ICSYNERGY SOFTWARE, LLC
SOFTWARE LICENSE AGREEMENT
This IdentityRM Software License Agreement (“Agreement”) is incorporated by reference in and to the Purchase Order (as hereinafter defined) and is effective as of the Effective Date (as hereinafter defined) by and between ICSynergy Software, LLC, its Affiliates, successor and assigns (together “ICSynergy”), a Texas limited liability company, having its principal place of business at 5601 Democracy Drive Suite 205, Plano, Texas, USA 75024, and Customer (hereinafter defined). ICSynergy and Customer will also be referred to herein together as the “Parties” or separately as “Party” as the context dictates.
WHEREAS, ICSynergy developed, owns and licenses to third parties the Licensed Software (as hereinafter defined) known as “IdentityRM™” which enhances the service functionality of Customer’s existing directory which is compatible with the Licensed Software;
WHEREAS, in connection with the license of the Licensed Software, ICSynergy provides certain selected levels of Support Services (as hereinafter defined); and
WHEREAS, ICSynergy and Customer agree that this Agreement governs Customer’s access to and use of the Licensed Software and the Support Services.
For and in consideration of the recited premises and other good, valuable sufficient and received consideration the Parties agree as follows:
The following capitalized terms shall have the meanings ascribed to them:
“Affiliate(s)” means, as to the subject entity, any other entity that controls, is controlled by, or is under common control with, the subject entity. “Control,” for purposes of this definition, means ownership or control, directly or indirectly, of any of the voting interests of the subject entity.
“Change in Control” means a merger, acquisition or other corporate transaction in which the owners of all of the subject entity’s voting interests, immediately prior to the transaction, own less than 50% of the voting interests of the successor entity after such transaction.
“Continuing Customers” means Customers subject to an unexpired Subscription Term for the Licensed Software at the time of termination or expiration of this Agreement, with respect to which Customer has elected to continue using the Licensed Software through the remainder of their then current Subscription Terms.
“Customer(s)” means, and shall include the Affiliates of, the Party identified as the “Customer” on the applicable Purchase Order and shall be the primary purchaser of Subscriptions to use the Licensed Software from ICSynergy in accordance with this Agreement.
“Customer’s Software” means any software applications, of any kind or nature, other than the Licensed Software which Customer intends to utilize or interface with the Licensed Software.
“Data” means all data submitted by any Party to the other, of any kind or nature, in connection with the Purchase Order or this Agreement.
“Documentation” means all information, if any, of any kind or character regarding the Licensed Software the Support Services and/or the Integration Upgrades which includes, without limitation, the user manuals, handbooks, online materials, specifications and other items whether furnished during the Evaluation Period, installation of the Licensed Software or otherwise during the Term.
“Effective Date” means the date upon which ICSynergy receives a copy of a Purchase Order, fully executed by Customer and acknowledges receipt and acceptance of the terms and conditions specified in the Purchase Order.
“Emergency Maintenance” means downtime of the Licensed Software that is performed outside of Scheduled Downtime due to circumstances outside the control of ICSynergy resulting in the application of urgent patches or fixes, or other urgent maintenance.
“Error,” means any reproducible error or defect in the Licensed Software that prevents the Licensed Software from operating substantially in accordance with the Documentation.
“Fee(s)” means the total sum of all of the fees and charges for the use of the Licensed Software, Support Services and other costs and expenses as itemized and specified on the Purchase Order or incurred in connection with this Agreement.
“Initial Access Date” means the date a Customer is granted access to the Licensed Software.
“Integration Upgrade(s)” means such other integration or functionality tools/services provided by ICSynergy, at Customer’s request, in addition to the Licensed Software.
“Licensed Software” means the ICSynergy on-line and web-based identity and access management custom portal type interface that is a delegated relationship management tool for managing user access to applications commonly known as “IdentityRM™”, including without limitation, the Documentation, the Integration Upgrades and Data, the plug-ins, agents, administrative code or other software or Third-Party Software (as hereinafter defined) provided by ICSynergy in connection with the Licensed Software (whether downloaded by an administrator, User or otherwise), including all updates, modifications, extensions and enhancements to the Licensed Software that ICSynergy elects, pursuant to the terms and conditions of this Agreement to make available to Customer.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Premium Support Services” means the level of Support Services described in Section 4.3(a)(i)(A) of this Agreement.
“Professional Services” means, without limitation, professional services such as (a) training, education and consulting, (b) the integration and implementation of the Licensed Software and (c) Support Services, that ICSynergy is not expressly obligated to provide by this Agreement.
“Purchase Order” means that certain ICSynergy IdentityRM™ Purchase Order as modified or amended and, in form and content prescribed by, and acceptance to, ICSynergy in its sole and absolute discretion, whereby Customer elects and commits to purchase a Subscription to use the Licensed Software in accordance with the terms and conditions of this Agreement.
“Scheduled Downtime” means such times scheduled by ICSynergy upon five (5) days’ prior written notice to Customer whereupon access to the use of the Licensed Software shall be limited or prohibited, to permit ICSynergy to perform maintenance of the Licensed Software.
“Standard Support Services” means the level of Support Services described in Section 4.3(a)(i)(B) of this Agreement.
“Subscription(s)” means, one or more license(s) to use the Licensed Software during the Term which Subscriptions are identified in the Purchase Order and become active and effective upon ICSynergy’s written acknowledgement of acceptance of a Purchase Order executed and delivered by Customer to ICSynergy.
“Support Services” means, together, the Standard Support Services and the Premium Support Services.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” means that period of time which commences on the Effective Date and expires on the “Term End Date” (as specified in the Purchase Order) unless terminated in accordance with the terms and conditions of this Agreement. Notwithstanding anything contained herein to the contrary, the Term of a Subscription(s) will commence on the “Term Start Date” (as specified in the Purchase Order).
“Users” means a Customer and its employees, agents, contractors, consultants or any other individuals who are authorized and/or permitted by Customer and ICSynergy to use the Licensed Software and who are bound by obligations and restrictions contained in this Agreement and the applicable Purchase Order, and for whom a group or individual Subscription has been purchased by Customer. A breach of this Agreement by a User shall be deemed a breach of this Agreement by Customer
1.1 Purchase Orders shall not be effective or binding upon ICSynergy until ICSynergy receives delivery of an executed Purchase Order and ICSynergy acknowledges receipt and acceptance of the terms and conditions of such Purchase Order. Purchase Orders by Customer shall be non-cancelable after execution and acceptance by ICSynergy. The number of Users in a group Subscription cannot be decreased by Customer prior to the end of the stated Subscription Term, regardless of any termination, nonpayment, nonuse or other conduct or inaction on the part of Customer or User. Additional Users and Integration Upgrades to the Licensed Software and Premium Support Services may be added by submission of a separate Purchase Order by Customer.
1.2 Customer will utilize the Licensed Software and Support Services in compliance with applicable law and will not (a) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Licensed Software, or any part thereof, or make it available to anyone other than its Users; (b) send or store infringing or unlawful material; (c) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (d) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Licensed Software or the data contained therein; (e) directly or indirectly modify, copy or create derivative works based on the Licensed Software, or any portion thereof; (f) access the Licensed Software for the purpose of building a competitive product or service or copying its features or user interface; or (g) directly or indirectly delete, alter, add to or fail to reproduce the name of ICSynergy and any trademark, service mark, copyright or other notices appearing in or on the Licensed Software or which may be required by ICSynergy at any time.
2. SOFTWARE LICENSE
2.1 ICSynergy grants to Customer for the Term of this Agreement a personal, non-exclusive, limited non-transferable license (the “License”), without the right to sublicense, to install the Licensed Software, to use any related Documentation made available to Customer by ICSynergy (and/or its licensors and suppliers), and to access the Licensed Software subject to the terms and conditions as specified in the applicable Purchase Order and the following terms and conditions:
2.2 Customer may not install or use, or permit or assist any other person to install or use, the Licensed Software for any other purpose other than to permit authorized Users to use the Licensed Software.
3. FEES AND PAYMENT
3.1 Use of the Licensed Software, access to the Support Services and the grant of the License are conditioned on Customer paying ICSynergy the Fees for each Subscription, any additional Users and all other amounts owed under this Agreement.
3.2 Only Users for whom a Subscription has been purchased may access the use of the Licensed Software. If more Users than Customer has paid for in its then-current Subscription access or use the Licensed Software, Customer must immediately notify and pay to ICSynergy Fees due for such Users at ICSynergy’s then-standard rates. Customer agrees to keep records of all individuals accessing the Licensed Software. ICSynergy will be permitted, at reasonable times during the Term of this Agreement and twelve (12) months following the termination or expiration of the last valid subscription, during normal business hours, and upon reasonable notice to Customer, to inspect the records of Customer with respect to this Agreement to determine Customer’s compliance with this Section 3.2.
3.3 The Fees for the Term are due upon the Effective Date. ICSynergy reserves the right to terminate the License to Customer for the Licensed Software should Customer fail to timely pay the Fees or on the Effective Date. For all other fees and charges incurred hereunder and not specifically identified in the applicable Purchase Order, ICSynergy will invoice Customer for all Fees due and, unless otherwise agreed in writing, Customer shall pay the invoiced amount within thirty (30) days after the date of each invoice.
3.4 In the event ICSynergy is required, and authorized by Customer to travel to Customer facilities in connection with the performance of the Support Services, Customer will reimburse ICSynergy for all reasonable, travel and travel-related expenses incurred in connection therewith, and in accordance with Customer’s disclosed travel policies.
3.5 ICSynergy reserves the right to immediately suspend, deactivate and/or terminate Customer’s access to, and use of, the Licensed Software immediately upon (a) Reseller’s breach of this Agreement, (b) Customer’s breach of the Customer Agreement or Purchase Order, (c) expiration or termination of this Agreement and/or (d) ICSynergy’s determination, in its sole and absolute discretion, that such suspension, deactivation and/or termination is necessary under the circumstances. ICSynergy may charge interest for all outstanding balances at a rate up to or equal to the lesser of one and one half percent (1½%) per month or the maximum rate permitted by applicable law, from the due date until paid in full.
3.6 All amounts payable under this Agreement must be paid in United States Dollars (“USD”) and, except as otherwise provided herein, all Fees paid are non-cancelable and non-refundable. The Fees are exclusive of, and Customer shall pay, any and all taxes, other than taxes based solely on ICSynergy’s income, imposed or assessed by reason of this Agreement or its performance, including but not limited to sales or use taxes.
4. SUPPORT SERVICES
4.1 ICSynergy will deliver the Licensed Software for installation, integration and implementation by ICSynergy once Customer purchases a Subscription. Such installation shall be at additional cost to Customer and performed under a separate agreement with ICSynergy.
4.2 A Subscription shall include Standard Support Services which may be upgraded to Premium Support Services if selected by Customer on the applicable Purchase Order.
4.3 ICSynergy will provide Customer with the Support Services as described in and in accordance with this Agreement. ICSynergy’s Support Services will immediately cease with no further obligation in the event Customer is in default or breach of any term or condition of this Agreement or any Purchase Order, disassembles or tampers with or modifies the Licensed Software for any reason or adds or installs any software to operate in connection with the Licensed Software (without prior written approval from ICSynergy). Any Support Services performed by ICSynergy that are not specifically included in this Agreement will be considered outside the scope of this Agreement and chargeable at ICSynergy’s then-current Professional Service fee rates plus actual incurred travel costs if required, and other reasonable expenses in addition to payment by Customer of all other Fees.
A. For Premium Support Services. If the use of the Licensed Software is not available, the ICSynergy support team will use commercially reasonable efforts to respond within one (1) hour after receipt of notice from Customer. Customer and ICSynergy will commit the resources deemed reasonably necessary for ICSynergy on a twenty-four (24) hours a day, seven (7) days a week basis to resolve any Error or obtain a work-around.
B. For Standard Support Services. If the use of the Licensed Software is not available, the ICSynergy support team will use commercially reasonable efforts to respond within two (2) hours after receipt of notice from Customer. Customer and ICSynergy will commit the necessary resources deemed necessary for ICSynergy during help desk support hours (as set forth below) to resolve any Error or obtain a work-around.
4.4 ICSynergy will be under no obligation to provide Support Services with respect to:
(a) problems resulting from any modification or customization, of any kind or nature, of the Licensed Software not made by or explicitly pre-authorized in writing by ICSynergy;
(b) any software other than the Licensed Software;
(c) incorrect or unauthorized use of the Licensed Software or operator error resulting from use or operation not strictly in accordance with the Documentation;
(d) any fault in the host environment on which the Licensed Software is installed;
(e) any software programs or applications used in conjunction with the Licensed Software that are not supplied by ICSynergy; and/or
(f) Customer’s Software, Third Party Software or the Third Party Support Services.
4.5 As a condition to receiving Support Services, Customer must:
(a) follow the Support Services procedures;
(b) ensure that all persons with administrative authority over the Licensed Software are competent, trained employees or persons under their direct supervision;
(c) use the latest release of the Licensed Software made available to it by ICSynergy;
(d) provide a prompt level of responsiveness to ICSynergy’s requirements and communications;
(e) timely transmit, and release to ICSynergy appropriate and accurate documentation and information;
(f) promptly review and analyze the work performed by ICSynergy;
(g) make facilities and personnel available to assist ICSynergy when, and to the extent as is reasonable, requested for purposes of providing requested support to Customer;
(h) provide reasonably appropriate access to the system(s) running the Licensed Software, including, but not limited to, passwords, system data, file transfer capabilities, and remote log-in-capabilities; and
(i) timely pay the Fees and all other fees and charges incurred hereunder.
4.6 If the cause of problem reported by Customer to ICSynergy is not an Error, defect or nonconformity in the Licensed Software, or if ICSynergy is not obligated pursuant to Sections 4.3 to provide the Support Services, Customer will compensate ICSynergy for all work performed by ICSynergy in connection therewith, on a time and materials basis at ICSynergy’s standard Professional Services fee rates plus expenses.
4.7 The Support Services include the right to receive updates to the Licensed Software. Updates exclude any software with additional functionality that ICSynergy does not generally make available to Users of the Licensed Software without charge, and ICSynergy is not obligated to provide such software to Customer pursuant to this Agreement. ICSynergy will, at its sole discretion, determine the content, timing and frequency of development, production and delivery of updates. All updates and any other software delivered pursuant to this Agreement will be subject to, and exclusively governed by, the terms and conditions in this Agreement and the License.
4.8 Except as otherwise set forth in this Agreement or the applicable Purchase Order, ICSynergy is not obligated to provide maintenance, or any other support of, the Licensed Software, of any kind or nature, to Customer or any User. Support Services do not include any other support or other services not specifically identified herein including, without limitation, custom programming services, on-site support, including installation of hardware or software, training or services beyond those specifically described herein as the Support Services. ICSynergy’s support obligations hereunder or under any Purchase Order shall terminate upon (a) default of Customer hereunder or under a Purchase Order, (b) termination and/or expiration of this Agreement or (d) assignment, delegation or transfer of this Agreement by ICSynergy.
4.9 The Licensed Software may allow Customer to interface with a variety of third party software and services currently owned or licensed by Customer or hereafter obtained or licensed separately by Customer including, without limitation, the Customer’s Software (“Third Party Support Services”). ICSynergy is not responsible for the operation, functionality or compatibility of such Third Party Support Services. While ICSynergy may, in its sole discretion, configure the Licensed Software to be compatible or interface with, various Third Party Support Services, (a) ICSynergy cannot and does not guarantee that the Licensed Software will be compatible or interface (or continue to be compatible or interface) with, any particular Third Party Service, and (b) ICSynergy’s obligations hereunder, including the Support Services, shall not extend to any Third Party Support Services.
5. OWNERSHIP OF SOFTWARE
5.1 The Licensed Software is being licensed, not sold, to Customer. All copies of the Licensed Software, including all copies made available to, or created by, Customer (whether or not authorized), are, and will remain, the property of ICSynergy or its licensors, suppliers, successors and assigns.
5.2 Except for the rights granted by the License, no title, interest or right in the Licensed Software or the intellectual property rights in or to the Licensed Software is or will be granted, assigned, transferred or conveyed to Customer by this Agreement or by the License.
5.3 Upon any termination or expiration of this Agreement, (a) Customer will immediately cease the use of the Licensed Software and return to ICSynergy or destroy all copies of the Licensed Software and the Documentation and (b) Customer will certify to ICSynergy the return or destruction of the Licensed Software, the Documentation and the Confidential Information (as hereinafter defined).
5.4 ICSynergy shall be permitted to use any data generated in connection with the Licensed Software (e.g., types of web applications utilized), provided, however, in the event ICSynergy provides such data to third parties, it shall be presented in the aggregate so that it cannot be linked specifically to Customer. Customer shall, and does hereby, grant ICSynergy a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Licensed Software any suggestions, enhancement recommendations or other feedback provided by Customer or its Users relating to the operation of the Licensed Software.
6. CONFIDENTIAL INFORMATION
6.1 Customer will treat as confidential all information (including the Data) disclosed or learned from ICSynergy during the Term of this Agreement (“Confidential Information”). Customer will limit access to such Confidential Information to only such parties who have a need to know in order for the receiving Party to perform its obligations or exercise its rights under this Agreement and take reasonable precautions to preserve its secrecy and to prevent access to it by others. Customer will not use ICSynergy’s Confidential Information for any other purpose, or disclose, transfer or otherwise convey such Confidential Information to any third party without the prior written consent of ICSynergy.
6.2 The foregoing obligations of confidentiality and non-use under Section 6.1 will continue in effect, with respect to each item of Confidential Information for a period of three (3) years following the earlier of termination or expiration of this Agreement. The foregoing obligations of confidentiality and nonuse shall not apply to information (a) that was lawfully in the possession of the Customer prior to the date that such information is disclosed or learned, as evidenced by Customer’s contemporaneous written records; (b) becomes public or available to the public through no fault or omission of the Customer; (c) has been lawfully obtained by the Customer from a third party which is in lawful possession of such information without any obligation of confidentiality; (d) is required to be disclosed by law, in which case the Customer will give ICSynergy as much advance notice of the proposed disclosure as is practical (including a copy of any written request or order), and will cooperate with ICSynergy in any effort to limit or restrict such disclosure, with a protective order or otherwise; or (e) is independently developed by the Customer without, direct or indirect use of the Licensed Software or ICSynergy’s Confidential Information, as evidenced by the Customer’s contemporaneous written records.
6.3 All source code, source documentation, underlying inventions, algorithms, configurations, know-how, ideas embodied by or contained within the Licensed Software, technology, testing procedures, structures, interfaces, specifications, bugs, reports, any information or data generated by the Licensed Software, analysis and performance information, the terms of this Agreement including pricing terms, and other technical business, product and marketing and financial information, plans and data and any Documentation provided by ICSynergy relating to the Licensed Software or the Support Services, will be treated by Customer as ICSynergy’s Confidential Information for a period of not less than ten (10) years from the date of the earlier of termination or expiration of this Agreement.
6.4 Customer expressly acknowledges and agrees that any breach or threatened breach of this Section 6 by Customer will not be adequately compensated by damages. Customer therefore agrees that in the event of such breach or threatened breach, and in addition to any remedies available at law, ICSynergy shall have the right to secure equitable and injunctive relief, without bond, in connection with such a breach or threatened breach.
7. WARRANTY AND DISCLAIMER
7.1 Each Party represents and warrants to the other Party that (i) it has the full corporate right, power and authority to enter into the Purchase Order this Agreement and to perform the acts required of it under the Purchase Order and this Agreement; (ii) its execution of the Purchase Order and this Agreement by such Party and performance of its obligations do not and will not violate any agreement to which it is a Party or by which it is bound; and (iii) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms.
7.2 Subject to Section 7.3-7.8 and Section 8 and 9 below, ICSynergy warrants and represents to the best of its current actual knowledge and belief without investigation that (a) it has all necessary rights in and to the Licensed Software, and has the power and authority to authorize the use of, in accordance with the Documentation; (b) the Licensed Software and Support Services and any and all other materials or deliverables provided or made available by ICSynergy pursuant to this Agreement will not knowingly or intentionally infringe or violate any copyright, patent, trade secret, or trademark of any third party; (c) to the extent that any rights, licenses, permissions, clearances and/or approvals are necessary in connection with the performance of this Agreement, ICSynergy has, or will endeavor to, obtain same; (d) the Licensed Software is in substantial compliance, and shall comply, with all data protection and privacy laws applicable to ICSynergy; (e) the Licensed Software shall perform substantially in accordance with the applicable Documentation, and (f) all Support Services shall be performed in substantial conformity with industry standards for like services.
7.3 Exclusive Remedies
(a) As Customer’s sole and exclusive remedy and ICSynergy’s sole liability for a breach of the warranties set forth in this Section 7, ICSynergy will provide the Support Services. In the event ICSynergy fails to successfully correct the issue with functionality of the Licensed Software within thirty (30) days of receipt of written notice from Customer detailing, in sufficient detail, the breach, then Customer may terminate this Agreement and receive from ICSynergy a refund of the Fees that were prepaid by Customer to ICSynergy for the applicable Subscription, pro-rated for the remaining, unused portion of the Term of the applicable Subscription.
(b) As Customer’s sole exclusive remedy and ICSynergy’s sole and exclusive liability for failure to provide the Support Services in accordance with this Agreement, ICSynergy will re-perform the non-conforming Support Services at no additional charge, and, in the event ICSynergy fails to successfully perform again the Support Services within a reasonable time of receipt of written notice from Customer detailing, in sufficient detail, the failure, Customer may terminate this Agreement and receive from ICSynergy a refund of the Fees that were prepaid by Customer to ICSynergy for the applicable Subscription, pro-rated for the remaining, unused portion of the term of the Subscription.
7.4 Limitations on Warranties
(a) The warranties set forth in this Section 7 are made to, and for the benefit of, only the Parties to this Agreement.
(b) The warranties of this Section 7 will only apply if (i) the Support Services and Licensed Software have been utilized strictly in accordance with the Documentation, this Agreement and applicable law and (ii) no modification, alteration or addition has been made to the Licensed Software by persons or entities other than ICSynergy.
7.5 THE SUPPORT SERVICES AND LICENSED SOFTWARE ARE PROVIDED “AS IS,” “WHERE IS,” AND “AS AVAILABLE,” AND ICSYNERGY HEREBY DISCLAIMS ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES, REPRESENTATIONS, PROMISES, COVENANTS OR UNDERTAKINGS RELATING TO THE SUPPORT SERVICES, LICENSED SOFTWARE, OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER IS NOT RELYING, AND HAS NOT RELIED UPON, ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED. ICSYNERGY MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SUPPORT SERVICES OR LICENSED SOFTWARE OR THAT THE SUPPORT SERVICES OR LICENSED SOFTWARE WILL BE ERROR OR DEFECT FREE.
7.6 CUSTOMER AGREES THAT THE LICENSED SOFTWARE AND SUPPORT SERVICES ARE NOT DESIGNED OR MANUFACTURED FOR USE IN ANY ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING, WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT SYSTEMS, OR WEAPON OR COMBAT SYSTEMS, IN WHICH THEIR FAILURE COULD LEAD DIRECTLY TO PERSONAL INJURY, DEATH, OR PROPERTY OR ENVIRONMENTAL DAMAGE. ICSYNERGY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USES.
7.7 TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, ANY IMPLIED OR STATUTORY WARRANTY MAY NOT BE DISCLAIMED, THE DURATION AND SCOPE OF SUCH WARRANTY WILL BE THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.
7.8 THE PARTIES EXPRESSLY AGREE THAT NEITHER ICSYNERGY NOR ITS AFFILIATES, LICENSORS, AGENTS, SUCCESSORS OR ASSIGNS SHALL BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OR INTERRUPTION OF CUSTOMER’S OR ANY THIRD PARTY’S APPLICATION OR NETWORK.
8. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY
8.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW (INCLUDING ANY APPLICABLE CONSUMER PROTECTION LAW OF A FOREIGN JURISDICTION), NEITHER, ICSYNERGY, ITS AFFILIATES OR THEIR RESPECTIVE MEMBERS, MANAGERS, SHAREHOLDERS, TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, CONTROLLED OR CONTROLLING ENTITIES, LICENSORS OR LICENSORS’ DISTRIBUTORS, AGENTS OR ATTORNEYS (EACH, A “RELEASED PARTY”), WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOST PROFITS, BUSINESS OR REVENUE, LOSS OF GOODWILL OR OTHER ECONOMIC ADVANTAGE, OR LOSS OF PRIVACY) ARISING OUT OF OR RELATED TO USE OF THE SUPPORT SERVICES OR THE LICENSED SOFTWARE, EVEN IF A RELEASED PARTY HAS BEEN ADVISED OF, OR KNEW OR SHOULD HAVE KNOWN OF, THE POSSIBILITY OF SUCH DAMAGES.
8.2 ICSYNERGY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SUPPORT SERVICES AND THE LICENSED SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH ALLEGED OR THREATENED LIABILITY AND ONLY WITH RESPECT TO THE APPLICABLE SUBSCRIPTION. CUSTOMER ACKNOWLEDGES THAT THIS PROVISION REFLECTS THE AGREED UPON ALLOCATION OF RISK FOR THIS AGREEMENT AND THAT ICSYNERGY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
8.3 IF ANY PART OF THE EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY IS UNENFORCEABLE UNDER APPLICABLE LAW, THE RELEASED PARTIES’ AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
9. INFRINGEMENT INDEMNITY
9.1 Except as otherwise set forth herein, ICSynergy agrees to defend, indemnify, and hold harmless Customer from and against any valid demands, damages, or liabilities (including reasonable attorneys’ fees) arising from a valid third-party claim brought against Customer during the term of this Agreement that substantiates that the Support Services or the Licensed Software knowingly or intentionally and directly infringes any valid United States copyright, patent, trade secret, or any other proprietary right of a third party, and shall pay any final, non-appealable judgments awarded or settlements resulting therefrom.
9.2 As a condition precedent to ICSynergy’s obligations under Section 9.1, Customer must, at Customer’s cost and expense, give written notice to ICSynergy within five (5) days of Customer’s actual, constructive or imputed knowledge of any claim, action or allegation of infringement, give ICSynergy the authority to defend and to settle the claim, and refrain from settling or taking any action to compromise ICSynergy’s defense of a claim without the prior written authorization of ICSynergy. Customer, at Customer’s cost and expense, must also cooperate with ICSynergy in the defense of any claim and will furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection therewith.
9.3 ICSynergy may assume the defense of a claim by giving written notice to Customer. Upon written assumption of the defense of a claim, ICSynergy will have the right to contest, pay, settle or compromise the claim as ICSynergy determines.
9.4 In the event any claim, action or allegation is brought or threatened involving the Support Services or the Licensed Software, ICSynergy may, at its sole option and expense (a) procure for Customer the right to continue use of the Support Services and Licensed Software; (b) modify, amend or replace the Support Services and Licensed Software or infringing part thereof with other software having substantially the same or better capabilities; or, (c) if neither of the foregoing is acceptable or practicable in ICSynergy’s sole and absolute discretion, terminate each of Customer’s Subscriptions and refund to Customer of any Fees prepaid by Customer to ICSynergy for the remaining, unused portion of each Subscription.
9.5 Notwithstanding the foregoing Sections 9.1-9.4, ICSynergy will have no liability for any third-party claim, demand, or liability of any kind to the extent that it results from (a) modifications to the Support Services or Licensed Software made by a Party other than ICSynergy; (b) the use of the Support Services and Licensed Software in combination with equipment, network, devices, data or software provided by Customer; (c) ICSynergy’s compliance with specifications or requirements of Customer; or (d) Customer’s use of the Support Services and Licensed Software other than in accordance with this Agreement or Customer’s actions which compromise, waive or affect, in any way, ICSynergy’s ability to defend claims or ICSynergy’s liability therefrom. The indemnification obligations set forth in this Section 9 are ICSynergy’s sole and exclusive obligations, and Customer’s sole and exclusive remedies with respect to infringement, unauthorized use, violation, or misappropriation of third party intellectual property rights of any kind.
10. TERM AND TERMINATION.
10.1 If either Party defaults in the performance of any of its obligations contained in this Agreement, the non-defaulting Party may terminate this Agreement upon ten (10) days written notice without prejudice to any other rights and remedies that it may have. This Agreement will not terminate if the default is cured during such notice period.
10.2 Either Party may terminate this Agreement at any time if any proceeding is commenced, any action taken, an order is made or an effective resolution is passed for the dissolution, winding up, or bankruptcy of the other Party or, where relevant, for the appointment of a liquidator, liquidation committee, receiver, administrator, trustee or similar officer of the other Party of all or a substantial part of its business or its assets.
10.3 Upon termination or expiration of this Agreement for any reason, (a) any outstanding accrued amounts owed to ICSynergy will be invoiced to, and timely paid by, Customer; (b) all rights and licenses granted to Customer in this Agreement, including the License, will immediately cease; (c) Customer must promptly discontinue all use of the Licensed Software and destroy all Instances and copies of the Licensed Software and Documentation (in accordance with Section 5.3 hereof); and (d) Customer will return to ICSynergy or destroy all copies of Confidential Information in Customer’s possession or control (in accordance with Section 5.3 hereof). In the event of termination, Customer will not be entitled to refund of any Fees paid under this Agreement, unless Customer terminates pursuant to Sections 4.9, 7.3, or 9.4.
10.4 Notwithstanding anything contained herein to the contrary, ICSynergy may terminate this Agreement (and any Subscription or Purchase Order) at any time effective upon thirty (30) days’ prior written notice for any or no reason.
10.5 Upon the uncured default of Customer hereunder, emergency or expiration or termination of this Agreement, a Purchase Order or a Subscription, ICSynergy shall have the right to unilaterally suspend or terminate the Support Services and use of the Licensed Software.
10.6 All covenants, terms and conditions and obligations of Customer will survive expiration or termination of this Agreement for any reason.
11.1 Notices. All notices, demands, designations, certificates, requests, offers, consents, approvals and other instruments given pursuant to this Agreement will be in writing and will be valid on the date of delivery if delivered by confirmed facsimile or email transmission, mailed by registered or certified mail, or hand delivered to the address specified in the Purchase Order. The Parties may from time to time, specify any address in the United States as its address for purpose of notices under this Agreement by giving fifteen (15) days written notice to the other Party in accordance with this Section 11.1.
11.2 Rights and Remedies Cumulative. Any enumeration of a Party’s rights and remedies set forth in this Agreement is not intended to be exhaustive. A Party’s exercise of any right or remedy under this Agreement does not preclude the exercise of any other right or remedy. All of a Party’s rights and remedies are cumulative and are in addition to any other right or remedy set forth in this Agreement, any other Agreement between the Parties, or which may now or subsequently exist at law or in equity, by statute or otherwise.
11.3 Amendments and Waivers. This Agreement may not be modified, amended or waived in whole or in part, except by a Purchase Order or other written Agreement executed by the Party against whom the amendment or waiver is sought to be enforced that expressly references this Agreement and manifests an intention to amend or waive a provision of this Agreement. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this Agreement, and no act, omission or course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. No waiver by either Party, whether express or implied, of any provisions of this Agreement or of any breach or default of any Party, will constitute a continuing waiver of such provision or any other provisions of this Agreement, and no such waiver by any Party will prevent such Party from acting upon the same or any subsequent breach or default of the other Party of any provisions of this Agreement.
11.4 Severability/Conflict. If any non-material provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force, if the essential terms and conditions of this Agreement for each Party remain valid, binding, and enforceable. Conflicts between the terms and conditions of this Agreement, a Purchase Order and a Subscription shall be resolved in favor of this Agreement, then the Purchase Order and then the Subscription.
11.5 Merger. This Agreement constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the Parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented or qualified through evidence of trade usage or a prior course of dealing. In entering into this Agreement, neither Party has relied upon any statement, representation, warranty or agreement of the other Party except for those expressly contained in this Agreement.
11.6 Assignment. Customer may not assign, delegate or alienate any of its rights or its performance, under this Agreement or a Purchase Order without the prior express written consent of ICSynergy. A Change in Control or merger is deemed an assignment for purposes of this Section 11.6. Notwithstanding the foregoing, ICSynergy may transfer, sell, convey and/or assign its rights and delegate its performance of any or all of its rights or obligations under this Agreement, without the consent of Customer. Upon such transfer, sale, conveyance, assignment or delegation, ICSynergy will be released from further liability or obligation hereunder or under such Purchase Order. Any purported assignment of rights or delegation of performance in violation of this section is void.
11.7 Legal Costs. Except as otherwise set forth herein, if any action is brought to enforce or interpret the terms of this Agreement or a Purchase Order, the prevailing Party will be entitled to reasonable legal fees, costs, and disbursements in addition to any other relief to which such Party may be entitled.
11.8 No Partnership. Neither this Agreement, nor any terms and conditions contained herein, will be deemed or construed to create a partnership, joint venture, other form of business enterprise or association or cooperative arrangement, agency relationship, or franchise relationship between the Parties or otherwise to create any liability for either Party whatsoever with respect to the indebtedness, liabilities, and obligations of the other Party.
11.9 Third Parties Beneficiaries. Nothing herein expressed or implied is intended or will be construed to confer upon or give any person other than the Parties hereto, any Parties expressly identified as being indemnified pursuant to this Agreement, and their respective successors and permitted assigns any rights or remedies under or by reason of this Agreement.
11.10 Force Majeure. Except for the payment obligations of Customer under this Agreement, no failure or omission to carry out or to observe any of the terms, provisions, or conditions of this Agreement by either Party shall give rise to any claim by either Party against the other or be deemed to be a breach of this Agreement by either Party, if such failure or omission is due to any reasonably foreseeable event or matter which is not caused, directly or indirectly, by the acts, omissions, negligence or willful misconduct of such Party, including vandalism; natural calamities or phenomena such as, and including without limitation, earthquakes; hurricanes; typhoons; floods; fires; plague; pandemic; epidemic; other regional, national and/or global health crisis and other natural disasters; or political and special events such as, and including without limitation, wars declared or not, hostilities, invasions, riots, civil disturbances, strikes, acts of terrorism, nuclear or chemical contamination, pressure waves from devices traveling at supersonic speeds, failure of public infrastructure, utility or internet service provider failures, any other events or circumstances beyond a Party’s direct reasonable control, or other “force majeure” reasons. If any of the circumstances described above occur, which are beyond the direct reasonable control of the Parties, the performance of this Agreement, other than the payment obligations referenced above, shall be postponed for an equivalent period of time of the disaster or event of force majeure, or shall be cancelled, provided that the Party seeking postponement of this Agreement takes reasonable steps to mitigate the effects of the event giving rise to such postponement or cancellation. The term “force majeure” does not include the regulatory acts of governmental agencies or the nonperformance of third parties, contractors, or subcontractors unless that failure or nonperformance by a third party, contractor, or subcontractor is itself caused by a force majeure event.
11.11 Governing Law and Jurisdiction. This Agreement will be governed exclusively by, and enforced in accordance with, the laws of the State of Texas, United States, without regard to its conflict of laws rules. Each Party hereby (i) submits to the exclusive jurisdiction of courts of the State of Texas over any disputes under this Agreement, (ii) waives any objection to such jurisdiction, and (iii) if such rights exist, waives its right to a jury trial in any dispute arising under this Agreement.
11.12 Arbitration/Mediation. The Parties, to the extent permitted by applicable law hereby waive any right to arbitration or mediation as a condition to pursuit of legal and equitable remedies by the Parties.
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