4. Customer Data.
Customer must provide all transactional and master data for use in the Software Subscription Services. Customer is responsible for the content, quality, integrity, reliability, appropriateness, accuracy, and intellectual property ownership of the Customer Data it provides to EBM. The Customer Data belongs to Customer, and EBM makes no claim to any right of ownership in it. Customer acknowledges and agrees that EBM will at its sole discretion monitor the Customer Data. EBM shall have the right, but not the obligation, to remove Customer Data, which is deemed, in EBM’s sole discretion, harmful, offensive, in violation of any provision of this Agreement or breaches any law. Upon termination of a SOW or an Order other than by the Customer’s breach, EBM will at the direction of the Customer either (i) return to Customer all Customer Data in comma separated value (CSV) format or (ii) delete the Customer Data within thirty (30) days of Customer’s written request. Notwithstanding the foregoing, EBM may (i) retain Customer Data in backup media for twelve (12) months or longer if required by law and (ii) may use the Customer Data and statistics regarding use of the Software Subscription Services in order to improve its services and offerings solely to the extent that (a) such Customer Data has been anonymized and aggregated; and (b) no such data or statistics (or any portion(s) thereof) shall be attributed to Customer or identified as originating from Customer. EBM’s obligations and practices with respect to such Customer Data can be found in the applicable EBM Policy.
5. Intellectual Property Ownership.
EBM solely owns the intellectual property in the Software Subscription Services, including the Software, and any Work Product. Except for the use of the Software Subscription Services as granted under the terms and conditions of this Agreement, Customer has no right, title, or interest in any intellectual property owned or licensed by EBM, including the Software or in any associated patents, copyrights or trademarks of EBM, all of which are and shall remain the sole property of EBM. All patches, enhancements, new releases, customization and other work product created by EBM provided under this Agreement and any associated copyright, patent, trademark and other intellectual property rights, are and shall remain the exclusive property of EBM, regardless of whether the Customer, its employees, or agents may have contributed to the conception, joined in its development, or paid for the development or use of the work product. Such work product shall be considered Software owned by EBM, and subject to the terms and conditions contained in this Agreement. Upon payment in full of any amounts due for Professional Services, Customer shall have a non-exclusive, non-transferable (except as provided herein) right to use the Work Product for Customer’s business purposes. This right shall continue for so long as and be subject to the same terms and conditions as the right to use the Software Subscription Services.
Customer must pay the Fees listed in the Order, which Fees are non-cancellable and non-refundable (except as expressly set forth as otherwise herein). Unless otherwise stated in an Order, all Monthly Fees are billed monthly and are due in advance on the first day of each month during the Term. Customer is responsible and liable for paying the Monthly Fees relating to the entire Subscription Term, including any increases which occur during the Subscription Term resulting from any annual percentage increases to the Monthly Fees as set forth in an Order. The Fees for all other Compass Services, reimbursable expenses and other costs are due within thirty (30) days of the due date on the invoice. EBM may charge and Customer must pay a finance charge on any overdue payments of one percent (1%) for each month or portion of a month that the payment is overdue. Any interest owed to EBM shall be compound monthly. Customer shall bear all EBM’s costs of collection of overdue fees, including reasonable attorneys’ fees. The Fees for the Compass Services do not include any required federal, state or local taxes, and Customer is obligated to pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by EBM) due because of any amounts paid to EBM.
7. Term and Termination.
An Order will define the initial Subscription Term for the related Compass Services (“Initial Term”). An Order shall be in effect only for the duration of the Subscription Term, which includes the Initial Term and any Renewal Term(s). Each subsequent year of any Renewal Term will conform to the specifications defined in the related Order. Either party may terminate rights granted under a particular Order if the other breaches any material term of the Order (or a material term of this Agreement insofar as it applies to the Order), and the breach is not cured within thirty (30) days of written notice. EBM may alternatively opt to suspend the provision of Compass Services to Customer until such breaching activity ceases. At any time during this suspension period, EBM may terminate the rights granted to Customer. If EBM terminates an Order because of non-payment by Customer that is not cured within thirty (30) days of written notice, all unpaid fees for the remainder of the Subscription Term will immediately become due and payable. All obligations relating to non-use and non-disclosure of Confidential Information, indemnity, limitation of liability, and such other terms which by their nature survive termination, will survive termination of this Agreement.
At least ninety (90) days prior to the expiration of the Subscription Term, Licensee shall provide written notice to EBM (“Term Notice”) of its election to either renew this agreement for an additional twelve (12) months or that it does not wish to renew as of the end of the Subscription Term. Upon expiration of the Subscription Term without EBM having received a timely Term Notice, at EBM’s election, this Agreement will renew for an additional twelve (12) month term. For the Renewal Term, Customer will pay EBM’s then current Fees.
8. Warranties and Warranty Disclaimers.
EBM warrants during the Subscription Term: (i) the Software Subscription Services will function substantially as described in the Documentation and shall be subject to the commitments set forth in the EBM Policies, which are incorporated herein and subject hereto; (ii) any Work Product resulting from Professional Services will substantially conform to the specifications relating thereto as expressly set forth in a SOW or signed Order; (iii) it owns or otherwise has the right to provide the Software Subscription Services and Professional Services to Customer under this Agreement; (iv) the Professional Services shall be performed in a timely and professional manner, with reasonable care, skill and diligence, by qualified and competent individuals familiar with the types of Services, and consistent with industry practices. In the event that EBM breaches the foregoing warranty(ies) within the Subscription Term, then EBM may, at its option, either (i) modify the Compass Services, as applicable, to conform to the Documentation or specifications, as applicable; or (ii) provide a commercially reasonable workaround. If neither of these options is commercially feasible as determined by EBM, either party may terminate the relevant Order under this Agreement, in which case Customer may recover the fees paid to EBM under the relevant Order relating to the breaching activity at issue. The remedies set out in this Section are Customer’s exclusive remedies and EBM’s sole obligations for breach of warranty. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EBM’S EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGMENT OR FITNESS FOR A PARTICULAR PURPOSE. EBM DISCLAIMS ALL OTHER WARRANTIES AND EXPRESSLY DOES NOT WARRANT THAT THE USE OF THE COMPASS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. EBM HAS NO WARRANTY OBLIGATIONS FOR DEFECTS IN THE COMPASS SERVICES CAUSED BY ANY THIRD-PARTY SOFTWARE OR HARDWARE, BY ACCIDENTAL DAMAGE OR BY OTHER MATTERS BEYOND EBM’S REASONABLE CONTROL. CUSTOMER MUST PROVIDE EBM WITH ALL INFORMATION, ACCESS, AND FULL GOOD FAITH COOPERATION REASONABLY NECESSARY TO ENABLE EBM TO DELIVER THE COMPASS SERVICES AND MUST DO ANYTHING THAT IS IDENTIFIED IN A SOW OR AN ORDER AS CUSTOMER’S RESPONSIBILITY. EBM WILL BE RELIEVED OF ITS OBLIGATIONS TO THE EXTENT THAT THE OBLIGATIONS ARE DEPENDENT UPON CUSTOMER’S PERFORMANCE. CUSTOMER AGREES AND ACKNOWLEDGES THAT EBM DISCLAIMS AND IS NOT LIABLE FOR CUSTOMER’S USE OF, OR ITS ACTS OR OMISSIONS TAKEN BASED UPON, OUTPUTS OR RESULTS DERIVED FROM THE COMPASS SERVICES. TO THE EXTENT THAT EBM INCORPORATES ANY SYNDICATED OR THIRD PARTY DATA ON ITS WEBSITE OR MAKES THE SAME AVAILABLE TO CUSTOMER THROUGH THE COMPASS SERVICES, CUSTOMER AGREES AND ACKNOWLEDGES THAT EBM DOES NOT GUARANTEE THE RELIABILITY OR ACCURACY OF SUCH THIRD PARTY CONTENT AND IS NOT LIABLE FOR CUSTOMER’S RELIANCE ON, OR IN CONNECTION WITH, SUCH THIRD PARTY CONTENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ITS COMPLETENESS, ACCURACY, CORRECTNESS OR TIMELINESS.
9. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE COMPASS SERVICES, SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE COMPASS SERVICES OR WORK PRODUCT. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS DESCRIBED IN SECTION 10 BELOW. EBM’S TOTAL, AGGREGATE LIABILITY FOR ANY AND ALL DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT ORDER SHALL NOT EXCEED SIX (6) MONTHS OF MONTHLY FEES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN EBM AND CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO EBM.
EBM shall indemnify and hold harmless Customer, its affiliates, directors and employees from any damages finally awarded against Customer (including, without limitation, reasonable costs and legal fees incurred by Customer) arising out of any third-party suit, claim or other legal action alleging that the use of the Software Subscription Services or Work Product by Customer infringes any copyright, trade secret or United States patent, (“Legal Action”). EBM must also assume the defense of the Legal Action. However, EBM shall have no indemnification obligations for any Legal Action arising out of: (i) a combination of the Software Subscription Services or Work Product with software or products not supplied, or approved in writing by EBM; (ii) any repair, adjustment, modification or alteration to the Software Subscription Services by Customer or any third party, unless approved in writing by EBM; or (iii) any refusal by Customer to install and use a non-infringing version of the Software Subscription Services, or Work Product offered by EBM. This paragraph states the entire liability of EBM with respect to any intellectual property infringement by the Software Subscription Services, Software or Work Product. Customer must immediately give written notice to EBM of any Legal Action after first receiving notice of a Legal Action, and must give copies to EBM of all communications, notices and/or other actions relating to the Legal Action. Customer must give EBM the sole control of the defense of any Legal Action, must act in accordance with the reasonable instructions of EBM and must give EBM such assistance as EBM reasonably requests to defend or settle such claim. EBM must conduct its defense at all times in a manner that is not averse to Customer’s interests. Customer may employ its own counsel to assist it with respect to any such claim. Customer must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with EBM or its counsel, or because EBM fails to assume control of the defense. Customer must not settle or compromise any Legal Action without EBM’s express written consent. EBM shall be relieved of its indemnification obligation under Section 14 if Customer materially fails to comply with its obligations hereunder.
The Software Subscription Services, Software, Documentation and Work Product contain valuable trade secrets that are the sole property of EBM, and Customer agrees to use reasonable care to prevent other parties from learning of these trade secrets. Customer must take reasonable care to prevent unauthorized access to or duplication of the Software Subscription Services, Software, Documentation, and Work Product. The Customer Data may include valuable trade secrets that are the sole property of Customer. EBM must take reasonable care to prevent other parties from learning of these trade secrets. The foregoing constitutes the “Confidential Information” of the parties. The obligations of the parties do not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
EBM may refer to Customer’s use of the Compass Services (including displaying Customer’s logo) on EBM’s website, on publicly available customer lists, and in applicable media releases.
Each party agrees that it will not, directly or indirectly, solicit the other party’s employees or contractors to seek an employment or other contractual arrangement with it during the term of this Agreement and for twenty-four (24) months thereafter. The restriction shall not apply to general solicitations made by a party not targeted at employees or contractors of the other party.
This Agreement together with the Order represents the entire agreement of the parties, and supersedes any prior or current understandings, whether written or oral. If there is a conflict between the Agreement and an Order, the Order will prevail. This Agreement may not be changed, or any part waived except in writing by the parties. This Agreement will be governed by the laws of Minnesota. The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Minnesota for any claim relating to this Agreement. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party (which consent shall not be unreasonably withheld, delay or conditioned, provided that no consent is required in the case of an assignment by the other of its rights and obligations to an entity that has acquired all, or substantially all of the assets of the other party, or to an assignment that is part of a genuine corporate restructure. Any assignment in breach of this Section is void. Customer must not export or re-export, directly or indirectly, any Software Subscription Services, Documentation or confidential information to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations. The Software Subscription Services and Documentation provided to the U.S. Government are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, within the meaning of 48 C.F.R. 12.212 or 48 C.F.R.227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in FAR 12.212, and DFARS 227.7202-1(a), 227.7202-3(a), 227.7202-4, as applicable. Both parties shall abide by all applicable federal and state statutes, rules, regulations, orders and directives of any and all applicable government and regulatory bodies having jurisdiction.
“Authorized User” only means an employee or an owner of the Customer, who is authorized to access the Software as either a named or concurrent user. The Customer must get written permission from EBM before any Unauthorized Users are permitted to use the Software Subscription Services.
“Customer” means the Company that has purchased the Compass Services by executing a SOW or signing an Order.
“Customer Data” means any electronic information from the Customer’s systems or input by Customer and stored in the Software.
“Documentation” means user documentation provided electronically by EBM for use with the Software Subscription Services, as periodically updated.
“Fees” means the amounts owed to EBM by the Customer for any of the Compass Services or other services defined in a SOW, Order or this Agreement.
“Initial Term” means the period of time between the Subscription Term Start Date and the Subscription Term End Date as set forth in an Order.
“Monthly Deliverables” means the agreed upon recurring monthly services (including recurring monthly Professional Services and Software Subscription Services) detailed in an Order that are provided by EBM in exchange for the Monthly Fees.
“Order” means a document provided by EBM and signed by Customer that describes the Customer’s purchase of Software licenses/subscriptions, services and related Fees.
“Professional Services” means the training, consulting, development and other professional services identified in an Order, but does not include the Onboarding Services or the Software Subscription Services.
“Renewal Term” means the period of time equal to the Initial Term for which an Order auto-renews upon the conclusion of the Initial Term or a Renewal Term, as applicable. An Order will auto-renew unless the Customer provides written notice to EBM that it does not wish to renew at least ninety (90) days prior to the Subscription Term End Date or the anniversary thereof if in a Renewal Term, as applicable.
“Software” means the Compass® software or other software whose functionality is described in the Order.
“Software Subscription Services” means the hosted customer experience solutions identified in an Order, and any modifications periodically made by EBM, but does not include the Onboarding Services or the Professional Services.
“Subscription Term” means Initial Term and any Renewal Terms.
“Unauthorized User” means anyone that is not an Authorized User.
“Work Product” means custom or customized object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by EBM in providing the Professional Services specifically to the Customer for a fee and does not include the Software or any of the Software Subscription Services.