Last Modified: 11/19/2018
This AgileField Master Services Agreement (the “MSA”) is entered into as of the latter of the two dates signed on the earliest attached Order Form (the “Effective Date”) between AgileField, Inc. (“AgileField”), a Delaware corporation, with its principal place of business located at 7201 East Camelback Road, Suite 375, Scottsdale, Arizona 85251 and “Customer” as stated in the Order Form. (Each a “Party” and together the “Parties”)
AGILEFIELD AND CUSTOMER HEREBY AGREE AS FOLLOWS:
THIS MASTER SERVICES AGREEMENT AND ANY ASSOCIATED ORDER FORMS OR STATEMENTS OF WORK (“SOW”) GOVERN YOUR ACQUISITION AND USE OF THE AGILEFIELD SUBSCRIPTION SERVICES AND SHALL SUPERSEDE ALL PRIOR TERMS OR AGREEMENTS BETWEEN THE CUSTOMER AND AGILEFIELD, INC. (“AGILEFIELD” FORMERLY MOBILELOGIX, INC.)
BY ACCEPTING THIS AGREEMENT THROUGH EXECUTION OF THE AGILEFIELD ORDER FORM, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THESE SERVICES.
Capitalized terms not defined elsewhere in this Agreement shall have the meaning given to them as follows.
“Affiliates" means any entity which directly or indirectly, through one or more Intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.
“Agreement” means this MSA and any associated Amendments, Order Forms, SOWs, and/or Attachments designated as being part of this Agreement in writing and signed by both Parties.
“Customer” means the entity entering into this agreement with AgileField as designated by the name entered into the Company field of the Order Form.
“Customer Data" means all electronic data or information submitted to the Subscription Services by Customer or Its Affiliates.
“Documentation” means the applicable Service’s documentation, and its usage guides and policies, as updated from time to time, accessible via login to the applicable Service.
“Effective Date” means the date of Customer accepting this Agreement. This Effective Date is indicated in the Date field of the Customer signature block of the Order Form.
“Electronic Communications" means any transfer of signs, signals, text, Images, sounds, data or Intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Subscription Services. It includes any and all forms of communication containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Subscription Services or under Customer’s account.
“Order Form" means an AgileField Services Order Form in the name of and executed by Customer or its Affiliate and accepted by AgileField which specifies the Subscription Services and Professional Services to be provided by AgileField subject to the terms of this Agreement.
“Professional Services" means, collectively, all of the AgileField technical and advisory services provided to Customer by AgileField. Professional Services can be procured by Customer via an Order Form and described in an attached Statement of Work, and any subsequent Order Form or Statement of Work from time to time. Professional Services includes on-boarding, training, project management, customer support, software engineering, system integrations, but excludes Subscription Services.
“Services” means collectively, all of the services including Subscription Services, Professional Services, and any other service offering provided to Customer by AgileField in consideration for Fees. Services excludes Customer Data and Third-Party Applications.
“Subscription Services" means, collectively, the AgileField AgileFSM Field Service Management platform and its component business applications. Subscription Services are licensed by Customer from AgileField via an initial Order Form and any Subsequent Order Form or from time to time. Subscription Services may include offline components that are installed on Customer controlled devices, but excludes Third Party Applications and Professional Services.
“Statement of Work" means an AgileField document executed by Customer or Its Affiliate and accepted by AgileField which specifies the deliverables of Professional Services procured by Customer or its Affiliates.
“Third Party Applications" means online Web-based applications or services and offline software products that are provided by third parties and Interoperate with the Subscription Services,
“Users" means individuals who are authorized by Customer to use the Subscription Services (via computer, smartphone, or other mobile device), for whom subscriptions to the Subscription Services have been procured, and who have been supplied user identifications and passwords by Customer (or by AgileField at Customer’s request). Users may include but are not limited to Customers and Customer’s Affiliates’, employees, consultants, contractors and agents.
Subject to the terms and conditions of this Agreement and in consideration for the Fees paid, AgileField hereby grants Customer a non-exclusive, non-transferable, limited right, License (i) to use the Subscription Services in a manner consistent with any additional use limitations specified or referenced in the Order Form; and (ii) to download, print, copy and use any documentation as reasonably necessary for its internal, in-house use related to the rights granted under subscription (i) above. If no Territory is designated in the attached Order Forms, then the License to Use is agreed to be the limited to the United States of America and Canada.
Customer agrees that all rights, title, and interest in and to all intellectual property rights in the Subscription Services and all modifications, extensions, customizations, scripts or other derivative works of the Subscription Services provided or developed by AgileField are owned exclusively by AgileField or its licensors. AgileField reserves all rights not expressly granted herein. Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Subscription Services, express or implied, or ownership in the Subscription Services or any intellectual property rights thereto. In addition, AgileField shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Subscription Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including its users, relating to the operation of the Subscription Services. AgileField reserves any rights not expressly granted herein. AgileField service marks, logos, product and service names are marks and/or trademarks of AgileField (the “AgileField Marks”). Customer agrees not to display or use the AgileField Marks in any manner without AgileField’s express prior written permission. The trademarks, logos, and service marks of Third Party Application providers (“Marks”) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party, which may own the Mark.
The terms of this Agreement shall also apply to updates and upgrades (if any) subsequently provided by AgileField to Customer for the Subscription Services. AgileField shall host the Subscription Services and may update the functionality, user interface, usability, and other user documentation, training, and educational information of, and relating to the Subscription Services from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Subscription Services and Customers’ use of the Subscription Services.
Prices, which are expressed herein in U.S. Dollars (if not clearly stated otherwise), are only valid if expressed in writing by AgileField and only for the period stated in the quotation or Order Form. If not stated, the price validity period is 21 days.
Customer agrees to pay all the fees for the Subscription Services and the Professional Services as specified in any Order Forms and/or Statements of Work associated with this Agreement in accordance with the terms of this Agreement. All payment obligations incurred by Customer during the Term of the Agreement are non-cancelable and all amounts paid are non-refundable, except as otherwise explicitly agreed upon in writing by AgileField and Customer
To assist Customer in paying fees in a timely basis, AgileField shall provide Customer with an invoice for all Fees owed and payments applied. AgileField will bill all Fees in accordance with the terms described in the associated Order Form and/or Statements of Work. AgileField’s failure to invoice Customer on a timely basis does not relieve Customer of responsibility to pay the Fees.
AgileField’s Subscription Service Fees are based on the number of named user accounts purchased on the associated Order Form and not on the Customer’s actual usage of the Subscription Services. The quantity of active User accounts purchased cannot be reduced during the Term of the Agreement. If the Customer adds additional Users for the Subscription Services during the term of this Agreement, Customer agrees to pay all applicable fees per user at the same price as that of the initial full price users listed on the original Order Form. If Customer adds additional Users during the term of the Agreement, Subscription Service fees will be prorated based on the then-remaining term on the Order Form applicable to the Subscription Services. Once licensed, Customer may not subsequently reduce the number of users it is obligated to pay for during the subscription term. Pricing for subsequent renewal Order Forms shall be set at the then current AgileField pricing, unless otherwise agreed to by the parties.
Unless otherwise stated on the Order Form payment of all invoiced amounts shall be made within 30 days of the date of the invoice or before any due date for payment shown on the invoice. License fees are invoiced in advance as specified in the Order Form for full access to the AgileField Service via internet browser, smartphone, or mobile device.
Payment is to be made via electronic funds transfer, credit card, or check. If the Customer has provided AgileField with credit card information, Customer authorizes AgileField to charge such credit card in accordance with the payment schedule set forth in the Order Form for the initial subscription period and any renewing subscription periods. If Payment is made via physical mail or parcel delivery, Payment must be delivered to the AgileField address shown on the most recent Invoice.
If any payment is not made by the Customer by the due date, AgileField reserves the right to charge interest at the ratio of 1.50% of the amount due (calculated on monthly basis) until payment is received in full. Additionally, if payment is not made for 30 days after the due date (60 days after the invoice date), AgileField reserves the right to suspend Service to the Customer as described in Section 7.2.
AgileField fees to not include any local, state, federal, or foreign taxes, levies, or duties of any nature, including value-added, sales use or withholding taxes relating to the Subscription Services or Professional Services obtained by Customer (“Taxes”). Customer is responsible for paying all Taxes. If AgileField has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced and paid by Customer unless Customer provides AgileField with a valid tax exemption certificate authorized by the appropriate taxing authority.
AgileField shall provide Customer with the Services as described under the following terms:
The Subscription Services shall be ordered by Customer or its Affiliates pursuant to Order Forms and shall include, at a minimum, a listing of the Subscription Services and related deliverables. Professional Services shall be ordered by Customer or its Affiliates pursuant to Order Forms and shall include, at a minimum, a description of the Professional Services. AgileField’s Professional Services team shall provide a Statement of Work prior to project kick-off that shall include, at a minimum, a description of the project scope and deliverables. Except as otherwise provided on the Order Form, Statement of Work, or this Agreement, each Order Form and/or Statement of Work is non-cancellable and shall be subject to the terms and conditions of this Agreement. For any order by Customer or its Affiliate for the benefit of Customer’s Affiliate(s), the term “Customer” shall refer to Customer and such Affiliate(s).
Customer may elect to purchase Professional Services, for a separate and additional charge, to assist with Subscription Services implementation and training. If the Customer elects to purchase Professional Services, then Customer must fully utilize the purchased Professional Services within 120 days of the Effective Date of this agreement, unless explicitly agreed to otherwise by both AgileField and the Customer. Failure to do so will result in the forfeiture of any unused Professional Services. If the Customer elects to not purchase Professional Services to assist with Subscription Services implementation and training, the Customer will still be entitled to receive the assistance of AgileField Technical Support to assist with any product issues. However, if Customer elects not to purchase Professional Services, it shall not be entitled to utilize AgileField Technical Support as a substitute for the Professional Services including, without limitation, any Professional Services relating to implementation or installation of the Subscription Services.
As part of the Subscription Services, AgileField will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Subscription Services. AgileField also offers optional and “for fee” training classes and Professional Services consultation. Customer acknowledges that AgileField has extensive experience helping Customers improve utilization and realization of benefits of the Subscription Services and that not following the advice of AgileField and/or not engaging AgileField in the provisioning of Professional Services may substantially limit Customer’s ability to successfully utilize the Subscription Services or to enjoy the power and potential of the Subscription Services.
AgileField commits to provide 99.0% uptime with respect to the Customer’s Subscription Services during each calendar quarter of the Term, excluding regularly scheduled maintenance times. Scheduled maintenance downtime is maintenance scheduled with at least two business days’ notice. If in any calendar quarter this uptime commitment is not met by AgileField and Customer was not able to access the Subscription Services, the sole remedy available to Customer will be the receipt of a Service Credit payable in credited time in accordance with Service Level Agreement and at end of service contract defined in the Order Form.
AgileField may make modifications to the Subscription Services or particular components of the Subscription Services and will use commercially reasonable efforts to notify Customer of any material modifications. AgileField reserves the right to discontinue offering the Subscription Services at the conclusion of Customer’s then current subscription term for such Subscription Services.
AgileField shall maintain commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality, and integrity of Customer Data.
AgileField excludes all responsibilities not explicitly listed in Section 5. AGILEFIELD RESPONSIBILITIES and specifically excludes responsibility for the following:
a) AgileField is not responsible for notifying Customer of any upgrades, fixes, or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by AgileField.
b) AgileField shall not be liable to Customer nor any third party for any modification of the Subscription Services as described in this Section.
c) AgileField shall not be liable for any loss or damage resulting from late delivery. All delivery times and dates are approximate, but AgileField shall use its reasonable endeavors to respect them.
d) AgileField will act as though any Electronic Communications it receives under Customer’s passwords, username, and/or account number will have been sent by Customer.
e) AgileField assumes no responsibility for the reliability or performance of any connections described in Section 6.4.Sufficient Electronic Communications.
Customer is responsible for all activities conducted under its User logins and is responsible for ensuring all of its Users comply with the terms of this Agreement.
Except as otherwise permitted herein, Customer shall be fully responsible for the following:
a) accuracy, quality and legality of Customer Data, the means by which Customer acquired the Customer Data and Customer’s use of Customer Data with the Services;
b)usage of commercially reasonable efforts to prevent unauthorized access to or use of Services and Customer Data, and notify AgileField promptly of any such unauthorized access or use;
c) usage of Services and Customer Data only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations; and
d) to comply with terms of service of any Non-AgileField Applications with which Customer uses Services or Customer Data.
Customer’s Use of the Services are restricted to prevent unauthorized or illegal use of the Services.
Except as otherwise permitted herein, in no event shall Customer:
a) utilize the Services for a purpose other than Customer’s or its Affiliates’ own internal business operations;
b) copy, translate, create a derivative work or, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the Subscription Services in any manner or form unless expressly allowed by this Agreement;
c) use, or permit any third party to use, the Services for time-sharing, rental, sublicensing, concurrent use of a single User login, or service bureau purposes;
d) decompile, disassemble, reverse assemble, or otherwise reverse engineer the Subscription Services, or permit any third party to decompile, reverse assemble, or reverse engineer the Subscription Services;
e) use the Subscription Services in a manner that is contrary to the applicable law or in violation of any third-party rights of privacy or intellectual property rights;
f) publish, post, upload, or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
g) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services;
h) use unauthorized modified versions of the Subscription Services;
i) Customer agrees not to access the Subscription Services by any means other than through the interfaces that are provided by AgileField;
j) Customer shall not do any “mirroring” or “framing” of any part of the Subscription Services, create Internet links to the Subscription Services which Include login information, usernames, passwords, and/or secure cookies;
k) attempt to gain unauthorized access to the Services of their related systems or networks; or
l) access any Service in order to build a competitive product.
Customer is responsible for controlling how it allows Users to access the Services and controlling how its Users use the Services.
Except as otherwise permitted herein, Customer shall be fully responsible for the following:
a) Customer shall ensure that all access and use of the Subscription Services by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users that are contractors and agents, and Customer’s Affiliates;
b) any action or breach by any of such contractors, agents, or Affiliates shall be deemed an action or breach by Customer and Customer waives all of these defenses that Customer may have as to why Customer should not be liable for Customer’s contractors’, agents’, or affiliates’ acts, omissions and noncompliance with this Agreement;
c) any and all use of the Services from Customer’s Users, whether or not the use is made by the actual User or someone else using the actual User’s credentials, and whether use is made through the AgileField website or another system;
d) create and assign unique passwords and usernames only up to the number of Users procured by Customer on the Order Form or in any additional Order Forms through which Customer acquires rights to authorize additional Users;
e) ensure that User logins are for designated Users only and cannot be shared or used by more than one User, but any User login may be reassigned to another named full time User as needed;
f) maintaining confidentiality and enforcing proper use of the User’s passwords and usernames;
g) promptly notify AgileField of any unauthorized access or use of the Subscription Services and any loss or theft or unauthorized use of any User’s password or name and/or Subscription Services account numbers.
Customer is responsible for operating its own Electronic Communications capabilities in a manner sufficient for proper transmission of the Subscription Services.
Except as otherwise permitted herein, Customer shall be fully responsible for the following:
a) procuring and maintaining the network connections that connect the Customer network to the Subscription Services via a high-speed Internet connection;
b) accessing the Subscription Services only via browsers or applications that support the protocols used by AgileField, including Secure Socket Layer (SSL) protocol or other protocols accepted by AgileField;
c) to follow logon procedures for services that support such protocols;
d) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services.
Customer must notify AgileField immediately in the event that Customer becomes aware of the possibility of a breach of security.
The subscription Services allows Customer to send Electronic Communications directly to AgileField and to third parties. Customer shall comply with all applicable local, state, and foreign laws, treaties, regulations, and conventions in connection with its use of the Subscription Services, including without limitation those related to privacy, electronic communications and anti-spam legislation. In addition to Customer’s other obligations set forth herein,
Customer specifically acknowledges and agrees that:
a) AgileField is not acting on your behalf as a Business Associate or subcontractor (as such terms are used, defined, or described in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”));
b) the Subscription Services is not HIPAA-compliant;
c) Customer may not use the Subscription Services in any manner that would require AgileField or the Subscription Service to be HIPAA-compliant;
d) Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Subscription Services and obtain any permits, licenses and authorizations required for such compliance;
e) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located;
f) Customer will not send by Electronic Communication from the Subscription Services that is unlawful, harassing, libelous, defamatory or threatening.
Without limiting the foregoing Customer makes the following representations:
a) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports;
b) Customer shall not permit Users to access or use the Subscriptions Services in violation of any U.S. export embargo, prohibition or restriction;
c) Except as permitted by this Agreement, no part of the Subscription Services may be copied, reproduced, distributed, republished, displayed, posted, or transmitted in any form or by any means;
d) Customer will not in any way express or imply that any options contained in Customer’s Electronic Communications are endorsed by AgileField.
Customer shall provide accurate, current, timely and complete information on Customer’s legal business name, address, email address, and phone number. Customer shall also provide an appropriate billing address, email address, contact person and phone number. Customer shall promptly update all contact and billing information if it should change.
If Customer requires purchase orders to be issued in conjunction with the procurement of services from AgileField and referenced on any billings, Customer will provide said purchase order information with sufficient lead time to allow AgileField to process the purchase order, generate the associated invoice, and receive payment within the terms defined in Section 4.4 Payment Terms.
For the avoidance of doubt, any terms of any such purchase order (whether issued in connection with the execution of this Agreement or thereafter that are inconsistent in any manner with this Agreement, the Order Forms, or any Statements of Work shall be of no force and effect, and AgileField’s receipt of any such purchase order shall not be, and shall not be deemed to be, acceptance by AgileField, in any manner, of any of the terms of such purchase order.
Under no circumstances shall any purchase order issued by Customer, whether pursuant to this Section or otherwise, be considered part of the contractual relationship between Customer and AgileField.
The term of this Agreement shall commence on the Effective Date and shall continue until the date that the Subscription Services in all Order Form(s) are completed, expired, or terminated in accordance with the terms therein of this Agreement (the “Term”). The initial term of the Subscription Services procured by Customer shall continue for the term specified in the earliest dated Order Form. Thereafter, the subscription term of the applicable Subscription Services shall be extended as set forth in subsequent Order Forms (each successive renewal term, a “Renewal Term”). If Customer (i) has not signed and delivered an Order Form to AgileField regarding an upcoming Renewal Term prior to at least thirty (30) days before the expiration of the then current term or, (ii) either party has not provided written notice of non-renewal to the other at least thirty (30) days before the expiration of the current term, then the subscription term for the applicable Subscription Services shall be automatically renewed for successive Renewal Terms of one (1) year each.
AgileField reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Subscription Services for any accounts (i) for which any payment is due but unpaid only after AgileField has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice, or (ii) for which Customer has not paid for the Renewal Term and has not notified AgileField of its desire to renew the Subscription Services by the end of the then current Term. The suspension is for the entire account and all Users, and Customer understands that such suspension would therefore include Affiliate sub-accounts. Customer agrees that AgileField shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Subscription Services pursuant to this Section.
Customer agrees that AgileField may suspend access to the Subscription Services if AgileField reasonably concludes that Customer’s Subscription Services is being used to engage in denial of service attacks, spamming, or illegal activity and/or use of Customer’s Subscription Services is causing immediate, material and ongoing harm to AgileField or others. In the event that AgileField suspends access to the Subscription Services, AgileField will use commercially reasonable efforts to limit the suspension to the offending portion of the Subscription Services and resolve the issues causing the suspension of Subscription Services. Customer agrees that AgileField shall not be liable to Customer nor to any third party for any suspension of the Subscription Services under such circumstances as described in this Section.
Either party may immediately terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel, if any, of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement, Customer and all of its Affiliates’ and any Users shall have no rights to continue to use the Subscription Services. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, then AgileField shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of AgileField’s breach of the Agreement, then Customer shall be entitled to a refund of the pro rata portion of any subscription fees paid by Customer to AgileField under this Agreement for the terminated portion of the Term.
Customer agrees that following termination of Customer’s account and/or use of the Subscription Services with a written notice thirty (30) days prior, AgileField may immediately deactivate Customer’s account end user access. Customer will have access to the system for an additional thirty (30) days to retrieve Customer Data, provided that Customer has paid in full all good faith undisputed amounts owed to AgileField. Customer further agrees that AgileField shall not be liable to Customer nor to any third party for any termination of Customer access to the Subscription Services or deletion of Customer Data, provided AgileField is in compliance with the terms of this Section. If Customer requires support to retrieve Customer Data, they may engage with AgileField Professional Services at standard billable rate per hour.
For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, design, issues, all communication between the Parties regarding the Subscription Services and any information that is clearly identified in writing at the time of disclosure as confidential.
Notwithstanding the foregoing, Confidential Information shall not include information which:
a) is known publicly;
b) is generally known in the industry before disclosure;
c) has become known publicly, without fault of the Receiving Party;
d) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and which the lawful right to disclose such information to the Receiving Party; or
e) is aggregate data regarding use of AgileField’s products and services that does not contain any personally identifiable or Customer-specific information.
Each Party agrees:
a) to keep confidential all Confidential Information;
b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer;
c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information, including but not limited to inputting credit card data and social security numbers only in the fields designated for such data in the Subscription Services); and
d) to make Confidential Information available to authorized persons only on a “need to know” basis;
e) Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement.
Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
AgileField warrants that the Subscription Services will function in substantial accordance with the description and specifications set forth in the Agreement, Order Form, and/or Statement of Work. The warranty granted herein is in lieu of all other warranties, expressed or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose. AgileField’s entire liability and Customer’s sole and exclusive remedy for breach of the foregoing warranty shall be, at AgileField’s option, to either (i) return to the Customer the subscription fee for the period in which the Subscription Services did not perform according to this warranty, or (ii) repair the defects or replace the Subscription Services. Customer agrees that the Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features not dependent on any oral or written public comments regarding future functionality.
EXCEPT AS STATED IN SECTION 9, AGILEFIELD DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SUBSCRIPTION SERVICES AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICES AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THE WARRANTIES STATED IN SECTION 10.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY AGILEFIELD. THERE ARE NO EITHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, EXCEPT AS STATED IN SECTIONS 10.1 BELOW. THE SUBSCRIPTION SERVICES IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS AND IS FOR COMMERCIAL USE ONLY. AGILEFIELD EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING WITHOUT LIMITATION HIPAA, GDPR, OR THE GRAMM-LEACH-BLILEY ACT OF 1999. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SUBSCRIPTION SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
CUSTOMER AGREES THAT THE CONSIDERATION WHICH AGILEFIELD IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY AGILEFIELD OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, MULTIPLE, COVER, SPECIAL RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, VIOLATION OF STATUTE OR REGULATION, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW), OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 10.2.
Except with regard to amounts due under this Agreement, the maximum liability of either party to any person, firm or corporation whatsoever arising out of or In the connection with any license, use or other employment of the Subscription Services, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, statutory or regulatory duty, or otherwise, shall in no case exceed the equivalent of 12 months In subscription fees applicable at the time of the event. Notwithstanding the previous sentence, neither party shall be liable to the other party to the extent such liability would not have occurred but for the other party’s failure to comply with the terms of this Agreement. The essential purpose of this provision Is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are Integral to the amount of fees charged in connection with making the Subscription Services or Professional Services available to Customer and that, were AgileField to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 12 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for Incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
AgileField shall, at its own expense and subject to the limitations set forth in this Section 11, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims") alleging that the Subscription Services, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered Into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.
Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Subscription Services in violation of this Agreement or applicable law, (b) use of the Subscription Services after AgileField notifies Customer to discontinue use because of an Infringement claim, (c) modifications to the Subscription Services not made by AgileField, or (d) use of the Subscription Services in combination with any software, application or service made or provided other than by AgileField.
If a Claim of infringement as set forth above is brought or threatened, AgileField shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Subscription Services as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 11.1 state AgileField’s entire liability, and Customer’s exclusive remedy, with respect to any claim of Infringement of the intellectual property rights of a third party.
Customer shall, at its own expense defend AgileField from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks other than AgileField Marks, or any use thereof, infringes the Intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 7.4 or 9 above and shall hold AgileField harmless from and against liability for any Losses to the extent based upon such Claims.
In the event of a potential indemnity obligation under this Section 11, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of Its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The Indemnification obligations under this Section 11 are expressly conditioned upon the indemnified party’s compliance with this Section 11.3 except that failure to notify the Indemnifying party of such Claim shall not relieve that party of its obligations under this Section 11 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 11 shall survive termination of this Agreement for one year.
Each party agrees that before it seeks any form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are allegedly being breached). Within thirty days after such notice knowledgeable executives of the parties shall hold at least one meeting (in person or by video conference or tele-conference) for the purpose of attempting in good faith to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section 11.4 shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential information.
This Agreement shall inure to bind the parties hereto, their successors and assigns, that neither party may assign this Agreement without written consent of the other, except that AgileField may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates. There are no third-party beneficiaries to this Agreement. The Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although AgileField reserves the right to name Customer as a User of the Subscription Services. The Agreement, including all exhibits and/or Order Forms and Statements of Work, shall constitute the entire understanding between Customer and AgileField and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, RFPs and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under. or otherwise modify this Agreement, regardless of any failure of AgileField to object to such terms, provisions, or conditions. The Agreement shall not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted or by a properly executed Order Farm or Statement of Work. If any part of this Agreement and related Order Forms and Statements of Work are found to be invalid or unenforceable by a court or other competent authority, it shall not affect any other provisions of this Agreement and related Order Forms and Statements of Work; all other provisions will remain enforceable and in full effect. This Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties. Sections 3.2, 4.4, 4.6, 4.7, 6.5, 7.2, 7.5, 9, 10, 11, 12, 13 shall survive the termination or expiration of this Agreement.
This Agreement shall be governed in accordance with the laws of the State of Arizona and any controlling U.S. federal law and excluding the Uniform Computer Information Transactions Act (UCITA). Any legal suit. action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby or thereby shall be instituted in the Federal District Court of Arizona, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address not forth in the Order Form shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any object to the laying of venue of any suit, action, or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any suit, action or proceeding brought in any such court has been brought in an inconvenient forum. The parties, to the full extent permitted by law, waive their respective rights to a jury trial with respect to any action or claim arising out of or relating to any dispute in connection with this Agreement. The prevailing party of any dispute resolved by judgment by a court may recover reasonable attorney and court fees from the losing party. Customer shall compensate AgileField (including reimbursement of AgileField’s attorneys’ fee costs) for responding to any request from a third party for records relating to Customer or a User’s use of the Subscription Services. Such requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the User permitting the disclosure. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver at any breach under this Agreement should not constitute a waiver of any other breach or future breach.
Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Subscription Services. Customer expressly consents to AgileField’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by AgileField. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. AgileField is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted, or stored during the transmission of any data whatsoever across networks not owned and/or operated by AgileField, including, but not limited to, the Internet and Customer’s local network.
AgileField may offer certain Third-Party Applications for sale under Order Forms or Statements of Work. Any procurement of such Third-Party Applications by Customer shall be subject to the terms specified in such Order Forms.
In addition, AgileField or third-party providers may offer Third Party Applications or services, including Implementation, customization and other consulting services related to Customers’ use of the Subscription Services. Except as set forth in the Order Form or Statement of Work, AgileField does not warrant any such Third-Party Applications or services. Any procurement by Customer of any Third-Party Applications or services are solely between Customer and applicable third-party provider.
AgileField is not responsible for any aspect of such Third-Party Applications or services that Customer may procure or connect to through the Subscription Services, or any descriptions, promises, or other information related to the foregoing. If Customer installs or enables Third Party Applications or services for use with the Subscription Services, Customer agrees that AgileField may allow such third-party providers to access Customer Data as required for the interoperations of such Third-Party Applications with the Subscription Services, and any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third party provider. AgileField shall not be responsible for any disclosure, modification, deletion of Customer Data resulting from any access by Third Party Applications or third-party providers. No procurement of such Third-Party Applications or services is required to use the Subscription Services.
AgileField provides hypertext links to sites on the internet, which are operated by other people. Using an external hypertext link means that the Customer may be leaving AgileField’s site and AgileField therefore takes no responsibility for and gives no warranties, guarantees, or representations in respect of the linked sites.
Neither party shall be liable for any loss or delay (Including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those Involving AgileField employees), Internet service provider failures or delays, civil unrest, war or military hostilities, or criminal acts of third parties. Any payment date or delivery of Subscription Services date shall be extended to the extent of any delay resulting from any force majeure event.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS, AND THE PERSON SIGNING ON BEHALF OF EACH HAS BEEN AUTHORIZED TO DO SO. IF THE PERSON SIGNING BELOW AS CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH PERSON REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.
If any part of the Agreement should be found to be invalid or unenforceable by a court or other competent authority, then the rest shall not be affected.
Any notice to be given in respect of this Agreement by either of the parties shall be in writing, and delivered to the address set forth in the Order Form.