1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Service in accordance with the Service Level Agreement on Exhibit B (the “SLA”). Customer will use the Service only during this Agreement and solely for Customer’s own internal business purposes. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. Company reserves the right to refuse registration, or cancel passwords it deems inappropriate. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
2.1 Customer will not, directly or indirectly, do any of the following: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); (ii) modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Company or authorized within the Service); (iii) use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or (iv) remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, warrants and covenants that Customer will use the Service only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Service. Company has no obligation to monitor Customer’s use of the Service, Company may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, telecommunications and networking equipment, servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.1 Each party understands that, under this Agreement, the other party (the “Disclosing Party”) may disclose to the other party (“Receiving Party”) pursuant to this Agreement business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party) that the Receiving Party knows or reasonably should know is confidential to the Disclosing Party. Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data submitted by Customer to the Service (“Customer Data”). Customer grants Company a license to use and process Customer Data in connection with its provision of Service to Customer under this Agreement. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (except with respect to any Proprietary Information that is a trade secret, for as long as it remains a trade secret) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. A disclosure by the Receiving Party of any of the Disclosing Party’s Confidential Information (1) in response to a valid order by a court or other governmental body; (2) as otherwise required by law; or (3) necessary to establish the rights of either party under this Agreement shall not be considered to be a breach of this Agreement by the Receiving Party; provided, however, that Receiving Party provides prompt prior written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Company offerings, and (ii) disclose such data in aggregate or other de-identified form in connection with its business.
3.2 If Customer provides any ideas, suggestions or recommendations to Company regarding the Software or Service or ideas for a future product or service (“Feedback”), Company is free to retain, disclose, use and incorporate such Feedback in Company’s products and/or services, without payment of royalties or other consideration to Customer and is hereby granted an irrevocable, worldwide, sublicensable, assignable, transferable, royalty-free, fully paid license to all Feedback, including to use and implement it. Customer understands and agrees that Company is not obligated to implement or otherwise use any such Feedback, and that it has no right to compel such implementation or usage. Feedback is provided voluntarily and is not confidential. Nothing herein shall be interpreted as imposing an obligation on Customer to provide Feedback to Company.
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Service and Consulting Service in accordance with the terms therein (the “Fees”). If Customer’s use of the Service exceeds the maximum number of MAUs set forth on the Order Form, Customer may opt to remove the MAUs that exceed the maximum or purchase additional MAU capacity at Company’s then-current rates. Company reserves the right to (i) increase the Fees each year during the Initial Term by up to five percent (5%), and (ii) change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for, and shall timely pay, all taxes associated with Service, the payments to be made hereunder or otherwise, other than U.S. taxes based on Company’s net income. This Agreement, and Customer’s access to the Service, may be suspended or terminated if Customer’s account falls into arrears or Customer materially breaches this Agreement.
4.2 Company warrants to Customer that Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service and shall perform the Consulting Service in a professional and workmanlike manner. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company, its cloud providers, or other third-parties, or because of other causes, events or reasons beyond Company’s reasonable control (whether or not similar to those listed herein), but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS; NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE.
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Term as specified in the Order Form, and shall be automatically renewed for additional periods of one (1) year (collectively, the “Term”), unless either party provides written notice of its intent not to renew and continue this Agreement at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, a party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches this Agreement and fails to cure the breach by the end of such 30 day cure period (except the cure period for nonpayment is five business days). Customer will pay in full for the Service and Consulting Service up to and including the last day on which the Service and Consulting Service are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days in its then-current format, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their express terms or nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.1 Each party hereby represents and warrants to the other that: (a) it has the corporate right, power and authority to execute, deliver and perform this Agreement and to grant the rights and consummate the transactions contemplated hereby; and (b) this Agreement has been duly authorized, executed and delivered by such party, constitutes the legal, valid and binding obligation of such party and is enforceable against such party in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity)
6.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE AND PROFESSIONAL SERVICES (INCLUDING ANY IMPLEMENTATION OR CONSULTING SERVICES) ARE PROVIDED “AS IS” AND COMPANY HEREBY EXCLUDES AND DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR LOST PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
In no event shall Company be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by or results from any cause, event or circumstance beyond the reasonable control of Company, including any due to the following force majeure events: (i) acts of God; (ii) flood, fire, earthquake or explosion, pandemic, epidemic; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions, including shelter at home orders; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; (ix) failure of service providers (including cloud service providers), licensors (including data licensors) or the Internet; and (x) other causes, reasons, circumstances, or events beyond the reasonable control of Company, whether or not similar or dissimilar to the foregoing.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement and the rights hereunder are not assignable or transferable by Customer except with Company’s prior written consent. All assignments of rights by Customer are prohibited under this clause, whether they are voluntary or involuntary, by contract, merger, consolidation, operation of law or otherwise. For purposes of this paragraph, a change of control is deemed an assignment of rights and “merger” refers to any merger in which Customer participates, regardless of whether it is the surviving or disappearing entity. Company may transfer and assign any of its rights and obligations under this Agreement without consent, including to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, divestiture, or other business combination transaction. Any attempted or actual assignment not in compliance with this Agreement is null and void. This Agreement shall be binding upon, and inure to the benefit of, the parties and their successors and permitted assigns. This Agreement is the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to such subject matter. The parties may amend this Agreement only by a written agreement signed by the parties that identifies itself as an amendment to this Agreement. The parties may waive a breach of this Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay (i) in exercising any right or remedy, or (ii) in requiring the satisfaction of any condition, (iii) in enforcing any provision under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other party. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed (excluding bounce-backs and auto-replies), if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The laws of the State of California govern all matters arising out of or relating to this Agreement, without regard to any conflict of law principles applied therein. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded. In any action between the parties arising out of or relating to this Agreement, including, without limitation, any action seeking equitable relief, each party irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the state and federal courts located in Boston, MA. Company may use Customer’s name as part of a list of licensees and may refer to Customer in its advertising and marketing and investor materials. Customer also agrees to reasonably cooperate with Company to serve as a reference account upon request. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof shall not be construed for or against any party. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole. As used in this Agreement, the words “include” and “including” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by words “without limitation.”
Service Level Agreement
1. Availability and Maintenance.
(a) Availability. The Service will be available for use pursuant to the Agreement 99.9% of the time over the course of each calendar month, subject to the following exceptions (“Uptime”): (i) Routine Maintenance and Urgent Maintenance (both as defined below); (ii) the negligence, acts or omissions of Customer, Customer’s customers, or Customer’s employees, contractors or agents; (iii) the failure or malfunction of equipment, applications or systems not controlled by Company; (iv) any third party or public network or systems unavailability, including Company’s cloud service provider (currently AWS); (v) circumstances or causes beyond the control of Company, including, without limitation, events of force majeure; or (vi) breach of the Agreement by Customer, Customer’s customers or Customer’s employees, contractors or agents, including any failure to provide any data, input, resources or items.
(b) Maintenance. Except for Urgent Maintenance (defined herein), all routine maintenance on the Service will be conducted within a scheduled maintenance window not to exceed one hour per week (“Routine Maintenance”). Routine Maintenance ordinarily will not cause an interruption of the Service, but it may increase the risk of such an interruption. If Company anticipates an interruption of the Service from Routine Maintenance, or if Routine Maintenance is required outside of the regularly scheduled maintenance window, Company shall notify Customer via e-mail no less than two business days in advance of planned Routine Maintenance. Company shall make commercially reasonable efforts to schedule Routine Maintenance during times that would have the least potential impact on its customers. In the case of urgent maintenance where Company determines that immediate maintenance is required (“Urgent Maintenance”), Company may undertake such Urgent Maintenance at any time and for any period of time deemed necessary and shall provide notice to Customer as soon as is commercially practicable under the circumstances.
(c) Temporary Service Suspensions. Customer’s access to any portion or all of the Service may be suspended if Company, acting in good faith, reasonably determines that: (a) there is a threat or attack on the Service (including a denial of service attack) or other event may create a material risk to the delivery of the Service or Customer or any other customer; (b) Customer's use of the Service materially disrupts or poses a material security risk, may harm anyone, or may subject Company or any third party to liability or risk of harm or loss; (c) Customer is using the Service for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or has become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) Customer is using the Service in breach of the Agreement or an Order; or (f) Customer is in default of its payment obligations (collectively, "Service Suspensions"). Company shall use commercially reasonable efforts to provide prompt written notice of any Service Suspension to Customer and will provide updates regarding resumption of availability of the Service following any Service Suspension. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any Service Suspension, and Customer will not be entitled to service credits for any Service Suspension. Company shall use commercially reasonable efforts to minimize Temporary Service Suspensions.
2. Remedy.
(a) Remedy. If Company fails to achieve the Uptime commitments set forth above in Section 1 of this SLA in a given month (“Uptime Default”), Company will provide a service credit to Customer’s account based on amount of the Uptime Default experienced as set forth below in this Section. If Customer is billed monthly, the service credit will be based on the monthly fee for the impacted product and will be credited on the next monthly invoice. Notwithstanding the foregoing: (i) no remedy for an Uptime Default shall be due to Customer unless Customer notifies Company of such Uptime Default within twelve (12) hours from the time the Uptime Default has occurred; and (ii) Company will not provide Customer with a remedy for more than one Uptime Default per month. THE FOREGOING SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND COMPANY’S SOLE AND EXCLUSIVE OBLIGATION, FOR ANY UPTIME DEFAULT UNDER THIS SLA AND/OR ANY SERVICE INTERRUPTIONS AND/OR SERVICE DEFICIENCIES OF ANY KIND WHATSOEVER.
(b) Service Credit Exclusions. Service credits will not be available to Customer in cases where: (1) the Service is unavailable as a result of (a) the acts or omissions of Customer, Customer’s customers, or Customer’s employees, contractors or agents, (b) the failure, malfunction, or limitation of throughput of equipment, network, software, applications or systems not owned or directly controlled by Company, including Company’s cloud service provider (currently AWS), (c) circumstances or causes beyond the control of Company, including, without limitation, events of force majeure and third-party attacks on the Company network (such as ping and denial of service attacks), (d) updates and patching of computer systems and programs in accordance with Company’s standard schedule, (e) Routine Maintenance, or (f) Urgent Maintenance; or (2) Customer is not in compliance with the Agreement.
(c) Service Credit Request and Payment Procedures. To apply for a service credit, Customer must submit a ticket via email to support@ediphi.com within 30 days of the month in which the Uptime Default occurred. The ticket must include (i) "SLA Claim" as the subject of the ticket; (ii) the dates and times of the Uptime Default for which Customer is requesting credit; and (iii) any applicable information that documents the claimed outage. Company will review the ticket and award a service credit when applicable. Company will notify Customer once it has determined the service credit amount. If Customer disagrees with the amount of the service credit awarded, Customer has three (3) business days to request that Company revisit the claim.
3. Billing and Timing
(a) Billing Information. Customer agrees to pay the monthly applicable service level fee to Company in accordance with Section 4 of the Agreement (Payment of Fees). This SLA does not apply if Customer’s account is past due.
(b) Timing. This SLA will commence on the date that online access to the Service is provided and continue until the earlier of: (i) the termination of the Agreement (in accordance with the terms and conditions thereof), or (ii) termination of the Service for this SLA as set forth herein. Service credits not requested within 30 days of the event giving rise to the credit are waived.
Support Terms
1. Company will provide technical support to Customer via both telephone and electronic mail on weekdays during the hours of 8:00 am through 8:00 pm Eastern time, with the exclusion of Company holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by emailing support@ediphi.com .
2. Maintenance Response Time. During Support Hours, Company will use its commercially reasonable efforts to provide an initial response to issues submitted to the Company support team according to the response objectives and methods described below:
The time begins once Company has received from Customer all of the known information about the issue.
3. Issue Resolution Time. Company will use reasonable efforts to provide a resolution to Service issues according to the below:
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