Cloud Agreement January 2021
UNANET CLOUD TERMS & CONDITIONS
BY SIGNING AN ORDER FORM WITH UNANET, INC. (“UNANET”), CUSTOMER AGREES TO SUBSCRIBE TO THE UNANET CLOUD SUBSCRIPTION SERVICES IDENTIFIED ON SUCH ORDER FORM (THE “SERVICES”) AND AGREES TO COMPLY WITH THESE UNANET CLOUD TERMS AND CONDITIONS (THE “TERMS AND CONDITIONS”) GOVERNING THE SERVICES. THESE TERMS AND CONDITIONS ARE INCORPORATED INTO EACH ORDER FORM BETWEEN A CUSTOMER AND UNANET. THE ORDER FORM, ALL ATTACHMENTS THERETO, AND THESE TERMS AND CONDITIONS SHALL BE THE ENTIRE AGREEMENT BETWEEN THE PARTIES IN CONNECTION WITH THE SERVICES AND REFERRED TO AS THE “AGREEMENT.”
a.) Unanet provides a suite of web-based professional service automation applications. Unanet agrees to provide Customer electronic access to the electronic applications identified on each Order Form between Customer and Unanet (the “Services”), which will permit the processing, retrieval, data encryption, access, storage and transmission of data submitted by Customer (“Customer Data”) under the terms and conditions set forth in this Agreement and solely for Customer’s internal business purposes and subject to any usage restrictions in the Order Form. Customer further agrees to only access the Services in accordance with the terms of this Agreement, and Unanet’s privacy and security policies available on its website.
b.) Only authorized Users may access or use the Services on behalf of Customer and Customer is responsible for the acts and omissions of its authorized Users in connection with the Services as further set forth in Section 3 of these Terms and Conditions.
c.) Unanet may routinely update the Services for any lawful business purpose, including to maintain or enhance the quality or delivery of the Services; provided that it shall not materially reduce or modify the functionality of the Services provided under this Agreement.
2. Subscription Rights & Restrictions
a.) During the Term, Unanet will make available the Services to Customer, and Customer may use the Services, subject to the terms and conditions of this Agreement including without limitation, the applicable Order Form(s). The Services are being provided on a non-exclusive and non-transferable basis to Customer and its Affiliates solely for Customer’s internal business purposes. All rights not expressly granted to Customer are reserved by Unanet. Notwithstanding the foregoing, Customer may use the Services and share output from its use of the Services with regulators and auditors as required by applicable law.
b.) Customer may not use or access the Service if Customer is a direct competitor of Unanet, except with Unanet’s prior written consent. In addition, Customer may not use or access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
c.) Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content in any way; (ii) modify or make derivative works based upon the Services or the Content; (iii) “mirror” any Content on any other server or wireless or Internet- based device or indirectly use or access the Services through interfaces, links or other tools to avoid fees; (iv) collect any information from the Services through use of “scraping” or “crawling” or any other method not authorized by Unanet; (v) reverse engineer, decompile, or disassemble the Services, (vi) use “Import – Historical Time” after becoming operational except for any users marked with the Active checkbox in their People Profile (“Active Users”), or (vii) access and use the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services. User subscriptions cannot be shared or used by more than one individual but may be reassigned from time to time to new individuals who are replacing former individuals who have terminated employment or otherwise changed job status or function and no longer use the Service. Unanet may suspend Customer’s use of the Services upon written notice if Customer’s use of the Services degrades or interferes with system performance.
d.) Customer may use the Service only for Customer’s internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks. For purposes of the foregoing, Customer’s “internal business” shall include Customer’s affiliates and sub-contractors.
3. Customer Responsibilities and Representations
a.) Customer is responsible for all activity occurring under Customer User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data, which may include without limitation the California Consumer Protection Act (CCPA) and the General Data Protection Regulation (GDPR).
c.) Customer shall: (i) notify Unanet immediately of any known or suspected unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Unanet immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or Customer’s Users; and (iii) not knowingly impersonate another Unanet user or provide false identity information to gain access to or use the Service.
4. Customer Data
a.) Unanet does not own any data, information or material that Customer may submit to the Service or that is otherwise collected, downloaded, or otherwise received directly or indirectly from Customer or a User by or through the Services (“Customer Data“). As between Customer and Unanet, Customer is the sole owner of all right, title, and interest in and to the Customer Data, subject to the rights granted in this Agreement. Customer, not Unanet, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of all Customer Data provided to Unanet, and Unanet shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data arising out of or relating to the Customer’s responsibilities in this Section 4 or the acts or omissions of Customer. Unanet is not responsible for unauthorized access granted by Customer to a User. Each party will use commercially reasonable efforts to resolve such unauthorized access upon its knowledge of such unauthorized access. Unanet will not access or use Customer Data except as required to perform the Services or as authorized under this Agreement or by Customer in writing. Notwithstanding the foregoing, Unanet may disclose Customer Data as required by applicable law or proper legal or governmental authority. Unanet will first provide Customer with prompt notice of such legal or governmental request (to the extent legally permissible) and reasonably cooperate with Customer in any effort to seek a protective order, solely at Customer’s expense. Customer acknowledges and agrees that all Customer Data will be hosted on servers located in the United States.
b.) Customer grants Unanet the non-exclusive, worldwide, transferable right to use, copy, store, transmit, display, modify, and create derivative works of Customer Data, as necessary to provide the Services to Customer under the terms of this Agreement. Customer represents and warrants to Unanet that it has all necessary rights, authorization, consents necessary or required in order to provide the Customer Data to Unanet for the purposes of performing under this Agreement. Customer is solely responsible for verifying that its Users are properly authorized to access its Customer Data provided to the Services in accordance with applicable law and the terms of this Agreement. The parties agree that any processing of Customer Data that will be subject to the General Data Protection Regulation (GDPR) or the California Consumer Protection Act (CCPA), will be subject to the Data Protection Addendum available here, which to the extent applicable, is hereby incorporated by reference.
c.) Customer has and will retain sole responsibility for: (a) all Customer Data provided to Unanet; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including database management systems and networks, whether operated by Customer or a third-party service (the “Customer Systems”); (d) the security and use of Customer’s or its Authorized Users’ access credentials; and (e) all use of the Services through Customer Systems.
d.) Customer may download its Customer Data in various reports available through Customer’s user interface in the Services at any time during the Term and provided that Customer’s account is active. In the event this Agreement is terminated or expires, and upon Customer’s written request to Unanet within sixty (60) days following termination or expiration of the Agreement, Unanet will make available, via secure file transfer to Customer, a file of the Customer Data in Unanet’s possession or control in its standard format. The parties agree that if Customer requests any customized format or delivery mechanism, that such services may be subject to additional fees as mutually agreed upon in writing by the parties. After such 60-day period, Unanet may delete and/or destroy all copies of Customer Data unless otherwise required by applicable law.
e.) Customer grants Unanet a non-exclusive and irrevocable right and license to create de-identified and aggregated data (the “De-Identified Data”) and to use such De-Identified Data for any lawful business purpose, including in benchmarking and development of products and services.
f.) Unanet may employ certain data capture and analysis tools to create transactional data generated from the use and operation of the Services (“Analytics Data”). The parties agree that the Analytics Data does not include any identifiable Customer Data and is owned exclusively by Unanet for its sole benefit to use for any lawful business purpose. Unanet retains all rights, title, and interest in and to the Analytics Data.
g.) Unanet grants Customer a non-exclusive, non-transferable, and limited right to access and use a testing “sandbox” environment solely for the purpose of implementation, training and testing integration capabilities and for no other purpose for a period of eight (8) months from the Effective Date. After such 8-month period, if the Customer elects to continue to have access to such sandbox environment, Unanet will charge Customer an additional fee and Customer agrees to pay such additional fee to maintain access to the sandbox environment. Unanet does not retain any data that is used in the sandbox environment and is not responsible for any data uploaded into such environment. Unanet does not guarantee access or availability of the sandbox environment.
5. Security and Incident Response.
b.) Without limiting the foregoing, Unanet agrees to
a. undergo annual security reviews;
b. encrypt all Customer Data in transit and at rest;
c. limit Unanet access to Customer Data to employees that are adequately authorized under its control measures;
d. make available to Customer, on reasonable request, all information reasonably necessary to demonstrate compliance with this Agreement and applicable data protection laws; and
e. host Customer Data only on servers located in the United States.
c.) Unanet shall notify Customer of a Security Incident as soon as practicable, but no later than 72 hours after Unanet’s knowledge of a confirmed Security Incident. Such notice will, at a minimum, identify the Customer Data affected by the Security Incident and Unanet’s commercially reasonable steps taken to mitigate the impact of the Security Incident. Unanet will comply with all applicable data breach notification laws governing Customer Data and will take all commercially reasonable efforts to cooperate with Customer in investigating the Security Incident.
6. Intellectual Property Ownership
a.) Neither party grants any rights or license not expressly set forth in this Agreement. Customer retains all intellectual property rights in the Customer Data provided to Unanet.
b.) Except for Customer’s usage rights as set forth in this Agreement, Unanet retains all Intellectual Property Rights and Unanet alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Unanet Technology, the Content and the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other similar information provided by Customer or any other party relating to the foregoing (collectively, “Feedback“). Customer hereby assigns all of its rights, title, and interest in and to the Feedback to Unanet and agrees to execute any further documents necessary to give effect to the intent of this Section.
c.) This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Content, the Unanet Technology or the Intellectual Property Rights owned by Unanet. The Unanet name, the Unanet logo, and the product names associated with the Service are trademarks of Unanet, and no right or license is granted to use them.
d.) Subject to the terms and conditions of this Agreement, Customer grants Unanet and its affiliates and its OEM software providers (collectively, “Licensee”), a limited, non-exclusive, non-transferable, royalty-free right and license to use, reproduce, display and perform its marketing collateral, including trademarks, logos, service marks, or tradenames (collectively the “Marks”), for the purpose of Licensee fulfilling its obligations or exercising its rights hereunder and for marketing and promotional purposes by Licensee, including without limitation in customer lists, sales, marketing, and public relations materials. Licensee will use Customer’s Marks in conformance with any branding and trademark usage policy provided to Licensee. Licensee acknowledges that Licensee’s use of Customer’s Marks will not create in Licensee, and Licensee will not represent it has, any right, title, or interest in or to Customer’s Marks other than the license granted above.
7. Technical Support
a.) Unanet provides telephone and email technical support for the Unanet GovCon and Unanet A/E services for up to three (3) authorized contacts for its Customers in accordance with its standard customer technical support policies. The purpose of Technical Support is to provide on call access during business hours Monday through Friday (8:30 a.m. through 7:30 p.m. ET), excluding US federal holidays, for the resolution of technical issues related to the operation of the Service.
b.) Premium and Signature technical support services may be elected and purchased by Customer, subject to additional fees.
c.) Unanet provides telephone and email technical support for its CRM software services between the hours of 7 a.m. through 7 p.m. CST. Support hours for other services are provided in accordance with Unanet’s standard customer technical support policies for those services.
8. Pricing and Payment Terms
a.) Term. The Customer is responsible for paying for all Users ordered during the Term as detailed in Unanet Order Form, whether or not such User subscriptions are actively used. Customer account activation and billing will occur upon execution of the Order Form.
b.) Pricing. Customer will pay the subscription fee based on the number of Users as set forth on the Order Form (the “Subscription Fees”), as well as any related implementation, integration and training services and supplemental premium technical support as provided in the Order Form. All Subscription Fees are non-cancelable, and all amounts paid are non-refundable.
c.) All Subscription Fees are exclusive of taxes. Customer is obligated to determine and pay any federal, state, local, and other taxes, fees and assessments (other than taxes on Unanet’s corporate net income) imposed in connection with this Agreement; provided that Unanet will calculate state sales tax, if applicable, and sales tax will be added to Customer’s invoice and amount due. If Customer is tax-exempt, it shall provide a certificate of tax-exempt status upon execution of the Order Form. Except as otherwise set forth in this section, any taxes imposed on payments to Unanet under this Agreement are Customer’s sole responsibility and Customer shall indemnify Unanet for any tax assessments, along with applicable interest and penalties, upon demand by Unanet.
d.) Additional Users; Reducing Users. Additional Users may be added to Customer’s subscription account at any time. An authorized Customer Administrator may add Users by executing an additional Unanet Cloud Order Form. A minimum of five (5) additional Users is required by Unanet to add such Users to the subscription account. Added Users will be subject to the following: (i) added Users will be coterminous with the then current Term (either Initial Term or renewal term); and (ii) the Subscription Fee for the added Users will be set forth in the Order Form. Customer may reduce its number of committed Users, as provided in the Order Form, annually; provided that it shall not reduce its number of committed Users by greater than fifty percent (50%) from the initial committed User volume on the Order Form during the Initial Term specified on the Order Form. If Customer provides written notice of reduction in the number of committed Users, subject to the requirements of this Section 8(d), Customer shall not be entitled to a refund for any prepaid Subscription Fees for the then current annual period.
e.) Invoicing and Payment Terms. Unanet charges and collects in advance for use of the Services. Unless otherwise set forth in the Order Form, Unanet will invoice following execution of an Order Form and invoices are due upon receipt. Following receipt of an invoice, if Customer has provided an authorized payment method (either credit card or ACH) to Unanet, then Customer hereby authorizes Unanet to automatically charge its designated payment method for the Subscription Fees in advance as set forth in this Agreement without any further authorization. Customer acknowledges that the foregoing registration will remain in effect until Customer cancels such authorization by providing written notice to Unanet. Based on the agreed to payment method, upon receipt of Customer’s executed Order Form, Customer will be assessed initial charges including the first year of Subscription Fees, related implementation, integration and training services and supplemental technical support. Thereafter Subscription Fees are assessed annually in advance of the annual term, due and payable on or before the annual term. Annual charges will be offset on or before the annual term.
f.) Customer agrees to provide Unanet with complete and accurate billing and contact information. This information includes Customer legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Customer Administrator. Customer agrees to update this information within 30 days of any change. If the contact information Customer has provided is false or fraudulent, Unanet reserves the right to terminate Customer access to the Service in addition to any other legal remedies.
g.) If a Customer believes a bill is incorrect, Customer must contact Unanet in writing within thirty (30) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
h.) In addition to any other rights granted to Unanet herein, Unanet reserves the right to suspend or terminate this Agreement and Customer access to the Service if Customer account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance (not subject to a good faith dispute), or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer will continue to be charged for User subscriptions during any period of suspension. Customer agrees that Unanet may charge such unpaid fees to Customer’s designated payment information (credit card or ACH) or otherwise bill Customer for such unpaid fees. Additionally, Unanet reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter requests access to the Service.
9. Subscription Term and Renewal
a.) The initial subscription term commences on the Effective Date of the Order Form (the “Effective Date”) and unless otherwise set forth in the Order Form, continues for a period of thirty-six (36) months (the “Initial Term”). Unless otherwise specified in the Order Form, the Term of this Agreement will continue to renew for subsequent twelve (12) month renewal terms (together with the Initial Term, the “Term” of this Agreement), subject to the pricing and price increase terms set forth in the Order Form, unless either party gives the other party notice of non-renewal at least sixty (60) days before the current Term ends.
b.) Unless otherwise specified in the Order Form, Unanet reserves the right to increase Subscription Fees on an annual basis after the Initial Term, by providing notice to Customer at least ninety (90) days prior to the end of the current annual period during the renewal term. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
a.) Voluntary Termination. Unless otherwise specified in the Order Form, either party may terminate this Agreement (and all Order Forms) for any reason by providing written notice sixty (60) days prior to the end of the current Term, which termination shall be effective at the end of the current Term; provided that Customer is not entitled to and shall not receive a refund for the annual prepaid Subscription Fees in the event of termination under this Section.
b.) Effect of Termination. Customer will pay all outstanding amounts due promptly upon termination and Customer Data shall be made available as set forth in Section 4(d) of this Agreement.
c.) Termination for Cause. Either party may terminate this Agreement upon written notice in the event the other party materially breaches this Agreement and has failed to cure such breach or to commence commercially reasonable efforts to cure such breach within thirty (30) days following notice from the non-breaching party. Any breach of Customer payment obligations or unauthorized use of the Unanet Technology, Content, or Service will be deemed a material breach of this Agreement. Unanet, in its sole discretion, may suspend Customer’s account or use of the Service, following ten (10) business days’ prior notice to Customer, if Customer breaches or otherwise fails to comply with this Agreement.
d.) Either party may terminate this Agreement, effective immediately upon written notice if the other party: (i) becomes insolvent; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy; or (iii) makes or seeks to make a general assignment for the benefit of creditors.
11. Representations & Warranties
a.) Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Unanet represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will perform substantially in accordance with the online help documentation under normal use and circumstances (“Unanet Performance Warranty“). Customer’s sole and exclusive remedy and Unanet’s sole and exclusive obligation for any failure of the Unanet Performance Warranty is for Unanet to use commercially reasonable efforts to correct, repair, or replace the Services or provide a work-around after notice of the Unanet Performance Warranty breach.
b.) Customer represents and warrants that said Customer has not falsely identified itself nor provided any false information to gain access to the Service and that Customer billing information is correct. Customer further represents, warrants, and covenants to Unanet that it has and will have, during the Term of this Agreement, the necessary rights and consents to transfer, use and disclose Customer Data to Unanet under this Agreement and will comply with all applicable laws and regulations in every material respect.
c.) UNANET MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. UNANET DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11, THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER 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 UNANET.
d.) UNANET’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. UNANET IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
a.) Customer acknowledges and agrees that the Unanet Technology, Content, Service are a valuable and unique asset of Unanet and contains Confidential Information and trade secrets of Unanet. Confidential Information shall include the Unanet Technology, Service, related documentation and pricing provided by Unanet to Customer. Confidential Information shall at all times remain the sole and exclusive property of Unanet.
b.) During this Agreement, each Party will have access to certain Confidential Information of the other Party. Each Party agrees: (a) not to disclose the Confidential Information of the other Party to anyone except its employees, contractors and advisors (“Representatives”) on a strict need to know basis and subject to a written duty of confidence, (b) to use the Confidential Information strictly for the performance or receipt of this Agreement and (c) to use commercially reasonable efforts to protect the confidentiality of the other Party’s Confidential Information. This Section will not apply to Confidential Information that (i) is or becomes publicly available through no fault of the recipient, (ii) is already in the recipient’s possession at the time of its disclosure without any duty of confidence, or (iii) is independently developed by the recipient without reference to or use of the disclosing party’s Confidential Information and by personnel without access to such Confidential Information. Each Party may disclose Confidential Information to the extent required: (1) to comply with a court or governmental order, or to comply with applicable law or (3) to establish or preserve a Party’s rights under this Agreement. Each Party will be responsible for the acts and omissions of its Representatives related to any breach of this Section.
c.) Each party acknowledges and agrees that a breach of such party’s obligations under this Section 12 (Confidentiality) would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach, the other party will be entitled to seek equitable relief that may be available from any court, without any requirement to post a bond or security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
13. Mutual Indemnification
a.) Indemnification by Customer. Customer shall defend, indemnify and hold Unanet, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:(i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) violation by Customer of Customer’s representations and warranties; or (iii) the material breach by Customer or Customer’s Users of this Agreement, provided in any such case that Unanet (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally releases Unanet of all liability and such settlement does not affect Unanet’s business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim.
b.) Indemnification by Unanet. Unanet shall defend, indemnify and hold Customer and Customer’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: a claim by a third party alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided that Customer (a) promptly give written notice of the claim to Unanet; (b) give Unanet sole control of the defense and settlement of the claim (provided that Unanet may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provide to Unanet all available information and assistance; and (d) have not compromised or settled such claim. Unanet shall have no indemnification obligation, and Customer shall indemnify Unanet pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Customer Data or Customer products, service, hardware or business process(s). Such indemnification obligations are limited solely to the extent such claim does not arise from any modification of the Services by Customer, either directly or indirectly, or access to the Services in combination with any hardware, system, software, network, or other materials not provided or authorized by Unanet, or access to the or use of the Services in violation of any applicable laws or regulations.
If the Services violate any third-party Intellectual Property Rights, Unanet may, at its sole cost and expense, obtain the right for Customer to continue to use the Services as contemplated by this Agreement, modify or replace the Services to make the Services non-infringing, or by written notice to Customer, terminate this Agreement and provide a pro-rata refund of any prepaid and unused Subscription Fees for the then-current annual term. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDY AND UNANET’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE OR VIOLATE THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
14. Limitation of Liability
a.) IN NO EVENT SHALL UNANET’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING COST OF COVER, LOSS OF DATA, REVENUE, PROFITS, OR THIRD PARTY DISCOUNTS, INTEREST PAYABLE TO THIRD PARTIES, OR OTHER SIMILAR ECONOMIC LOSS OR ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY WITH RESPECT TO INDEMNIFICATION OBLIGATIONS, A BREACH OF CONFIDENTIALITY OBLIGATIONS, OR THE INFRINGEMENT OR MISAPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY BY THE OTHER PARTY.
b.) Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Customer.
15. Service Level Agreement
Unanet shall make the Services available subject to the terms of this Agreement, and the Unanet Cloud-Based Solution Availability Requirements, attached here (the “Unanet SLA”), which is incorporated herein by reference.
16. Local Laws and Export Control
Unanet makes no representation that the Services are appropriate or available for use in locations outside the United States of America. If Customer uses the Service from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government.
Unanet may give general notice on the Service via electronic mail to Customer e-mail address on record in Unanet’s account information, or by written communication sent by first class mail or pre-paid post to Customer address on record in Unanet’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre- paid post) or 12 hours after sending (if sent by email). Customer may give notice to Unanet (such notice shall be deemed given when received by Unanet) at any time by any of the following: e-mail to firstname.lastname@example.org; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Unanet at the following address: Unanet, Inc., 22970 Indian Creek Drive, Suite 200, Sterling, VA 20166, addressed to the attention of: Chief Financial Officer.
18. Modification to Terms
Unanet reserves the right to modify these Unanet Cloud Terms & Conditions to reflect, including without limitation, changes to applicable laws, rules, technology, industry practices or standards, or availability or modification of third-party services or applications, at any time by posting of an updated version of this Agreement on the Service and providing Customer with a 30-day review period as set forth in this section. Modifications to the Unanet Cloud Terms & Conditions will not materially reduce the functionality, performance, and availability of the Services during the Term of the Agreement. Unanet will post the modified Terms & Conditions at least thirty (30) days prior to the proposed effective date and the modified Terms & Conditions will be deemed accepted and become effective following such thirty (30) day review period unless Customer provides Unanet written notice of rejection. Continued use of the Service after the effective date and silence during the foregoing review period shall constitute Customer consent and approval of the modified Terms & Conditions, which are incorporated into Customer’s Agreement with Unanet and replace the prior version of the Terms & Conditions in its entirety.
19. Assignment; Change in Control
This Agreement may not be assigned by Customer without the prior written approval of Unanet. Unanet may assign this Agreement without the prior consent of Customer to (i) a parent or subsidiary, (ii) an acquirer of assets or stock, or (iii) a successor by merger. Any purported assignment in violation of this Section shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Unanet directly or indirectly owning or controlling 50% or more of Customer shall entitle Unanet to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by laws of United States of America and Commonwealth of Virginia without regard to conflicts of laws provisions thereof. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Unanet as a result of this agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Unanet in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between Customer and Unanet and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. If the Order Form conflicts with these Terms & Conditions, the Order Form will control solely to the extent of the conflict. 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 shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party. This Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right.
21. Force Majeure.
Whenever performance of the Services is substantially prevented beyond Unanet’s reasonable control, including without limitation, acts of God, pandemics, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, such performance shall be excused.
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
“Affiliate” means, with respect to a specified entity, any entity that directly or indirectly controls more than 50% of the voting securities of such specified entity or otherwise controls such entity, meaning the ability to direct or cause the direction of the management and policies of such entity;
“Agreement” means the Order Form signed between the parties, all attachments thereto, and these Cloud Terms & Conditions;
“Content” means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of using the Services;
“Confidential Information” means any non-public materials or information relating to a party which it discloses or makes available to the other party under this Agreement, including by way of example, the Unanet Technology, Service, related documentation and pricing provided by Unanet to Customer, and any research, strategies, inventions, processes, technologies, or other non-public information or trade secrets that the disclosing party treats as proprietary or confidential.
“Customer Administrator(s)” means those Users designated by Customer who are authorized to purchase subscriptions by executing written Order Forms and to create User accounts and otherwise administer Customer use of the Services;
“Customer Data” means any data, information or material provided or submitted by Customer to the Service in the course of using the Services
“Effective Date” means the effective date set forth in the Order Form;
“Initial Term” means the initial term, beginning on the start date and ending on the end date, specified on the applicable Order Form; if no Initial Term is specified in an Order Form, the Initial Terms begins on the date such Order Form is signed or the Services are first used, whichever is earlier, and ends three years thereafter;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted in written form, specifying, among other things, the number of User subscriptions and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties; Each such Order Form is hereby incorporated into and becomes a part of this Agreement; In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Order Form shall prevail;
“Term” means the Initial Term and any renewal terms during which a specified number of Users are authorized to use the Service pursuant to the Order Form(s);
“Unanet” means collectively Unanet, Inc., a Virginia corporation;
“Unanet Technology” means all of Unanet’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used to provide the Services;
“Security Incident” means the unauthorized access, use, disclosure, modification, destruction of information or interference with Customer Data.
“Service(s)” means the specific product of Unanet’s suite of web-based products or online services ordered by Customer and as further described in Order Forms, which may include time reporting, professional service automation, expense reporting, project management, billing, data analysis, general ledger, accounts payable, accounts receivable, cost pool calculations, and/or other services as developed, hosted, operated, and maintained by Unanet and accessible via designated web site or IP address, or ancillary online or offline products and services;
“User(s)” or “Authorized Users” means Customer employees, representatives, consultants, contractors or agents who are authorized to use the Service for the benefit of Customer and have been supplied user identifications and passwords by Customer (or by Unanet at Customer request).