RELOGIX SUBSCRIPTION LICENSE AGREEMENT
THIS SUBSCRIPTION LICENSE AGREEMENT (the "Agreement") is made and entered into as of DATE between Relogix Inc. (the "Licensor"), and CLIENT (the "Licensee").
Whereas, Licensee provides the Services generally;
And Whereas, Licensor wishes to provide and the Licensee wishes to purchase the Licensor's Services;
NOW THEREFORE, in consideration of the respective covenants and agreements of the parties contained herein, and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged) it is agreed as follows:
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Purchased Services" means Services that Licensee or its Affiliates purchase from Licensor, and as set out in Schedule "A".
"Services" means the products and services made available by Licensor to its customers.
"Users" means individuals who are authorized by Licensee to use the Purchased Services, for whom subscriptions to Purchased Services have been ordered, and who have been supplied user identifications and passwords by Licensee (or by Licensor pursuant to this Agreement and request by Licensee). Users may include but are not limited to Licensee's employees, consultants, contractors and agents, and third parties with which Licensee transacts business.
“Intellectual Property” means a party’s right, in any jurisdiction, in or to a patent, patent application, utility model, inventor’s certificate, copyright, moral right, trade mark, service mark, trade secrets and any and all other intellectual property rights existing in and to works, papers, reports, report forms, formats and layouts, designs, procedures, know how, drawings, plans, patterns specifications formula, art, processes, research, data, experiments, studies, manuals, photography, laser prints, inventions, computer software, source codes, charts, composition of material, compilation of information, documentation, material and other works of any kind, whether or not registered or registrable;
"Licensee Data" means all electronic data or information submitted by Licensee, Licensee's employees, consultants, contractors and agents, and third parties with which Licensee transacts business, to Licensor or its designated agents pursuant to this Agreement.
"Managed Services Provider" means a third party with whom Licensor has entered into a
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business relationship to provide services related to its Services.
“Order Schedule” means the document executed by both Parties (or their Affiliates) pursuant to which CUSTOMER commits to purchase and Provider commits to provide the Provider Services specified in the document, a template of which is attached as Schedule C.
2. PURCHASED SERVICES
2.1. Provision of Purchased Services. Licensor agrees to provide the Purchased Services to Licensee pursuant to the terms of this Agreement, subject to all applicable laws and government regulations.
2.2. Managed Services Providers. Licensor reserves the right to use Managed Service Providers to provide the Purchased Services. Licensor shall be responsible for the acts and omissions of the Managed Services Provider pursuant to the provision of the Services, including without limitation the adherence of the Managed Service Provider to the obligations and restrictions of the Licensor hereunder.
3. USE OF THE SERVICES
3.1. Users. Purchased Services may be used only by Users.
3.2. Support and Data Security. Support for Purchased Services are set out in Schedule "B", subject to the terms and conditions contained herein.
3.3. Modify Data. Licensor and its Managed Services Providers will not modify or access the Licensee data except as required by this Agreement or the Purchased Services, and will maintain the confidentiality of the Licensee Data in accordance with Section 8.
3.4. Licensee's Responsibilities. Licensee is responsible for (i) ensuring Users comply with this Agreement; (ii) the accuracy, quality, and legality of the Licensee Data; (iii) taking all commercially reasonable efforts to prevent unauthorized use or access to the Services or Purchased Services and notifying Licensor in the event of an unauthorized use or access; (iv) ensuring the Purchased Services are used only in accordance will all applicable laws and government regulations; (v) ensuring the Purchased Services are not used to transmit Malicious Code, and do not interfere or disrupt the Services or third-party data contained therein; and (vi) ensuring Users do not attempt or gain unauthorized access to the Services, or their related systems or networks.
4. THIRD-PARTY APPLICATIONS OR SERVICES
4.1. No Warranty. Other than with respect to subcontractors of the Licensor who provide software applications or services, Licensor does not warrant or support any third-party software applications or services, whether or not Licensor designates them as certified or otherwise.
4.2. Third-Party Interface or Access. Licensee acknowledges that if it enables a third-party software application or service to interface or interoperate with the Purchased Services, or allows a third
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party access to the Licensee Data, Licensor is not responsible for any disclosure, modification, or deletion to the Licensee Data resulting from such actions.
4.3. Integration. Other than with respect to any functionality generally offered in the Services, if a thirdparty ceases to make its software application or service available for use with the Services, Licensor may cease to provide service features related to said software application or service without entitling Licensee to any refund, credit, or other compensation. For clarity, any continued material degradation of the Services outside of any service level issues addressed in Schedule “B”, shall be considered a material breach of this agreement.
5. TERM AND TERMINATION
5.1. This Agreement will commence as of the Effective Date and will continue for a period as defined in the Order Schedule, unless terminated in accordance with this Agreement.
5.2. A party may terminate this Agreement for cause if: (i) a party infringes the other party's intellectual property rights or industrial property or proprietary rights; (ii) the Licensee fails to pay in full any undisputed sum owed by it under this Agreement to Licensor within the prescribed due date and such failure continues for a period of 30 days after delivery of written notice requiring Licensor to correct said failure; (iv) a party fails to observe or to perform any other material obligation or covenant required by this Agreement and such failure continues for a period of 30 days after delivery of written notice requiring the other party to cure such failure.
5.3. In the event this Agreement is terminated pursuant to Section 5.2 because of the Licensee's material breach, Licensee shall pay to Licensor the Fees outstanding for the remainder of the Term. Inthe event this Agreement is terminated pursuant to Section 5.2 because of the Licensor's material breach, Licensor shall refund any prepaid Fees to Licensee. Termination under Section 5.2 for any reason will not relieve Licensee from paying Fees payable to Licensor prior to the effective date of the termination.
5.4. In the event this Agreement is terminated, or upon the expiration of the term and the Agreement is not renewed by the parties, all licensee data will be provided in a collection of XML (text) files, and all related data will be deleted from the Licensor's system, including the backup history.
5.5. Order Schedule Termination Fees: Termination of an Order Schedule and associated Purchase Order for Purchased Services; that were priced based on a term discount will revert back to the lesser term discount and the difference will be the applicable fee chargeable to Licensee (Cancellation Fee). Provider will issue an invoice to CUSTOMER for such Cancellation Fee. For example, if a three year Order Schedule is cancelled before the term is completed, the three year discount will revert to the discount level associated with completed payments to date, e.g. a one year discount, and the difference between a three year discount and a one year discount will be payable for the full usage period. If payments are made in advance, credit for unused months will be applied against the Cancellation Fee. In addition to the Cancellation Fee, all sensors and gateways will be returned to Licensor in full working order. Any damaged sensors will be reimbursed and added to the Cancellation Fee. Cancellation Fee will not be fully calculated until sensors and gateways are returned and tested.
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6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. Licensee shall pay the License Fees for the Purchased Services (the "Fees"), according to the terms as set out in Schedule "A" or Schedule “C”. All Fees shall be subject to applicable taxes.
6.2. Payment. Except as specified otherwise the Fees are based on the Purchased Services and not actual usage. Licensee is responsible to provide Licensor with complete and accurate billing information, and to notify Licensor of any changes thereto. Payment for the Fees shall be made by direct deposit, or as agreed by the parties.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. Intellectual Property. Licensee acknowledges that the Services are proprietary to Licensor and that all rights thereto, including all intellectual property rights, are owned by Licensor. Any rights not expressly granted in this Agreement are reserved by Licensor.
7.2. Restrictions. Licensee may not rent, lease, sell, transfer (by sublicense, assignment or otherwise except as expressly provided by this