|
Coming to Terms |
CTaaS Service Agreement
WHEREAS TriAxis wishes to provide the Service, as defined herein, to Customer;
AND WHEREAS Customer wishes to obtain the right to use the Service from TriAxis on the terms and conditions described herein.
NOW THEREFORE in consideration of the mutual covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereby agree as follows:
1. Integral Links
The following links annexed to this Agreement are integral to, and form part of, this Agreement: All of these articulate and enforce the guarantees outlined on the Service Order executed by Customer and TriAxis. The parties agree that should any provision in the main body of this Agreement conflict with any provision contained in any annexed links to this Agreement, the provisions of the main body of this Agreement shall, to the extent possible, prevail.
2. Scope
2.1. As outlined in the terms and conditions described herein, TriAxis will be responsible for the performance of the Service as agreed in this Agreement and the annexed links.
2.2. TriAxis will use reasonable efforts to commence the provision of the Service to Customer within four (4) weeks after the date of the Agreement, but TriAxis shall have no liability should there be any delay in the provision of the Service, unless heretofore agreed to in the executed Services Order.
2.3. To the extent TriAxis’ performance hereunder is dependent upon Customer's actions, any dates or time periods relevant to TriAxis’ performance will be extended appropriately and equitably to reflect any delays due to Customer.
2.4. TriAxis will provide training (i.e., one-to-one knowledge transfer) as outlined in executed Services Order, for Customer's nominated representative who will be trained to as outlined as well as additional requirements that are mutually agreed in writing that may or may not be chargeable.
2.5. TriAxis will provide a Customer telephone support service and other support services for the Service as described in the SLA.
3. Provision of Equipment and Service
3.1. Subject to Customer's compliance with the terms and conditions of this Agreement, TriAxis agrees that Customer has a limited, revocable, non-transferable, non-exclusive right to access and use the Service during the Term. All rights not expressly granted to Customer are reserved by TriAxis and its licensors.
3.2. Except as expressly permitted by TriAxis or to the extent expressly authorized by the Service, Customer will comply with the CTERA End-User License Agreement (EULA.) Customer will use the Service solely in compliance with all Laws.
3.3. Except for the rights and licenses expressly granted under this Article 3, TriAxis and its Third Party Provider licensors retain all right, title, and interest in and to the Service, and other Intellectual Property Rights created, used, or provided by TriAxis to Customer pursuant to this Agreement. TriAxis and/or its licensors also own all right, title, and interest in and to all modifications or derivatives of, and improvements to, the Service, excluding any Customer Content. Customer acknowledges that TriAxis Intellectual Property Rights includes data, modules, components, designs, utilities, objects, processes, program listings, tools, models, diagrams, analysis frameworks, leading practices, trade-marks, patents, industrial designs, know-how, show-how, software, and specifications owned or developed by TriAxis and that nothing contained herein will constitute an assignment or transfer of any such TriAxis Intellectual Property Rights to Customer.
3.4. TriAxis may suspend provision of the Service or any part thereof for the purpose of carrying out or implementing necessary repairs, maintenance or improvements provided that in the event of such suspension TriAxis will use commercially reasonable efforts to ensure that reasonable notice is given to Customer and minimum disruption to the Service is caused.
3.5. TriAxis may also suspend the Service or any part thereof or terminate the Agreement without liability on its part if the provision of the Service or the relevant part of the Service is prohibited by Law or any Authority.
3.6. TriAxis may, during the Term, vary the technical specifications of the Service provided that at all times such changes do not materially impair or degrade the capacity or performance of the Service.
3.7. TriAxis will use commercially reasonable efforts to provide support for Customer's inquiries relating to the Service, retrieval of data or faults in the Service in accordance with the Support and Escalation Procedure set out in the Services Order, the Documentation and/or SLA. In the event that, following Customer notifying TriAxis of an actual site disaster requiring the data recovery process to be invoked, TriAxis fails to provide Customer with a full set of Customer's data stored with TriAxis within twenty-four (24) hours of the call notifying the problem being logged by TriAxis, Customer may, within thirty (30) days after such event occurs and by giving one (1) month's written notice to TriAxis, terminate the Agreement with effect from the expiration of such notice. The Monthly Fees will cease during such notice.
4. Provision of the Appliance
4.1. TriAxis may vary the specifications of the Appliance provided that this does not materially impair/degrade the Service.
4.2. Neither TriAxis, nor any Third Party Provider, makes any independent representations, warranties with respect to the Appliance. Any third party warranties are the exclusive remedies of Customer with respect to such Appliance.
5. Term
5.1. Subject to earlier termination as provided in Article 9, the Agreement shall continue for a minimum period of twelve (12) months from the Commencement Date (the “Initial Term”) and shall continue for additional one (1) year periods (each, a “Renewal Term” and the Initial Term and each Renewal Term, collectively, the “Term”) unless terminated by either party giving not less than three (3) months’ notice in writing, such notice to expire at the end of the Initial Term or at any Renewal thereafter.
5.2. Early termination for non-Breach of contract is allowed as follows:
5.2.1 For One Year Agreements, if termination occurs on or before four (4) months is completed, Customer agrees to pay TriAxis the remainder of the balance of twelve (12) full months at a rate that is forty (40%) percent premium over the twelve (12) months monthly cost. For Three Year Agreements, if termination occurs on or before four (4) months is completed, Customer agrees to pay TriAxis the remainder of the balance of twelve (12) full months at a rate that is forty (40%) percent premium over the twelve (12) months monthly cost.
5.2.2 For One Year Agreements, if termination occurs after four (4) months, but prior to twelve (12) months is completed, Customer agrees to pay TriAxis a fifty (50%) percent premium of the twelve (12) months monthly cost for the number of months the services was provided. For Three Year Agreements, if termination occurs after four (4) months, but prior to twelve (12) months is completed, Customer agrees to pay TriAxis a fifty (50%) percent premium of the twelve (12) months monthly cost for the number of months the services was provided.
5.3 It is understood that early termination is for justifiable business reasons. Customer understands that pricing based on twelve (12) months is lower due to TriAxis amortization of Hardware and Software purchased and provided to Customer on behalf of this Agreement
6. Customer’s Obligations
6.1. Customer must take reasonable care of the Appliance and must not damage it, tamper with it, move or remove it or attempt to repair it. Customer will be responsible for all damage to or loss of the Appliance and/or the Software while on Customer's premises, other than loss or damage caused by TriAxis’ employees or contractors.
6.2. On termination of the Agreement, Customer agrees to allow TriAxis representatives and/or contractors reasonable access to its premises to remove the Appliance.
6.3. Customer will not remove any sign, label or other marking on the Appliance identifying that TriAxis is the owner thereof. Customer will not acquire any rights of ownership in the Appliance or the Software by virtue of the Agreement and shall not have, by operation of law or otherwise, any lien or other similar right over or in relation to the Appliance or any equipment at TriAxis’ data centers.
6.4. Customer shall not use the Service for any illegal or unlawful purpose in violation of any Laws or in a manner which constitutes a violation or infringement of the rights (including any Intellectual Property Rights) of any other party.
6.5. Customer will be responsible for securely storing, managing and deploying, when required, any encryption keys or passwords which will be generated to protect Customer Content and which may be required from time to time to ensure continuity, upgrading and reconfiguration of the Appliance and/or Service and in particular, restoration of data.
6.6. Customer must allow persons authorized by TriAxis to enter Customer's premises remotely at all reasonable times for the purpose of maintaining, repairing, improving, upgrading, substituting or replacing the Appliance and/or the Software.
6.7. Customer will nominate a suitably qualified person to undertake onsite or remotely accessed training by TriAxis and/or its contractors for the operation of the Service.
6.8. Customer will pay the Monthly Fees, Installation Fees (if applicable) and other Fees (if applicable) in accordance with Article 8., below.
6.9. The Customer shall, at all times, maintain all registrations and comply with all applicable Laws as may be necessary for its use of the Appliance and Service.
7. Customer Content
For avoidance of doubt, although TriAxis will have the right hereunder to host, store, back-up, restore, reproduce and/or distribute the Customer Content (among other things) for the sole purpose of providing the Service. The parties agree that at all times Customer shall retain ownership and legal title to any Customer Content backed up, restored, vaulted or otherwise retained by Customer using the Service.
8. Charges and Payment
8.1. The Monthly Fees and any additional installation charges for upgrades in the Appliance shall be payable and increased as stipulated in executed Services Order.
8.2. The Monthly Fees will commence on the Commencement Date as stipulated in executed Services Order.
8.3. All fees for the Service and any other service provided hereunder (collectively, "Fees") are exclusive of GST which, if it is applicable, will be added to Customer's invoice. Customer will be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to the Fees.
8.4. All late payments shall bear interest at the rate of 18.0% per annum, which shall be payable from the due date down to the date of payment and before as well as after any judgment for the same.
8.5. If Customer fails to pay any Fees when due, then in addition to any other rights TriAxis may have, TriAxis will have the right to suspend delivery of all or a portion of the Service to Customer, provided that TriAxis has supplied Customer prior notice and thirty (30) days' opportunity to cure such deficiency.
8.6. If Customer believes that TriAxis has billed Customer incorrectly, Customer must notify TriAxis thereof (in writing) no later than thirty (30) days after the date of the invoice. If TriAxis pursues collection efforts against Customer due to Customer's failure to pay Fees due under this Agreement, Customer will pay, Net 15-Days from invoice, TriAxis’ reasonable costs of collection, including any legal fees related thereto.
9. Breaches of Contract and Termination
9.1. Subject to Section 9.2, if Customer or TriAxis is in breach of the Agreement and such a breach is not remedied (other than as to the time for performance) within fourteen (14) days of receipt of written notice from whichever party believes there to be a breach and requiring such breach to be remedied, TriAxis or Customer (as the case may be) shall, without prejudice to its other rights, have the right to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer or TriAxis (as the case may be). Default in paying any sum due under the Agreement will be remedied only if the payment includes interest payable pursuant to Sections 5.2.1, 5.2.2, and 8.4.
9.2. TriAxis shall be entitled, without prejudice to its other rights, to promptly terminate the Agreement and without liability on its part in respect of such termination by written notice to Customer if Customer is in breach of Sections 3.2, 3.3, 10.3 and 10.4 or Article 6 or Customer fails on more than two (2) occasions to pay any sum due under the Agreement within the period specified in the Agreement.
9.3. Either Customer or TriAxis can promptly terminate the Agreement if the other party is (i) declared or becomes insolvent or bankrupt; or (ii) if a petition is filed in any court to declare the other party bankrupt or for a reorganization under bankruptcy law or any similar statute and such petition is not dismissed in ninety (90) days or (iii) if a trustee in bankruptcy or a receiver or similar entity is appointed for the other party.
9.4. If TriAxis terminates the Agreement following a breach by the Customer of this Agreement or Customer fails to give sufficient notice of termination in accordance with Section 5.1, Customer will be liable to pay the Installation Fees, all cancellation and other contractual charges incurred by TriAxis relating to the provision of telecommunications Service which may been ordered by TriAxis for the purpose of the provision of the Service, if applicable, and Customer will also pay TriAxis the cancellation fees specified in Section 5.2.
9.5. Upon the termination of the Agreement, TriAxis or any Third Party Provider may have, Customer shall:
9.5.1. within fifteen (15) days of the date of termination, deliver up to TriAxis and/or at Third Party Provider's option forthwith remove and/or destroy any/all components of the TriAxis-provided technology, any Confidential Information of TriAxis and any materials bearing TriAxis’ trade-marks from any storage media or hard copies remaining in Customer's control or possession;
9.5.2. Subject to Section 15.4, provide an officer's certificate attesting to such delivery, erasure and/or destruction as is satisfactory to TriAxis and Third Party Provider, acting reasonably;
9.5.3. remit all Fees payable for Service due prior to the date of such termination;
9.5.4. remit to TriAxis all such other costs and fees owing to TriAxis, including those related to the permanent or temporary winding down of the Service provided by TriAxis.
9.6. Additionally, TriAxis will, within thirty (30) days of any termination or expiration of this Agreement, return or destroy all Customer Content that it had used to perform the Service.
9.7. Customer acknowledges that its failure to comply with the terms of this Article could result in irreparable harm to TriAxis and Third Party Provider and, accordingly, in addition to any legal remedies available to TriAxis and Third Party Provider as a result of such failure to comply, TriAxis and Third Party Provider will have the right to seek specific performance of Section 9.5 or other equitable relief (or the equivalent of any such relief known or designated by some other name or term) from any court of competent jurisdiction. Customer will submit to the personal jurisdiction of any such court in an action seeking such relief.
9.8. The provisions of Articles and Sections 1, 3.2, 3.3, 6, 8, 9, 10, 12, 18-21 of these Terms will survive the termination of the Agreement and shall continue in full force and effect. Termination of the Agreement will not affect the rights of either party accrued prior to such termination in respect of a breach of the Agreement.
10. Ownership of Intellectual Property
Customer acknowledges that they are subject to the terms and conditions outlined in the CTERA EULA.
11. Representations and Warranties; Limitation of Liability
11.1. Customer represents, warrants and covenants to TriAxis as follows:
11.1.1. Customer exists under the laws of its own jurisdiction and is not under any contractual obligation that would preclude it from entering into this Agreement, granting the licenses granted hereunder or would interfere with the use of the Customer Content provided under this Agreement;
11.1.2. Customer owns or has properly licensed all rights in the Customer Content at all times during the Term;
11.1.3. Customer will use Service in a lawful manner only; use of Service in an unlawful manner is grounds for termination by cause, the immediate retrieval of any TriAxis-provided Technology and/or Third Party Provider Technology and whatever remedies TriAxis feels is required to defend themselves for Customer using the service in an unlawful manner.
11.2. TriAxis represents, warrants and covenants as follows:
11.2.1. TriAxis exists under the laws of the State of Connecticut and is not under any contractual obligation that would preclude it from entering into this Agreement;
11.2.2. TriAxis is not under any contractual or other obligation that would preclude it from providing the Service or granting the licenses granted hereunder;
11.2.3. TriAxis is the owner or licensee of the Service and has all rights necessary to perform its obligations hereunder;
11.2.4. TriAxis will use all reasonable skill and care in the provision of the Service to Customer subject to the terms of the Agreement;
11.2.5. TriAxis will perform the Service in a diligent, workmanlike and professional manner, consistent with standards generally observed in the industry for similar services; and
11.2.6. During the Term the Service will substantially conform to the Service Level Agreement, attached hereunder as SLA.
11.3. In performing its obligations under this Agreement, TriAxis will comply with all State of Connecticut data protection and privacy Laws in its collection, use and disclosure of any Personal Information. TriAxis will also use commercially reasonable efforts to safeguard and prevent the misuse of all Personal Information disclosed to it under this Agreement or in the course of providing the Service.
12. Limitation of Liability
12.1. The liability of TriAxis to Customer or Customer's employees, agents, sub-contractors, customers or any other person under or in connection with the Agreement shall be limited by the provisions of these terms and, in particular, Article 12.
12.2. Except for death or personal injury resulting from the negligence of TriAxis or its employees, TriAxis’ total liability to the Customer under or in connection with the Agreement (including, without limitation, arising out of any delay in commencing the Service) shall be limited to the Fees, otherwise payable for twelve (12) months or that had been previously paid by Customer during the twelve (12) month period immediately prior to the cause of action that arose.
12.3. Notwithstanding any other provision of the Agreement, in no circumstance shall TriAxis or Third Party Provider be liable to Customer under or in connection with the Agreement or otherwise for:
12.3.1. indirect, special, consequential or incidental damages, including, without limitation, loss of profits or revenue, loss of goodwill, business interruption, loss of anticipated savings, loss of data, cost of capital, however caused, even if such damages were foreseeable and the parties have been advised of the possibility of damages; or
12.3.2. inability to restore Customer Content due to the loss of Customer's encryption keys or passwords.
12.4. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER TRIAXIS NOR THIRD PARTY PROVIDER MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND IN RESPECT OF THE SERVICE, INCLUDING BUT NOT LIMITED TO IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL THIRD PARTY PROVIDER BE LIABLE OR RESPONSIBLE TO THE CUSTOMER IN RESPECT OF ANY ASPECT OF THE SERVICE PROVIDED BY TRIAXIS PURSUANT TO THIS AGREEMENT.
12.5. EXCEPT IN RESPECT OF A BREACH OF ARTICLE 15 (CONFIDENTIALITY), OR ANY OF THE LICENSE OR USE RESTRICTIONS CONTAINED HEREIN (SECTIONS 3.2, 3.3, 10.3 AND 10.4) AND PURSUANT TO ANY INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 13, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THE PARTY CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR COULD HAVE REASONABLY FORESEEN SAME), INCLUDING LOST BUSINESS REVENUE, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS); (B) COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICE; OR (C) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID (OR, IN CUSTOMER'S CASE, PAYABLE) BY CUSTOMER TO TRIAXIS UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
13. Indemnity
13.1. Customer shall defend, indemnify and hold TriAxis and Third Party Provider harmless, as required, on demand against any and all reasonable costs, expenses (including, without limitation, legal costs), liabilities, losses, damages, claims, demands and judgments which TriAxis or Third Party Provider incurs or suffers as a result of a breach of Sections 3.2, 3.3, 6, 8, 10 or 11.1.
13.2. TriAxis will defend, indemnify and hold Customer harmless from and against all third party claims (and all resulting damages awarded, settlements and costs and expenses to the extent arising from (i) TriAxis’ breach of Section 11.2 (except Section 11.2.6) or (ii) infringement by the Service of any registered patent or any copyright.
13.3. Notwithstanding the foregoing, TriAxis will have no liability for any claim pursuant to Section 13.2(ii) if the claims described in Section 13.2 above resulted from (i) a modification of the Service or other services provided by Customer or any end user not provided by TriAxis; (ii) the failure by Customer to use the latest version of the Software or any component of the latest version of the Software provided that TriAxis has notified Customer such latest version of the Software is available and should be used in order to avoid liability under such suits; iii) the combination by Customer of the Service with other Customer or third party software and hardware not provided by TriAxis but only if the claim would not have arisen from use of the Software alone or the use of the Software with any other software or hardware that is necessary for the Software to function in accordance with its specifications.
13.4. TriAxis’ entire liability, and Customer's exclusive remedy, for breach of Section 11.2.6 will be as expressly set forth in the SLA.
13.5. Customer reserves the right to retain counsel at its own expense to participate in the defense and settlement of any claim. In the event the Service is held to or believed by TriAxis to infringe, TriAxis will have the option to: (a) replace or modify the Service to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer the right to continue using the Service; or (c) if both (a) and (b) are not reasonably practicable, terminate this Agreement and refund to Customer the unamortized portion of the Fees paid to TriAxis hereunder for the use of such infringing matter.
13.6. THIS ARTICLE 13 SETS FORTH SERVICE PROVIDER'S ENTIRE LIABILITY, AND CUSTOMER'S SOLE REMEDY, IN THE EVENT OF VIOLATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
13.7. Each party's (as "Indemnitor") indemnity obligations under this Section 13 are contingent on the other party promptly notifying the Indemnitor in writing of any claim or threat thereof, promptly tendering to the Indemnitor sole control of the defense and any settlement of such claim, and providing to Indemnitor (at Indemnitor's cost) any assistance necessary to such defense or settlement. Indemnitor will not be responsible for any settlement it does not approve in writing.
14. Third Party Products
14.1. Customer shall be solely responsible for the evaluation, selection, installation, implementation, compatibility, use and performance of and results obtained from any hardware, systems software, utility software, security software, telecommunication equipment or software, and application software used in connection with the Service, unless (and only to the extent) otherwise expressly agreed in this Agreement.
14.2. TriAxis makes no independent representations or warranties with respect to products provided by third parties. Any third party warranties are the exclusive remedies of Customer with respect to such products.
15. Confidentiality
15.1. The Receiving Party:
15.1.1. will not, directly or indirectly, deal with, use, exploit or disclose such Confidential Information or any part thereof to any person or entity or for any purpose whatsoever (including in any manner that would benefit any competitor of the Disclosing Party) except as expressly permitted hereunder or unless and until expressly authorized to do so by the Disclosing Party;
15.1.2. will use and reproduce the Confidential Information of the Disclosing Party only to the extent necessary to fulfill the Receiving Party's obligations or exercise its rights under this Agreement;
15.1.3. will disclose the Confidential Information of the Disclosing Party only to its representatives, affiliates and professional advisors who have a need to know such Confidential Information for the purposes of fulfilling the Receiving Party's obligations or exercising its rights under this Agreement, and who have assumed obligations of confidentiality equal to or greater than the obligations of the Receiving Party under this Section with respect to the Confidential Information. In all cases, the Receiving Party will be responsible for any loss, theft, unauthorized access of Confidential Information or breach of law by its representatives, professional advisors, affiliates, employees and subcontractors; and
15.1.4. will use reasonable efforts to treat, and to cause all its representatives and those of its affiliates to treat, all Confidential Information of the Disclosing Party as strictly confidential, provided that in no event will such efforts be less than the degree of care that the Receiving Party exercises in protecting its own confidential information.
15.2. The Receiving Party will be entitled to disclose Confidential Information if such disclosure is required by a court, administrative body, or regulatory body (including a stock exchange) of competent jurisdiction, whether as a result of any application made by the Receiving Party or an investigation initiated by the regulatory body, or otherwise, provided that the Receiving Party will:
15.2.1. give prompt notice of any such requirement for disclosure to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy;
15.2.2. take such steps as are reasonably necessary and available to maintain the confidentiality of the Confidential Information by such court, administrative or regulatory body; and
15.2.3. in any event, make such disclosure only to the extent so legally required.
15.3. The Receiving Party shall, upon the written request of the Disclosing Party, return all of the Disclosing Party's Confidential Information and copies in its possession to the Disclosing Party or destroy such Confidential Information and copies as directed by the Disclosing Party within fifteen (15) days of any such request and shall provide to such Disclosing Party a certificate of an officer of the party certifying such destruction.
15.4. Use of Confidential Information by, or disclosure of Confidential Information to, any person that is not a party to this Agreement or a representative permitted by the Receiving Party to have access to the Confidential Information, that results from a breach of the electronic security of the computers and data storage and retrieval systems or network of the Receiving Party or, if applicable, any of its representatives will be treated as a disclosure by the Receiving Party contrary to the terms of this Agreement, whether or not the breach results from a failure by the Receiving Party, or, if applicable, any of its representatives, to implement appropriate security measures consistent with best practices or otherwise take necessary precautions in order to secure the Confidential Information.
15.5. Each party acknowledges and agrees that: (a) the restrictions set forth in this Article 15 are reasonable in the circumstances; (b) a violation of any of the provisions of this Article 15 shall result in immediate and irreparable harm and damage to the Disclosing Party; and (c) in the event of any violation of any provision of this Article 15, the Disclosing Party shall, in addition to any other right to relief, shall be entitled to equitable relief by way of temporary or permanent injunction and to such other relief as any court of competent jurisdiction may deem just and proper.
16. No Waiver
16.1. The failure by either party to exercise or enforce any right conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of any such right on any later occasion.
17. Assignment
17.1. Customer is not entitled to assign or novate its rights and/or obligations under the Agreement without TriAxis’ written consent.
17.2. TriAxis may assign or novate its rights and obligations under the Agreement to any company which is a member of the same group as TriAxis. A company will be in the same group as TriAxis if it is a subsidiary of TriAxis, a holding company of TriAxis, or a subsidiary of any such holding company.
17.3. Additionally, Customer acknowledges that TriAxis shall be permitted to assign the Agreement to any successor in title or other entity into, by or with which the business or assets of TriAxis to which the Agreement relates may be merged, acquired, consolidated or reorganized, or any entity which may purchase all or substantially all of such business or assets, or to another authorized service provider of CTERA in the event that TriAxis ceases to be an authorized service provider of CTERA. The Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective successors and permitted assigns.
18. Notice
18.1. Customer shall send TriAxis any written notice or other document required by or in connection with the Agreement to TriAxis’ registered office for the time being or to any other address in the United States of America notified to Customer by TriAxis in writing for the purpose.
18.2. TriAxis shall send Customer any written notice or other document required by or in connection with the Agreement to the address at which the Equipment is installed or situated, or to such other address in the United States of America notified to TriAxis by Customer in writing for the purpose.
18.3. All notices and other documents sent by one party to the other shall be delivered by hand or sent by first class post (or equivalent if to an address outside of the United States of America) or by facsimile, and notices delivered by hand shall be deemed delivered on the date of delivery, notices sent by post shall be deemed delivered two Business Days after posting and notices sent by fax shall be deemed delivered one day later.
19. Force Majeure
19.1. Except for Customer’s payment obligations, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, earthquakes, loss of utilities, and other disasters. Notwithstanding the foregoing, if a party seeks to excuse itself from its obligations under this Agreement due to a force majeure event, that party will promptly notify the other party of the delay or non-performance, the reason for such delay or non-performance and the anticipated period of delay or non-performance. If the anticipated or actual delay or non-performance exceeds sixty (60) calendar days, the other party may immediately terminate the Agreement by giving notice of termination and such termination will be in addition to the other rights and remedies of the terminating party under the Agreement, at law or in equity.
20. Entire Agreement
20.1. Other than the executed Services Order, the EULA and the SLA, with explicit understanding of the D&I and the EoL policy, this Agreement constitutes the entire agreement and understanding between TriAxis and Customer regarding the provision of the Service and any and all oral or written agreements existing prior to the date of the Agreement are expressly cancelled. All warranties, conditions, terms and representations, express or implied (whether by law, statute or otherwise) if not expressly incorporated in the Agreement or the EULA are hereby excluded to the extent permitted by law, save for those representations made fraudulently. Any modifications to the Agreement must be in writing and signed by the parties. These terms shall supersede the terms of any Services Order or other document submitted by Customer.
21. Governing Law/Jurisdiction
21.1. The Agreement shall be governed by and interpreted in accordance with laws of the State of Connecticut applicable thereto; excluding any conflicts of laws principles and the parties hereby attorn to the non-exclusive jurisdiction of the courts of State of Connecticut in respect of any dispute arising under the Agreement.
WITH COMPLETE UNDERSTANDING the parties mutually concur that this is the Agreement that will be in force during the term outlined above for the CTaaS service being purchased by client and provided by TriAxis.
AND WHEREAS Customer wishes to obtain the right to use the Service from TriAxis on the terms and conditions described herein.
NOW THEREFORE in consideration of the mutual covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereby agree as follows:
1. Integral Links
The following links annexed to this Agreement are integral to, and form part of, this Agreement: All of these articulate and enforce the guarantees outlined on the Service Order executed by Customer and TriAxis. The parties agree that should any provision in the main body of this Agreement conflict with any provision contained in any annexed links to this Agreement, the provisions of the main body of this Agreement shall, to the extent possible, prevail.
2. Scope
2.1. As outlined in the terms and conditions described herein, TriAxis will be responsible for the performance of the Service as agreed in this Agreement and the annexed links.
2.2. TriAxis will use reasonable efforts to commence the provision of the Service to Customer within four (4) weeks after the date of the Agreement, but TriAxis shall have no liability should there be any delay in the provision of the Service, unless heretofore agreed to in the executed Services Order.
2.3. To the extent TriAxis’ performance hereunder is dependent upon Customer's actions, any dates or time periods relevant to TriAxis’ performance will be extended appropriately and equitably to reflect any delays due to Customer.
2.4. TriAxis will provide training (i.e., one-to-one knowledge transfer) as outlined in executed Services Order, for Customer's nominated representative who will be trained to as outlined as well as additional requirements that are mutually agreed in writing that may or may not be chargeable.
2.5. TriAxis will provide a Customer telephone support service and other support services for the Service as described in the SLA.
3. Provision of Equipment and Service
3.1. Subject to Customer's compliance with the terms and conditions of this Agreement, TriAxis agrees that Customer has a limited, revocable, non-transferable, non-exclusive right to access and use the Service during the Term. All rights not expressly granted to Customer are reserved by TriAxis and its licensors.
3.2. Except as expressly permitted by TriAxis or to the extent expressly authorized by the Service, Customer will comply with the CTERA End-User License Agreement (EULA.) Customer will use the Service solely in compliance with all Laws.
3.3. Except for the rights and licenses expressly granted under this Article 3, TriAxis and its Third Party Provider licensors retain all right, title, and interest in and to the Service, and other Intellectual Property Rights created, used, or provided by TriAxis to Customer pursuant to this Agreement. TriAxis and/or its licensors also own all right, title, and interest in and to all modifications or derivatives of, and improvements to, the Service, excluding any Customer Content. Customer acknowledges that TriAxis Intellectual Property Rights includes data, modules, components, designs, utilities, objects, processes, program listings, tools, models, diagrams, analysis frameworks, leading practices, trade-marks, patents, industrial designs, know-how, show-how, software, and specifications owned or developed by TriAxis and that nothing contained herein will constitute an assignment or transfer of any such TriAxis Intellectual Property Rights to Customer.
3.4. TriAxis may suspend provision of the Service or any part thereof for the purpose of carrying out or implementing necessary repairs, maintenance or improvements provided that in the event of such suspension TriAxis will use commercially reasonable efforts to ensure that reasonable notice is given to Customer and minimum disruption to the Service is caused.
3.5. TriAxis may also suspend the Service or any part thereof or terminate the Agreement without liability on its part if the provision of the Service or the relevant part of the Service is prohibited by Law or any Authority.
3.6. TriAxis may, during the Term, vary the technical specifications of the Service provided that at all times such changes do not materially impair or degrade the capacity or performance of the Service.
3.7. TriAxis will use commercially reasonable efforts to provide support for Customer's inquiries relating to the Service, retrieval of data or faults in the Service in accordance with the Support and Escalation Procedure set out in the Services Order, the Documentation and/or SLA. In the event that, following Customer notifying TriAxis of an actual site disaster requiring the data recovery process to be invoked, TriAxis fails to provide Customer with a full set of Customer's data stored with TriAxis within twenty-four (24) hours of the call notifying the problem being logged by TriAxis, Customer may, within thirty (30) days after such event occurs and by giving one (1) month's written notice to TriAxis, terminate the Agreement with effect from the expiration of such notice. The Monthly Fees will cease during such notice.
4. Provision of the Appliance
4.1. TriAxis may vary the specifications of the Appliance provided that this does not materially impair/degrade the Service.
4.2. Neither TriAxis, nor any Third Party Provider, makes any independent representations, warranties with respect to the Appliance. Any third party warranties are the exclusive remedies of Customer with respect to such Appliance.
5. Term
5.1. Subject to earlier termination as provided in Article 9, the Agreement shall continue for a minimum period of twelve (12) months from the Commencement Date (the “Initial Term”) and shall continue for additional one (1) year periods (each, a “Renewal Term” and the Initial Term and each Renewal Term, collectively, the “Term”) unless terminated by either party giving not less than three (3) months’ notice in writing, such notice to expire at the end of the Initial Term or at any Renewal thereafter.
5.2. Early termination for non-Breach of contract is allowed as follows:
5.2.1 For One Year Agreements, if termination occurs on or before four (4) months is completed, Customer agrees to pay TriAxis the remainder of the balance of twelve (12) full months at a rate that is forty (40%) percent premium over the twelve (12) months monthly cost. For Three Year Agreements, if termination occurs on or before four (4) months is completed, Customer agrees to pay TriAxis the remainder of the balance of twelve (12) full months at a rate that is forty (40%) percent premium over the twelve (12) months monthly cost.
5.2.2 For One Year Agreements, if termination occurs after four (4) months, but prior to twelve (12) months is completed, Customer agrees to pay TriAxis a fifty (50%) percent premium of the twelve (12) months monthly cost for the number of months the services was provided. For Three Year Agreements, if termination occurs after four (4) months, but prior to twelve (12) months is completed, Customer agrees to pay TriAxis a fifty (50%) percent premium of the twelve (12) months monthly cost for the number of months the services was provided.
5.3 It is understood that early termination is for justifiable business reasons. Customer understands that pricing based on twelve (12) months is lower due to TriAxis amortization of Hardware and Software purchased and provided to Customer on behalf of this Agreement
6. Customer’s Obligations
6.1. Customer must take reasonable care of the Appliance and must not damage it, tamper with it, move or remove it or attempt to repair it. Customer will be responsible for all damage to or loss of the Appliance and/or the Software while on Customer's premises, other than loss or damage caused by TriAxis’ employees or contractors.
6.2. On termination of the Agreement, Customer agrees to allow TriAxis representatives and/or contractors reasonable access to its premises to remove the Appliance.
6.3. Customer will not remove any sign, label or other marking on the Appliance identifying that TriAxis is the owner thereof. Customer will not acquire any rights of ownership in the Appliance or the Software by virtue of the Agreement and shall not have, by operation of law or otherwise, any lien or other similar right over or in relation to the Appliance or any equipment at TriAxis’ data centers.
6.4. Customer shall not use the Service for any illegal or unlawful purpose in violation of any Laws or in a manner which constitutes a violation or infringement of the rights (including any Intellectual Property Rights) of any other party.
6.5. Customer will be responsible for securely storing, managing and deploying, when required, any encryption keys or passwords which will be generated to protect Customer Content and which may be required from time to time to ensure continuity, upgrading and reconfiguration of the Appliance and/or Service and in particular, restoration of data.
6.6. Customer must allow persons authorized by TriAxis to enter Customer's premises remotely at all reasonable times for the purpose of maintaining, repairing, improving, upgrading, substituting or replacing the Appliance and/or the Software.
6.7. Customer will nominate a suitably qualified person to undertake onsite or remotely accessed training by TriAxis and/or its contractors for the operation of the Service.
6.8. Customer will pay the Monthly Fees, Installation Fees (if applicable) and other Fees (if applicable) in accordance with Article 8., below.
6.9. The Customer shall, at all times, maintain all registrations and comply with all applicable Laws as may be necessary for its use of the Appliance and Service.
7. Customer Content
For avoidance of doubt, although TriAxis will have the right hereunder to host, store, back-up, restore, reproduce and/or distribute the Customer Content (among other things) for the sole purpose of providing the Service. The parties agree that at all times Customer shall retain ownership and legal title to any Customer Content backed up, restored, vaulted or otherwise retained by Customer using the Service.
8. Charges and Payment
8.1. The Monthly Fees and any additional installation charges for upgrades in the Appliance shall be payable and increased as stipulated in executed Services Order.
8.2. The Monthly Fees will commence on the Commencement Date as stipulated in executed Services Order.
8.3. All fees for the Service and any other service provided hereunder (collectively, "Fees") are exclusive of GST which, if it is applicable, will be added to Customer's invoice. Customer will be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to the Fees.
8.4. All late payments shall bear interest at the rate of 18.0% per annum, which shall be payable from the due date down to the date of payment and before as well as after any judgment for the same.
8.5. If Customer fails to pay any Fees when due, then in addition to any other rights TriAxis may have, TriAxis will have the right to suspend delivery of all or a portion of the Service to Customer, provided that TriAxis has supplied Customer prior notice and thirty (30) days' opportunity to cure such deficiency.
8.6. If Customer believes that TriAxis has billed Customer incorrectly, Customer must notify TriAxis thereof (in writing) no later than thirty (30) days after the date of the invoice. If TriAxis pursues collection efforts against Customer due to Customer's failure to pay Fees due under this Agreement, Customer will pay, Net 15-Days from invoice, TriAxis’ reasonable costs of collection, including any legal fees related thereto.
9. Breaches of Contract and Termination
9.1. Subject to Section 9.2, if Customer or TriAxis is in breach of the Agreement and such a breach is not remedied (other than as to the time for performance) within fourteen (14) days of receipt of written notice from whichever party believes there to be a breach and requiring such breach to be remedied, TriAxis or Customer (as the case may be) shall, without prejudice to its other rights, have the right to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer or TriAxis (as the case may be). Default in paying any sum due under the Agreement will be remedied only if the payment includes interest payable pursuant to Sections 5.2.1, 5.2.2, and 8.4.
9.2. TriAxis shall be entitled, without prejudice to its other rights, to promptly terminate the Agreement and without liability on its part in respect of such termination by written notice to Customer if Customer is in breach of Sections 3.2, 3.3, 10.3 and 10.4 or Article 6 or Customer fails on more than two (2) occasions to pay any sum due under the Agreement within the period specified in the Agreement.
9.3. Either Customer or TriAxis can promptly terminate the Agreement if the other party is (i) declared or becomes insolvent or bankrupt; or (ii) if a petition is filed in any court to declare the other party bankrupt or for a reorganization under bankruptcy law or any similar statute and such petition is not dismissed in ninety (90) days or (iii) if a trustee in bankruptcy or a receiver or similar entity is appointed for the other party.
9.4. If TriAxis terminates the Agreement following a breach by the Customer of this Agreement or Customer fails to give sufficient notice of termination in accordance with Section 5.1, Customer will be liable to pay the Installation Fees, all cancellation and other contractual charges incurred by TriAxis relating to the provision of telecommunications Service which may been ordered by TriAxis for the purpose of the provision of the Service, if applicable, and Customer will also pay TriAxis the cancellation fees specified in Section 5.2.
9.5. Upon the termination of the Agreement, TriAxis or any Third Party Provider may have, Customer shall:
9.5.1. within fifteen (15) days of the date of termination, deliver up to TriAxis and/or at Third Party Provider's option forthwith remove and/or destroy any/all components of the TriAxis-provided technology, any Confidential Information of TriAxis and any materials bearing TriAxis’ trade-marks from any storage media or hard copies remaining in Customer's control or possession;
9.5.2. Subject to Section 15.4, provide an officer's certificate attesting to such delivery, erasure and/or destruction as is satisfactory to TriAxis and Third Party Provider, acting reasonably;
9.5.3. remit all Fees payable for Service due prior to the date of such termination;
9.5.4. remit to TriAxis all such other costs and fees owing to TriAxis, including those related to the permanent or temporary winding down of the Service provided by TriAxis.
9.6. Additionally, TriAxis will, within thirty (30) days of any termination or expiration of this Agreement, return or destroy all Customer Content that it had used to perform the Service.
9.7. Customer acknowledges that its failure to comply with the terms of this Article could result in irreparable harm to TriAxis and Third Party Provider and, accordingly, in addition to any legal remedies available to TriAxis and Third Party Provider as a result of such failure to comply, TriAxis and Third Party Provider will have the right to seek specific performance of Section 9.5 or other equitable relief (or the equivalent of any such relief known or designated by some other name or term) from any court of competent jurisdiction. Customer will submit to the personal jurisdiction of any such court in an action seeking such relief.
9.8. The provisions of Articles and Sections 1, 3.2, 3.3, 6, 8, 9, 10, 12, 18-21 of these Terms will survive the termination of the Agreement and shall continue in full force and effect. Termination of the Agreement will not affect the rights of either party accrued prior to such termination in respect of a breach of the Agreement.
10. Ownership of Intellectual Property
Customer acknowledges that they are subject to the terms and conditions outlined in the CTERA EULA.
11. Representations and Warranties; Limitation of Liability
11.1. Customer represents, warrants and covenants to TriAxis as follows:
11.1.1. Customer exists under the laws of its own jurisdiction and is not under any contractual obligation that would preclude it from entering into this Agreement, granting the licenses granted hereunder or would interfere with the use of the Customer Content provided under this Agreement;
11.1.2. Customer owns or has properly licensed all rights in the Customer Content at all times during the Term;
11.1.3. Customer will use Service in a lawful manner only; use of Service in an unlawful manner is grounds for termination by cause, the immediate retrieval of any TriAxis-provided Technology and/or Third Party Provider Technology and whatever remedies TriAxis feels is required to defend themselves for Customer using the service in an unlawful manner.
11.2. TriAxis represents, warrants and covenants as follows:
11.2.1. TriAxis exists under the laws of the State of Connecticut and is not under any contractual obligation that would preclude it from entering into this Agreement;
11.2.2. TriAxis is not under any contractual or other obligation that would preclude it from providing the Service or granting the licenses granted hereunder;
11.2.3. TriAxis is the owner or licensee of the Service and has all rights necessary to perform its obligations hereunder;
11.2.4. TriAxis will use all reasonable skill and care in the provision of the Service to Customer subject to the terms of the Agreement;
11.2.5. TriAxis will perform the Service in a diligent, workmanlike and professional manner, consistent with standards generally observed in the industry for similar services; and
11.2.6. During the Term the Service will substantially conform to the Service Level Agreement, attached hereunder as SLA.
11.3. In performing its obligations under this Agreement, TriAxis will comply with all State of Connecticut data protection and privacy Laws in its collection, use and disclosure of any Personal Information. TriAxis will also use commercially reasonable efforts to safeguard and prevent the misuse of all Personal Information disclosed to it under this Agreement or in the course of providing the Service.
12. Limitation of Liability
12.1. The liability of TriAxis to Customer or Customer's employees, agents, sub-contractors, customers or any other person under or in connection with the Agreement shall be limited by the provisions of these terms and, in particular, Article 12.
12.2. Except for death or personal injury resulting from the negligence of TriAxis or its employees, TriAxis’ total liability to the Customer under or in connection with the Agreement (including, without limitation, arising out of any delay in commencing the Service) shall be limited to the Fees, otherwise payable for twelve (12) months or that had been previously paid by Customer during the twelve (12) month period immediately prior to the cause of action that arose.
12.3. Notwithstanding any other provision of the Agreement, in no circumstance shall TriAxis or Third Party Provider be liable to Customer under or in connection with the Agreement or otherwise for:
12.3.1. indirect, special, consequential or incidental damages, including, without limitation, loss of profits or revenue, loss of goodwill, business interruption, loss of anticipated savings, loss of data, cost of capital, however caused, even if such damages were foreseeable and the parties have been advised of the possibility of damages; or
12.3.2. inability to restore Customer Content due to the loss of Customer's encryption keys or passwords.
12.4. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER TRIAXIS NOR THIRD PARTY PROVIDER MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND IN RESPECT OF THE SERVICE, INCLUDING BUT NOT LIMITED TO IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL THIRD PARTY PROVIDER BE LIABLE OR RESPONSIBLE TO THE CUSTOMER IN RESPECT OF ANY ASPECT OF THE SERVICE PROVIDED BY TRIAXIS PURSUANT TO THIS AGREEMENT.
12.5. EXCEPT IN RESPECT OF A BREACH OF ARTICLE 15 (CONFIDENTIALITY), OR ANY OF THE LICENSE OR USE RESTRICTIONS CONTAINED HEREIN (SECTIONS 3.2, 3.3, 10.3 AND 10.4) AND PURSUANT TO ANY INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 13, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THE PARTY CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR COULD HAVE REASONABLY FORESEEN SAME), INCLUDING LOST BUSINESS REVENUE, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS); (B) COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICE; OR (C) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID (OR, IN CUSTOMER'S CASE, PAYABLE) BY CUSTOMER TO TRIAXIS UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
13. Indemnity
13.1. Customer shall defend, indemnify and hold TriAxis and Third Party Provider harmless, as required, on demand against any and all reasonable costs, expenses (including, without limitation, legal costs), liabilities, losses, damages, claims, demands and judgments which TriAxis or Third Party Provider incurs or suffers as a result of a breach of Sections 3.2, 3.3, 6, 8, 10 or 11.1.
13.2. TriAxis will defend, indemnify and hold Customer harmless from and against all third party claims (and all resulting damages awarded, settlements and costs and expenses to the extent arising from (i) TriAxis’ breach of Section 11.2 (except Section 11.2.6) or (ii) infringement by the Service of any registered patent or any copyright.
13.3. Notwithstanding the foregoing, TriAxis will have no liability for any claim pursuant to Section 13.2(ii) if the claims described in Section 13.2 above resulted from (i) a modification of the Service or other services provided by Customer or any end user not provided by TriAxis; (ii) the failure by Customer to use the latest version of the Software or any component of the latest version of the Software provided that TriAxis has notified Customer such latest version of the Software is available and should be used in order to avoid liability under such suits; iii) the combination by Customer of the Service with other Customer or third party software and hardware not provided by TriAxis but only if the claim would not have arisen from use of the Software alone or the use of the Software with any other software or hardware that is necessary for the Software to function in accordance with its specifications.
13.4. TriAxis’ entire liability, and Customer's exclusive remedy, for breach of Section 11.2.6 will be as expressly set forth in the SLA.
13.5. Customer reserves the right to retain counsel at its own expense to participate in the defense and settlement of any claim. In the event the Service is held to or believed by TriAxis to infringe, TriAxis will have the option to: (a) replace or modify the Service to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer the right to continue using the Service; or (c) if both (a) and (b) are not reasonably practicable, terminate this Agreement and refund to Customer the unamortized portion of the Fees paid to TriAxis hereunder for the use of such infringing matter.
13.6. THIS ARTICLE 13 SETS FORTH SERVICE PROVIDER'S ENTIRE LIABILITY, AND CUSTOMER'S SOLE REMEDY, IN THE EVENT OF VIOLATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
13.7. Each party's (as "Indemnitor") indemnity obligations under this Section 13 are contingent on the other party promptly notifying the Indemnitor in writing of any claim or threat thereof, promptly tendering to the Indemnitor sole control of the defense and any settlement of such claim, and providing to Indemnitor (at Indemnitor's cost) any assistance necessary to such defense or settlement. Indemnitor will not be responsible for any settlement it does not approve in writing.
14. Third Party Products
14.1. Customer shall be solely responsible for the evaluation, selection, installation, implementation, compatibility, use and performance of and results obtained from any hardware, systems software, utility software, security software, telecommunication equipment or software, and application software used in connection with the Service, unless (and only to the extent) otherwise expressly agreed in this Agreement.
14.2. TriAxis makes no independent representations or warranties with respect to products provided by third parties. Any third party warranties are the exclusive remedies of Customer with respect to such products.
15. Confidentiality
15.1. The Receiving Party:
15.1.1. will not, directly or indirectly, deal with, use, exploit or disclose such Confidential Information or any part thereof to any person or entity or for any purpose whatsoever (including in any manner that would benefit any competitor of the Disclosing Party) except as expressly permitted hereunder or unless and until expressly authorized to do so by the Disclosing Party;
15.1.2. will use and reproduce the Confidential Information of the Disclosing Party only to the extent necessary to fulfill the Receiving Party's obligations or exercise its rights under this Agreement;
15.1.3. will disclose the Confidential Information of the Disclosing Party only to its representatives, affiliates and professional advisors who have a need to know such Confidential Information for the purposes of fulfilling the Receiving Party's obligations or exercising its rights under this Agreement, and who have assumed obligations of confidentiality equal to or greater than the obligations of the Receiving Party under this Section with respect to the Confidential Information. In all cases, the Receiving Party will be responsible for any loss, theft, unauthorized access of Confidential Information or breach of law by its representatives, professional advisors, affiliates, employees and subcontractors; and
15.1.4. will use reasonable efforts to treat, and to cause all its representatives and those of its affiliates to treat, all Confidential Information of the Disclosing Party as strictly confidential, provided that in no event will such efforts be less than the degree of care that the Receiving Party exercises in protecting its own confidential information.
15.2. The Receiving Party will be entitled to disclose Confidential Information if such disclosure is required by a court, administrative body, or regulatory body (including a stock exchange) of competent jurisdiction, whether as a result of any application made by the Receiving Party or an investigation initiated by the regulatory body, or otherwise, provided that the Receiving Party will:
15.2.1. give prompt notice of any such requirement for disclosure to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy;
15.2.2. take such steps as are reasonably necessary and available to maintain the confidentiality of the Confidential Information by such court, administrative or regulatory body; and
15.2.3. in any event, make such disclosure only to the extent so legally required.
15.3. The Receiving Party shall, upon the written request of the Disclosing Party, return all of the Disclosing Party's Confidential Information and copies in its possession to the Disclosing Party or destroy such Confidential Information and copies as directed by the Disclosing Party within fifteen (15) days of any such request and shall provide to such Disclosing Party a certificate of an officer of the party certifying such destruction.
15.4. Use of Confidential Information by, or disclosure of Confidential Information to, any person that is not a party to this Agreement or a representative permitted by the Receiving Party to have access to the Confidential Information, that results from a breach of the electronic security of the computers and data storage and retrieval systems or network of the Receiving Party or, if applicable, any of its representatives will be treated as a disclosure by the Receiving Party contrary to the terms of this Agreement, whether or not the breach results from a failure by the Receiving Party, or, if applicable, any of its representatives, to implement appropriate security measures consistent with best practices or otherwise take necessary precautions in order to secure the Confidential Information.
15.5. Each party acknowledges and agrees that: (a) the restrictions set forth in this Article 15 are reasonable in the circumstances; (b) a violation of any of the provisions of this Article 15 shall result in immediate and irreparable harm and damage to the Disclosing Party; and (c) in the event of any violation of any provision of this Article 15, the Disclosing Party shall, in addition to any other right to relief, shall be entitled to equitable relief by way of temporary or permanent injunction and to such other relief as any court of competent jurisdiction may deem just and proper.
16. No Waiver
16.1. The failure by either party to exercise or enforce any right conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of any such right on any later occasion.
17. Assignment
17.1. Customer is not entitled to assign or novate its rights and/or obligations under the Agreement without TriAxis’ written consent.
17.2. TriAxis may assign or novate its rights and obligations under the Agreement to any company which is a member of the same group as TriAxis. A company will be in the same group as TriAxis if it is a subsidiary of TriAxis, a holding company of TriAxis, or a subsidiary of any such holding company.
17.3. Additionally, Customer acknowledges that TriAxis shall be permitted to assign the Agreement to any successor in title or other entity into, by or with which the business or assets of TriAxis to which the Agreement relates may be merged, acquired, consolidated or reorganized, or any entity which may purchase all or substantially all of such business or assets, or to another authorized service provider of CTERA in the event that TriAxis ceases to be an authorized service provider of CTERA. The Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective successors and permitted assigns.
18. Notice
18.1. Customer shall send TriAxis any written notice or other document required by or in connection with the Agreement to TriAxis’ registered office for the time being or to any other address in the United States of America notified to Customer by TriAxis in writing for the purpose.
18.2. TriAxis shall send Customer any written notice or other document required by or in connection with the Agreement to the address at which the Equipment is installed or situated, or to such other address in the United States of America notified to TriAxis by Customer in writing for the purpose.
18.3. All notices and other documents sent by one party to the other shall be delivered by hand or sent by first class post (or equivalent if to an address outside of the United States of America) or by facsimile, and notices delivered by hand shall be deemed delivered on the date of delivery, notices sent by post shall be deemed delivered two Business Days after posting and notices sent by fax shall be deemed delivered one day later.
19. Force Majeure
19.1. Except for Customer’s payment obligations, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, earthquakes, loss of utilities, and other disasters. Notwithstanding the foregoing, if a party seeks to excuse itself from its obligations under this Agreement due to a force majeure event, that party will promptly notify the other party of the delay or non-performance, the reason for such delay or non-performance and the anticipated period of delay or non-performance. If the anticipated or actual delay or non-performance exceeds sixty (60) calendar days, the other party may immediately terminate the Agreement by giving notice of termination and such termination will be in addition to the other rights and remedies of the terminating party under the Agreement, at law or in equity.
20. Entire Agreement
20.1. Other than the executed Services Order, the EULA and the SLA, with explicit understanding of the D&I and the EoL policy, this Agreement constitutes the entire agreement and understanding between TriAxis and Customer regarding the provision of the Service and any and all oral or written agreements existing prior to the date of the Agreement are expressly cancelled. All warranties, conditions, terms and representations, express or implied (whether by law, statute or otherwise) if not expressly incorporated in the Agreement or the EULA are hereby excluded to the extent permitted by law, save for those representations made fraudulently. Any modifications to the Agreement must be in writing and signed by the parties. These terms shall supersede the terms of any Services Order or other document submitted by Customer.
21. Governing Law/Jurisdiction
21.1. The Agreement shall be governed by and interpreted in accordance with laws of the State of Connecticut applicable thereto; excluding any conflicts of laws principles and the parties hereby attorn to the non-exclusive jurisdiction of the courts of State of Connecticut in respect of any dispute arising under the Agreement.
WITH COMPLETE UNDERSTANDING the parties mutually concur that this is the Agreement that will be in force during the term outlined above for the CTaaS service being purchased by client and provided by TriAxis.
|
|
|
