This FullClarity License Agreement (“Agreement”) is entered into between FullClarity (USA), Inc., with its principal place of business located at 95 3rd Street, 2nd Floor, San Francisco, CA 94103 for Customers based in the United States or FullClarity (Aust) Pty Ltd, with its principal place of business located at U8, 197 Springvale Road, Nunawading Victoria 3127, Australia, for Customers based in Australia (“Company”), and the entity listed on the Order Form referencing this Agreement (“Customer”). Capitalized terms not otherwise defined herein will have the meaning given to them in Section 15. This Agreement is effective as of the Order Effective Date or Estimate Effective Date, as set forth in the Order Form or Estimate, as applicable (“Effective Date”).
1. Product License and Professional Services.
Subject to the terms and conditions of this Agreement and during the Term, Company will make the Product and Professional Services available to Customer solely for Customer’s and its Affiliates’ internal business operations. The terms of this Agreement will also apply to updates and upgrades subsequently provided by Company to Customer for the Product. Company may make available updates to the functionality and user interface of the Product from time to time in its sole discretion.
The Product and/or Professional Services may be ordered by Customer or its Affiliates pursuant to an Order Form or other sales process identified by Company. Except as otherwise provided on the Order Form, each order will 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” will refer to both Customer and such Affiliate(s).
Customer is responsible for all activities conducted by its Users, including through User logins if applicable. Unless authorized by Company in writing, Customer’s use of the Product will not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use (use of one login by more than one individual), or time-sharing of the Product. Customer will not and will not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Product or any part thereof or otherwise attempt to discover any source code or modify the Product in any manner or form unless expressly allowed in the documentation; (b) use unauthorized modified versions of the Product; (c) use the Product in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (d) 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; or (e) 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 Product.
4. License Term, Fee, Payment Taxes.
4.1. Term of Agreement.
The term of this Agreement will be as stated on the Order Form, as applicable, or, if not so stated on the Order Form, for the same term of Customer’s NetSuite Inc. subscription and shall commence on the Effective Date of the Order Form or Estimate, as applicable (“Initial Term”), unless otherwise agreed by Company and Customer or earlier terminated pursuant to Section 8.2, and the Term will be extended as set forth in subsequent purchase order (each successive renewal term, a “Renewal Term”) (collectively “Term”). If Customer has not delivered an Order Form to Company regarding the upcoming Renewal Term prior to the expiration of the then current term, the Term of this Agreement and Order Form will be automatically extended for successive Renewal Terms of one (1) year each unless either party provides written notice of non-renewal to the other at least thirty (30) days before such expiration.
4.2. Fees and Payment.
Customer will pay the fees as specified in the Order Form and in future Order Forms. In the event that Company provides certain Professional Services to Customer the parties will negotiate and sign a separate statement of work (“SOW”). Unless provided otherwise in an Order Form, additional Users, Products and other items purchased during the Term will coterminate with and be prorated through the then current Initial Term or Renewal Term, as applicable, end date. Fees for the Product on all subsequent order forms and renewals will be set at then current Company pricing, unless otherwise agreed to by the parties, in writing.
The fees listed on the Order Form do not include any local, state/province, federal, national or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Company's income. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4. Late Payments.
Any late payments will be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.
5. Proprietary Rights.
5.1. Ownership of Customer Data.
As between Company and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer.
5.2. Company Intellectual Property Rights.
Customer agrees that all rights, title and interest in and to all intellectual property rights in the Product are owned exclusively by Company or its licensors. The license granted to Customer does not convey any rights in the Product, express or implied, or ownership in the Product or any intellectual property rights thereto. In addition, Company will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Product any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Product. Any rights not expressly granted herein are reserved by Company. Company marks, logos and product and Product names are marks of Company, respectively (the “Company Marks”). Customer agrees not to display or use the Company Marks in any manner without Company’s express prior written permission. The trademarks, logos and Product 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.
5.3. Federal Government End User Provisions.
If User is the US Federal Government, Company provides the Product, including related software and technology, in accordance with the following: Government technical data and software rights related to the Product include only those rights customarily provided to the public as defined in this Agreement. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Company to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6. Terms of Product.
Customer agrees to the following terms of Product.
6.1. Internet Access, NetSuite Inc. Account.
High speed Internet connection and an active NetSuite Inc. account is required to use the Product. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Product, including, but not limited to, "browser" software that supports protocols used by Company, including Secure Socket Layer (SSL) protocol or other protocols accepted by Company, and to follow logon procedures for Products that support such protocols. Company is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software. Company is not responsible 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 Company.
6.2. Email and Notices.
Customer’s email address for communication and notice purposes relating to this Agreement will be set forth in the Order Form.
6.3. Users: Passwords, Access and Notification.
Customer will be responsible for all content and data, including, but not limited to, Customer Data, entered electronically through the Product. The Product is licensed to Customer on a “named user” basis. Only one User may use the Product for each Product license purchased by Customer in the Order Form. Customer may reassign Product licenses to other Users at any time during the Term. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Product and will promptly notify Company of any unauthorized access or use of the Product and any loss or theft or unauthorized use of any User’s password or name and/or Product account numbers.
6.4. Customer’s Lawful Conduct.
Customer will comply with all applicable local, state/province, federal, national and foreign laws, treaties, regulations, and conventions in connection with its use of the Product, including without limitation those related to privacy, electronic communications and anti-spam legislation. If applicable, Customer is responsible for ensuring that its use of the Product to store or process credit card data complies with applicable Payment Card Industry Data Security Standards requirements and will store credit card data only in the designated fields for such data. Customer will comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Product and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer will not permit Users to access or use the Product in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will 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. Customer will not use the Product in any manner that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Product may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Product by any means other than through the interfaces that are provided by Company. Customer will not do any "mirroring" or "framing" of any part of the Product, or create Internet links to the Product which include log-in information, user names, passwords, and/or secure cookies. Customer will ensure that all access and use of the Product by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users of Customer’s contractors, agents, and Affiliates.
6.5. Third Party Applications.
Company may offer links to other websites, resources, third party applications or services, including implementation, customization and other consulting services related to customers’ use of the Product. Company does not warrant any such third party content, third party applications, or services except as set otherwise agreed between Company and Customer. Any purchase by Customer of any third party applications or services is solely between Customer and the applicable third party provider.
If included on an Order Form, Company will provide Customer with technical support to assist Customer in its use of the Product.
6.7. Modifications; Discontinuation of Product.
Company may make modifications to the Product or particular components of the Product from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Company reserves the right to discontinue offering the Product at the conclusion of Customer’s then current Term. Company agrees to provide at least 6 months written notice prior to any such discontinuation. Company will not be liable to Customer nor to any third party for any modification of the Product as described in this Section 6.7.
Company warrants that, during the Term, that (i) the functionality of the Products will not be materially decreased during the Term, (ii) the Products will be free of viruses and malware, (iii) Professional Services and Support Services will be performed in a professional manner consistent with industry standards, and (iv) Company will use its best efforts to correct defects which substantially affect Customer’s use of the Products.
8.1. Suspension for Ongoing Harm.
Customer agrees that Company may suspend access to the Product if Company reasonably concludes that Customer’s Product is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of the Product is causing immediate, material and ongoing harm to Company or others. Company will use commercially reasonable efforts to limit the suspension to the offending portion of the Product and resolve the issues causing the suspension of Product. Customer agrees that Company will not be liable to Customer nor to any third party for any suspension of the Product under such circumstances as described in this Section 8.1.
8.2. Termination for Cause/Expiration.
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 will 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 will be sent to the address specified in the Order Form (or such other address that may be provided pursuant to this Agreement). If Company is unable to provide or otherwise make available the Product to Customer due to Company’s inability to procure necessary licenses or due to termination or suspension of any Company third-party agreement or contract necessary to provide the Product, Company may terminate this Agreement and Order Form upon written notice to Customer. Upon termination or expiration of this Agreement, Customer will have no rights to continue use of the Product and all Order Forms shall automatically terminate, and Customer may, within thirty (30) days of termination or expiration, request in writing return of any Customer Data Company may have in its possession. Company may permanently delete any Customer Data it may have in its possession after such thirty (30) day period. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, Customer agrees that Company will be entitled to all of the fees due under this Agreement for the entire Term.
For purposes of this Agreement, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is clearly identified in writing or verbally at the time of disclosure as confidential, or would be considered confidential by a reasonable person engaged in commerce. Notwithstanding the foregoing, Confidential Information shall include Customer Data and the terms of this Agreement including the pricing and other terms reflected in all Order Forms, and Company technology and technical information, product designs, issues, and Company support cases will be considered Confidential Information of Company. Confidential Information will not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) is aggregate statistical data regarding customers’ use of Company’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 disclosed to it by the Disclosing Party; (b) not to use or disclose the Confidential Information of the Disclosing Party except to the extent necessary to perform its obligations or exercise rights under this Agreement, except with the Disclosing Party’s prior written consent; (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) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have signed 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 required by law or order of a court or other governmental authority or regulation, and the Receiving Party shall provide the Disclosing Party with reasonable notice of such required disclosure so as to allow such party an opportunity to contest the disclosure.
10. Disclaimer of Warranties.
THE PRODUCT IS PROVIDED “AS-IS” WITH NO WARRANTIES OTHER THAN THOSE EXPLICITLY STATED IN THIS AGREEMENT. COMPANY DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE PRODUCT OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE PRODUCT 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. THERE ARE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PRODUCT OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
11. Limitations of Liability.
11.1. Exclusion of Consequential Damages.
CUSTOMER AGREES THAT THE CONSIDERATION WHICH COMPANY IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY COMPANY OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE THIS LIMITATION OF LIABILITY MAY NOT APPLY TO THE EXTENT NOT ALLOWED.
11.2. Limitations on Direct Damages.
Except with regard to fees 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 this Agreement, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, will in no case exceed the greater of: (i) US$50.00; or (ii) the amounts paid or payable by Customer hereunder in the twelve (12) months preceding the incident giving rise to liability. Company will not be liable to the extent such liability would not have occurred but for unauthorized access or disclosure of credit card or social security numbers stored by Users in the Product other than in the designated fields for such numbers. 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 the license of the Product and that, were Company to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
12.1. Customer’s Indemnity.
Regardless of and notwithstanding any limitations of or exclusions from liability or damages in this Agreement, Customer will, at its own expense, defend Company from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) (i) alleging that the Customer Data or any trademarks or Product marks other than Company 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 9 above and will hold Company harmless from and against liability for any Losses to the extent based upon such Claim.
12.2. Indemnification Procedures and Survival.
In the event of a potential indemnity obligation under this Section 12, Company will: (i) promptly notify Customer in writing of such Claim; (ii) allow Customer to have sole control of its defense and settlement; and (iii) upon request of Customer, cooperate in all reasonable respects, at Customer’s cost and expense, with Customer in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 12 are expressly conditioned upon the Company’s compliance with this Section 12.4 except that failure to notify Customer of such Claim will not relieve Customer of its obligations under this Section 12.2 but such Claim will be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 12 will survive termination of this Agreement for one year.
13. Dispute Resolution.
Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a court, tribunal, agency, or other public forum, it will provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties will meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
14. General Provisions.
This Agreement will inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except 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. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Company reserves the right to name Customer as a user of the Product. This Agreement, including all Order Forms, will constitute the entire understanding between Customer and Company and is intended to be the final and entire expression of their agreement. This Agreement may be amended from time to time by Company, in its sole and absolute discretion, and will be made available at www.fullclarity.com for download and review by Customer. Customer should periodically review this Agreement in order to stay aware of changes. The parties expressly disclaim any reliance on any and all prior discussions, emails, request-for-proposal’s, 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 Company to object to such terms, provisions, or conditions. The Agreement will 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 and mutually signed Order Form. This Agreement will be governed in accordance with the laws of the jurisdiction of Australia and the State of Victoria if the Company is FullClarity (Aust) Pty Ltd or the United States and the State of Minnesota if the Company is FullClarity (USA), Inc. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Product) will be subject to the exclusive jurisdiction of the state and federal courts located in the State of Victoria, Australia or State of Minnesota, United States. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party will be awarded reasonable attorneys’ fees and/or costs. Customer will compensate Company (including reimbursement of costs) for responding to any request from a third party for records relating to Customer or a User’s use of the Product. 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 will be eliminated or limited to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Neither party will be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, governmental acts, orders and/or restrictions, terrorism, labor stoppage (other than those involving Company employees), internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, as a result of government action or order, and any payment date or delivery of Product date will be extended to the extent of any delay resulting from any force majeure event. In the event of a conflict between or among the provisions of this Agreement and related documents, the order of precedence shall be as follows: (i) the Order Form, (ii) the SOW, and (iii) this Agreement. Sections 4.2, 4.3, 4.4, 5, 9, 10, 11, 12, 13, 14 and 15 will survive the termination or expiration of this Agreement.
“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. “Customer Data” means all electronic data or information submitted to the Product by Customer or its Affiliates. “Order Form” means a Company ordering document in the name of and signed by Company and Customer or its Affiliate which specifies the Product(s) and/or Professional Services to be provided by Company subject to the terms of this Agreement. “Product” means, collectively, Company’s product(s) set forth on an Order Form. “Professional Services” means the general consulting, implementation and/or training services to be provided to Customer as set forth in an SOW attached to an Order Form. “Users” means individuals who are authorized by Customer to use the Product. Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors, and agents.
I AGREE TO THE FEES AND TERMS OF THIS ESTIMATE
Upon your execution, this document is a binding order for the products and services set forth herein.
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