User Terms and Conditions
Definitions. Capitalized terms in the Agreement have the following meanings when used in the Agreement or any exhibit or attachment thereto:
“Geo-Located Assets” means any physical or tangible asset of Licensee that Licensee enters the Services with a designation of its physical location that may be tracked or monitored by the Services.
“Intellectual Property Rights” means all tangible and intangible rights associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; trademarks and trade name rights and similar rights; trade secret rights; patents, designs, algorithms, and other intellectual or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues now or hereafter in force (including any rights in the foregoing) anywhere in the world, that exist as of the Effective Date or hereafter come into existence, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation.
“Licensee Data” means any data or information provided by Licensee to the Services including, but not limited to User names and email address, and the fixed or mobile locations of people or tangible assets and the geographic location of places.
“Order” means any sales order or other order form entered between Licensee and an authorized Tenefit reseller or distributor that specifies, at minimum a subscription term, the license fees to be paid by Licensee for Licensee’s use of the Software, as well as other terms as applicable to the Tenefit products and services.
“Service(s)” means the Tenefit DisasterAWARE Enterprise Platform software and all its associated systems, networks and services that are licensed under these Terms and Conditions.
“Sources” mean certain third party supplied sources and information that the Services rely on for input data to provide the Services.
“Subscription Term” means the number of years, as specified in an Order, that Licensee has subscribed to the Service. A Subscription Term commences on the Effective Date of the Agreement.
“Users” or “Named Users” means the employees or contractors of Licensee that have been designated by Licensee and have been assigned a username and login credentials to access the Services in order to act on behalf of Licensee and for which Licensee will be responsible and liable to Tenefit.
- Service. During the Subscription Term, and subject to the terms and conditions of the Agreement and payment of all applicable fees, Tenefit will provide Licensee access to the Service specified in one or more Orders signed by Licensee and Tenefit. On or after the Effective Date, Licensee will identify to Tenefit its Users, and Tenefit will provide Licensee with usernames and login credentials for each User.
- Licensee Responsibilities
- Named Users. Licensee will be responsible for designating its Users, but a User must either be an employee of Licensee, or a contractor or consultant under written agreement with Licensee, and such agreement must contain confidentiality provisions no less restrictive and protective of Tenefit Confidential Information as contained in the Agreement. During the term of the Agreement, Licensee may change the individuals that are Users upon not less than five (5) days written notice to Tenefit, but Licensee may not exceed the number of Users in its Order. Licensee may request a new Order at any time to increase the total number of Users permitted to access the Services. Licensee is responsible for all access to and use of the Service by its Users or through the use of any User’s username and login credentials.
- Use of Service. Only Users may access and use the Service and Tenefit reserves the right to audit such use. Users may modify their own individual password, but may not share the password or login credentials with any other person except Tenefit authorized support personnel. Tenefit is not responsible for any unauthorized access and/or use by any User or by any third party that independently gains access to Licensee’s instance of the Service or Licensee Data. Licensee will notify Tenefit promptly if it learns or has reason to suspect there has been any unauthorized use of any User accounts or of any other breach of security of the Service. Tenefit will have no liability for any loss or damage arising from Licensee’s failure to comply with the provisions of this Section.
- Licensee Security. At all times during the term of the Agreement, Licensee agrees: (a) to maintain and update an industry standard anti-virus program within its computer systems and networks; and (b) to use commercially reasonable efforts to implement security practices and protocols sufficient to prevent malware from entering its systems or networks.
- . Licensee Data. Licensee is the sole and exclusive owner of all Licensee Data and any Intellectual Property Rights therein. Licensee grants to Tenefit, during the Subscription Term a royalty free, worldwide, non-exclusive, non-transferable license to access and use Licensee Data solely and exclusively for the purpose of providing the Service to Licensee. Licensee acknowledges that the accuracy and utility of the Service to Licensee depends upon the accuracy and completeness of Licensee Data and Licensee is solely and exclusively responsible to the accuracy, completeness and timeliness of Licensee Data and Tenefit will have no responsibility or liability to Licensee or any third party for errors in Services from inaccurate or incomplete Licensee Data.
- License Grant and Restrictions.
- License. Subject to the terms and conditions of the Agreement, and payment of the applicable fees set forth on the Order Form, Tenefit grants to Licensee during the Subscription Term a world-wide, royalty bearing, limited, non-exclusive, non-transferable license, without the right to sublicense, to remotely access and use the Service solely for Licensee’s internal business purposes. Use of the Services is limited to Users that Licensee has specifically authorized and use is further limited to the number of Users designated in the Order Form.
- Reservation of Rights. The Service is licensed by Tenefit to Licensee, not sold, and nothing in the Agreement will be interpreted or construed as a sale. Licensee will not have any rights in or to the Service, except as expressly granted in the Agreement, and Tenefit retains all Intellectual Property Rights in and to the Service.
- Restrictions and Licensee Obligations.
- Licensee may not use the Service in any manner that could damage, disable, overburden, or impair servers, networks or other devices running, or connected to, the Software;
- Licensee will not and will not permit any third party to: (i) access or use the Service (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service) or; (ii) copy, modify, adapt or create derivative works from any applications or functionalities made available as part of the Service or attempt to discover or gain access to the source code for such software or reverse engineer, modify, decrypt, extract, disassemble or decompile such software except to the extent that Licensee is permitted to do so under applicable law in circumstances under which Tenefit is not lawfully entitled to restrict, prevent or limit the same; or (iii) attempt to interfere with the proper working of the Service and, in particular, must not attempt to circumvent security, license control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Service, software, website, computer system or other device used in connection with the provision of the Service; or (iv) cause or permit any robot or any automated process to act upon or interact with the Service; or (v) conduct any audit, probe, testing or assessment of the security of the Service or (vi) obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of the Service; and
- Licensee will at all times comply with all applicable laws, statutes, ordinances, and regulations in connection with its use of the Service.
- Fees and Payment Terms
- Fee. Licensee will pay the fees due to Tenefit set forth in the Order in U.S. dollars (collectively “Fees”). Unless otherwise set forth in the Agreement, all Fees will be due within thirty (30) days from the date of the invoice. All Fees are non-refundable and non-cancelable. Tenefit may notify Licensee if it approaches its usage limits specified in the Order. If Licensee exceeds the usage parameters specified in the Order, then Tenefit will notify Licensee, and Licensee will have thirty (30) days to enter a new Order for additional usage rights. If Licensee fails to execute a new Order within thirty (30) days, Tenefit reserves its rights to suspend the Service or limit Licensee’s use of the Service to those in Licensee’s existing Order. Subscription Fees are paid annually in advance. Tenefit will invoice Licensee thirty (30) days prior to the anniversary of the Effective Date at Tenefit’s then current pricing for a new Subscription Term. All undisputed late payments will accrue interest at a rate of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law, whichever is lower. Such interest will be in addition to any other rights and remedies of Tenefit.
- Disputed Invoices. In the event Licensee reasonably and in good faith disputes any fee(s) set forth on any invoice or record of payment issued by Tenefit, Licensee must notify Tenefit in writing, setting forth the reasons for \ and the amount of such dispute (a “Dispute Notice”), no later than ten (10) days following the receipt of the invoice or record of payment. Upon receipt of a Dispute Notice, both parties will promptly make available appropriate personnel to work in good faith to resolve the dispute within fifteen (15) days. Upon resolution of the dispute by the parties, additional amounts due from Licensee, if any, in relation to the applicable invoice must be remitted to Tenefit within ten (10) days following such resolution. If the dispute remains unresolved sixty (60) days after the date of the invoice at issue, either party may declare the other party in breach of the Agreement and pursue any or all legal remedies available to it.
- Fee Increases. Tenefit reserves the right at any time to increase the Fees for the Service or institute new charges for Services upon reasonable notice to Licensee, such notice to be not less than thirty (30) days prior to such change being effective. Fee increases will not apply to the then current Subscription Term for Licensee and will only apply to new Orders.
- Taxes. Other than federal and state net income taxes imposed on Tenefit’s income in the United States, Licensee will bear all taxes, duties, levies, fees and other governmental charges (collectively, “taxes”) resulting from the Agreement and Licensee’s use of the Services. Licensee will pay any additional taxes as are necessary to ensure that the Fees received after all such taxes are paid are equal to those specified in the Agreement as if the taxes did not exist.
- Billing Information. Licensee certifies that any information provided directly or indirectly to Tenefit, including contact information, is accurate. Licensee also agrees to maintain and update such information as necessary so that it remains accurate and current. In the event that any information provided is inaccurate or not up-to-date, Tenefit reserves the right to suspend the Service or terminate the Agreement.
- Support Services. During the term of the Agreement, and for so long as Licensee is current with its payment of Fees, Tenefit will provide Licensee with Support Services as specified in its then current DisasterAWARE Enterprise Support Services Agreement the terms of which are set forth at https://disasteraware.com/help-center/
- Generally. “Confidential Information” will mean confidential or other non-public proprietary information that is disclosed by either party to the other under the Agreement, including without limitation, Software, software code and designs, hardware, product specifications and documentation, financial data, business, marketing and product plans, or technology, and Customer information.Licensee acknowledges and agrees that the Service contains proprietary and trade secret information that is the sole and exclusive property of Tenefit and is Tenefit’s Confidential Information.
- Obligations of Confidentiality. Each party agrees that it will hold in strict confidence and not disclose the Confidential Information of the other party to any third party and to use the Confidential Information of the other party for no purpose other than the purposes expressly permitted by the Agreement. Each party will only permit access to the other party’s Confidential Information to those of its or its Affiliates’ employees, contractors and advisors having a need to know and who have signed or are bound by confidentiality obligations or agreements containing terms at least as restrictive as those contained in the Agreement. Each party will maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information of the other party with at least the same degree of care as it uses to protect its own Confidential Information, but in no event with less than reasonable care.
- Exclusions from Obligations. A party’s obligations of confidentiality under the Agreement will not apply to information which such party can document the information (i) is in the public domain without the breach of any agreement or fiduciary duty or the violation of any law, (ii) was known to the party prior to the time of disclosure without the breach of any agreement or fiduciary duty or the violation of any law, (iii) is proven by contemporaneous records to be independently developed by the party prior to receiving such Confidential Information and without use or reference to the Confidential Information.
- Legally Required Disclosure. In the event either party is required to disclose, pursuant to a judicial order, a requirement of a governmental agency or by operation of law, any Confidential Information provided to it by the other party then such party will provide the other party written notice of any such requirement immediately after learning of any such requirement, and take commercially reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and allow the other party to participate in the proceeding. Any disclosure will be the minimum disclosure as recommended by a party’s legal counsel and no disclosure will remove the obligations of confidentiality to any remaining Confidential Information nor permit any other disclosure of the Confidential Information in other circumstances.
- Injunctive Relief. Each party recognizes and acknowledges that any use or disclosure of the Confidential Information of the other party in a manner inconsistent with the provisions of the Agreement will cause the other party irreparable damage for which remedies at law may be inadequate. Accordingly, the non-breaching party will have the right to seek an immediate injunction in respect of any breach of these confidentiality obligations to obtain such relief. Notwithstanding the foregoing, this paragraph will not in any way limit the remedies in law or equity otherwise available to the non-breaching party.
- Return of Confidential Information. Upon written request by either party hereto, the other party will promptly return all documents and other tangible materials representing the requesting party’s Confidential Information and all copies thereof, except for any archived materials that are required to be retained by law or that are not easily retrievable from secured archival systems, or records created in the ordinary course of business that are kept by a party and used only for contract compliance and enforcement purposes subject to continuing confidentiality.
- Sources and Third-Party Sites.
- Sources. License acknowledges that the Service is dependent on Sources that are aggregated from governmental agencies and private sources including, but not limited to the Pacific Disaster Center (PDC) EMOPS DisasterAWARE™ service. Tenefit is not liable for and has no control over the accuracy or availability of Sources and Licensee acknowledges and agrees that all risk in the use of Sources is Licensee’s alone.
- Third Party Sites. The Service may link Licensee to other sites on the internet or otherwise include references to information, documents, materials and/or services provided by third parties. Licensee acknowledges and agrees that all use of third party sites is at the sole risk of Licensee and that Tenefit is not liable or responsible for any use of such third-party sites or the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such third-party sites, or for errors or omissions in any references to other parties or their products and services.
- Term and Termination
- Term and Renewals. The initial Subscription Term will be as set forth in the Order (the “Initial Term”), unless earlier terminated as provided in the Agreement. The Initial Term will automatically renew for successive one year Subscription Terms, at Tenefit’s then current Fee for a Subscription Term, unless either party notifies the other not less than ninety (90) days before the end of the then current Subscription Term.
- Termination. Either party may terminate the Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty under the Agreement and fails to cure such material breach (if capable of cure) within thirty (30) days after receiving written notice specifying the nature of the breach from the non-breaching party. Either party may immediately terminate the Agreement upon written notice at any time if (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt, (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within 60 calendar days, (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law, (iv) the other party discontinues its business, (v) a receiver is appointed over all or substantially all of the other party’s assets or business, or (vi) the other party is dissolved or liquidated or otherwise ceases to function as a going concern.
- Suspension. Tenefit may suspend the Service or any portion thereof for (1) emergency network repairs, threats to or actual breach of network security; (2) any failure to pay undisputed Fees or any material breach of the Agreement by Licensee (3) any legal, regulatory, or governmental prohibition, order or decree affecting the Service. Tenefit will promptly notify Licensee of any interruption or termination.
- Effects of Termination. Within thirty (30) days (or earlier upon Tenefit’s reasonable written request) after the date of termination of the Agreement for any reason, Licensee will (i) pay Tenefit Fees for all Services up to the effective date of such termination and all other amounts owed by Licensee to Tenefit under the Agreement including, but not limited to, all Fees owed by Licensee as of the effective date of termination according to the payment schedule set forth in the Order, regardless of the date of termination; In the event of the expiration or termination of the Agreement, Licensee will immediately terminate all access to and use of the Service, and pay any Fees or other amounts owed to Tenefit. Each party will have thirty (30) days to return or destroy all Confidential Information it holds that belongs to the other party.
- Survival. Upon expiration or termination of the Agreement the provisions of Sections 1, 5, 7, 8, 11, 13, and 15 will survive and any other provisions, which expressly or by implication are intended to survive will survive.
- Warranty and Disclaimers.
- Warranty. Tenefit warrants that it will use commercially reasonable efforts to make the Service available at all times except for regularly scheduled maintenance, and that the Service will operate or be provided in material conformity with the applicable Tenefit specifications for the Service in Licensee’s Order. Except for Sources or third party sites or content, Tenefit warrants that the functionality of the Service will not be materially decreased during a Subscription Term. For any breach of this warranty, Licensee’s sole and exclusive remedy, and Tenefit’s sole and exclusive liability, will be for Tenefit to correct any reported failure in the Service causing a breach of this warranty. Tenefit will have no obligation with respect to a warranty claim hereunder unless notified of such claim within thirty (30) days of the first instance of any material failure or breach. Subject to the foregoing warranty, Tenefit reserves the right, for any reason, in Tenefit’s sole discretion and without notice to Licensee, to modify or change the Service, or to provide additional features or functions, or to enhance, delete or modify its format or presentation.
- Disclaimer of Warranties. EXCEPT FOR TENEFIT’S EXPRESS WARRANTY, LICENSEE ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE IS AT ITS OWN RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH LICENSEE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES PERFORMED OR PROVIDED ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TENEFIT AND ITS LICENSORS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TENEFIT AND ITS LICENSORS DO NOT WARRANT AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SERVICE WILL MEET LICENSEE REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TENEFIT OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SHOULD THE SERVICES PROVE DEFECTIVE, LICENSEE ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, EXCLUDING SUCH COSTS AS APPLICABLE TO THE SERVICE ITSELF. THE APPLICATION IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER ACTIVITIES IN WHICH THE FAILURE OF THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
- Limitation of Liability
- Exclusion of Consequential Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DAMAGES ARISING PURSUANT TO A BREACH OF ANY APPLICABLE LICENSE GRANT OR THE INFRINGEMENT OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE AND ANY NON-ECONOMIC LOSSES, EVEN IF A PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Damages. EXCEPT FOR DAMAGES ARISING PURSUANT TO A BREACH OF ANY APPLICABLE LICENSE GRANT, INFRINGEMENT OR MISUSE OF INTELLECTUAL PROPERTY RIGHTS, OR EITHER PARTY’S INDEMNITY OBLIGATIONS HEREIN, NEITHER PARTY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, AGENCY, WARRANTY, TRESPASS, OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY LICENSEE TO TENEFIT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL EITHER PARTY’S INDEMNITY LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF ONE MILLION DOLLARS ($1,000,000).
- Allocation of Risk and Material Term. THE PROVISIONS OF THIS SECTION 11 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND ARE AN INTRINSIC PART OF THE BARGAIN BETWEEN THE PARTIES. THE FEES PROVIDED FOR IN THIS AGREEMENT REFLECT THIS ALLOCATION OF RISKS AND THE LIMITATION OF LIABILITY AND SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
- Definitions. For purposes of this Section on indemnity, the following terms will have the meanings defined herein:
- “Claims” means all third-party claims, actions, demand, and legal proceedings of any kind.
- “Damages” means all liabilities, damages, losses, judgments, authorized settlements, fines, costs and expenses payable to a third party and the indemnified party’s reasonable legal support costs and expenses.
- Tenefit Indemnity. Providing Licensee has used the Service, paid the Fees, Tenefit will defend, indemnify and hold Licensee and its affiliates and their respective successors, assigns, officers, directors and employees harmless from and against any and all Claims and Damages based upon or arising out Claims that the Software infringes any patent issued by the United States, Canada, European Union or a country therein, Switzerland or Japan, or any copyright, trade mark, trade secret, or any other proprietary right held by any third party. Tenefit’s indemnity obligations will not apply to any infringement claims arising out of, or resulting from: (i) any Sources or third party sites; (ii) any Service, product or service developed in accordance with Licensee’s specifications; (iii) any modifications of the Service made by anyone other than Tenefit if the alleged infringement relates to such modification, (iv) a combination of the Service with other software, products, services, processes or materials not provided by Tenefit where the alleged infringement relates to such combination, (v) Licensee’s continued alleged infringing activity, after having been notified by Tenefit that such activity is or may be infringing; (vi) use of the Service not strictly in accordance with this or any other written Agreement signed by an officer of Tenefit; (vii) any default or failure to pay undisputed Fees; or (viii) any “open source” software included in or used with the Software.
- Injunction. If the use or sale of any Software furnished hereunder is enjoined as a result of such suit, or if the use or sale of any Software furnished hereunder is, or in the opinion of Tenefit is likely to be, enjoined, Tenefit will, at Tenefit’s option, (i) obtain for Licensee the right to use the Software; or (ii) will substitute an equivalent product reasonably acceptable to Licensee and extend this indemnity thereto or, (iii) at Tenefit’s discretion, terminate the Agreement and reimburse Licensee any pre-paid Fees for the then current Subscription Term. This indemnity does not extend to any suit based upon any infringement or alleged infringement of any patent or copyright to any Software(s) of Licensee’s design or formula.
- Exclusive Remedy. This Section 12 states Tenefit’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by Tenefit.
- Licensee Indemnity. Licensee agrees to defend, indemnify, and hold harmless Tenefit and its respective directors, officers, employees, representatives, agents, successors, assigns, Licensees and distributors from and against any and all Claims and Damages arising out of or in connection with: (i) Licensee’s breach of the Agreement; (ii) any willful or negligent act of Licensee or its employees, agents or representatives; (iii) any Claim that an act or omission by Licensee gave rise to any death or bodily injury or damage to any tangible or personal property; (vi) any violation by Licensee of any governmental or regulatory laws, rules, ordinances, or regulations; or (iv) any use of the Service by Licensee and any damages that arise from any failure or error in the Service.
- Procedure. In the event of any Claims, for which a party seeks indemnification as set forth in this Section 12, the indemnified party will: (i) promptly notify the indemnifying party, (ii) at the indemnifying party’s expense, reasonably cooperate with the indemnifying party in the defense thereof, and (iii) not settle any such Claims without the indemnifying party’s consent which the indemnifying party agrees not to unreasonably withhold or delay. The indemnifying party will keep the indemnified party reasonably informed at all times as to the status of any claim. No settlement will include any admission of fault or any public statement by the indemnified party without the indemnified party’s prior written consent which will not unreasonably be withheld or delayed.
- Definitions. For purposes of this Section on indemnity, the following terms will have the meanings defined herein:
- US Government Rights. The Service is a “commercial item” as that term is defined at FAR 2.101. If Licensee is the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Tenefit provides the Services, including any related software, technology, technical data, and/or professional services in accordance with the following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in the Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in the Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency will obtain only those rights in technical data and software customarily provided to the public as defined in the Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Tenefit to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under the Agreement.
- Export Control. Licensee acknowledges and agrees that it will not import, export, or re-export, directly or indirectly the Software to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, without limitation, the export regulations of the United States, and the import and export restrictions of various other countries. Licensee further agrees to defend, indemnify and hold Tenefit harmless for any losses, costs, claims or other liabilities arising out of Licensee’s breach of this Section.
- Feedback. During the term of the Agreement Licensee may provide Tenefit with oral feedback and/or written feedback related to the Services or Tenefit products, services or technology, including, but not limited to, a report of any errors which Licensee may discover in the Software, products, services or technology or related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by Licensee to Tenefit (“Feedback”) will be the property of Tenefit. Licensee agrees to assign, and hereby assigns, all right, title and interest worldwide in the Feedback it gives to Tenefit including the related intellectual property rights, and agrees to assist (at Tenefit’s expense) in perfecting and enforcing such rights.
- Force Majeure. Except for an obligation to pay Fees, the parties hereto will be excused from any failure to perform any obligation hereunder to the extent such failure is caused by war, acts of public enemies, strikes or other labor disturbances, fires, floods, acts of God, or any causes of like or different kind beyond the control of the parties, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate the Agreement by written notice to the non-performing party if such condition continues for a period of thirty (30) days.
- Assignment. Licensee may not assign, by operation of law or otherwise, its rights or obligations under the Agreement without the express written consent of Tenefit, which will not unreasonably be withheld or delayed. Notwithstanding anything to the contrary in the Agreement, in no event will any such assignment result in an expansion of the scope of the license granted herein. In particular, such assignment will not create rights that did not exist prior to the assignment, nor will such assignment result in an expansion of the scope of the use specified in any Order.
- Severability, Entire Agreement, Waiver. In the event any provision of the Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of the Agreement, and such remainder will remain in force and effect. The parties agree to replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements relating to the subject matter herein, whether written or oral. The failure of Tenefit to exercise or enforce any right or provision of the Agreement does not constitute a waiver of such right or provision, which will still be available to Tenefit.
- No Third Party Beneficiaries. Nothing in the Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and permitted assigns, any rights or remedies under or by reason of the Agreement.
- Marketing. Licensee agrees to permit Tenefit’s reasonable reference to Licensee’s status as a user of the Software, including captioned quotations in product literature or advertisements, websites, articles, press releases, marketing literature, presentations and the like, and occasional use as a reference for potential new users.
- No Solicitation. To promote an optimum working relationship, the parties agree in good faith not to knowingly solicit for employment, directly or indirectly, employ or otherwise engage any employee who has been involved in rendering or receiving services hereunder as an employee of the other party without that party’s prior written consent. This restriction will apply during the term of and for a period of one (1) year after the termination of the Agreement. The provisions of this Section will not restrict the hiring of any person who: (i) has not been involved in rendering or receiving services, on behalf of Tenefit or Licensee, under the Agreement; (ii) as of the time of hiring, has not been an employee of the other party at any time during the preceding one hundred eighty (180) days; or (iii) responds to a public notice for employment.
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