End User License Agreement
This End User License Agreement ("Agreement") is a
binding agreement between you ("End User",
“Customer” or "you") and Slipstream Group,
Inc. (“Slipstream”). Slipstream and Customer may each be
referred to as a “Party” and together as the
“Parties.”
This Agreement governs your use of the Sketchbox SaaS software, (the
"Software" including all Documentation). BY CLICKING
THE "AGREE" BUTTON YOU (A) ACKNOWLEDGE THAT YOU HAVE READ
AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE
TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND
AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO
THESE TERMS, DO NOT USE THE SOFTWARE.
1. Definitions. For purposes of
this Agreement, the following terms have the following meanings:
"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 Software.
“Authorized Users” means each invitee of a Customer granted access to the Software by a
Customer.
“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 Software or that incorporates or is derived from the
processing of such information, data, or content by or through the
Software. For the avoidance of doubt, Customer Data does not include
Resultant Data or any information reflecting the access or use of the
Software by or on behalf of Customer or any Authorized User.
“Customer Systems” means the information technology
infrastructure used by or on behalf of Customer in accessing the
Software, including all 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.
“Documentation” means any manuals, instructions, or other documents or materials that
Slipstream provides or makes available to Customer in any form or
medium and which describe the functionality, components, features, or
requirements of the Software or Slipstream Materials.
“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.
“Order” means the order form submitted by Customer for the
license to the Software provided under this Agreement.
“Person” means an individual, corporation, partnership, joint
venture, limited liability company, governmental authority,
unincorporated organization, trust, association, or other
entity.
“Personal Information" means any information that,
individually or in combination, does or can identify a specific
individual or by or from which a specific individual may be
identified, contacted or located.
“Resultant Data" means information, data and other
content that is derived by or through the Software 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.
“Slipstream Materials” means
the Software, Documentation, and Slipstream 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 Slipstream or any Subcontractor in connection with
the Software or otherwise comprise or relate to the Software or
Slipstream systems. For the avoidance of doubt, Slipstream Materials
include any information, data, or other content derived from
Slipstream’s monitoring of Customer’s access to or use of the
Software, but do not include Customer Data.
“Term” has the meaning set forth in Section 10.
2.
License Grant and Scope.
(a) License Grant. Subject to the terms and conditions of this
Agreement, and the payment of all applicable and undisputed fees due,
Slipstream hereby grants to Customer a non-exclusive, non-transferable,
non-sublicensable limited license during the Term to use, solely by and
through its Authorized Users, the Software and Documentation, solely for
the internal purposes of the Customer.
(b) Reservation of Rights. Nothing in this
Agreement grants any right, title, or interest in or to (including any
license under) any Intellectual Property Rights in or relating to, the
Software, Documentation, or Third Party Materials, whether expressly, by
implication, estoppel, or otherwise. All right, title, and interest in
and to the Software and the Third Party Materials are and will remain
with Slipstream and the respective rights holders in the Third Party
Materials.
(c) Suspension or Termination of the provisions of the Software.
Slipstream may, directly or indirectly, 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 Software or Slipstream Materials,
without incurring any resulting obligation or liability, if: (a)
Slipstream receives a judicial or other governmental demand or order,
subpoena or law enforcement request that expressly or by reasonable
implication requires Slipstream to do so; or (b) Slipstream believes, in
its good faith and reasonable discretion, that: (i) Customer or any
Authorized User has failed to comply with, any term of this Agreement,
or accessed or used the Software beyond the scope of the rights granted
or for a purpose not authorized under this Agreement or in any manner
that does not comply with any instruction or requirement of the
Documentation; (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 Software; or
(iii) this Agreement expires or is terminated. This Section does not
limit any of Slipstream's other rights or remedies, whether at law, in
equity or under this Agreement.
(e) Customer Systems. 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 Software 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 Software or Slipstream; (ii) results
obtained from any use of the Software; and (iii) conclusions, decisions,
or actions based on such use. Slipstream has the right to, and be
provided access to, communicate with the Software on the Customer
Systems to analyze and determine performance of the Software and to
access Customer Data.
(f) Changes. Slipstream reserves the right, in its sole
discretion, to make any changes to the Software that it deems necessary
or useful to: (a) maintain or enhance (i) the quality of the Software,
(ii) the competitive strength of or market for the Software or (iii) the
Software' cost efficiency or performance; or (b) to comply with
applicable law.
(g) Subcontractors. Slipstream
may from time to time in its discretion engage third parties to provide
the Software (each, a "Subcontractor").
3. Third-Party Materials. The Software and Documentation may
include software, content, data, or other materials, including related
documentation, in any form or medium that are owned by Persons other
than Slipstream and that are provided to Customer on terms that are in
addition to and/or different from those contained in this Agreement (“Third Party Materials”). Customer is bound by and shall comply with
all applicable licenses of Third Party Materials. Any breach by Customer
or any of its Authorized Users of any license of Third Party Materials
is also a breach of this Agreement.
4. Responsibility for Use of Software. Customer is responsible
and liable for all uses of the Software and Documentation through access
thereto provided by Customer, directly or indirectly. Specifically, and
without limiting the generality of the foregoing, Customer is
responsible and liable for all actions and failures to take required
actions with respect to the Software and Documentation by its Authorized
Users or by any other Person to whom Customer or an Authorized User may
provide access to or use of the Software and/or Documentation, whether
such access or use is permitted by or in violation of this Agreement.
5. Service and Support.
(a) Access to Software. Slipstream shall use commercially
reasonable efforts to provide the Software twenty-four (24) hours per
day, seven (7) days per week every day of the year, except for:
(i) Scheduled downtime;
(ii) Service downtime or degradation due to a Force Majeure Event;
(iii) Any other circumstances beyond Slipstream's reasonable control,
including Customer's or any Authorized User's use of Third Party
Materials, misuse of the Software, or use of the Software other than in
compliance with the express terms of this Agreement; and
(iv) any suspension or termination of Customer's or any Authorized
Users' access to or use of the Software as permitted by this Agreement.
(b) Service Support. The Software includes Slipstream’s standard
customer support services ("Support Terms") in
accordance with the Slipstream service support schedule then in effect,
a current copy of which is attached as Exhibit 1.
6.
Security and Data Responsibility.
(a)
The Software do not replace the need for Customer to maintain regular
data backups or redundant data archives. SLIPSTREAM HAS NO OBLIGATION OR
LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR
RECOVERY OF CUSTOMER DATA.
(b) Slipstream will employ security measures in accordance with
applicable industry practice. Slipstream has a data privacy policy
found at
Privacy Policy | Slipstream (slipstreaminc.org)
(“Privacy Policy”).
(c) Customer acknowledges that the Software is not designed with
security and access management for collection and processing of Personal
Information. Customer is solely responsible for reviewing all Customer
Data and shall ensure that no Customer Data constitutes or contains any
Personal Information.
(d) 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 Software; (c) 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 Software and
Slipstream 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.
(e) 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 Software; and (b) control the content and use of Customer Data,
including the uploading or other provision of Customer Data for
processing by the Software.
(a) Customer acknowledges and agrees that the Software and Documentation
are provided under license, and not sold, to Customer. Customer does not
acquire any ownership interest in the Software or Documentation under
this Agreement, or any other rights thereto, other than to use the same
in accordance with the license granted and subject to all terms,
conditions, and restrictions under this Agreement. Slipstream and its
licensors and service providers reserve and shall retain their entire
right, title, and interest in and to the Software and all Intellectual
Property Rights arising out of or relating to the Software, except as
expressly granted to the Customer in this Agreement. Customer shall use
commercially reasonable efforts to safeguard all Software (including all
copies thereof) from infringement,
misappropriation, theft, misuse, or unauthorized access. Customer shall
promptly notify Slipstream if Customer becomes aware of any infringement
of the Slipstream’s Intellectual Property Rights in the Software and
fully cooperate with Slipstream in any legal action taken by Slipstream
to enforce its Intellectual Property Rights. Customer hereby
unconditionally and irrevocably grants to Slipstream an assignment of
all right, title and interest in and to the Resultant Data, including
all Intellectual Property Rights relating thereto.
(b) Customer hereby irrevocably grants
all such rights and permissions in or relating to Customer Data to
Slipstream, its Subcontractors, and affiliates as necessary or useful to
provide the Software.
9. Fees and Payment.
(a) Customer shall pay Slipstream the fees set forth in the Order
(“Fees”).
(b) Slipstream may increase Fees after the Initial Term for any Renewal
Term, by providing written notice to Customer at least 60 calendar days
prior to the commencement of such Renewal Term.
(c) All Fees and other amounts payable by Customer under this Agreement
are exclusive of taxes and similar assessments. Customer is responsible
for all sales, 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 Slipstream's income.
(d) Customer shall pay all Fees for the Initial Term at the time of
placing the Order. Fees for any Renewal Term will automatically be
charged to Customer at the onset of the Renewal Term, unless the
Agreement is terminated before the start of the Renewal Term, which
Customer can do by contacting
https://slipstreaminc.org/contact.
(e) Slipstream uses third-party services to process and facilitate
payments between Customer and Slipstream. Slipstream currently use
Stripe, which has its own separate terms of service. Before submitting
any payment information to Slipstream, Customer agree to read and be
bound by the Stripe Connected Account Agreement (Stripe Connected Account Agreement), which includes the Stripe Services Agreement (https://stripe.com/legal/ssa).
(a) The initial term of this Agreement commences as indicated in the
Order and will run for the Initial Term as indicated in the Order,
unless terminated earlier pursuant any of the Agreement's express
provisions (the "Initial Term").
(b) This Agreement will automatically renew for additional successive
one year terms unless earlier terminated pursuant to this Agreement's
express provisions or either party gives the other party written notice
of non-renewal at least 30 days prior to the expiration of the
then-current term (each a "Renewal Term" and,
collectively, together with the Initial Term, the
"Term"). Customer can choose not to renew by
contacting
https://slipstreaminc.org/contact.
(c) In addition to any other express termination
right set forth elsewhere in this Agreement:
(i) either Party may terminate this Agreement, effective on written
notice to the other Party, if the other Party breaches this Agreement,
and such breach: (i) is incapable of cure; or (ii) being capable of
cure, remains uncured 30 days after the non-breaching Party provides the
breaching Party with written notice of such breach; and
(ii) either Party may terminate this Agreement, effective immediately
upon written notice to the other party, if the other Party: (i) becomes
insolvent or is generally unable to pay, or fails to pay, its debts as
they become due; (ii) files or has filed against it, a petition for
voluntary or involuntary bankruptcy or otherwise becomes subject,
voluntarily or involuntarily, to any proceeding under any domestic or
foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a
general assignment for the benefit of its creditors; or (iv) applies for
or has appointed a receiver, trustee, custodian or similar agent
appointed by order of any court of competent jurisdiction to take charge
of or sell any material portion of its property or business.
(d) Upon any expiration or termination of this Agreement, except as
expressly otherwise provided in this Agreement:
(i) all rights, licenses, consents and authorizations granted by either
Party to the other hereunder will immediately terminate;
(ii) Slipstream shall immediately cease all use of any Customer Data or
Customer's Confidential Information, provided that, for clarity,
Slipstream's obligations under this Section do not apply to any
Resultant Data;
(iii) Customer shall immediately cease all use of any Software or
Slipstream Materials and (i) promptly return to Slipstream, or at
Slipstream's written request destroy, all documents and tangible
materials containing, reflecting, incorporating or based on any
Slipstream Materials or Slipstream's Confidential Information; and (ii)
permanently erase all Slipstream Materials and Slipstream's Confidential
Information from all systems Customer directly or indirectly controls;
(iv) notwithstanding anything to the contrary in this Agreement, with
respect to information and materials then in its possession or control:
(i) the Receiving Party may retain the Disclosing Party's Confidential
Information; and (ii) Slipstream may retain Customer Data, in the case
of each of subclause (i) and (ii) in its then current state and solely
to the extent and for so long as required by applicable law; (iii)
Slipstream may also retain Customer Data in its backups, archives and
disaster recovery systems until such Customer Data is deleted in the
ordinary course; and (iv) all information and materials described in
this Section will remain subject to all confidentiality, security and
other applicable requirements of this Agreement;
(v) Slipstream may disable all Customer and Authorized User access to
the Software and Slipstream Materials;
(vi) The provisions set forth in the following sections, and any other
right or obligation of the Parties in this Agreement that, by its
nature, should survive termination or expiration of this Agreement, will
survive any expiration or termination of this Agreement: Section
2(d)(Restrictions), Section 7 (Intellectual Property Rights), Section 8
(Confidentiality), Section 10 (Term and Termination), Section
12(Limitation of Liability),and Section 15(Miscellaneous).
11. Warranties.
(a) Customer represents, warrants, and
covenants to Slipstream 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 Slipstream and processed in accordance with
this Agreement, 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.
(b) Any services which are provided under this Agreement as part the
provisions of the Software that are in the nature of professional
services and advice, Slipstream represents, warrants, and covenants to
Customer that (i) the services will be provided in a professional and
workmanlike manner consistent with industry standards; (ii) Slipstream
will abide by all applicable laws and regulations in providing the
Slipstream Materials; and (iii) Slipstream will use industry standard
data security measures.
(c) EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL SERVICES AND SLIPSTREAM
MATERIALS ARE PROVIDED “AS IS” AND SLIPSTREAM MAKES NO OTHER WARRANTIES,
EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT
OR ANY OTHER COMMUNICATION. SLIPSTREAM SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF
DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING,
SLIPSTREAM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SLIPSTREAM
MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET
CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT
INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH
ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE,
COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(d) SLIPSTREAM WILL PASS THROUGH TO CUSTOMER ANY
APPLICABLE WARRANTIES AND INDEMNITIES PROVIDED BY SLIPSTREAM’S LICENSORS
OF EMBEDDED SOFTWARE, AND WILL SEPARATELY IDENTIFY SUCH WARRANTIES AND
INDEMNITIES TO CUSTOMER IN WRITING UPON CUSTOMER REQUEST. TO THE EXTENT
SLIPSTREAM RECEIVES A WARRANTY OR INDEMNITY FROM A LICENSOR OF EMBEDDED
SOFTWARE BUT IS UNABLE TO PASS SUCH WARRANTY OR INDEMNITY THROUGH TO
CUSTOMER, SLIPSTREAM AGREES THAT IT WILL ENFORCE SUCH WARRANTIES AND
INDEMNITIES ON BEHALF OF CUSTOMER TO THE EXTENT SLIPSTREAM IS PERMITTED
TO DO SO UNDER THE TERMS OF THE APPLICABLE THIRD PARTY AGREEMENTS. ALL
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 THE THIRD-PARTY
MATERIALS. SLIPSTREAM MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED,
STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER
COMMUNICATION RELATING TO THIRD-PARTY SOFTWARE, AND SLIPSTREAM
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO
THIRD-PARTY SOFTWARE. ANY WARRANTIES RELATING TO THIRD-PARTY SOFTWARE
ARE PROVIDED SOLELY FROM THE MANUFACTURER.
12. Limitation of Liability. THE CUMULATIVE LIABILITY OF SLIPSTREAM OR ANY OF ITS LICENSORS OR
SUPPLIERS TO CUSTOMER FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS
AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE
FEES PAID TO SLIPSTREAM DURING THE TWELVE (12) MONTHS PRIOR TO SUCH
CLAIM FOR THE SERVICE WHICH CAUSED THE DAMAGE OR WHICH IS THE SUBJECT
MATTER OF THE CLAIM. IN NO EVENT WILL SLIPSTREAM OR ITS LICENSORS OR
SUPPLIERS BE LIABLE TO CUSTOMER FOR DAMAGES FOR LOSS OF DATA OR LOST
PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF SLIPSTREAM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY
THIRD PARTY. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF
CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS
OF OTHER REMEDIES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION
12 SHALL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SHALL
NOT SERVE TO ELIMINATE OR OTHERWISE DIMINISH THE PARTIES’ OBLIGATIONS OF
INDEMNIFICATION UNDER SECTION 13 (INDEMNIFICATION).
13.
Indemnification.
(a) Slipstream will defend at its own
expense any third party claim (an “Action”) against Customer, its
affiliates, officers, directors, and employees that Customer’s use of
Software (excluding Customer data and Third Party Materials), infringe
any valid U.S. patent, copyright, trade secret, or any other proprietary
right, and will indemnify and hold harmless Customer
against all losses, damages, expenses
(including reasonable attorneys’ fees), and costs (the “Losses”)
incurred by Customer in connection with such claim. If such a claim is
made or appears possible, Slipstream may, at its option, (i) secure for
Customer the right to continue to use of Software; (ii) modify or
replace the Software, so they are non-infringing, provided that any such
modification or replacement may not materially modify the functionality
of the software, or require of Customer additional expenses, unless
Slipstream agrees to reimburse Customer for such expenses, or, if
neither of the foregoing options is available; (iii) require Customer to
discontinue use of the Software, for a refund of the fees. However,
Slipstream has no obligation for any claim of infringement based on
modifications of the Software or Slipstream Materials, not made,
authorized or approved by Slipstream, or the combination, operation, or
use of any Software or Slipstream Materials, with any product, data, or
apparatus not provided by Slipstream, in each case to the extent use of
the Software, would not otherwise infringe. With respect to Software
under this Agreement, the foregoing obligation does not apply to the
extent that the alleged infringement arises from: (i) Customer Data;
(ii) access to or use of the Slipstream Materials in combination
with any hardware, system, software, network, or other materials or
service not provided by Slipstream or specified for Customer’s use in
the Documentation; (iii) modification of the Slipstream Materials
other than: (A) by or on behalf of Slipstream; or (B) with Slipstream’s
written approval in accordance with Slipstream’s written specification;
(iv) failure to timely implement any modifications, upgrades,
replacements, or enhancements made available to Customer by or on behalf
of Slipstream; or (v) act, omission, or other matter described in
any of the foregoing, whether or not the same results in any Action
against or Losses by any Slipstream Indemnitee.
(b) Excluding claims of Slipstream’s intellectual property infringement
of third party rights, Customer will defend at its own expense any third
party claim against Slipstream, its affiliates, officers, directors,
shareholders, members, managers, and employees based on Customer’s
illegal or improper (where improper is defined as not authorized by this
license or applicable law) use of the Software or Slipstream Materials
to the extent that any such claims are not based on a fault of
Slipstream, and will indemnify Slipstream against all damages and costs
awarded in connection with such claim. In
addition, Customer shall indemnify, defend, and hold harmless Slipstream
and its affiliates, and each of its and their respective officers,
directors, employees, agents, successors, and assigns (each, a “Slipstream Indemnitee”) from and against any and all Losses incurred by such Slipstream
Indemnitee resulting from any Action by a third party (other than an
affiliate of a Slipstream Indemnitee) that arise out of or result from,
or are alleged to arise out of or result from: (i) Customer Data,
including any processing of Customer Data by or on behalf of Slipstream
in accordance with this Agreement; (ii) 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 Slipstream’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
Slipstream; (iii) allegation of facts that, if
true, would constitute Customer’s breach of any of its representations,
warranties, covenants, or obligations under this Agreement; or (iv)
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 this
Agreement.
(c) A Party’s obligations to indemnify shall be subject to such Party’s
receipt of written notice of the claim or lawsuit, all relevant
available information requested, reasonable assistance (to be reimbursed
by the indemnifying party), and sole authority to defend or settle such
claim or lawsuit (provided that any such settlement may not impose
liability on an indemnified Party without such indemnified Party’s
express, written approval). An indemnified Party may be permitted, at
its expense, to participate in the defense of any claim described under
this Section.
(d) THE INDEMNIFICATION OBLIGATIONS AFFORDED TO CUSTOMER UNDER THIS
SECTION 13 SET FORTH CUSTOMER’S SOLE REMEDIES AND SLIPSTREAM’S SOLE
LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS
THAT THE SERVICES AND SLIPSTREAM MATERIALS OR ANY SUBJECT MATTER OF THIS
AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
14. US Government Rights.
(a) The Software is commercial computer software, as such term is
defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the US
Government or any contractor therefor, Customer shall receive only those
rights with respect to the Software and Documentation as are granted to
all other Authorized Users under license, in accordance with (a) 48
C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the
Department of Defense and their contractors, or (b) 48 C.F.R. §12.212,
with respect to all other US Government licensees and their
contractors.
(b) If the Software are acquired under the terms of a proposal or
agreement with the United States Government or any contractor therefore,
the Parties agree that such relationship must be identified on the Order
document, in which case the Software are subject to the following: the
Software are “commercial items,” as that term is defined in 48 C.F.R.
12.101 (Oct. 1995), consisting of “commercial computer software” and
“commercial computer software documentation,” as such terms are used in
48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1 through 227.7202-4 (June 1995), and their successor
provisions, as applicable, all U.S. Government End Users acquire the
Software with only those rights set forth herein.
(i) This Agreement is governed by and construed in accordance with the
internal laws of the State of Wisconsin 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
State of Wisconsin. Any legal suit, action or proceeding arising out of
or related to this Agreement or the licenses granted hereunder will be
instituted exclusively in the federal courts of the United States or the
courts of the State of Wisconsin in each case located in the city of
Madison, and each Party irrevocably submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. 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 THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(ii) The relationship between the Parties is that of independent
contractors. Nothing contained in this Agreement 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.
(iii) Slipstream will not be responsible or liable to Customer, or
deemed in default or breach hereunder by reason of any failure or delay
in the performance of its obligations hereunder where such failure or
delay is due to strikes, labor disputes, civil disturbances, riot,
rebellion, invasion, epidemic, hostilities, war, terrorist attack,
embargo, natural disaster, acts of God, flood, fire, sabotage,
fluctuations or non-availability of electrical power, heat, light, air
conditioning, or Customer equipment, loss and destruction of property,
or any other circumstances or causes beyond Slipstream’s reasonable
control.
(iv) In no event will Slipstream be liable or responsible to Customer,
or be deemed to have defaulted under or breached this Agreement, for
any failure or delay in fulfilling or performing any term of this
Agreement, when and to the extent such failure or delay is caused by any
circumstances beyond Slipstream'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 this Agreement, 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 embargo, 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 this Agreement if a Force Majeure Event
continues substantially uninterrupted for a period of thirty (30) days
or more.
(v) All notices, requests, consents, claims,
demands, waivers, and other communications hereunder shall be in writing
and shall be deemed to have been given: (i) when delivered by hand (with
written confirmation of receipt); (ii) when received by the addressee if
sent by a nationally recognized overnight courier (receipt requested);
(iii) on the date sent by facsimile or email (with confirmation of
transmission) if sent during normal business hours of the recipient, and
on the next business day if sent after normal business hours of the
recipient; or (iv) on the third day after the date mailed, by certified
or registered mail, return receipt requested, postage prepaid. Such
communications must be sent to the respective Parties at the addresses
set forth on the Order (or to such other address as may be designated by
a Party from time to time in accordance with this Section.
(vi) On 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 this Agreement.
(vii) This Agreement is the complete and exclusive statement of the
agreement between the Parties and supersedes all proposals or prior
agreements, oral or written, and all other communications between the
Parties relating to the subject matter hereof.
(viii) Customer shall not assign or otherwise transfer any of its
rights, or delegate or otherwise transfer any of its obligations or
performance, under this Agreement, in each case whether voluntarily,
involuntarily, by operation of law, or otherwise, without Slipstream’s
prior written consent, which consent Slipstream may give or withhold in
its sole discretion. No delegation or other transfer will relieve
Customer of any of its obligations or performance under this Agreement.
Any purported assignment, delegation, or transfer in violation of this
Section is void. Slipstream may freely assign or otherwise transfer all
or any of its rights, or delegate or otherwise transfer all or any of
its obligations or performance, under this Agreement without Customer’s
consent. This Agreement is binding upon and inures to the benefit of the
Parties hereto and their respective permitted successors and assigns.
(ix) This Agreement is for the sole benefit of the Parties hereto and
their respective successors and permitted assigns and nothing herein,
express or implied, is intended to or shall confer on any other Person
any legal or equitable right, benefit, or remedy of any nature
whatsoever under or by reason of this Agreement.
(x) This Agreement may only be amended, modified, or supplemented by an
agreement in writing signed by each Party hereto. No waiver by any 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 this Agreement, no failure to exercise, or delay in
exercising, any right, remedy, power, or privilege arising from this
Agreement 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.
(xi) If any term or provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other term or provision of this
Agreement or invalidate or render unenforceable such term or provision
in any other jurisdiction.
(xii) For purposes of this Agreement, (a) the words “include,”
“includes,” and “including” shall be deemed to be followed by the words
“without limitation”; (b) the word “or” is not exclusive; and (c) the
words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to
this Agreement as a whole. Unless the context otherwise requires,
references herein: (x) to Sections, annexes, Schedules, and Exhibits
refer to the Sections of, and annexes, Schedules, and Exhibits attached
to, this Agreement; (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. This Agreement shall 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 Order and all annexes,
Schedules, and Exhibits referred to herein shall be construed with, and
as an integral part of, this Agreement to the same extent as if they
were set forth verbatim herein.
(xiii) The headings in this Agreement are for reference only and do not
affect the interpretation of this Agreement.
(xiv) In the event that any action, suit, or other legal or
administrative proceeding is instituted or commenced by either Party
against the other Party arising out of or related to this Agreement, the
prevailing Party is entitled to recover its reasonable attorneys’ fees
and court costs from the non-prevailing Party
EXHIBIT 1
SUPPORT AND MAINTENANCE TERMS
These support and maintenance terms (the “Support Terms”)
define the obligations of Slipstream and Customer to ensure proper
functioning of the Software. Slipstream may update these terms from
time to time in their sole discretion. Customer should review this
website from time to time. Any term not defined in this Exhibit 1 will
have the meaning given to it in the Agreement.
Annex A.
Support Definitions.
“Error” means a reproducible failure of the Software to
perform in substantial conformity with the specifications set forth by
Slipstream, whose origin can be isolated to a single cause.
“Incident” means a support request that begins when Customer
contacts Slipstream to report one specific Error and ends when
Slipstream either: (a) Resolves the Error; or (b) determines in its
reasonable discretion that the Error cannot be Resolved.
“Resolve” means the provision of: (a) services that, in
Slipstream's reasonable discretion, corrects the Error; (b)
information to Customer that corrects the Error; (c) information to
Customer on how to obtain a software solution that corrects the Error;
(d) notice to Customer that the
Error is caused by a known, unresolved issue or an incompatibility
issue with the Software; (e) information to Customer that identifies
the Error as being corrected by upgrading to a newer release of the
Software; or (f) notice to Customer that the Error has been
identified as arising out of or resulting from a Service
Exception.
“Severity Level One Incident” means an Error
that causes the Software to not operate and has a critical impact on
Customer's business operations.
“Severity Level Two Incident” means an Error
that results in a lack of Software functionality and materially
degrades significant aspects of Customer's business
operations.
“Severity Level Three Incident” means an Error that
impairs the performance of the Software, but does not substantially
affect Customer's business operations.
“Support Services” means, in connection with the identification, diagnosis and
correction of Errors, the provision of: (a) telephone or e-mail
assistance; and (b) access to technical information on Slipstream's
website for proper use of the Software.
Annex B.
Support and Maintenance Services.
a.
Support Services. During the Term, Slipstream will use commercially reasonable
efforts to Resolve any Incidents reported by providing Support
Services. Slipstream support hours are Monday - Friday, 8 AM - 5 PM CT,
excluding national holidays.
Slipstream, in its sole discretion, will determine the amount of
time it will need to spend to attempt to Resolve any specific
Incident;
b.
Response Time. During the Term, Slipstream shall use commercially reasonable
efforts to Respond to Incidents reported by Customer within the
following timeframes:
i.
for a Severity Level One Incident, within one (1) business day of
Slipstream's receipt of Customer’s notification during normal business
hours;
ii.
for a Severity Level Two Incident, within three (3) business days of
Slipstream's receipt of Customer’s notification during normal business
hours; and
iii.
for a Severity Level Three Incident, within twenty (20) business days
of Slipstream’s receipt of Customer’s notification during normal
business hours.
c.
Updates. During the Term, Slipstream will provide Customer with all Updates.
Customer does not have any right under or in connection with this
Agreement to receive any Upgrades of the Software that Slipstream may,
in its sole discretion, release from time to time.
d.
Subcontractors. Slipstream may, in its sole discretion, perform any of the Support
Services by or through a Subcontractor or any Slipstream
personnel.
Annex C.
Limitations.
a.
Incidents. Slipstream has the sole right to determine, in its reasonable
discretion: (a) what constitutes an Incident; and (b) when an Incident
is deemed to be Resolved.
b.
Response Time and Resolution. Slipstream will use commercially reasonable efforts to: (a) Respond
within the applicable Response time provided in Section 2.2 of this
Exhibit 1; and (b) Resolve an Incident, but does not guarantee that it
will be able to Respond within that specific time period or that any
Incident will be Resolved.
c.
Effect of Customer Failure or Delay. Slipstream is not responsible or liable for any delay or failure of
performance caused in whole or in part by any delay or failure to
perform any of Customer's obligations under the Agreement (each, a “Customer Failure”).
Annex D.
Exceptions. Slipstream has no obligation to provide Software relating to Errors
that, in whole or in part, arise out of or result from any of the
following (each a “Service Exception”):
a.
Software that is modified or damaged by Customer or any third
party;
b.
any operation or use of, or other activity relating to, the Software
other than as specified by Slipstream in documentation, including any
incorporation in the Software of, or combination, operation, or use of
the Software in or with, any technology (including any software,
hardware, firmware, system or network) or service not specified for
Customer's use in the Slipstream documentation, unless otherwise
expressly permitted in writing by Slipstream;
c.
any Third Party Materials;
d.
any negligence, abuse, misapplication, or misuse of the Software
other than by Slipstream personnel, including any Customer use of the
Software other than as specified in the Slipstream documentation or
expressly authorized in writing by Slipstream;
e.
any Customer Failure, including Customer's failure to promptly
install any Update that Slipstream has previously made available to
Customer;
f.
the operation of, or access to, Customer's or a third party's system
or network;
g.
any open source components, beta software, software that Slipstream
makes available for testing or demonstration purposes, temporary
software modules, or software for which Slipstream does not receive a
license fee;
h.
any breach of or noncompliance with any material provision of the
Agreement; or
i.
any Force Majeure Event (including abnormal physical or electrical
stress).
Annex E.
Customer Obligations.
a.
Notification. Customer shall promptly notify Slipstream of any Error and provide
Slipstream with reasonable detail of the nature and circumstances of
the Error.
b.
Compliance. Customer shall comply with all terms and conditions of this
Agreement, including the provisions of this Exhibit 1.
c.
Use. Customer shall use the Software solely in accordance with the terms
and conditions set forth in the Agreement and Slipstream
documentation.
d.
Environment. Customer shall set up, maintain, and operate in good repair and in
accordance with the Slipstream documentation all environmental
conditions and components, including all networks, systems, and
hardware, in or through which: (a) the Software operates; and/or (b)
the Customer accesses or uses the Software.
e.
Information. Customer shall provide Slipstream with all information reasonably
requested by Slipstream from time to time relating to Customer's use
of the Software, or Deliverables, including information on Customer's
hardware, network, systems and any related Third Party
Materials.