Terms of
Use

SOFTWARE SUBSCRIPTION AGREEMENT

 

This Software Subscription Agreement (the “Agreement”) is entered into by and between Innovative Solutions Company d/b/a Savvior (“Savvior”) and the customer (“Subscriber”), and becomes legally binding upon Subscriber’s signature (the “Effective Date”). This Agreement consists of this document and the attached terms and conditions and schedules.

 

  1. Definitions.

 

Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify a Named User’s identity and authorization to access and use the Services.

 

Action” has the meaning set forth in Section 10.1.

 

Cover Sheet” means the signature page of this Agreement.

Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Savvior or its designee to disable Subscriber’s or any Named User’s access to or use of the Services automatically with the passage of time or under the positive control of Savvior or its designee.

 

Documentation” means any manuals, instructions, videos or other documents or materials that Savvior provides or makes available to Subscriber which describe the functionality, components, features or requirements of the Services.

 

Errormeans a failure of the Services to substantially comply with the applicable published Documentation.

 

Fixmeans a correction of an Error, including a work-around, in order for the Services to function in accordance with the applicable published Documentation.

Fees” has the meaning set forth in Section 6.1.

Force Majeure Event” has the meaning set forth in Section 12.

 

SavviSPX™ Materials” means the Service software, Documentation and any and all other information, data, documents, materials, works and other content, devices, methods, processes, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Savvior in connection with the Services.

 

Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent Subscriber or any Named User from accessing or using the Services as intended by this Agreement. Harmful Code does not include any Disabling Device.

Indemnified Parties” has the meaning set forth in Section 13.

 

Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

 

Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance.

 

Maintenance Servicesmeans Savvior’s provision of qualified technical representatives by telephone, email or other remote means to assist Subscriber Coordinators with the operation and answering of questions related to the Services.

 

Named User” means each named individual authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement. Named Users may include any Subcontractor of Subscriber.

 

Payment Processing Partner” has the meaning set forth in Section 6.4.

Services” has the meaning set forth in Section 2.1.

 

Service Level” has the meaning set forth in Section 5.3.

 

Service Request” has the meaning set forth in Section 5.2.

 

Subcontractor” shall include any individual, firm, or corporation having a direct contract with Subscriber or with any other subcontractor for the performance of services on behalf of Subscriber. Nothing shall create any contractual relationship between Savvior and Subscriber’s Subcontractor.

 

Subscriber Coordinatormeans an individual identified by Subscriber to serve as administrative liaison to Savvior for all matters pertaining to the Maintenance Services.

Subscriber Data” means information, data and other content, in any form or medium, that is collected, uploaded or otherwise received, directly or indirectly from Subscriber through the use of the Services, and includes any user-specific databases generated or populated by Subscriber or any of its Named Users.

Subscriber Systems” means the Subscriber’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Subscriber or through the use of third-party services.

 

Term” has the meaning set forth in Section 8.1.

  1. Services.

  1. Services. Subject to and conditioned on Subscriber’s and its Named Users’ compliance with the terms and conditions of this Agreement including the payment of Fees, during the Term, Savvior shall use commercially reasonable efforts to provide access to the SavviSPX™ software as a service (SaaS) platform, including to host, manage, operate and maintain the SavviSPX™ Materials for remote electronic access and use by Subscriber and its Named Users (“Services”).

  1. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

 

    1. Savvior has and will retain control over the operation, provision, maintenance and management of the Services, including the performance of Service maintenance, upgrades, corrections and repairs.

 

    1. Subscriber has and will retain sole control over the operation, maintenance and management of, and all access to and use of its own systems, and sole responsibility for all access to and use of the Services by any Named User, including any: (i) information, instructions, language, templates, sample materials, and databases thereof provided by any of them pursuant to the Services; (ii) contracts and other written materials created from any use of the Services; and (iii) negotiations, decisions or actions based on such use.

 

  1. Changes. Savvior reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful, but shall give Subscriber prior written notice of any such changes.

 

  1. Use of Subcontractors. At Subscriber’s discretion, Subscriber may name any Subcontractor as a “Named User” and may authorize such Subcontractor access to Services under this agreement for the sole purpose of providing services to Subscriber under separate agreement between Subscriber and Subcontractor. Nothing herein shall create any relationship between Savvior and Subcontractor. Subscriber shall be as fully responsible to Savvior for the acts and omissions of the Subcontractor and of the persons employed by Subcontractor as Subscriber is for Subscriber’s own acts and omissions and the acts and omissions of Subscriber’s employees.

  1. Suspension or Termination of Services. Savvior may, directly or indirectly, and by use of a Disabling Device or any other lawful means, suspend, terminate or otherwise deny Subscriber’s, any Named User’s or any other access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Savvior receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Savvior to do so; or (b) Savvior believes, in its sole discretion, that: (i) Subscriber or any Named User has failed to comply with, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement; (ii) Subscriber or any Named User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section does not limit any of Savvior’s or Subscriber’s rights or remedies, whether at law, in equity or under this Agreement.

 

  1. Authorization and Subscriber Restrictions.

 

  1. Authorization. Subject to and conditioned on Subscriber’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Savvior hereby authorizes Subscriber to access and use, during the Term, the Services as Savvior may supply or make available to Subscriber solely for the use by and through Named Users. This authorization is non-exclusive and non-transferable, however, Subscriber may substitute different natural persons as Named Users.

  1. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services or SavviSPX™ Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services and the SavviSPX™ Materials, are and will remain with Savvior.

 

  1. Authorization Limitations and Restrictions. Subscriber shall not, and shall not permit any other person or entity to, access or use the Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Subscriber shall not, except as this Agreement expressly permits: copy, modify or create derivative works or improvements of the Services; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any other person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; bypass or breach any security device or protection used by the Services or access or use the Services other than by a Named User through the use of his or her own then valid Access Credentials; input, upload, transmit or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, in whole or in part; remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof; access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law; access or use the Services for purposes of competitive analysis of the Services or, the development, provision or use of a competing software service or product or any other purpose that is to Savvior’s detriment or commercial disadvantage; or otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.

  1. Subscriber Systems. Subscriber shall at all times maintain its own systems for accessing the Services. Savvior has no responsibility for the continued operation of such systems, or access to the Services.

 

  1. Service Level and Support.

  1. Service Level. Subject to the terms and conditions of this Agreement, Savvior will use commercially reasonable efforts to make the Services available for Subscriber’s use 99.5% of each calendar month, based upon a 720 hour month, less scheduled downtime. Savvior makes no other representation or warranty of any kind with respect to availability of the Services or the compatibility of the Services with any hardware or third party software. To the extent Savvior does not comply with the availability provision of this Section, Savvior will offer a credit to Subcriber of ten (10%) percent of the following calendar month invoice. Savvior has no other obligation to issue any credit for downtime of the Services.

 

  1. Support. Subject to payment of all Fees, Savvior will make the Maintenance Services available during its then-current normal business hours. Such technical support shall include, but is not limited to, troubleshooting, problem diagnosis, release or system management, and recommendations for fully utilizing the Services in accordance with the Documentation. Subscriber will identify no more than two (2) Subscriber Coordinators for the Services. Subscriber Coordinators shall report problems with the Services (each such report, a “Service Request”) as soon as practicable for entry into Savvior’s support tracking system. Subscriber Coordinators and staff will be provided with training sessions offered by Savvior to ensure that he or she is (a) knowledgeable about the operation of the Services and any administrative tools provided therefor, and (b) qualified to perform problem determination and remedial functions with respect to the Services. Such training sessions will be at mutually agreed upon rates. Subscriber will be solely responsible for all travel and other expenses incurred in connection with such training sessions and will be billed separately. Upon mutual agreement it will be determined if Subscriber Coordinators require additional training (which shall not be a part of Maintenance Services), Subscriber will promptly ensure that such Subscriber Coordinators receive such training at Subscriber’s expense.

 

  1. Fixes. As part of Maintenance Services, Savvior shall make commercially reasonable efforts to provide Fixes for Errors identified in a Service Request in accordance with the Response Time, Effort Level, and Escalation Path (as defined in the Service Levels) guidelines outlined below for the applicable Severity Levels (as defined in the Service Levels) as identified in the chart attached hereto as Exhibit A (together, the “Service Levels”). Savvior’s obligations with respect to Service Levels are contingent upon Subscriber: (i) devoting an appropriate level of effort to resolving the Error as is required of Savvior, (ii) responding to requests made by Savvior within the applicable Response Time (including the timely provision of access to the Software), and (iii) assigning its most qualified personnel to help Savvior address the Error.

 

  1. Exclusions. Savvior shall have no obligation to Subscriber to the extent any Software is adversely affected by:

i. use of the Services in combination with other software, equipment or communications networks that are not referenced in the Documentation or otherwise approved in writing by Savvior;

ii. any modification to the operating environment that is made other than by or at the direction of Savvior, or with notification to Savvior and appropriate testing;

iii. any modification to Subscriber’s data structure to the extent interoperable with the Services made without reasonable notice to Savvior;

iv. viruses or other malware introduced through no fault of Savvior;

v. use of the Services other than as permitted by Savvior; or

vi. Subscriber’s failure to perform Subscriber responsibilities in accordance with this Maintenance Agreement.

  1. Data Backup. Savvior will exert commercially reasonable efforts to maintain any Subscriber Data hosted by Savvior pursuant to the Services. EXCEPT AS MAY BE CAUSED BY SAVVIOR’S NEGLIGENCE OR WILFUL MISCONDUCT, SAVVIOR HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF SUBSCRIBER DATA.

 

  1. Fees; Payment Terms.

 

  1. Fees. Subscriber shall pay Savvior $300 per month plus an additional $65 per month for each Named User after the first seven Named Users (“Fees”), to be prepaid for the forthcoming month.

 

  1. Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Subscriber is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on Savvior’s income.

  1. Payments. Subscriber shall make all payments hereunder in US dollars. Except as provided herein, Fees are non-refundable.

 

  1. Payment Processing. If Subscriber elects to pay Fees online or electronically, including by credit card, ACH payment, electronic check, bank or wire transfer, or other electronic transfer, Subscriber agrees to use Savvior’s designated third party payment processing company (“Payment Processing Partner”) as provided by Savvior. Notwithstanding access through Savvior, Payment Processing Partner shall be solely responsible for payment processing of Fees on behalf of Savvior and shall maintain compliance with PCI data security measures. SAVVIOR EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY LOSS, THEFT, MISUSE, MISAPPROPRIATION OF OR IMPROPER ACCESS TO SUBSCRIBER PAYMENT INFORMATION, INCLUDING BUT NOT LIMITED TO CREDIT OR DEBIT CARD ACCOUNT NUMBER, BANK ACCOUNT NUMBER, PIN OR OTHER ACCESS AUTHORIZATION CODE, REGARDLESS OF WHETHER CAUSING OR REASONABLY LIKELY TO CAUSE FINANCIAL OR ECONOMIC HARM, FRAUD OR IDENTITY THEFT.

 

  1. Intellectual Property Rights.

 

  1. Services and SavviSPX™ Materials. All right, title and interest in and to the Services and SavviSPX™ Materials, including all Intellectual Property Rights therein, are and will remain with Savvior. Subscriber has no right, license or authorization with respect to any of the Services or SavviSPX™ Materials. All other rights in and to the Services and SavviSPX™ Materials are expressly reserved by Savvior.

 

  1. Subscriber Data. As between Subscriber and Savvior, Subscriber is and will remain the sole and exclusive owner of all right, title and interest in and to all Subscriber Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.

  1. Consent to Use Subscriber Data. Subscriber hereby irrevocably grants all such rights and permissions in or relating to Subscriber Data: (a) to Savvior as necessary or useful to perform the Services; and (b) to Savvior as are necessary or useful to enforce this Agreement and exercise and perform its rights and obligations hereunder.

  1. Term and Termination.

  1. Term. The term of this Agreement commences as of the Effective Date and will continue in effect until terminated pursuant to any of the Agreement’s express provisions (the “Term”).

  1. Termination for Cause. In addition to any other express termination right set forth elsewhere in this Agreement, Savvior may terminate this Agreement, effective on written notice to Subscriber, if Subscriber fails to pay any undisputed amount when due hereunder, and such failure continues more than thirty (30) days after Savvior’s delivery of written notice thereof. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

  1. Termination for Convenience. Either party may terminate this Agreement for any reason, effective on the last day of the month in which written notice to the other party is provided. Subscriber remains liable for all unpaid Fees that are payable for the entire subscription period. No refund of prepaid Fees shall be allowed to Subscriber.

 

  1. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate; Savvior shall immediately cease all use of any Subscriber Data or Subscriber’s Confidential Information and (i) return to Subscriber, or at Subscriber’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Subscriber Data or Subscriber’s Confidential Information; (ii) provide Subscriber with a flat file of Subscriber Data within a commercially reasonable period of time and (iii) permanently erase all Subscriber Data and Subscriber’s Confidential Information from all systems Savvior directly controls. Subscriber shall immediately cease all use of any Services or SavviSPX™ Materials and (i) return to Savvior, or at Savvior’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any SavviSPX™ Materials or Savvior’s Confidential Information; and (ii) permanently erase all SavviSPX™ Materials and Savvior’s Confidential Information from all systems Subscriber directly controls. Savvior may disable all Subscriber and Named User access to the Services and SavviSPX™ Materials.

 

  1. Representations and Warranties.

  1. Mutual Representations and Warranties. Each party represents and warrants to the other party that: it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

  1. Additional Savvior Representations and Warranties. Savvior represents and warrants that the Services will perform substantially in accordance with the SavviSPX™ Materials. Savvior further represents, warrants and covenants to Subscriber that when used by Subscriber in accordance with this Agreement, the Services as delivered by Savvior does not or will not infringe, misappropriate or otherwise violate any United States intellectual property right of any third party.

 

  1. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, ALL SERVICES AND SAVVIDOCS MATERIALS ARE PROVIDED “AS IS” AND SAVVIOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND SAVVIOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SAVVIOR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SAVVIDOCS MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.

  1. Infringement Indemnification.

  1. Savvior Indemnification. Savvior shall indemnify, defend and hold harmless Subscriber from and against any and all Losses incurred by Subscriber arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party that the Services or SavviSPX™ Materials or Subscriber’s use of the Services or SavviSPX™ Materials (excluding Subscriber Data) in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: access to or use of the Services or SavviSPX™ Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Savvior; modification of the Services or SavviSPX™ Materials; or failure to timely implement any modifications, upgrades, replacements or enhancements made available to Subscriber by or on behalf of Savvior.

  1. Subscriber Indemnification. Subscriber shall indemnify, defend and hold harmless Savvior and its officers, directors, employees, agents, successors and assigns from and against any and all Losses incurred by such indemnitee in connection with any Action by a third party that arises out of or relates to any: Subscriber Data or any other materials or information provided by or on behalf of Subscriber or any Named User; or breach of any of its representations, warranties, covenants or obligations under this Agreement. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any Subscriber Data or any other materials or information developed by Subscriber or any Named User at the direction of Savvior.

  1. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified. The party seeking indemnification shall cooperate with the other party at the indemnifying party’s sole cost and expense. The indemnifying party shall have the right to take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same.

  1. Mitigation. If any of the Services or SavviSPX™ Materials are, or in Savvior’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Subscriber’s or any Named User’s use of the Services or SavviSPX™ Materials is enjoined or threatened to be enjoined, Savvior may, at its option and sole cost and expense: obtain the right for Subscriber to continue to use the Services and SavviSPX™ Materials as contemplated by this Agreement; modify or replace the Services and/or SavviSPX™ Materials, in whole or in part, to avoid infringement and make the Services and/or SavviSPX™ Materials (as so modified or replaced) non-infringing; or by written notice to Subscriber, terminate this Agreement and require Subscriber to immediately cease any use of the Services and/or SavviSPX™ Materials.

 

THIS SECTION SETS FORTH SUBSCRIBER’S SOLE REMEDIES AND SAVVIOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND SAVVIOR MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

 

  1. Limitations of Liability.

 

OTHER THAN AS SET FORTH HEREIN, IN NO EVENT WILL SAVVIOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

OTHER THAN AS SET FORTH HEREIN, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EITHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE LICENSE FEES RECEIVED BY SAVVIOR OR PAID BY SUBSCRIBER FOR THE PRECEEDING ONE YEAR PERIOD. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATION DOES NOT APPLY TO SAVVIOR’S INDEMNIFICAITON OBLIGATIONS HEREIN.

 

  1. Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

 

  1. General Indemnification. Each Party shall indemnify and hold harmless the other party and its officers, shareholders, and the directors, agents, and employees thereof (collectively, the “Indemnified Parties” and individually, an “Indemnified Party”) from and against all losses, claims, damages, expenses, costs, and attorneys' fees because of any injury to person, life, or property or injury resulting in the death of any person or persons, arising out of or in connection with the performance of this Agreement or progress of the work to be done hereunder, including those alleged to be the result of the negligence of one or more Indemnified Parties. In the event one or more of the Indemnified Parties is made a party to any suit or litigation (whether or not the Indemnified Parties are the only parties alleged to be negligent) because of injury or damage or alleged injury or damage to person, life, or property or injury or alleged injury resulting in the death of any person or persons arising out of or in connection with the performance of this Agreement or progress of the work to be done hereunder, the indemnifying Party shall defend such action on behalf of the Indemnified Party or Parties by counsel chosen by the indemnifying Party, and shall pay all damages, costs, expenses, and attorneys' fees incurred in connection with such defense. If judgment shall be obtained, then the indemnifying Party shall pay and satisfy such judgement to the extent that the indemnifying Party is found liable. If a claim shall be allowed in any of such proceedings against any of the Indemnified Parties or a settlement is reached, the indemnifying Party shall pay and satisfy such claim, or settlement.

 

  1. Miscellaneous.

 

  1. Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

  1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

  1. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

  1. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

  1. Assignment. Neither party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the other party’s prior written consent, which consent may be given or withheld in the party’s sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving either party (regardless of whether Subscriber or Savvior is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which the other party’s prior written consent is required. No delegation or other transfer will relieve either party of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

  1. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

  1. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

  1. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania in each case located in Pittsburgh, Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

  1. Counterparts; Electronic Execution. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

  1. Consent to use Electronic Signature. Electronic signatures may be used to execute this Agreement and shall be as legally binding as if signed in ink. Electronic signatures, when used, provide consent to the use of electronic signature in lieu of an original signature on paper and operates as a waiver to signing a physical copy. A paper copy of an electronically signed record may be provided at no cost upon written request to Savvior. Consent to use an electronic signature will continue until notification is provided in writing to the other party withdrawing consent to use an electronic signature. There shall be no penalty for withdrawing consent to use an electronic signature.

Exhibit A – Service Levels

Severity LevelResponse TimesEffort Level and Escalation Path

Critical

An error for which there is no work-around, which causes the design making capability of the Software to be unavailable and which requires immediate attention.  

Critical issues must be reported by phone to initiate an appropriate response to a Critical error.  Requests initiated by email or web
interface are logged without a Severity Level until reviewed by Savvior and validated as a higher priority.

During regular business-hours, if support personnel are not reached by phone, Savvior will respond to a Critical support voice message as soon possible by a return communication to Subscriber to validate receipt of the critical support call and begin the process of addressing the issue.

Savvior will respond to Subscriber within 4 business hours with a status update of the reported critical issue and provide further updates for unresolved issues on agreed upon intervals until the issue is resolved.   Subscriber is expected to respond to a Savvior inquiry or request within three hours.

Savvior will make reasonably diligent efforts to resolve the error on a 24x7 basis or as otherwise agreed by the Parties. A request shall be escalated to Savvior management if a Fix is not provided within 1 business day of Savvior’s receipt of the Subscriber report of an error in this category.   

High

An error other than a Critical Severity Level error for which there is no work-around that results in a loss of access to the Services or that causes features of the Services to not work which limits access or use of the Services causing the Subscriber to miss required business deadlines.   

High severity errors must be reported by phone to initiate a High severity appropriate response. Requests initiated by email or web
interface are logged without a Severity Level until reviewed by Savvior and validated as a higher priority.

Savvior will respond to the Subscriber within 1 business day and will update the Subscriber at least every other day. Subscriber will respond to a Savvior inquiry or request within 1 business day.

Savvior will make reasonably diligent efforts to resolve the error during normal business hours. A request shall be escalated to Savvior management if a Fix is not provided within 3 business days of Savvior’s receipt of the Subscriber report of an error in this category. 

Medium

An error other than a Critical or High Severity Level error that has a material impact on the functionality of the Services that results in an inconvenient use of or access to the system (e.g., a feature is not working as documented but a workaround is available and business functions are not materially impaired).

Savvior will respond to the Subscriber within 2 business days. 

Savvior will reasonably attempt to resolve the error during normal business hours. 

Low

An error other than a Critical, High, or Medium Severity Level error that is typically cosmetic and does not degrade the use of the system. 

Savvior will respond to the Subscriber within 3 business days or as otherwise
agreed by the Parties. 

Savvior will reasonably attempt to resolve the error during normal business hours. 

Feature Request

A service request for an enhancement or new functionality.

N/A

The request will be evaluated for future product enhancement on a case by case basis.  

 

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