Atheer’s Master Subscription and Services Agreement
Effective from December 1, 2018 to February 5, 2019
1. ATHEER SERVICES.
1.1. Atheer Services.
Subject to the payment of all fees and the terms and conditions herein, Atheer will provide Customer with subscription licenses (on a per Authorized User basis, as defined below in Section 1.2) to Atheer’s cloud-based remote collaboration and augmented reality platform (referred to hereafter as “Atheer Services”) for the term set forth in the Order Form (“Subscription Term”). Atheer Services includes software code, in object code format only (“Software”), that Authorized Users may download to use solely with Atheer Services and with third party smart glass and other smart mobile device technologies (“Smart Devices”) for internal business purposes.
1.2. Access to Atheer Services.
During the Subscription Term and in accordance with the terms and conditions herein and in any end user technical documentation made available to Customer through the user portal which may be updated from time to time at Atheer’s sole discretion (“Documentation”), Atheer hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use, through a designated URL, Atheer Services solely with Smart Devices for internal business purposes. Access to, and use of, Atheer Services is permitted only by the number of authorized users who have been supplied with user identifications and passwords by Customer (“Authorized Users”), that does not exceed the number of subscription licenses purchased by Customer in the Order Form. Access to, and use of, Atheer Services by one Authorized User may not be shared with another user (including another Authorized User) or any other third party. Such Authorized Users may include employees and consultants of Customer who are not competitors of Atheer.
1.3. Restriction on Use.
Customer will not: (i) license, sublicense, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make Atheer Services or Documentation available to any third party, other than its Authorized Users; (ii) alter, modify or create derivative works of Atheer Services or Documentation; (iii) frame or mirror any content forming part of Atheer Services or Documentation other than for Customer’s own internal business purposes; (iv) reverse engineer, decompile, disassemble, or otherwise seek to discover or obtain the source code of Atheer Services for any purpose (except to the extent the foregoing restriction is expressly prohibited by applicable law); (v) access Atheer Services to build a competitive product or service, or copy any ideas, features, functions or graphics of Atheer Services, or permit any third party to do any of the foregoing; (vi) send to or store in Atheer Services any infringing, inappropriate, unlawful or tortious material; (vii) send to or store any malicious code in Atheer Services; (viii) interfere with or disrupt the integrity or performance of Atheer Services or the data contained therein; (ix) attempt to gain unauthorized access to Atheer Services or its related systems or networks; (x) remove or obscure any proprietary or other notices contained in Atheer Services (including any Documentation or data printed or uploaded from Atheer Services); or (xi) publicly disseminate information regarding the performance of Atheer Services (such as benchmarking results).
1.4. Customer Responsibilities.
Customer shall: (i) prevent unauthorized or unlawful access to, or use of, Atheer Services, including the use of Atheer Services by any number of users in excess of the number of Authorized Users and subscription licenses purchased by Customer pursuant to an Order Form; (ii) access and use, and cause its Authorized Users to access and use, Atheer Services and Documentation in compliance with this Agreement and all applicable laws; and (c) remain responsible for any and all acts or omissions that violate the terms of this Agreement or any applicable law by any of its Authorized Users.
1.5. Atheer Responsibilities.
Atheer shall use commercially reasonable efforts to: (a) maintain the security and integrity of Atheer Services and Customer Data; (b) provide technical support for Atheer Services in accordance with Exhibit A attached hereto at no additional cost provided Customer has fully paid up all applicable fees; and (c) make Atheer Services available in accordance with the service level agreement set forth in the attached Exhibit B. For the fixed number of hours set forth in the Order Form, Atheer will provide Customer with certain enablement services solely related to assisting Customer with initial set-up, implementation and training for the Atheer Services as described in the Order Form at no additional charge (“Enablement Services”). If Customer requires additional Enablement Services, such Enablement Services will be subject to separate agreement and an additional fee.
2. PROPRIETARY RIGHTS.
Atheer and its licensors retain all right, title and interest, including all related intellectual property rights, in and to Atheer Services, the Documentation, the Software, its Confidential Information, and any technology developed from any services (including Enablement Services) performed by Atheer for Customer herein, and all derivative works, improvements or modifications thereto made by any person, entity or party. No additional rights are granted to Customer hereunder other than those rights and licenses expressly set forth herein. In the event Customer provides Atheer with any suggestions, ideas, improvements or other feedback with respect to Atheer Services (“Feedback”), Customer hereby grants Atheer (and its successors and assigns) a non-exclusive, perpetual, irrevocable, sub-licensable, transferrable, royalty-free, fully paid-up worldwide right and license to copy, reproduce, modify, display, create derivatives of, perform, sell, offer for sale, sublicense, distribute and otherwise exploit such Feedback for any purpose, including without limitation, using and incorporating such Feedback into any products and services, without any obligation to account or to make any royalty payment or provide any other consideration to Customer. Customer acknowledges that Atheer Services or Documentation incorporating Feedback shall be the sole and exclusive property of Atheer.
3. CUSTOMER DATA.
3.1. Customer Data Rights and License.
Customer retains all right, title and interest in and to all electronic data and other information submitted by Customer to Atheer Services (“Customer Data”). Customer hereby grants Atheer a non-exclusive, worldwide, unrestricted and irrevocable right and license to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data to the extent necessary (i) to provide Atheer Services in accordance with this Agreement and (ii) to calculate benchmarks and perform other analyses that Atheer may use internally and/or provide, from time to time, to third parties for a fee or at no cost, at Atheer’s sole discretion, in an anonymized or aggregated form or which otherwise that under no circumstances identifies the Customer. Customer represents and warrants that: (i) Customer’s use of Atheer Services and all Customer Data is at all times compliant with Customer’s privacy policies and with all applicable laws and regulations, including without limitation, those laws related to data privacy and use of personally identifiable information, and applicable export control laws involving technical data. ; and (ii) Customer has sufficient rights in the Customer Data to grant the rights set forth herein to Atheer and that the Customer Data does not infringe or otherwise violate the rights of any third party. If Customer exports information from a jurisdiction outside the United States, Customer will ensure that it has all legal right, license, permission and authority to do so (including, without limitation, in compliance with all applicable data privacy and export control laws).
3.2. Indemnity by Customer.
Customer shall indemnify, defend and hold Atheer harmless from and against any and all third party claims and all resulting damages, losses, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees and costs) arising out of or related to (i) any Customer Data (including without limitation, the violation of any laws, regulations or privacy rights) or (ii) Customer’s use of Atheer Services including without limitation, claims involving personal injury, property damage or death resulting from the use of Smart Devices or from Customer products or service. Atheer agrees to: (i) promptly notifies Customer of such claim in writing (but in any event, notice shall be provided in sufficient time for Customer to respond without prejudice); (ii) gives Customer the exclusive right to control and direct the investigation, defense or settlement of such claim (provided that Customer may not settle any claim unless it unconditionally releases Atheer of all liability); and (iii) provides Customer all reasonable assistance at Customer’s cost and expense.
4. FEES AND PAYMENT.
4.1. Fees and Payment.
Unless otherwise expressly provided in an Order Form, Customer shall pay all fees set forth therein within thirty (30) days of Customer’s receipt of Atheer’s invoice. Fees are payable on a subscription-basis (per Authorized User) for the duration of the Subscription Term. The Order Form shall also include the number of designated hours of Enablement Services and applicable maximum data storage and computing capacity limits. Any late payment shall be subject to interest that accrues at a rate of the lower of one and one half per cent (1.5%) per month or the highest rate permitted by law, plus costs of collection if necessary. Except as otherwise provided in the Order Form or this Agreement, all fees must be paid in United States Dollars, are based on products and services purchased and not actual usage, and are non-cancellable and non-refundable. The fees do not include, and Customer shall be solely responsible for, any and all direct or indirect local, state, federal or foreign sales, use, GST, value-added withholding, or similar taxes or levies, other than taxes based on the Atheer’s income. Such taxes or levies shall not be considered a part of, a deduction from or an offset against fees. If applicable, Customer shall provide evidence of its exemption from applicable taxes.
4.2. Suspension of Service.
If Customer’s payment of outstanding fees is ten (10) days or more overdue or if Atheer in good faith believes that Customer is engaging in unauthorized conduct in its use of Atheer Services in violation of Section 1.3 above, in addition to any of its other rights or remedies, Atheer reserves the right to suspend Customer’s access to Atheer Services without liability to Atheer, until, as applicable, such amounts are paid in full or until Customer stops engaging in such unauthorized conduct.
Each Party agrees that all software, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known or understood by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. This Agreement, the Documentation, Atheer Services, related fees and pricing information and any performance information (e.g., benchmarking results) relating to Atheer Services are and shall be deemed Atheer Confidential Information. Except as expressly authorized herein, the Receiving Party will (a) hold in confidence Confidential Information, taking precautions that it would take for its own Confidential Information of a similar nature but not less than a reasonable level of care, and (b) not disclose or use any Confidential Information except in furtherance of this Agreement and as otherwise expressly permitted herein. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become generally available to the public through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by or for the Receiving Party without making use of, or reference to, Disclosing Party’s Confidential Information in violation of this Agreement. The Receiving Party may disclose the Disclosing Party’s Confidential Information it is required to do so pursuant to any applicable law, rule, regulation or order of any court or government agency of competent jurisdiction, or as required pursuit to any legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose prior to such disclosure, if legally permitted, reasonable assistance in opposing or limiting such disclosure and limits such disclosure to that information strictly required by such court, government agency or legal process. Each Party acknowledges that disclosure of Confidential Information of the Disclosing Party would cause immediate and irreparable harm to the Disclosing Party and that, in such event, the Disclosing Party shall be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without the posting of a bond or the necessity of showing actual monetary damages.
6.1. Mutual Warranties.
Each Party represents and warrants to the other Party that it has the power and authority to execute, deliver, and perform its obligations under this Agreement.
6.2. Atheer Warranties.
Atheer warrants to Customer that Atheer Services will operate in all material respects in conformity with the then-current Documentation, and that any Enablement Services will be performed in a competent, professional and workmanlike manner consistent with general accepted industry practices. [Customer’s sole and exclusive remedy, and Atheer’s sole liability, for any breach of this warranty shall be for Atheer to correct the Atheer Services, or re-perform Enablement Services, as applicable, at Atheer’s expense, and if Atheer is unable or unwilling to take the remedial actions specified herein, Customer shall be entitled to terminate this Agreement and receive a pro-rata refund of prepaid, unused fees for the remaining portion of the then active Subscription Term. The limited warranty in this Section 6.2 shall not apply until Customer notifies Atheer in writing of a breach of this warranty, and such notification is made in a timely manner, which in the case of Enablement Services is not later than thirty (30) days following Atheer’s completion of the Enablement Services. The limited warranty in this Section 6.2 shall not apply if the error related to Atheer Services or failure in Enablement Services performance was caused by misuse, unauthorized modifications, third-party hardware, software or services (including Smart Devices), Customer Data or a Force Majeure Event.
6.3. DISCLAIMERS OF WARRANTY.
EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION 6, ATHEER SERVICES AND ENABLEMENT SERVICES ARE PROVIDED ON AN “AS IS” BASIS. NEITHER ATHEER NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NONINFRINGEMENT. ATHEER DOES NOT WARRANT THAT ATHEER SERVICES OR ENABLEMENT SERVICES ARE ERROR-FREE OR THAT CUSTOMER WILL BE ABLE TO ACCESS OR USE ATHEER SERVICES OR ENABLEMENT SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS (INCLUDING IN CONNECTION WITH SMART DEVICES).
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY (I) LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) AMOUNTS IN THE AGGREGATE (A) IN EXCESS OF THE FEES PAID BY CUSTOMER FOR ATHEER SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY; OR (B) FIVE THOUSAND UNITED STATES DOLLARS (US$5,000.00), WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO A PARTY’S INDEMNITY OBLIGATIONS, A BREACH OF SECTION 5 OR CUSTOMER’S BREACH OF ANY LICENSE OR USE RESPONSIBILITIES OR RESTRICTIONS. FOR THE AVOIDANCE OF ANY DOUBT, UNDER NO CIRCUMSTANCES WILL ATHEER HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, RESULTING FROM ANY PERSONAL INJURY, DEATH OR PROPERTY DAMAGE, ARISING FROM SMART DEVICES OR FROM ANY CUSTOMER-PROVIDED PRODUCTS OR SERVICES.
Atheer shall indemnify, defend and hold Customer harmless from and against any and all third party claims and to the extent payable to unaffiliated third parties, all proven damages, losses, liabilities, penalties, costs and expenses, including reasonable attorneys’ fees and costs finally awarded by a court of competent jurisdiction relating to the alleged or actual infringement of a copyright, trade secret, trademark or United States patent by Atheer Services; provided that, Customer: (i) promptly notifies Atheer of such claim in writing (but in any event, notice shall be provided in sufficient time for Atheer to respond without prejudice); (ii) gives Atheer the exclusive right to control and direct the investigation, defense or settlement of such claim (provided that Atheer may not settle any claim unless it releases Customer of all liability); and (iii) provides Atheer all reasonable assistance at Atheer’s expense. If any claim which Atheer is obligated to defend has occurred, or in Atheer’s determination is likely to occur, Atheer may, in its sole discretion and at its option and expense: (a) obtain for Customer the right to continue using the allegedly infringing item; (b) substitute a non-infringing replacement for such item with substantially equivalent functionality; or (c) if in Atheer’s opinion neither item (a) or (b) are reasonably available, terminate the Agreement and issue a pro-rata refund to Customer of the prepaid, unused fees for the remaining portion of the Subscription Term. The foregoing indemnification obligation of Atheer shall not apply if such claim arises out of: (1) use of Atheer Services in combination with any software, hardware, network or system not supplied by Atheer (including without limitation any Smart Devices) where the alleged infringement is caused by such combination; (2) any modification or alteration of Atheer Services (other than by Atheer); (3) where Customer continues the allegedly infringing activity after being informed of a modification that would avoid the alleged infringement; or (4) use of Atheer Services other than in accordance with the terms and conditions of this Agreement. THIS SECTION 8 SETS FORTH ATHEER’S SOLE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9. TERM AND TERMINATION.
This Agreement begins on the Effective Date and continues until terminated in accordance with this Section 9. Each Order Form will have an initial Subscription Term set forth therein. Upon expiration of such initial Subscription Term, the Order Form will automatically renew for additional one (1) year periods at the then applicable negotiated annual fee, unless either Party provides written notice to the other Party of non-renewal at least thirty (30) days prior to the end date of the then-current Subscription Term. If the Order Form expressly provides that such Order Form is for pilot or evaluation purposes, the automatic renewal provisions in the previous sentence shall not apply.
Either Party may terminate this Agreement as follows: (a) upon thirty (30) days written notice if the other Party breaches any material provision of this Agreement and does not cure such breach before the end of such cure period; (b) effective immediately and without notice if the other Party ceases to do business or otherwise terminates its operations, except as a result of a permitted assignment hereunder; or (c) if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditor’s arrangement or comparable proceedings not involving a reorganization, if such proceeding is instituted against that Party (and not dismissed with sixty (60) days thereafter). Any termination of this Agreement will automatically terminate all Order Forms.
9.3. Effect of Termination.
Upon early termination or expiration of this Agreement, (i) Customer’s access to, and use of, Atheer Services shall immediately cease, including without limitation the Software, (ii) Customer shall destroy all Software or, if requested by Atheer, Customer shall return the Software to Atheer, (ii) upon Disclosing Party’s request, the Receiving Party shall destroy or return all Confidential Information in its possession (except with respect to any Customer Data as set forth below). Upon request by Customer, Atheer shall make available to Customer, for a period not exceeding thirty (30) days after the expiration or termination of this Agreement, access to Atheer Services for the sole purpose of permitting Customer to download Customer Data. After such thirty (30) day period, Atheer shall have no obligation to maintain or provide the Customer Data to Customer and may thereafter unless legally prohibited, delete all Customer Data from its systems or otherwise in its control or possession. Upon any early termination or expiration of the Agreement, all payment obligations with respect to unpaid subscriptions to Atheer Services or services (including those payment obligations arising in the then-current Subscription Term) are irrevocable. Customer shall then pay any such outstanding amounts promptly to Atheer, and Customer will not be entitled to any refund of any prepaid amounts. The following Sections shall survive any expiration of termination of this Agreement: Sections 1.3 (Restrictions on Use), 1.4 (Customer Responsibilities), Section 2 (Proprietary Rights), Section 3 (Customer Data), Section 4 (Fees and Payment), Section 5 (Confidentiality), Section 6.3 (Disclaimers of Warranty), Section 7 (Limitation of Liability), Section 8 (Indemnification), Section 9 (Term and Termination), Section 15 (Miscellaneous).
10. PRESS RELEASE.
Customer agrees to the issuance of a joint press release on a mutually agreed date that is no later than ninety (90) days from the Effective Date. The content of such press release will be approved in advance by the parties (such approval not to be unreasonably delayed or withheld). Customer also agrees that Atheer may use Customer’s name and logo on Atheer’s web sites and in its promotional materials as part of a general list of customers.
During the term of this Agreement, Atheer will maintain the following insurance policies and minimum limits, and provide Customer with certificates of coverage upon request:
a) Personnel: Worker’s Compensation Insurance as required by the applicable law and US$ 2,000,000 Employer’s liability coverage;
b) Commercial General Liability Insurance: US$2,000,000 per occurrence and US$4,000,000 in the aggregate;
c) Umbrella Liability Insurance: US$2,000,000 per occurrence in excess of the limits stated above; and
d) Automobile Liability Insurance: US$2,000,000 per occurrence (on all hired and non-owned automobiles).
The insurance above will be carried with responsible insurance companies of recognized standing which are authorized to do business in the state or jurisdiction in which Atheer is headquartered and are rated A VIII or better by A.M Best. The insurance coverages described in this Section may be obtained through any combination of primary and excess or umbrella liability insurance.
Neither Party may assign this Agreement or any of its rights, by operation of law or otherwise, or delegate any of its duties hereunder, in whole or in part, without the other Party’s prior written consent; provided, however, either Party may assign this Agreement, without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of the previous sentence shall be void and of no effect.
Pursuant to all relevant export control laws and regulations, including but not limited to the U.S. Export Administration Regulations (collectively, “Export Controls”), Customer expressly agrees that it shall not, and shall cause its representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer Atheer Services, Documentation, Atheer Confidential Information, the Software or Customer Data to any destination, company or person restricted or prohibited by Export Controls, and that Customer shall otherwise comply with all applicable Export Control laws and regulations.
14. GOVERNMENT USERS.
If Customer is a branch or agency of the United States Government, Customer acknowledges that Atheer Services, Documentation and any other services provided by Atheer hereunder, are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 49 C.F.R. 12.212, and are provided to Customer either (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212 or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
15.1. Trial Usage.
If Atheer permits Customer to access and use Atheer Services for evaluation purposes for no fees or charges (“Free Trial”), Customer may be presented with additional terms and conditions prior to such use, and such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding upon the Parties. ADDITIONALLY, NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, ANY FREE TRIAL WILL BE MADE AVAILABLE BY ATHEER TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, (I) WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY (TO THE FULLEST EXTENT PERMITTED BY LAW) AND (II) WITHOUT ANY OBLIGATION OF ATHEER TO PROVIDE OR OFFER MAINTENANCE AND SUPPORT, ANY SERVICE LEVEL COMMITMENT, OR ANY INDEMNITY IN CONNECTION WITH CUSTOMER’S ACCESS TO, AND USE OF, ATHEER SERVICES DURING THE FREE TRIAL PERIOD.
15.2. Third Party Products and Services.
Customer may choose to obtain products and services that are provided or supported by third parties, including without limitation Smart Devices, for use with Atheer Services. Such third party products and services are provided pursuant to the terms and conditions of the applicable third party agreement between Customer and such third party, and Atheer assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any such third party products or services.
Upon reasonable notice and during Customer’s normal business hours, Atheer shall have the right to audit or use an independent third party subject to confidentiality obligations no less restrictive than those set forth herein, to audit, Customer’s business technical, and operational records and other materials related to its use of Atheer Services and Authorized Users, as necessary to verify Customer’s compliance with this Agreement, including but not limited to, the accuracy of the fees paid pursuant to this Agreement. Customer shall promptly pay the difference (plus interest) if such audit reveals an underpayment. If such audit reveals an underpayment of more than five per cent (5%), Customer shall also promptly reimburse Atheer for the reasonable costs and expenses of such audit.
15.4. Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
15.5. Force Majeure.
Each Party will be excused from performance of its obligations under this Agreement (except for Customer’s obligation to pay fees) to the extent that performance is prevented by events which are beyond the reasonable control of such Party (“Force Majeure Event”), such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. Any Party claiming the occurrence of a Force Majeure Event hereunder shall provide prompt notice thereof to the other Party and make commercially reasonable efforts to overcome the effect of such Force Majeure Event. If such Force Majeure Event prevents the Party from substantially performing its obligations hereunder for a period of ten (10) business days or more, either Party may terminate this Agreement on five (5) days written notice.
If any provision of this Agreement shall be adjudged by an any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
15.7. Governing Law: Jurisdiction and Venue.
This Agreement shall be governed by the applicable laws of the United States and the State of California, excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods and the Uniform Computer Transactions Act are specifically excluded from application to this Agreement. The parties hereby submit to the exclusive jurisdiction of, and waive any venue jurisdiction or venue objections against, the state and Federal courts located in Santa Clara County, California.
Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the first page of this Agreement or at such other address as may be given in writing by either Party to the other and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
15.9. Modifications or Waivers.
No modification, or amendment of this Agreement shall be effective and binding, unless in writing signed by the duly authorized representatives of both parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative of the Party claimed to have waived.
15.10. Entire Agreement.
This Agreement (including all Exhibits attached hereto) is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. Purchase orders (and similar documents) issued by Customer are for administrative purposes only (e.g. setting forth products and services ordered and associated fees), and any new, additional or different terms or conditions contained in any such order shall not apply (even if the order is accepted, or performed on by Atheer). In the event of a conflict between any Exhibit or Order Form and this Agreement, the Exhibit or Order Form (as applicable) will control and (ii) in the event of a conflict between any Exhibit and any Order Form, the Order Form will control. This Agreement may be executed electronically and in counterparts (such as via DocuSign), which taken together shall form one legal instrument.
Provided that Customer remains current in its payment obligations to Atheer, Atheer will use commercially reasonable efforts to provide technical support to Customer for Atheer Services, including the facilitation of both access and operation of Atheer Services as otherwise defined in Documentation, and responding to Customer’s technical support inquires in accordance with the table and response matrix below (including meeting the response times set forth below).
To enable such technical support, Customer must report technical issues in a timely manner by either (i) initiating a helpdesk ticket by emailing firstname.lastname@example.org or (ii) contacting Atheer’s customer success manager assigned to them by phone at the number provided, and, either case, by providing assistance as requested by Atheer to diagnose and resolve such issues.
|Case Limit||No Limit|
|Response Time||See Response Time Matrix in Table 1 below|
|Support Hours||9:00 am through 5:00 pm (Pacific Standard Time); Monday through Friday, 5 business days per week (excluding bank holidays)|
Response Time Matrix
|Severity Level||Severity Definition||Examples||Response Time|
|P1||Severe Business Impact||
|P2||Significant Loss of Functionality||
||1 business day|
|P4||No Operational Impact||
||3 business days|
Service Level Agreement
1. Service Level Agreement
1.1. This Service Level Agreement for Atheer Services sets forth the System Availability Service Level Agreement (“SLA”) for the Atheer Services to which Customer has subscribed (“Atheer Services”) in an Order Form with Atheer.
1.2. This Service Level Agreement for Atheer Services shall not apply to any Atheer Services for which the applicability of the System Availability SLA is explicitly excluded in the Agreement or Atheer Documentation.
“Downtime” means the Total Minutes in the Month during which the applicable Atheer Service is not available, except for Excluded Downtimes.
“Month” means a calendar month.
“Monthly Subscription Fees” means the monthly (or 1/12 of the annual fee) subscription fees paid for the Atheer Service which did not meet the System Availability SLA.
“Total Minutes in the Month” are measured 24 hours at 7 days a week during a Month.
3. System Availability SLA and Credits
3.1. Claim Process, Reports
Customer may claim a credit in the amount described in the table of Section 3.2 below in case of Atheer’s failure to meet the System Availability SLA, which credit Customer may apply to a future invoice relating to the Atheer Services that did not meet the System Availability SLA. Claims under this Service Level Agreement for Atheer Services must be made in good faith and by submitting a support case within thirty (30) business days after the end of the relevant Month in which Atheer did not meet the System Availability SLA.
Upon Customer’s request, Atheer will provide to Customer a monthly report describing the System Availability percentage for the applicable Atheer Service.
3.2. System Availability
System Availability percentage is calculated as follows:
System Availability as percentage = [(total minutes in the calendar month – Downtime) / total minutes in the calendar month] * 100
NOTE: Total minutes in the calendar month that defines “Downtime” above does not include total “Excluded Downtime” minutes as defined in Table below.
|System Availability SLA||99.9% System Availability percentage during each Month|
|Credit||2% of Monthly Subscription Fees for each 1% below System Availability SLA, not to exceed 100% of Monthly Subscription Fees|
|Excluded Downtime||Total Minutes in the Month attributable to:
(i) a Scheduled Downtime for which a Regular Maintenance Window is described in Section 4 below, or
(ii) any other Scheduled Downtime described in Section 4 for which the Customer has been notified at least five (5) business days prior to such Scheduled Downtime; or
(iii) unavailability caused by factors outside of Atheer’s reasonable control, such as unpredictable and unforeseeable events that could not have been avoided even if reasonable care had been exercised.
|Scheduled Downtime||Scheduled Downtime for the applicable Atheer Services to which Customer has subscribed is set forth in Section 4 below entitled “Maintenance Windows for Atheer Services”.|
4. Maintenance Windows for Atheer Services
Atheer Maintenance Windows may vary from time to time. Atheer will provide Customer regular notice of applicable Maintenance Windows on its support portal.