which software will, on its replacement of the Software Offering, constitute Software Offering hereunder); and/or

e.    terminate the Terms and, provided that Customer fully complies with of its post-termination obligations as set forth in Section 13.4, promptly refund to Customer, on a pro rata basis, the share of any license fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.

13.6    Sole Remedy. If Provider does not cure a warranty breach or terminate the Terms as provided in Section 13.5 within a reasonable period of time after Provider’s receipt of written notice of such breach, Customer shall have the right to terminate the Terms as provided in Section 12.3(b). Provided that Customer fully complies with its post-termination obligations as set forth in Section 12.4, Provider shall promptly refund to Customer, on a pro rata basis, the share of any License Fees prepaid by Customer for the future portion of the Term that would have remained but for such termination. THIS SECTION 13.6 SETS FORTH THE CUSTOMER’S SOLE REMEDY AND THE PROVIDER’S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF ANY PROVIDER WARRANTY OF THE SOFTWARE OFFERING, SERVICES OR DOCUMENTATION SET FORTH IN THE TERMS.

13.7    DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE TERMS, ALL SERVICES, THE SOFTWARE OFFERING, DOCUMENTATION, PROVIDER MATERIALS, AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY PROVIDER ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OFFERING, SERVICES, OR DOCUMENTATION, OR ANY OTHER PROVIDER OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER’S OR ANY OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK) EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
 

14.    Indemnification.

14.1    Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any Action by a third party (other than an Affiliate of Customer) to the extent that such Losses arise from Provider’s breach of the representations and warranties set forth in Section 13 of the Terms.  The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any:

a.    Open-Source Components not created by Provider or other Third-Party Materials;

b.    patent issued on a patent application published in the Territory after the Effective Date;

c.    incorporation by the Software Offering of, or combination, operation or use of the Software Offering in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by Provider or specified for Customer’s use in the Documentation;

d.    modification of the Software Offering other than: (i) by Provider or its contractor in connection with the Terms; or (ii) with Provider’s express written authorization and in strict accordance with Provider’s written directions and specifications;

e.    failure to timely implement any Maintenance Release, modification, upgrade, update or replacement or enhancement of the Software Offering made available to Customer by or on behalf of Provider;

f.    use of the Software Offering after Provider’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights; 

g.    negligence, abuse, misapplication or misuse of the Software Offering, Services or Documentation by or on behalf of Customer, any Authorized User, Customer’s Representatives or a third party;

h.    use of the Software Offering, Services or Documentation by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by the Terms or in any manner contrary to Provider’s instructions; 

i.    events or circumstances outside of Provider’s commercially reasonable control (including any Force Majeure Event and third-party hardware, software or system bugs, defects or malfunctions); or

j.    Action or Losses for which Customer is obligated to indemnify Provider pursuant to the Terms.

14.2    Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and assigns (each, including Provider, a “Provider Indemnitee”) from and against any and all Losses incurred by the Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or relate to any: 

a.    allegation that any Intellectual Property Right or other right of any Person, or any Law, is or will be infringed, misappropriated or otherwise violated by any:

(i)    use or combination of the Software Offering by or on behalf of Customer, Authorized Users, or any of Customer’s Representatives with any hardware, software, system, network, service or other matter whatsoever that is neither provided by Provider nor authorized by Provider in the Terms and the Documentation; and

(ii)    information, materials or technology or other matter whatsoever directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated or used with, as part of, or in connection with the Software Offering, Services or Documentation;

b.    any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;

c.    allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under the Terms; or

d.    negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with the Terms.

14.3    Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 14.1 or Section 14.2, as the case may be. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 14.3 will not relieve the Indemnitor of its obligations under this Section 14 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

14.4    Mitigation. If any of the Services, Software Offering, or Provider Materials are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services, Software Offering, or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option:

a.    obtain the right for Customer to continue to use the Services, Software Offering, and Provider Materials materially as contemplated by the Terms; 

b.    modify or replace the Services, Software Offering, and Provider Materials, in whole or in part, to seek to make the Services, Software Offering, and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services, Software Offering, and Provider Materials, as applicable, under the Terms; or

c.    by written notice to Customer, terminate the Terms with respect to all or part of the Services, Software Offering, and Provider Materials, and require Customer to immediately cease any use of the Services, Software Offering, and Provider Materials or any specified part or feature thereof, provided that if such termination occurs prior to one (1) year after the Effective Date, subject to Customer's compliance with its post-termination obligations set forth in Section 12.4 (and Section 10.4 of Rider 1 if applicable), Customer will be entitled to a refund of any fees it has paid in advance.

14.5    Sole Remedy. THIS SECTION 14 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE TERMS OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE OFFERING AND DOCUMENTATION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 

 

15.    Limitations of Liability.

15.1    EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 15.3, IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

15.2    CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THE TERMS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE LOSSES. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

15.3    Exceptions. The exclusions and limitations in Section 15.1 and Section 15.2 do not apply to Provider's fraud.

 

16.    Export Regulation. Customer shall not itself, or permit any other Person to, export, re-export or release, directly or indirectly any Controlled Technology to any country, jurisdiction or Person to which the export, re-export or release of Controlled Technology (a) is prohibited by applicable Law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).

 

17.    Force Majeure.  In no event will Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached the Terms, for any failure or delay in fulfilling or performing any term of the Terms, when and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of the Terms, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate the Terms if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of sixty (60) days or more.

 

18.    Miscellaneous.

18.1    Further Assurances. Upon a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to the Terms.

18.2    Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither party shall have authority to contract for or bind the other Party in any manner whatsoever.

18.3    Public Announcements. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to the Terms or otherwise use the other Party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Provider may, without Customer's consent, include Customer's name and/or other indicia (i) on Provider’s website for promotional and marketing purposes only, and (ii) in promotional and marketing materials listing Customer as a current or former customer of Provider.

18.4    Notices. Any notice, request, consent, claim, demand, waiver or other communication under the Terms will have legal effect only if in writing and addressed to Customer at the address or email address provided by Customer in its subscription form for the Software Offering and to Provider at the address below (or to such other address or such other person that Provider may designate from time to time in accordance with this Section 18.4):

IF TO PROVIDER
APOSTROPHE TECHNOLOGIES, INC.
1168 E. PASSYUNK AVENUE
PHILADELPHIA, PA 19147
USA
BILLING@APOSTROPHECMS.COM

Notices sent in accordance with this Section 18.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed, if sent by certified or registered mail, return receipt requested, postage prepaid.

18.5    Interpretation. For purposes of the Terms: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Terms as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in the Terms: (x) to sections, exhibits, schedules, riders, attachments and appendices mean the sections of, and exhibits, schedules, riders, attachments and appendices attached to, the Terms; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend the Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, riders, attachments and appendices referred to herein are an integral part of the Terms to the same extent as if they were set forth verbatim herein.

18.6    Headings. The headings in the Terms are for reference only and do not affect the interpretation of the Terms.

18.7    Entire Agreement. The Terms, together with any other documents incorporated herein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of the Terms, the related exhibits, schedules, riders, attachments and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the Terms, excluding its exhibits, schedules, riders, attachments and appendices; (b) second, the exhibits, schedules, riders, attachments and appendices to the Terms as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

18.8    Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider's prior written consent, which consent Provider may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under the Terms for which Provider's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under the Terms. Any purported assignment, delegation or transfer in violation of this Section 18.8 is void. The Terms are binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.

18.9    No Third-Party Beneficiaries. The Terms are for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Terms.

18.10    Amendment and Modification; Waiver. Except as expressly permitted to be modified unilaterally by Provider herein, no amendment to or modification of or recession, termination or discharge of the Terms is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of the Terms and signed by an authorized representative of each Party.  No waiver by an Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving.  Except as otherwise set forth in the Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

18.11    Severability. If any provision of the Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify the Terms so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

18.12    Governing Law; Submission to Jurisdiction. The Terms are governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action or proceeding arising out of or related to the Terms or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania in each case located in the city of Philadelphia, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

18.13    WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.

18.14    Equitable Remedies. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 3 (Use Restrictions), Section 6 (Confidentiality), Section 11 (Intellectual Property Rights) or Section 14 (Indemnification) of the Terms would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

18.15    Attorneys Fees.  In the event that any action, suit, or other legal or administrative proceedings is instituted or commenced by either Party hereto against the other Party arising out of or related to the Terms, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.

 

RIDER 1
ADDITIONAL PROVISIONS FOR HOSTING SERVICES

If Customer has elected to subscribe to any Hosting Services offered by Provider from time to time, then the provisions of Rider 1 shall apply.

1.    Additional Definitions. Capitalized terms have the meanings set forth or referred to in this Section 1:

“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Hosting Services.

“Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Services.  Customer Data does not included Resultant Data.

“Customer Failure” has the meaning set forth in Section 5.2 of this Rider.

“Customer Systems” means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by the Terms. Harmful Code does not include any Provider Disabling Device.

“Hosting Fees” has the meaning set forth in Section 4.2 of this Rider.

“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal Information” as defined under the Children's Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.

“Privacy and Security Policy” has the meaning set forth in Section 8.1 of this Rider.

“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.

“Prohibited Data” has the meaning set forth in Section 8.3 of this Rider.

“Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.

“Provider Materials” means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.

“Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.

“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Hosting Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.

“Resultant Data” means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.

“Service Allocation” has the meaning set forth in Section 4.4.

“Service Software” means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.

“Specifications” means the specifications for the Services and modules include in Apostrophe Pro and Apostrophe Assembly (as applicable) found on Provider’s documentation site, and also in the associated README files for each module on Provider’s extensions page and linked in Provider’s GitHub organization, and, to the extent consistent with and not limiting of the foregoing, the Documentation.

“Subcontractor” has the meaning set forth in Section 2.4.

 

2.    Hosting Services.

2.1    Hosting Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the Terms and this Rider, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users in accordance with the Specifications and Terms the Hosting Services (and included Support Services), including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:

a.    Scheduled Downtime in accordance with Section 8.1;

b.    Service downtime or degradation due to a Force Majeure Event, including Customer's or any Authorized User's use of Third Party Materials, misuse of the Hosting Services, or use of the Services other than in compliance with the express terms of the Terms and the Specifications; and

c.    any suspension or termination of Customer's or any Authorized Users' access to or use of the Hosting Services as permitted by the Terms or this Rider.

2.2    Service and System Control. Except as otherwise expressly provided in this this Rider, as between the Parties:

a.    Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) location(s) where any of the Services are performed, including in the United States, in countries outside the United States, or outside the borders of the country in which Customer or the Customer Systems are located; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and

b.    Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.

Notwithstanding anything to the contrary in the Terms or this Rider, all Services, including all Processing of Customer Data by or on behalf of Provider shall be provided solely from within, and on computers, systems, networks and other infrastructure located in, the United States.

2.3    Changes.  Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider's services to its customers, (ii) the competitive strength of or market for Provider's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either Party may, at any time during the Term, request in writing changes to the Services. The Parties shall evaluate and, if agreed, implement all such requested changes in accordance with a mutually acceptable change procedure set forth in writing and signed by both Parties. No requested changes will be effective unless and until memorialized in a written change order signed by both Parties, except that Customer may increase or decrease the number of Authorized Users for any Services pursuant to Section 3.4.

2.4    Subcontractors.  Provider may from time to time in its sole discretion engage third parties to perform Services (each, a “Subcontractor”).

2.5    Suspension or Termination of Services.  Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of the Terms or this Rider, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under the Terms or this Rider or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) the Terms and/or this Rider expires or is terminated. Section 2.5 of this Rider does not limit any of Provider's other rights or remedies, whether at law, in equity or under the Terms or this Rider.

 

3.    Scope of Licensed Access and Use.  In addition to the scope of licensed access and use set forth in Section 2.2 of the Terms, Customer may re-brand the Software Offering with the Customer’s trademarks; provided, however, that in doing so, Customer acknowledges and agrees that it does not and shall not have any proprietary interest in the Software Offering or in any of Provider’s other Intellectual Property.  In addition, nothing in Section 3 of this Rider shall prohibit Provider from offering the Software Offering to other Persons or allowing such other Persons to similarly re-brand the Software Offering.

 

4.    Additional Authorization and Customer Restrictions. In connection with the Hosting Services (and included Support Services):

4.1    Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by the Terms and this Rider and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as the Terms or this Rider expressly permits:

a.    copy, modify or create derivative works or improvements of the Services or Provider Materials;

b.    rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software Offering, any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

c.    reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;

d.    bypass or breach any security device or protection used by the Services, Software Offering, or Provider Materials or access or use the Services, Software Offering, or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;

e.    input, upload, transmit or otherwise provide to or through the Services, Software Offering, or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;

f.    damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Software Offering, Provider Systems or Provider's provision of services to any third party, in whole or in part;

g.    remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software Offering, any Services or Provider Materials, including any copy thereof;

h.    access or use the Services, Software Offering, or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law;

i.    access or use the Services, Software Offering, or Provider Materials for purposes of competitive analysis of the Services, Software Offering, or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider's detriment or commercial disadvantage;

j.    access or use the Services, Software Offering, or Provider Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services or Software Offering could lead to personal injury or severe physical or property damage; or

k.    otherwise access or use the Services, Software Offering, or Provider Materials beyond the scope of the authorization granted under Section 2.4 of the Terms.

4.2    Hosting Fees, Service Use and Data Storage. Provider shall set the fees (“Hosting Fees”) for designated levels of Hosting Service usage and data storage from time to time (each a "Service Allocation") elected by Customer to purchase. Customer shall pay such Hosting Fees in accordance with Section 8 of the Terms.  Provider will use commercially reasonable efforts to promptly notify Customer in writing if Customer has reached eighty percent (80%) of its then current Service Allocation and Customer may increase its Service Allocation and corresponding Hosting Fee obligations. If Customer exceeds its Service Allocation by more than three percent (3%) for any relevant period, Customer shall also pay to Provider the applicable excess usage and storage fees charged by Provider. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other Provider customers and agrees that Provider has no obligation to permit Customer to exceed its then-current Service Allocation.

4.3    Open-Source Licenses. The Hosting Services include Open-Source Components licensed. Any use of the Open-Source Components by Customer shall be governed by, and subject to, the terms and conditions of the Open-Source License(s).

 

5.    Customer Obligations.  In connection with the Hosting Services (and included Support Services):

5.1    Customer Systems and Cooperation.  Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer's premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with the Terms and this Rider.

5.2    Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under the Terms or this Rider (each, a "Customer Failure"). 

5.3    Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 4.1 of this Rider, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.

5.4    Non-Solicitation. During the Term and for two (2) years thereafter, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twenty-four (24) months employed or engaged by Provider or any Subcontractor and involved in any respect with the Services or the performance of the Terms or the Rider. Further, this Section does not limit any of Provider's other rights or remedies, whether at law, in equity or under the Terms and this Rider.

 

6.    Downtime and Service Support.

6.1    Scheduled Downtime. Provider will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the Hosting Services; and (b) give Customer at least twelve (12) hours prior notice of all scheduled outages of the Hosting Services ("Scheduled Downtime").

6.2    Service Support. The Services include Provider’s standard Support Services at the support levels Customer purchases in accordance with the Provider service support schedule then in effect (the "Support Schedule"). Provider may amend the Support Schedule from time to time in its sole discretion. Customer may purchase enhanced Support Services separately at Provider’s then current rates.

 

7.    Data Backup. The Hosting Services (together with the Support Services) do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.

 

8.    Security.

8.1    Provider Systems and Security Obligations. Provider will employ security measures in accordance with applicable privacy and data security laws and regulations ("Privacy and Security Policy").

8.2    Security Incident Procedures. Provider maintains an incident response plan in accordance with the criteria set forth in Provider's Privacy and Security Policy and shall implement the procedures required under such plan on the occurrence of a "Security Incident" (as defined in such plan).

8.3    Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information:(a) Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, "Prohibited Data"). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

8.4    Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

8.5    Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.

8.6    Security Measures. The Software Offering and Services may contain technological measures designed to prevent unauthorized or illegal use. Customer acknowledges and agrees that: (a) Provider may use these and other lawful measures to verify Customer's compliance with the Terms and this Rider and enforce Provider's rights in and to the Software Offering and Services; (b) Provider may deny any individual access to and/or use of the Software Offering and Services if Provider, in its sole discretion, believes that person's use of the Software Offering and/or Services would violate any provision of the Terms and this Rider, regardless of whether Customer designated that person as an Authorized User; and (c) Provider and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Customer's computers, systems and software, that Provider may gather periodically to improve the performance of the Software Offering and Services, or develop Maintenance Releases. This information will be treated in accordance with Provider's Privacy and Security Policy, as amended from time to time.

 

9.    Additional Intellectual Property Provisions.

9.1    Services and Provider Materials. All right, title and interest in and to the Services, Software Offering, and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 2.4 of the Terms or the applicable third-party license, in each case subject to Section 4.1 of this Rider. All other rights in and to the Services, Software Offering, and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

9.2    Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3 of this Rider.

9.3    Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce the Terms and this Rider and exercise its rights and perform hereunder.

 

10.    Additional Effect of Termination or Expiration. In addition to the effects of termination or expiration set forth in Section 12.4 of the Terms, upon the expiration or earlier termination of the Terms (except as expressly provided otherwise in the Terms):

a.    All rights, licenses, consents and authorizations granted by Customer to Provider hereunder will immediately terminate

b.    Provider shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) within thirty (30) days return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Provider directly or indirectly controls, provided that, for clarity, Provider's obligations under Section 10(a) of this Rider do not apply to any Resultant Data;

c.    Customer shall immediately cease all use of any Services, the Software Offering, or Provider Materials and (i) within thirty (30) days return to Provider, or at Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider's Confidential Information; (ii) permanently erase all Provider Materials and Provider's Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Provider in a signed and notarized written instrument that it has complied with the requirements of Section 10(c) of this Rider;

d.    notwithstanding anything to the contrary in the Terms or this Rider, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information; (ii) Provider may retain Customer Data; (iii) Customer may retain Provider Materials, in the case of each of subclause (i), (ii), and (iii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in Section 10(d) of this Rider will remain subject to all confidentiality, security and other applicable requirements of the Terms;

e.    Provider may disable all Customer and Authorized User access to the Hosting Services and Provider Materials;

f.    if Customer terminates the Terms and this Rider pursuant to Section 12.3(b) of the Terms, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will refund to Customer any Fees paid in advance for Services that Provider has not performed as of the effective date of termination;

g.    if Provider terminates the Terms pursuant to Section 14.3(a) or Section 14.3(b), all Fees that would have become payable had the Terms remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Provider's invoice therefor; and

h.    if Customer requests in writing at least sixty (60) days prior to the effective date of expiration or termination, subject to Section 10(d) of this Rider, Provider shall, within sixty (60) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Provider, provided that Customer has at that time paid all Fees and Reimbursable Expenses then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Provider's services in transferring such Customer Data.

 

11.    Additional Representations, Warranties, and Covenants.

11.1    Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that Provider will perform the Hosting Services and included Support Services using personnel of reasonably required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote reasonable resources to meet its obligations under the Terms and this Rider.

11.2    Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Rider, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

 

12.    Additional Indemnification Obligations.  The following indemnification obligations are in addition to Provider’s and Customer’s indemnification obligations set forth in Section 14 of the Terms.

12.1    Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any Action by a third party (other than an Affiliate of Customer) to the extent that such Losses arise from Provider’s breach of the additional Provider representations and warranties set forth in Section 11.1 of this Rider in accordance with Section 14 of the Terms. In addition to the exclusions set forth in Section 14.1 of the Terms, the foregoing obligation does not apply to any Action or Loss arising out of or relating to any:

a.     access to or use of the Services, Software Offering, or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by Provider;

b.    modification of the Services, Software Offering, or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider's written approval in accordance with Provider's written specification;

c.    failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider;

d.    use of the Services, Software Offering, or Provider Materials after Provider's notice to Customer of such activity's alleged or actual infringement, misappropriation or other violation of a third party's rights;

e.    negligence, abuse, misapplication or misuse of the Services, Software Offering, or Provider Materials by or on behalf of Customer, Customer's Representatives or a third party;

f.    use of the Services, Software Offering, or Provider Materials by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by the Terms or in any manner contrary to Provider's instructions; or

g.    events or circumstances outside of Provider's control (including any third-party hardware, software or system bugs, defects or malfunctions).

12.2    Customer Indemnification. In accordance with the procedures set forth in Section 14 of the Terms, Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and any other Provider Indemnitee from and against any and all Losses incurred by such foregoing party in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arises out of or relates to any Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Rider.

 

13.    Additional Surviving Terms.  The provisions set forth in the following sections, and any other right or obligation of the Parties in this Rider that, by its nature, should survive termination or expiration of the Terms and this Rider, will survive any expiration or termination of the Terms and this Rider: Section 4 (Additional Authorization and Customer Restrictions), Section 10 (Additional Effect of Termination or Expiration), Section 11 (Additional Representations, Warranties, and Covenants) and Section 12 (Additional Indemnification Obligations).