LICENSEE AGREES TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF PRINTNOW ONLINE SERVICES (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “LICENSEE” “YOU”, “I”, OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
PRINTNOW TECHNOLOGIES, INC. a Massachusetts Domestic Corporation (hereinafter “Licensor”), and the Licensee identified in the signed order form agree that this Software License and Service Agreement and the attached Exhibits (the Agreement), set forth the terms and conditions under which the Licensor will provide the Service to Licensee.
WHEREAS, Licensee requires the “Service,” as defined in the Exhibits with respect to certain of its information technology needs; and
WHEREAS, no title or ownership of the Service or any part thereof is transferred to Licensee, and Licensee acknowledges that Licensee is acquiring only a license (License) to use the Service, and not any title to or ownership of or in the Service or any part thereof; and
WHEREAS, Licensee requested a proposal from Licensor for such Service; and
WHEREAS, Licensor submitted a proposal to Licensee to perform such Service on behalf of Licensee; and
WHEREAS, Licensee has selected Licensor to manage and provide the Service; and
WHEREAS, Licensor agrees to provide the Service to Licensee, all on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this Agreement, the parties hereby agree as follows:
(1) THE SERVICE.
(a) Purpose. This Agreement sets forth the terms and conditions under which Licensor agrees to provide all Software and other equipment (as defined in an Exhibit A) and perform all tasks identified in Exhibit B and Exhibit C, as applicable, including the specified intellectual property which may include, but is not limited to, all know how, trade secrets, inventories, algorithms, patents, copy rights, works, trademarks, and other propriety or licensed information necessary to fully utilize the identified Software, as a service; and to provide all other services, data import / export, monitoring, support, backup and recovery, change management, technology upgrades, and training necessary for Licensee’s productive use of such Software, as described in an attached Exhibit A, and identified in any Exhibit B and Exhibit C. At Licensee’s request, additional Exhibits may be added and will be sequentially numbered such as Exhibit A-1, A-2, etc. This Agreement including each such Exhibit(s) shall remain in effect for the Initial Term and any Renewal Term (as defined herein) unless earlier terminated as provided herein.
(b) Authorized Users. Unless otherwise limited on an Exhibit, Licensee and any of its employees, agents, customers, contractors, or suppliers of services that have a need to use the Service for the benefit of Licensee shall have the right to operate and use the same. As a part of the Service, Licensor shall be responsible for all user identification and password change management. You shall not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way.
(c) Control of Service. Method and means of providing the Service shall be under the exclusive control, management, and supervision of Licensor, giving due consideration to the requests of Licensee; such Service shall be rendered in a manner consistent with industry custom and practice.
(d) Service Levels. Licensor shall provide Service Levels in accordance with the applicable Exhibit B or Exhibit C, as may be defined in such Exhibit B or Exhibit C. As part of the Service provided under an Exhibit A, Licensor is responsible for maintaining an orderly and timely recovery of such data in the event that the Service may be interrupted. Unless otherwise described in any such an Exhibit B or C, Licensor shall maintain a contemporaneous backup of Licensee Data that can be recovered within twenty-four (24) hours at any point in time. For purposes of this Agreement, “Licensee Data” shall mean data stored within a database comprised of Licensee’s order information, Licensee’s user information, Licensee’s customers’ information, Licensee’s templates as the templates relate to the database, and any other information that is generalized through use of the Software.
(e) Non-exclusivity. Nothing herein contained shall be deemed to preclude Licensee from retaining the services of other persons or entities undertaking the same or similar functions as those undertaken by Licensor hereunder, provided that Licensee notifies Licensor of such same or similar services. Licensee hereby agrees that Licensor shall not be responsible for any acts or omissions or damages to Licensee caused by such other person or entity including any effects on or in connection with Licensors Service as it relates to Licensee and Licensor shall not be responsible to Licensee for any functions performed by a person or entity other than the Licensor.
(f) Subcontractors. Licensor shall not enter into any subcontracts for the performance of the Service, or assign or transfer any of its rights or obligations under this Agreement without Licensee’s prior written consent and any attempt to do so shall be void and of no effect. Licensee’s consent to Licensor’s right to subcontract any Service shall not relieve Licensor of any of its duties or obligations under this Agreement.
(g) Change Control Procedure. Licensee may, upon written notice, request an increase to the scope of the Service under an Exhibit. If Licensee requests an increase in the scope, Licensor shall notify Licensee whether or not the change has an associated cost impact. If Licensee approves, Licensee shall issue a change control order, which will be executed by the Licensor, and which shall be deemed an additional Exhibit.
(2) TERM AND TERMINATION.
(a) Term. Unless this Agreement is terminated earlier in accordance with the terms set forth in this Section or in an Exhibit, the term (the “Initial Term”) shall commence on the Effective Date and continue for twelve (12) months thereafter. Licensee will notify Licensor 30 days before the end of the Initial Term whether the Licensee wishes to renew the Agreement for another twelve (12) month period. Upon receipt of such notice, Licensor will advise Licensee of the terms of the requested renewal, including any increase in costs (each, a “Renewal Term”).
(b) Payments upon Termination. Except as otherwise provided herein, upon the expiration or termination of this Agreement or any Exhibit, for any reason, Licensee shall promptly pay to Licensor any amounts then due and payable hereunder as of the date of expiration or termination of this Agreement or such Exhibit.
(c) Return of Materials. Upon expiration or termination of this Agreement or an Exhibit, each party shall: (a) promptly return to the other party, or certify the destruction of any of the following of the other party held in connection with the performance of this Agreement or such an Exhibit: (i) all Confidential Information; and, (ii) any other data, programs, and materials; and, (b) return to the other party, or permit the other party to remove, any properties of the other party then situated on such party’s premises. In the case of Licensee Data, Licensor shall, immediately upon termination of this Agreement or an Exhibit, provide Licensee with a final export of the related Licensee Data and shall certify the destruction of any Licensee Data within the possession of Licensor. Licensee agrees that Licensor may charge a fee to provide Licensee Data to Licensee. The parties agree to work in good faith to execute the foregoing in a timely and efficient manner. This Section shall survive the termination of this Agreement.
(d) Non-Payment and Suspension. In addition to any other rights granted to PrintNow herein, PrintNow reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection including attorney’s fees and the fees of PrintNow experts and consultants. You will continue to be charged monthly subscription fee during any period of suspension. If you or PrintNow initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees as indicated in your signed Order form (Exhibit A). You agree that PrintNow may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
PrintNow reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that PrintNow has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
(3) TERMINATION ASSISTANCE SERVICES.
Provided that this Agreement or an Exhibit has not been terminated by Licensor due to Licensee’s failure to pay any amount due Licensor, Licensor will provide to Licensee and one supplier selected by Licensee ( a “Successor Service Provider”), at Licensee’s sole cost and expense, such assistance as is reasonably requested by Licensee in order to effect the orderly transition of the applicable Software or Service, as appropriate, in whole or in part, to Licensee or to such Successor Service Provider (such assistance shall be known as the “Termination Assistance Services) during a (90) calendar day period, such period to begin no earlier than 90 days before the expiration or termination of this Agreement or upon notice of the termination of a related Exhibit (such period shall be known as the “Termination Assistance Period”). Such Termination Assistance Services shall include such activities upon which the parties may agree and, depending upon the nature and extent of such Termination Assistance Services, Licensor may charge an additional fee for such activities. The provisions of this Section shall survive until the end of the Termination Assistance Period.
(4) SERVICE LEVELS.
If Service Levels are to be provided as described in an Exhibit B, in the event Licensor does not meet any of the requisite Service Levels, Licensor shall use commercially reasonable efforts to ensure that any unmet Service Level is subsequently met. Licensor will use commercially reasonable efforts to minimize the impact or duration of any outage, interruption, or degradation of Service Levels.
(5) FEES AND EXPENSES.
(a) Charges and Payment of Fees. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is incurred. The initial charges will be equal to any account setup fees plus the monthly subscription fee. Payments may be made annually, monthly, or quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon. You are responsible for paying the subscription fee for the entire License Term, whether or not the Services are actively used. You must provide PrintNow with valid credit card or approved purchase order information as a condition to signing up for the Service. You shall at all times provide us with current credit card information. PrintNow reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
(b) Excess System Utilization Fees. PrintNow maintains policies concerning the fair and reasonable use of system resources. Unless otherwise stipulated in writing, system resources provided to you at no additional charge are (1) 25GB for disk storage at any time, (2) 1000MB per month for network bandwidth utilization, and 3) 500 ecommerce orders per month. (4) a maximum of 5000 by 5000 pixels for raster image previews generated, and (e) a limit of 50MB per template, including all associated image and font files.
If the amount of system utilization exceeds these limits, you will be charged the then-current storage fees. PrintNow will use reasonable efforts to notify you when the resource utilization per license reaches approximately 90% of the maximum; however, any failure by PrintNow to notify you shall not affect your responsibility for such additional storage charges. PrintNow reserves the right to establish or modify its general practices and limits relating to system utilization, including the automatic deletion of Customer Data after 30 days.
(c) Billing and Renewal. PrintNow charges and collects in advance for use of the Service. PrintNow will automatically invoice to you (a) every month for monthly licenses, (b) every quarter for quarterly licenses, or (c) each year on the subsequent anniversary for annual licenses. The renewal charge will be equal to the then-current monthly fee plus any additional fees for usage or volume, unless PrintNow Systems has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. PrintNow fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on PrintNow income.
You agree to provide PrintNow with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Site Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, PrintNow reserves the right to terminate your access to the Service in addition to any other legal remedies.
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. If you do not contact us in writing within 60 days of the date of the invoice containing the amount in question, you shall not be entitled to any adjustment or credit.
If you license PrintNow from an authorized reseller, this reseller will be responsible for all invoicing and collections activities.
(6) REPRESENTATIONS AND WARRANTIES.
(a) Mutual Representations and Warranties. Each of Licensee and Licensor represent and warrant that:
(i) it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation;
(ii) it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
(iii) this Agreement, when executed and delivered, shall be a valid and binding obligation enforceable in accordance with its terms;
(iv) the execution, delivery, and performance of this Agreement has been duly authorized and this Agreement constitutes a legal, valid, and binding agreement and is enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles;
(v) it shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance of its obligations under this Agreement and shall obtain all applicable permits and licenses required in connection with its obligations under this Agreement; and
(vi) there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.
(b) Licensor Representations. Licensor represents and warrants that:
(i) Licensor is possessed of knowledge and expertise with respect to the Service;
(ii) the Service will be performed in a competent and professional manner and in accordance with the same professional standards consistent with industry custom and practice;
(iii) Licensor has the experience and is qualified to perform the Service in an efficient and timely manner;
(iv) the Service will meet and include all deliverables as set forth in an Exhibit A and achieve and maintain in all material respects the functionality as set forth in Exhibit B, and shall meet and provide all deliverables as set forth in any Exhibit C for the term of the applicable Exhibit;
(v) it will use its best efforts to ensure that no computer viruses, malware, malicious or defective code, or similar items (collectively, “Malicious Code”) are introduced into Licensee’s computer and network environment while performing the Service, and that Licensor will adhere to Licensee’s then current procedures to protect against the same, and
(vi) the Service and any other work performed by Licensor hereunder shall be its own work, and shall not infringe upon any United States or foreign copyright, patent, Trade Secret, or other proprietary information or proprietary right, or misappropriate any Trade Secret, of any third party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement and Licensor further warrants that it holds all rights, licenses and permissions to manage, provide, license and sublicense the Service pursuant to this Agreement and any attachments hereto.
(7). Disclaimer of Warranties
PRINTNOW MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. PRINTNOW DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE TOTALLY SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (D) ERRORS OR SAID DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PRINTNOW TECHNOLOGIES, INC.
(8) PROPRIETARY RIGHTS; NONDISCLOSURE BY LICENSEE; INJUNCTIVE RELIEF.
(a) The parties acknowledge that each party may be exposed to or acquire communication or other data of the other party that is confidential, privileged communication not intended to be disclosed to third parties. For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that: (i) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such entity; (ii) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing entity and marked “confidential” or with words of similar meaning or otherwise specifically identified by subject matter and date of disclosure by notice to the receiving party; (iii) with respect to information and documentation of Licensee, whether marked “Confidential” or not, consists of Licensee information and documentation created through Licensee’s use of the Service included within any of the following categories: (A) policyholder, payroll account, agent, customer, supplier, or contractor lists; (B) policyholder, payroll account, agent, customer, supplier, or contractor information; (C) information regarding business plans (strategic and tactical) and operations (including performance); (D) information regarding administrative, financial, or marketing activities; (E) pricing information; (F) personnel information; (G) products and service offerings (including specifications and designs); or, (H) processes (e.g., technical, logistical, and engineering including all manuals and other instructions, bulletins, guidance and written materials provided to Licensee by Licensor in connection with an Exhibit); (iv) any Confidential Information derived from Confidential Information of a party; or (v) any Licensee Data; the term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving entity without an obligation of confidentiality; (b) obtained from a source other than the disclosing entity without a breach of any obligation of confidentiality; or, (c) located within the public domain when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, one known to be in breach of an obligation of confidentiality).
(b) Licensee acknowledges that all title and interest, including all patents, copyrights and trade secret rights in the Service are the exclusive property of Licensor and that Licensee acquires no rights except for those granted under this Agreement and any attachment hereto. Licensee further acknowledges that Confidential Information that it receives from Licensor is proprietary and constitutes a trade secret of Licensor. Licensee agrees to do no act or not to permit any act which may in any way jeopardize or be detrimental to the validity of Licensor’s patent, copyright, trade secret or other rights in the Service or other Confidential Information.
(c) Proprietary Material is provided for use only on the Designated System listed in the related Exhibit and may not be copied or used on any other system, except that one copy of the Service materials may be made for back-up purposes for use on the Designated System (“Designated System” shall mean the applicable Licensor operating system(s) to which the Service shall be provided). The back-up copy must include Licensor’s patent, copyright and proprietary rights notices and all labels or other features that disclose the Service name, Licensee’s site and Designated System.
(d) Licensee acknowledges that the unauthorized use, transfer or disclosure of the Service and Documentation (“Documentation” shall mean the written specifications and description of the Service, including any related manuals, guidance, bulletins or instructions provided to Licensee as part of the Service) or copies thereof will: (i) substantially diminish the value to Licensor of the Proprietary Material (“Proprietary Material” shall mean and include the Service and any intellectual property used in providing the Service) that is the subject of this Agreement; (ii) render Licensor’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Service or Documentation, Licensor shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
(e) Licensee’s obligations here to protect the confidential and proprietary nature of Proprietary Material under this Section 7 shall survive any termination or expiration of a License, an Exhibit, or this Agreement for any reason.
(9) INDEMNIFICATION PROCEDURES.
Promptly after receipt by Licensee of a threat of any action, or a notice of the commencement, or filing of any action against Licensee, Licensee shall give notice thereof to Licensor. At Licensor’s request, Licensee shall cooperate with Licensor in defending or settling any such action; provided, however, that Licensor shall reimburse Licensee for all reasonable out-of-pocket costs incurred by Licensee (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.
(10) LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY, SPECIAL, PUNITIVE AND/OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (a) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED IN THIS AGREEMENT; (b) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (c) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. This Section shall survive the termination of this Agreement.
(11) INFORMATION SECURITY.
Upon receipt of notice from Licensee that Licensee has implemented an information security program (the Licensee Information Security Program) to protect Licensee’s information assets as further defined in the Licensee Information Security Program (collectively, the “Protected Data”). Licensor shall establish and maintain an information security program that is designed to: (i) ensure the security and confidentiality of the Protected Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Protected Data; (iii) protect against unauthorized access to or use of the Protected Data; (iv) ensure the proper disposal of Protected Data; and (v) ensure that all subcontractors of Licensor, if any, comply with all of the foregoing. In no case shall the safeguards of Licensor’s information security program be less stringent than the information security safeguards used by the Licensee Information Security Program as provided by Licensee to Licensor for this purpose. The Licensee Information Security Program is Confidential Information of Licensee.
(12) GENERAL PROVISIONS
(a) Relationship between Licensee and Licensor. Licensor represents and warrants that it is an independent contractor with no authority to contract for Licensee or in any way to bind or to commit Licensee to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Licensee. Under no circumstances shall Licensor or Licensee, or any of its staff, hold itself out as or be considered an agent employee, joint venture, or partner of the other. In recognition of Licensor’s status as independent contractor, Neither Licensee not Licensor shall carry Workers’ Compensation insurance or any health or accident insurance to cover the other’s agents or staff. Neither Licensor nor Licensee shall pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship on behalf of the other. Licensor represents and warrants that it is an independent contractor for purposes of federal, state, and local employment taxes; Licensor agrees that Licensee is not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for Licensor. Neither Licensor nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of Licensee.
(b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts and the federal laws of the United States of America. Licensor hereby consents and submits to the jurisdiction and forum of the state and federal courts in the Commonwealth of Massachusetts in all questions and controversies arising out of this Agreement.
(c) Dispute Resolution. In the event of any dispute or disagreement between the parties with respect to the interpretation of any provision of this Agreement, or with respect to the performance of either party hereunder, Licensee and Licensor Engagement Managers will meet for the purpose of resolving the dispute. If the parties are unable to resolve the dispute within five (5) working days, or as otherwise agreed, either Engagement Manager will have the right to submit the dispute to Licensor’s president level, if not already involved. Such presidents, or their designee, will meet as often as the parties reasonably deem necessary in order to gather and furnish to each other all essential, non-privileged information that the parties believe germane to resolution of the matter at issue. During the course of these non-judicial dispute resolution procedures, documents used to resolve the dispute shall be limited to essential, non-privileged information. All requests shall be made in good faith and be reasonable in light of the economics and time efficiencies intended by the dispute resolution procedure. The presidents, or their designee, may mutually agree to appoint a neutral advisor to facilitate negotiations and, if requested by both parties, to render non-binding opinions. No formal proceedings for the judicial resolution of any dispute may be commenced until sixty (60) calendar days following initiation of negotiations under this Section or for such shorter period as the parties may mutually agree to in writing. Either party may then seek whatever remedy is available in law or in equity. The provisions of this Section will not apply to any dispute relating to the parties’ obligations of non-disclosure and confidentiality as further described herein.
(d) Compliance With Laws, Licensee Policies and Procedures. Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable.
(e) Cooperation. Licensor will cooperate with other Licensee suppliers performing services, and all parties supplying hardware, software, communication services, and other services and products to Licensee.
(f) Force Majeure. Neither party shall be liable for delays or any failure to perform the Service or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe; governmental legislation, acts, orders, or regulation; acts of God, war, acts by civil or military authorities or declarations of conflicts; energy shortages or outages, strikes or labor difficulties, or other unavoidable causes to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. A force majeure event does not excuse Licensor from providing Service and fulfilling its responsibilities relating to the requirements of backup and recovery of Licensee Data.
(g) Advertising and Publicity. Licensor shall not refer to Licensee directly or indirectly in any advertisement, news release, or publication without prior written approval from Licensee.
(h) No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision or any other provision.
(i) Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid to the addresses appearing at the end of this Agreement, or as changed through written notice to the other party. Notice given by personal service shall be deemed effective on the date it is mailed to the addressee, and notice mailed shall be deemed effective on the third business day following its placement in a federal mail repository addressed to the addressee.
(j) Assignment of Agreement. This Agreement and the obligations of Licensor hereunder are personal to Licensor. Neither Licensor nor any successor, receiver, or assignee of Licensor shall directly or indirectly assign this Agreement or the rights or duties created by this Agreement, whether such assignment is effected in connection with a sale of Licensor’s assets or stock or through merger, an insolvency proceeding or otherwise, without the prior written consent of Licensee.
(k) Software. Regardless of any disclosure by Licensee to Licensor, Licensee may not make or distribute copies of Software or electronically transfer Software from the Designated System to one or more other computers or from one computer to another or over a network. Licensee may not de compile, reverse engineer, disassemble, or otherwise transcribe such software to a human-perceivable form. Licensee may not assign, modify, rent, resell for profit, distribute or create derivative works based upon the Software or Service or any part thereof. Licensee will not export or re-export, directly or indirectly, software into any country prohibited by the United States Export Administration Act and the regulations thereunder.
(l) Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
(m) Entire Agreement. This Agreement and the attached Exhibit(s), and as such additional Exhibits may be added hereto, constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Licensee and Licensor as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties. If any provision of this Agreement is held to be unenforceable, the remaining portions of this Agreement shall remain in full force and effect.
(n) Cumulative Remedies. All rights and remedies of Licensee and Licensor herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Licensor or Licensee for the enforcement of this Agreement, and temporary and permanent injunctive relief.
(o) This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, assigns and legal representatives; provided, however, that Licensee shall not sublicense, assign or transfer any part or all of its rights and obligations under this Agreement and as provided herein without the express written consent of Licensor, which consent will not be unreasonably withheld.
(a) Licensor shall provide the following Service Levels seven (7) days a week, twenty-four (24) hours a day, consisting of the following aspects of Service. Unless expressly provided for in this Exhibit, in the event of a conflict between provisions contained herein and in the SOFTWARE LICENSE AND SERVICE PROPOSAL, the provisions in the SOFTWARE LICENSE AND SERVICE PROPOSAL shall prevail. Any terms used and not herein defined shall take the meaning ascribed to them in the SOFTWARE LICENSE AND SERVICE PROPOSAL
for the LICENSEE, as this Exhibit may be amended from time to time:
The following Service Levels are considered to be part of the Service covered:
1. Ensure Application/web server is properly maintained
2. Ensure Website is properly administered and available 24/7 on the world wide web via the latest two versions of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome, and Apple Safari (the “Accepted Browsers”)
3. Ensure Database server is properly maintained
4. Ensure Database is properly maintained
5. Backup, storage, and recovery of database survey data
6. Application/Web server security
7. Database server security
8. Hardware updates applied as required
9. Application software updates applied as required
10. Operating system updates applied as required
Excluded from the Service are events resulting from failures of: Licensee’s hosting and/or delivery systems; fire, explosion, flood or other natural catastrophe; governmental legislation, acts, orders, or regulation; acts of God, war, acts by civil or military authorities or declarations of conflicts; energy shortages or outages, strikes or labor difficulties, acts or omissions on behalf of the Licensee, its agents or subcontractors: and other unavoidable causes to the extent not occasioned by the fault or negligence of or beyond the Licensor’s control (each an “Exclusionary Event”).
The Licensee should direct all requests for support via online at http://support.printnow.com, or via phone number to be provided for 24/7 support.
In an effort to detect potential problems before they impact the availability and performance of Services, Licensor will monitor the status of the Service. This monitoring includes but is not limited to: the enumerated aspects of the Service as set forth in Section I., above, Service Availability (as defined below), database connectivity and performance, and hosting availability and performance.
III. System Availability
Service Availability is defined as the operable state of the Service in that service functionality is available to the Licensee and its end-users (“Users”). Service Availability does not take into account the performance or inability of such Users to access the Service as a result of such Users’ Internet/network connection, but it does take into account the unavailability of the Service to Users or Licensee as a result of non-compatibility with Accepted Browsers.
IV. Data Integrity
Licensor will provide a minimum of 99.9% integrity of Confidential Information and Licensee Data and will maintain the highest level of data security and confidentiality as is commercially reasonable in the ecommerce sales industry (“Data Integrity”).
Excluding scheduled maintenance, if, due to a System malfunction, the System is available for less than 99.9 percent of an entire calendar month (the Guaranteed Up time), at your request PrintNow will credit your next monthly payment, prorated based on your monthly subscription, for the amount by which the System unavailability is less than the Guaranteed Uptime.
(a) Licensor is expected to maintain the security, stability and integrity of Licensor’s systems as well as the Service. Licensor will be responsible for comprehensive testing and debugging of the Service updates before delivery; provided, however, it is understood by Licensee that this will sometimes require Licensee to use software before certain unknown bugs are eliminated or certain custom functionality can be tested. Licensee will attempt to report known, clearly reproducible bugs and operational problems to Licensor as soon as they arise so that Licensor can respond rapidly.
VI. System Intrusion – In the event of a system intrusion by a “cracker” or “hacker”, the affected party(ies) will be notified in accordance with the Agreement and a solution will be implemented, as appropriate. Notification will occur upon identification of intrusion.
VI. Scheduled Maintenance Windows
The System may be unavailable due to scheduled maintenance each week, starting on Saturday at approximately 11:00 PM Central Time, and ending on Sunday at approximately 1:00 AM, Central Time. PrintNow will use its best efforts to minimize the System unavailability due to maintenance, but the total time for maintenance may vary and may be more than as stated herein.
(In the event that this window will be needed in a given week, Licensor will make every effort to notify the Licensee no less than forty-eight (48) hours prior to the window. If it is determined during the window that the scheduled maintenance will run over the two (2) hour window (“Overages”), the Licensee will be notified immediately and receive regular updates until the period is complete. During these scheduled maintenance periods, the system and services may be unavailable to Licensee and Licensee’s Users. Scheduled Maintenance Windows are not counted against System Availability percentages, but any Overages will be counted against System Availability percentages, unless caused by an Exclusionary Event.
VII. Emergency Maintenance Notification
In the event that emergency maintenance is required, during which time the Service will be unavailable to Licensee and Licensee’s Users, Licensor will make commercially reasonable efforts to notify the Licensee where practical so as not to prolong or negatively affect the Service or its availability. Emergency maintenance windows are counted against System Availability percentages unless caused by an Exclusionary Event.