Effective July 1, 2022
“Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with the applicable party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. Signiant Affiliates include, without limitation, Levels Beyond, Inc.
“Agreement” means this Customer Agreement.
“Claim” means an action brought against a party to this Agreement by a third party.
“Customer” means the company identified as such in the applicable Ordering Document(s).
“Customer Content” means materials transmitted, uploaded or received by Customer or generated at Customer’s direction through its use of Product(s) and/or Services.
“Documentation” means any specifications, guides, reference documents or other documentation provided by Signiant to Customer in connection with a Product.
“Evaluation Period” means (i) the pre-determined evaluation period, if an evaluation period is pre-determined in the Product, (ii) the period specified in an Ordering Document or other method by which Customer orders or obtains access to the Product for evaluation purposes, or (iii) thirty (30) days from the date the Product is made available to Customer for evaluation purposes, if no such evaluation period is pre-determined in the Product or otherwise specified under clause (ii) above.
“Ordering Documents” means a SaaS Ordering Document, subscription order schedule, purchase order or other Product subscription ordering document accepted by Signiant.
“Permitted Third Parties” means third parties, such as customers, consultants or vendors of Customer whom Customer authorizes to access or use the Product(s) pursuant to this Agreement and the functionality available in the Product.
“Product” means the applicable Signiant software-as-a-service or web-enabled product (and related installed software, if any) made available to Customer under this Agreement and the applicable Ordering Document(s).
“Proprietary Information” means information disclosed by Customer or Signiant including the Product and the Work (as Proprietary Information of Signiant) and any and all trade secrets or confidential or proprietary information designated as such orally or in writing by the disclosing party at the time of disclosure.
“Services” means any professional services provided by Signiant in connection with this Agreement and delivered pursuant to a Statement of Work.
“Signiant” means Signiant Inc. and/or its Affiliates, as applicable.
“Signiant Platform” means the online platform made available by Signiant to customers of software-as-a-service and web-enabled Products.
“Statement of Work” means a statement of work signed by Customer and Signiant pursuant to this Agreement.
“Term” as to any Product means the term specified in the applicable Ordering Document.
“Third Party Notices” means license notices, terms and/or conditions accompanying Third Party Software.
“Third Party Software” means third party software products that may accompany or be contained in the Product.
“Upgrades” means patches, releases, modifications and updates to, and new versions of, the Product or any of its components, in each case as provided by Signiant to its customers generally and at no additional charge, but does not include Product marketed by Signiant as a separate product or as a module for which Signiant generally charges additional fees.
“Work” means any work, ideas, inventions, discoveries, methods, methodologies, processes and improvements, computer programs, software products, specifications, operating instructions, notes, and all other documentation, in each case created or conceived by or on behalf of Signiant, alone or with others, in connection with Services rendered hereunder to which Customer is provided access to and/or use of under a Statement of Work.
2. ACCESS AND USE; OWNERSHIP
2.2 The Product and, unless otherwise agreed to in a Statement of Work, the Work and all intellectual property rights therein, will remain the sole property of Signiant, and are the trade secrets and Proprietary Information of Signiant and its licensors, and nothing in this Agreement will be construed to convey any title or ownership rights to Customer. Upon delivery of any Work and receipt of payment therefor, Signiant grants Customer a non-exclusive limited license to use the Work for its internal use solely as set forth in the applicable Statement of Work. In addition, notwithstanding section 2.3, (i) Signiant’s Proprietary Information and (ii) all materials, documents, information, enhancements, inventions and discoveries related to Signiant’s business processes, procedures, methodologies, software and other technologies, are and will remain the sole and exclusive property of Signiant.
2.3 Customer will retain ownership to all Customer Content and Customer Proprietary Information.
Unless specified otherwise in the Ordering Document, all fees and reimbursement of expenses (as provided below) are due and payable within thirty (30) days from the date of Signiant’s applicable invoice. All amounts must be paid in U.S. Dollars. The fees identified in the Ordering Document are exclusive of taxes or duties. Customer agrees to pay (i) for reimbursement of reasonable out-of-pocket expenses incurred by Signiant in connection with providing Services and (ii) any and all taxes and duties that may be imposed by any taxing authority in connection with the Agreement, excluding taxes based on Signiant’s income or franchise taxes. Past due amounts are subject to a late charge equal to the lesser of 1-1/2% per month or the maximum amount allowed by law. If Customer fails to make payment to Signiant within fifteen (15) days following the applicable payment due date, Signiant reserves the right to suspend the Services or Customer’s access to and use of the Signiant Platform and Product, as applicable, until payment is made in full for all amounts past due.
4.1 Using at least the same level of care that it uses to safeguard its own Proprietary Information, but in no event less than reasonable care, each party agrees to hold in confidence and not disclose to any third parties, except as explicitly allowed hereunder, any Proprietary Information it receives from the other party. Each party may disclose Proprietary Information to its employees and to consultants under contract with the receiving party who need to know such information in connection with such party’s performance of this Agreement, provided all such employees and consultants are bound in writing by confidentiality terms no less protective of the other party’s Proprietary Information than those of this Agreement. Neither party may remove or modify any proprietary notice made part of any Proprietary Information of the other party, and each party will reproduce all proprietary rights notices on any copies of such materials. Notwithstanding anything herein to the contrary, Customer acknowledges and agrees that Signiant may use Customer Proprietary Information in order to test, diagnose or resolve errors with deliverables or software to which Customer has provided access.
4.2 Each party agrees that any breach by it of this Section 4 may cause the other party substantial and irreparable harm and, therefore, in the event of any such breach or threatened breach, in addition to other remedies which may be available, the disclosing party will have the right to seek specific performance and other injunctive and equitable relief. The receiving party agrees to immediately notify the disclosing party of any unauthorized disclosure or potential disclosure of the disclosing party’s Proprietary Information upon becoming aware of such disclosure or potential disclosure.
4.3 The confidentiality obligations of this section will not apply to information that (i) is or becomes part of the public domain through no act or omission of the receiving party, (ii) was in the receiving party’s lawful possession prior to the disclosure other than as a result of having been provided by the disclosing party, (iii) is lawfully obtained from a third party without restriction on disclosure or (iv) can be documented as having been independently developed by the receiving party without use of the other party’s Proprietary Information.
5. TERM; TERMINATION; SUSPENSION
5.1 This Agreement will remain in effect as to the Signiant Platform and any Product or Services during the applicable Term. Where such Term is limited, and except as otherwise set forth in the applicable Ordering Document, such Term will automatically renew at the end of the initial Term and each subsequent renewal Term(s) for a period of one year, subject to the payment by Customer of the applicable then-current subscription fee, unless either party provides written notice of its intent to not renew the Term at least ninety (90) days prior to the end of the then current Term.
5.2 This Agreement may be terminated by either party upon written notice, provided the basis for such termination is a material failure by the other party to perform its obligations hereunder and such failure is not corrected within thirty (30) days from the date such notice is received. If this Agreement is terminated by Signiant due to Customer’s uncured material breach, then Signiant will be entitled to, and Customer must pay, (i) all unpaid contracted-for subscription fees (and no pre-paid subscription fees will be refunded), (ii) all unpaid reimbursable expenses incurred as of the effective date of the termination, and (iii) any other termination related charges as set forth in the applicable Ordering Document or Statement of Work. If this Agreement is terminated by Customer due to Signiant’s uncured material breach, then Signiant will be entitled to, and Customer must pay, (i) all unpaid subscription fees through the termination date, and Customer will receive a refund for any pre-paid and unused subscription fees and (ii) all unpaid reimbursable expenses incurred as of the effective date of the termination. This Agreement may also be terminated for convenience by either party upon written notice if there is no Ordering Document or Statement of Work in effect at the time of termination and there are no fees owed by Customer to Signiant.
5.3 Upon any termination of this Agreement as to any Product, Customer will promptly discontinue all use of the Signiant Platform and the Product and return all copies of any installed component of any Product and all related materials in its possession or control to Signiant or certify to their destruction, at Signiant’s option.
5.4 The provisions of Sections 1, 2 (as to restrictions and acknowledgments only), 3, 4, 7, 8, 9, 10, 11 and 13 will survive expiration or termination of this Agreement.
Provided that Customer is in compliance with this Agreement and the applicable Ordering Document, Customer will be entitled to receive Upgrades and then-standard customer support for the Product, if applicable, during the Term and in accordance with Signiant’s then-current customer support practices.
7. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
7.1 If at any time within the period ending ninety (90) days from the start of the subscription period specified in the applicable Ordering Document for Customer’s initial subscription for the Product, the Product substantially fails to perform the functions described in the applicable Documentation, Customer will promptly notify Signiant in writing of such alleged nonconformance. Signiant will, at its own cost and expense and within thirty (30) days of receipt of such written notification, take commercially reasonable steps to correct such deficiency. Should Signiant fail to correct such deficiency, Customer may, as its sole remedy, upon giving Signiant written notice within five (5) days of such failure, terminate the subscription for the affected Product, discontinue all access to and use of such Product, return any installed components of such Product to Signiant and receive a refund of all subscription fees paid by Customer for such Product. Signiant makes no warranty that the Signiant Platform or any Product will operate uninterrupted or be error-free. EXCEPT FOR THE EXPRESS WARRANTY IN THIS SECTION, SIGNIANT MAKES NO WARRANTIES AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT.
7.2 The Product is not intended for use by anyone under 13 years of age. By entering into this Agreement, Customer is representing to Signiant that each Customer user or Permitted Third Party user of the product is over 13 years of age.
8.1 Signiant will indemnify, defend and hold Customer harmless from any Claim to the extent that is based on an allegation that the Product, when used within the scope of this Agreement and in accordance with the applicable Documentation, infringes or misappropriates a United States patent, copyright, trademark or trade secret of such third party. Should any Product become, or in Signiant’s opinion is likely to become, the subject of such a Claim, Signiant may at its option (i) procure for Customer the right to continue using the Product, or (ii) replace or modify the Product to make it non-infringing, or (iii) terminate the subscription for the affected Product. Upon any such termination of the subscription, as Signiant’s sole liability and Customer’s sole remedy, Signiant will refund to Customer any pre-paid and unused subscription fees for such Product. The foregoing states the entire liability of Signiant with respect to any such Claim.
8.2 Customer will indemnify and hold Signiant and its affiliates, directors, officers, employees and agents (including successors and assigns) harmless against any claim, suit, proceeding or other action arising out of or relating to (i) Customer’s failure to comply with its obligations under this Agreement or (ii) any claim that any Customer Content or any other materials or data that Customer transmits to Signiant or through any Product or Service infringes any patent, copyright, or trade secret or other proprietary right (including privacy rights) of any third party.
8.3 The indemnified party must (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement. The indemnified party must also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).
9. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (INCLUDING SUCCESSORS AND ASSIGNS) OR ANY SIGNIANT LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR FOR ANY OTHER INDIRECT DAMAGES SUCH AS, BUT NOT LIMITED TO, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 4, NEITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (INCLUDING SUCCESSORS AND ASSIGNS) WILL BE LIABLE HEREUNDER FOR DAMAGES EXCEEDING THE AMOUNT OF THE FEES PAID BY CUSTOMER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM FOR THE PRODUCT, SERVICES OR WORK THAT GAVE RISE TO SUCH DAMAGES. NO ACTION OR CLAIM MAY BE INSTITUTED MORE THAN 12 MONTHS AFTER THE EVENT GIVING RISE TO SUCH CLAIM.
10. THIRD PARTY SOFTWARE
Customer acknowledges that the Product may contain or be accompanied by Third Party Software subject to Third Party Notices. The Third Party Notices may include important licensing and warranty information and disclaimers. In the event of conflict between the Third Party Notices and the other portions of this Agreement, the Third Party Notices will take precedence (but solely with respect to the Third Party Products to which the Third Party Notices relate).
11. EXPORT REGULATION
Customer acknowledges that the Product (including applicable Documentation) is subject to the import and export laws of the United States and the laws of any country where such Product is imported or re-exported. Customer agrees to comply with all applicable laws and will not to export such Product or any component thereof or access thereto in contravention of this Agreement or any applicable law or to any prohibited country, entity, or person for which a United States export license or other United States governmental approval is required.
12. PRODUCT EVALUATION
Notwithstanding anything herein to the contrary, if the Product is made available to Customer for evaluation purposes, the following terms and conditions in this Section 12 will apply, except where Customer and Signiant have entered into a separate evaluation agreement. Signiant will provide to Customer nonexclusive, temporary, royalty-free, non-assignable access to the Product solely for internal, non-production, evaluation use during the Evaluation Period. Access to the Product may not be transferred and is provided “AS IS” without warranty of any kind, and Signiant’s support obligations under Section 6 and indemnification obligations under Section 8 will not apply. The Product may contain an automatic disabling mechanism that prevents its use after expiration of the Evaluation Period. Upon expiration of the Evaluation Period, Customer will cease use of the Product and destroy all copies of any components of the Product in its possession or control. All other terms and conditions of this Customer Agreement will otherwise apply to Customer during its evaluation of the Product.
The relationship of Signiant to Customer is that of an independent contractor and neither this Agreement, nor any performance hereunder will create an employer-employee relationship between Signiant and Customer or make either party an agent of the other. In the event of a conflict between this Agreement and any Ordering Document or Statement of Work, the terms and conditions of this Agreement will govern over any contradictory terms in any Ordering Document (and no pre-printed or alternative terms and conditions in any Ordering Document, purchase order, confirmation or other communication or document provided by Customer will be of any effect), and the terms of any Statement of Work signed by Signiant will govern over any contradictory terms in this Agreement. Neither party may assign, delegate, sublicense or otherwise transfer its rights or obligations under this Agreement without the other party’s prior written consent, except that no consent will be required for an assignment of this Agreement by either party pursuant to a change of control or a merger or sale of substantially all of a party’s assets or outstanding stock. A waiver of any requirement hereunder in one instance will not constitute a waiver of such requirement in any other instance. If any provision of this Agreement is deemed illegal or unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. The headings used in this Agreement are for convenience only and will not create any rights or obligations or affect the meaning or interpretation of this Agreement. This Agreement and all matters arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A, without regard to its choice of law provisions. The United Nations Convention on Contracts for International Sale of Goods is specifically excluded. All proceedings relating to or arising out of the subject matter hereof will be maintained exclusively in the courts situated in Boston, Massachusetts, U.S.A., and the parties hereby consent to personal jurisdiction and venue therein and hereby waive any right to object to personal jurisdiction or venue therein. This Agreement is the entire agreement between the parties as to its subject matter and supersedes all other agreements, proposals, representations and other understandings regarding the Product and the Work, whether oral or written. Any notice, approval, request, authorization, direction or other communication under this Agreement must be given in writing and will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth at the beginning of this Agreement. Either party may change its address by giving written notice of such change to the other party. Alterations or modifications of this Agreement will be valid only if made in a writing signed by both parties authorized signatories. Except as otherwise provided herein, if the performance of any obligation hereunder (other than the making of payments hereunder) is prevented, restricted or interfered with by reason of any event, act or condition beyond the reasonable control of the affected party, the party so affected, upon written notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference.