The Trial Period for the Trial Software will commence on the Effective Date stipulated upon sign-up for Verify or scheduled time-slot. This is a legally binding Agreement between StratusCore and the End User. By selecting your acceptance to the terms and conditions of this agreement on www.ravelinc.com, the End User agrees to all of the terms and conditions stated in this Agreement.
2. The following terms and conditions apply exclusively to the Trial Software:
“Authorized Use” means the specified Licensed Level (as defined in https://ravelinc.com/orchestrate-verify/ or other designated url ) at which End User is authorized to execute or run the Trial Software as stipulated.
"Confidential Information" means, with respect to the StratusCore , all information that StratusCore protects against unrestricted disclosure to others, including but not limited to StratusCore Materials, including without limitation the following information regarding the Trial Software: computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Trial Software; (ii) benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file formats; and (iii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Trial Software.
“End User” shall have the meaning given to that term in the Delivery Note.
"Documentation" means StratusCore's documentation that is delivered or made available to the End User with the Trial Software under this Agreement.
“Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights, mask work rights, trade secret or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
“StratusCore” shall have the meaning given to that term in the Delivery Note.
“StratusCore Materials” means any software, programs, tools, systems, data or other materials made available by StratusCore including supplier based infrastructure made available for the purpose of the Trial, to the End User in the course of the performance under this Agreement including, but not limited to, the Trial Software and Documentation, StratusCore supplier infrastructure, as well as any information, materials or feedback provided by the End User to StratusCore relating to the Trial Software and Documentation.
2.2.1. The Trial Software provided to the End User under this Agreement is subject to the End User’s compliance with all the terms and conditions of this Agreement. StratusCore grants to the End User a limited, non-exclusive, non-transferable subscription-based license to use the Trial Software and StratusCore Materials solely as provided by StratusCore for the purpose of internal trial and evaluation of the Trial Software for the Trial Period. The use of the Trial Software by the End User is subject to the Licensed Level selected by End User.
2.2.2. StratusCore may install or assist the End User to install the Trial Software on hardware that is owned or licensed by End User or is operated by StratusCore via a private network or StratusCore supplier hosted infrastructure (the “Hardware”). The End User shall be entitled to access and use the Trial Software using License Keys provided by StratusCore. The Trial Software will remain on the Hardware for the Trial Period. Should the End User use their own cloud tenancy and/or their own on-premise or datacenter infrastructure, it is understood that the End User has the knowledge and experience to follow the directions provided in the RAVEL Orchestrate Support Portal. Should assistance be required, the End User may reach out directly to firstname.lastname@example.org.
2.2.3. The End User shall indemnify, defend and hold harmless StratusCore and its licensors and suppliers for any claim arising from the End User’s use of the Trial Software: (i) in breach of this Agreement; or (ii) in breach or infringement of third party rights.
2.2.4. THE END USER’S RIGHT TO USE THE TRIAL SOFTWARE SHALL BE EFFECTIVE FROM THE EFFECTIVE DATE FOR THE TRIAL PERIOD. NOTICE OF EXPIRATION WILL NOT ACTIVELY BE GIVEN. THE END USER AGREES TO DESTROY STRATUSCORE MATERIALS, THE TRIAL SOFTWARE AND ALL COPIES MADE OF IT WITHIN 10 (TEN) DAYS OF THE END OF THE TRIAL PERIOD.
2.2.5. If the End User desires to use the Trial Software after the Trial Period, it will need to acquire a validly licensed copy of the production use version of the Trial Software, to which a charge will apply. The TRIAL SOFTWARE is "NOT FOR PRODUCTION USE". The End User may not demonstrate, test, examine, evaluate or otherwise use the Trial Software in a commercial use environment or with data that has not been sufficiently backed up. The Trial Software shall not be used for any purposes other than evaluation and testing of the Trial Software. Configurations created for non-production use, evaluation and testing shall not be used for projects outside the Trial Period.
2.2.6. This license does not permit the End User to: (i) use StratusCore Materials to provide services to third parties (e.g. business process outsourcing, service bureau applications or third party training); (ii) lease, loan, resell, sublicense or otherwise distribute StratusCore Materials; (iii) distribute or publish keycode(s); (iv) make any use of or perform any acts with respect to StratusCore Materials other than as expressly permitted in accordance with the terms of this Agreement; (v) use software components other than those specifically identified for use with the Trial Software and with valid third party licenses obtained by the End User,; (vi) modify the Trial Software; (vii) use the Trial Software or StratusCore Materials for any purposes that are competitive with StratusCore; (viii) use the Trial Software for production purposes or otherwise use, copy, modify or distribute the Trial Software except as expressly permitted in this Agreement; (ix) use any of StratusCore Materials or the Trial Software components, files, modules, audio-visual content, or related licensed materials separately from the Trial Software; (x) use the Trial Software for commercial application hosting; or (xi) benchmark or disclose the results of any benchmark test of the Trial Software to any third party without StratusCore’s prior written approval.
2.2.7. All rights not expressly granted are reserved by StratusCore. Trial Software used for other than the approved usage will be considered a breach of this Agreement.
2.3. Auditing and Reporting:
2.3.1. Upon reasonable notice, StratusCore may audit the End User’s use of the Trial Software and the End User’s compliance with the terms of this Agreement. The End User is responsible for a) ensuring that it does not exceed its Authorized Use, and b) remaining in compliance with the terms and conditions of this Agreement. Upon StratusCore’s request, the End User agrees to provide all information reasonably necessary for StratusCore to conduct the audit. The audit will be conducted in a manner that minimizes disruption to the End User’s business, and may be conducted on the End User’s premises, during normal business hours. StratusCore may use an independent auditor to assist with such verification, provided StratusCore has a written confidentiality agreement in place with such auditor. The End User will cooperate reasonably with StratusCore’s audit request and procedures.
2.3.2. StratusCore will notify the End User in writing if any such verification indicates that the End User has used any Trial Software in excess of its Authorized Use or is otherwise not in compliance with the terms and conditions of this Agreement. The End User agrees to promptly pay directly to StratusCore the charges that StratusCore specifies in an invoice for a) any such excess use, b) support for such excess use, and c) any additional charges and other liabilities determined as a result of such verification.
2.4.1. As the Trial Software and StratusCore Materials are provided to the End User free of charge or for a nominal Fee as indicated in the Verify Plan Options, StratusCore does not guarantee or warrant any features or qualities of Trial Software and StratusCore Materials or give any undertaking with regard to any other quality. No such warranty or undertaking shall be implied by StratusCore from any description in the Trial Software or StratusCore Materials or any available documentation or any other communication or advertisement for the Trial Software or StratusCore Materials except to the extent that StratusCore has expressly confirmed a specific quality in writing. In particular, StratusCore does not warrant that the Trial Software or StratusCore Materials will be available uninterrupted or permanently. All warranty claims are subject to the limitation of liability stipulated below.
2.4.2. THE TRIAL SOFTWARE IS LICENSED TO THE END USER “AS IS”, WITHOUT ANY WARRANTY, ESCROW, TRAINING, MAINTENANCE, OR SERVICE OBLIGATIONS WHATSOEVER ON THE PART OF STRATUSCORE . STRATUSCORE MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY TYPE WHATSOEVER, INCLUDING BUT NOT LIMITED TO THOSE RELATED TO NONINFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. THE END USER SHALL ASSUME ALL RISKS ASSOCIATED WITH THE USE OF THE TRIAL SOFTWARE, INCLUDING WITHOUT LIMITATION RISKS RELATING TO QUALITY, AVAILABILITY, PERFORMANCE, DATA LOSS, AND UTILITY IN A PRODUCTION ENVIRONMENT.
2.5.1. Irrespective of the legal reasons, StratusCore shall only be liable for damages occurred under this Agreement if such damage is caused by intentional misconduct of StratusCore;. In all other cases, neither StratusCore nor its employees, agents, suppliers, licensors and subcontractors shall be liable for any kind of damage or claims hereunder.
2.5.2. StratusCore’s entire liability for all claims in the aggregate arising from or related to each Trial Software or otherwise arising under this Agreement will not exceed the amount of any direct damages up to USD $2,500. This limit also applies to any of StratusCore’s agents, suppliers, licensors and subcontractors. It is the maximum for which StratusCore and its agents, suppliers, licensors and subcontractors are collectively responsible.
2.5.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL STRATUSCORE AND ITS AGENTS, SUPPLIERS, LICENSORS AND SUBCONTRACTORS BE LIABLE TO THE END USER OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES.
2.6. Intellectual Property Rights:
2.6.1. Reservation of Rights. StratusCore Materials, and all Intellectual Property Rights embodied in the foregoing, shall be the sole and exclusive property of StratusCore or its or their licensors, subject to any rights expressly granted to the End User in terms of this Agreement. The End User is not permitted to modify or otherwise make derivative works of the Software.
2.6.2. Protection of Rights. The End User shall not copy, translate, disassemble, or decompile, nor create or attempt to create the source code from the object code of the Trial Software in any manner. Reverse engineering of the Trial Software and other StratusCore Materials is prohibited, except to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding this limitation. The End User is permitted to back up data in accordance with good information technology practice.. The End User must not change or remove any copyright and authorship notices.
2.6.3. Indemnification. The End User shall defend (at its sole expense) StratusCore and its affiliates and licensors against claims brought against StratusCore by any third party arising from or related to any use of the Trial Software or service used to host the Trial Software in violation of any applicable law or regulation; or (ii) an allegation that the End User’s use of the Trial Software or service used to host the Trial Software in violation of this Agreement violates, infringes or misappropriates the rights of a third party. The End User will pay damages finally awarded against StratusCore (or the amount of any settlement the End User enters into) with respect to such claims and will pay reasonable attorney’s fees in connection with such defense. The foregoing shall apply regardless of whether such damage is caused by the conduct of the End User or by the conduct of a third party using the End User's access credentials.
2.8.1. StratusCore has no obligation to provide maintenance and support for the Trial Software and no service level agreements apply. StratusCore may offer support for the Trial Software – at its sole discretion – by e.g. provisioning of updates, patches, bug fixes and new versions according to StratusCore’s then current existing support offerings without notice to the End User.
2.8.2. To assist StratusCore in isolating the cause of a problem with the Trial Software, StratusCore may request that the End User a) allow StratusCore to remotely access the End User’s system or b) send the End User information or system data to StratusCore. However, StratusCore is not obligated to provide such assistance unless StratusCore and the End User enter a separate written agreement under which StratusCore agrees to provide to the End User that type of support, which is beyond StratusCore’s obligations in this Agreement.
2.8.3. The End User remains responsible for a) any data and the content of any database the End User makes available to StratusCore, b) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally-identifiable data), and c) backup and recovery of any database and any stored data. The End User will not send or provide StratusCore access to any personally-identifiable information, unless such data is masked, and will be responsible for reasonable costs and other amounts that StratusCore may incur relating to any such information mistakenly provided to StratusCore or the loss or disclosure of such information by StratusCore, including those arising out of any third party claims.
2.9. Term and Termination:
2.9.1. StratusCore shall be entitled to terminate the End User’s licenses to use the Trial Software if the End User fails to comply with any of the terms of this Agreement. This Agreement terminates automatically upon the expiration of the Trial Period. In case of termination or expiration of this Agreement, the End User must immediately cease use of the Trial Software and destroy all copies of the Trial Software in its possession within 10 (ten) days of the end of the Trial Period, if any.
2.9.2. THE TRIAL SOFTWARE MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED AFTER THE TRIAL PERIOD ENDS. THE END USER AGREES NOT TO TAMPER WITH THE DISABLING DEVICE OR THE TRIAL SOFTWARE. THE END USER SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE TRIAL SOFTWARE CAN NO LONGER BE USED.
2.10.1. Use of Confidential Information. The End User shall not reproduce StratusCore Confidential Information in any form except as required to accomplish the intent of this Agreement. Any reproduction of any StratusCore Confidential Information by the End User shall remain the property of StratusCore and shall contain any and all confidential or proprietary notices or legends that appear on the original. With respect to the Confidential Information the End User: a) shall take all Reasonable Steps (defined below) to keep all StratusCore Confidential Information strictly confidential; and b) shall not disclose any StratusCore Confidential Information of the other to any person other than its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. As used herein “Reasonable Steps” means those steps the End User takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. StratusCore Confidential Information disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
2.10.2. Exceptions. The above restrictions on the use or disclosure of StratusCore Confidential Information shall not apply to any Confidential Information that: a) is independently developed by the End User without reference to StratusCore’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; b) has become generally available to the public without breach of this Agreement by the End User; c) at the time of disclosure, was known to the End User free of restriction; or d) StratusCore agrees in writing is free of such restrictions.
2.11. General. This Agreement may not be assigned, transferred or delegated by the End User to any entity. This Agreement constitutes the entire, conclusive and complete statement of agreement between StratusCore and the End User (the “Parties”). All previous representations, discussions and written communications are superseded by this Agreement and the Parties disclaim any reliance on such representations, discussion and/or written communications. This Agreement may not be amended or modified and any term or obligation may not be waived except in writing signed by a duly authorized representative of each Party. If any term of this Agreement is found to be invalid or unenforceable, the surviving provisions shall remain effective. Neither Party shall be liable to the other for its failure to perform any of its obligations hereunder during any period in which such performance is delayed due to circumstances beyond its reasonable control. This Agreement shall be governed by Washington State law. The exclusive place of jurisdiction for all disputes arising from or in connection with this Agreement is King County, Seattle, Washington. All notices or reports which are required to be given under and in terms of this Agreement will be in writing and will be deemed to be duly given when delivered to the address provided by each Party as set out in the Delivery Note. The End User authorizes StratusCore and its subsidiaries and their successors and assigns to store and use the End User’s business contact information wherever they do business, in connection with StratusCore’s products and services, or in furtherance of StratusCore’s business relationship with the End User.
Equus Cloud Services Agreement
Last Modified: November 2, 2023
This Cloud Services Agreement (this “Agreement”) is a binding contract between you, the legal entity identified on the applicable Order Form (“Customer,” “you,” or “your”) and Equus Computer Systems, Inc. dba Equus Compute Solutions (“Equus,” “we,” or “us”). This Agreement governs your access to and use of the Cloud Services and is effective as of the effective date of the applicable Order Form (the “Effective Date”).
You are accepting the terms and conditions of this Agreement by: (a) clicking a box indicating acceptance, (b) signing or otherwise agreeing to an Order Form that references this Agreement, (c) using the Cloud Services, or (d) any other method of indicating your acceptance of this Agreement. If you are accepting this Agreement on behalf of a company or other legal entity, you represent that you have authority to bind such entity to this Agreement. If you do not have such authority or do not agree with the terms and conditions of this Agreement, you may not use the Cloud Services.
“Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Cloud Services under the rights granted to Customer pursuant to this Agreement, and (b) for whom access to the Cloud Services has been purchased hereunder.
“Cloud Services” means the services provided by Equus under this Agreement that are detailed on Equus’ website and as may be reflected in the applicable Order Form.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Cloud Services.
“Documentation” means Equus’ user manuals, handbooks, and guides relating to the Cloud Services provided by Equus to Customer either electronically or in hard copy form.
“Order Form” means an ordering document or registration form related to the Cloud Services provided by Equus that references this Agreement.
“Equus IP” means the Cloud Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Equus IP includes Aggregated Statistics and any information, data, or other content derived from Equus’ monitoring of Customer’s access to or use of the Cloud Services, but does not include Customer Data.
“Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Cloud Services.
2. Access and Use.
2.1 Provision of Access. Subject to and conditioned on your payment of Fees and your compliance with all the terms and conditions of this Agreement, Equus hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Equus will provide you the necessary passwords and access credentials to allow you to access the Cloud Services.
2.2 Documentation License. Subject to the terms and conditions contained in this Agreement, Equus hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Cloud Services.
2. 3 Downloadable Software. Use of the Cloud Services may require or include use of downloadable software. Equus grants you a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software we provide as part of the Cloud Services. Any Third-Party Products that consist of downloadable software are subject to the terms of Section 3.5.
2.4 Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Cloud Services, any software component of the Cloud Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Cloud Services, any software component of the Cloud Services, or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services or Documentation except as expressly permitted under this Agreement; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part; (d) remove any proprietary notices from the Cloud Services or Documentation; or (e) use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
2.5 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Equus may monitor Customer’s use of the Cloud Services and collect and compile data and information related to Customer’s use of the Cloud Services to be used by Equus in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Cloud Services (“Aggregated Statistics”). As between Equus and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Equus. You acknowledge that Equus may compile Aggregated Statistics based on Customer Data input into the Cloud Services. You agree that Equus may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
2.6 Reservation of Rights. Equus reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Equus IP.
2.7 Suspension. Notwithstanding anything to the contrary in this Agreement, Equus may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Cloud Services if: (a) Equus reasonably determines that (i) there is a threat or attack on any of the Equus IP; (ii) Customer’s or any other Authorized User’s use of the Equus IP disrupts or poses a security risk to the Equus IP or to any other customer or vendor of Equus; (iii) Customer or any other Authorized User is using the Equus IP for fraudulent or illegal activities, or otherwise in violation of the AUP; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Equus’ provision of the Cloud Services to Customer or any other Authorized User is prohibited by applicable law; (b) any vendor of Equus has suspended or terminated Equus’ access to or use of any third-party services or products required to enable Customer to access the Cloud Services; or (c) in accordance with Section 5 (any such suspension described in subclause (a), (b), or (c), a “Service Suspension”). Equus shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. Equus shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Cloud Services Suspension is cured. Equus will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
2.8 Free Trials. From time to time, we may offer free trials of the Cloud Services for a specified period of time (each, a “Free Trial”). Upon your registration on our website and acceptance of your registration by us, we will make the Cloud Services available for you to access under the Free Trial until the earlier of (a) the end of the Free Trial period specified by us, (b) the start date of any paid Cloud Services subscription ordered by you, or (c) termination by us in our sole discretion. If you do not purchase a subscription to the Cloud Services by the end of the Free Trial period, you will not be able to access or retrieve any of the data or content you added to or created with the Cloud Services during the Free Trial period. You acknowledge and agree that this Agreement will govern your use of the Cloud Services during the Free Trial period and any paid subscription to the Cloud Services.
3. Customer Responsibilities.
3.1 Acceptable Use Policy. The Cloud Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Equus’ acceptable use policy (“AUP”) located at https://equuscs.com/cloud-services-acceptable-use-policy, as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of this Agreement, the AUP, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted within the Cloud Services from time to time.
3.2 Account Use. You are responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Cloud Services and shall cause Authorized Users to comply with such provisions.
3.3 Customer Data. You hereby grant to Equus a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Equus to provide the Cloud Services to you. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
3.4 Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Cloud Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
3.5 Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Cloud Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
4. Fees and Payment. This Agreement does not entitle Customer to any support for the Cloud Services.
5. Fees and Payment. Customer shall pay Equus the fees as described on the Order Form (“Fees”) in US dollars without offset or deduction on or before the due date. If Customer fails to make any payment when due, without limiting Equus’ other rights and remedies: (a) Equus may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Equus for all reasonable costs incurred by Equus in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for 10 days or more, Equus may suspend, in accordance with Section 2.7, Customer’s and all other Authorized Users’ access to any portion or all of the Cloud Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer 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 Customer hereunder, other than any taxes imposed on Equus’ income.
6. Confidential Information. From time to time during the Term, Equus and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) is already in or later comes into the public domain through no fault of the recipient; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under this Agreement, including to make required court filings.
7. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Cloud Services and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cloud Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
8. Limited Warranty and Warranty Disclaimer.
8.1 Equus Warranty. Equus warrants that it provides Cloud Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND EQUUS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
8.2 Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Cloud Services are in compliance with the AUP.
8.3 EXCEPT FOR THE LIMITED WARRANTY SET EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.1, THE CLOUD SERVICES ARE PROVIDED “AS IS” AND EQUUS SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EQUUS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EQUUS MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
9.1 Equus Indemnification. Equus shall indemnify, defend, and hold Customer harmless from and against 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 (“Losses”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Cloud Services in the form provided by Equus, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party’s U.S. patents, copyrights, or trade secrets, provided that Customer promptly notifies Equus in writing of the Third-Party Claim, cooperates with Equus, and allows Equus sole authority to control the defense and settlement of such Third-Party Claim. If such a Third-Party Claim is made or Equus reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Equus, at Equus’ sole discretion, to (a) modify or replace the Cloud Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue use. If Equus determines that neither alternative is reasonably available, Equus may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and Equus will provide Customer a pro rata refund of any prepaid and unused Fees for such infringing Services or portion thereof. This Section 9.1 sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. This Section 9.1 will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Equus’ option, defend Equus and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (a) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; or (b) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Cloud Services in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Equus unless Equus consents to such settlement, and further provided that Equus will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
10. Limitations of Liability. IN NO EVENT WILL EQUUS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER EQUUS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EQUUS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO EQUUS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR, IN THE CASE OF A FREE TRIAL, $100.
11. Term and Termination.
11.1 Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the term stated on all Order Forms has expired or has otherwise been terminated. The term of each Order Form will be as set forth on the Order Form.
11.2 Termination. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement (including a violation of the AUP), and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
11.3 Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) 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; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) 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.
11.4 Effect of Termination. Termination or expiration of an individual Order Form will not be deemed a termination of this Agreement so long as other Order Forms remain in effect. Termination of this Agreement will, however, terminate all outstanding Order Forms. Upon termination of this Agreement, Customer shall immediately discontinue use of the Equus IP. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
11.5 Survival. This Section 11.5, Sections 1, 2.5, 5, 6, 7, 8.3, 9, 10, 11.5, 13, 14, 15, and 16, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination of this Agreement, will survive any such termination.
12. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts within the Cloud Services and/or direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms.
13. Export Regulation. The Cloud Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Cloud Services or the software or technology included in the Cloud Services to, or make the Cloud Services or the software or technology included in the Cloud Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Cloud Services or the software or technology included in the Cloud Services available outside the U.S.
14. U.S. Government Rights. Each of the software components that constitute the Cloud Services and the Documentation is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Cloud Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government customers and their contractors.
15. Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Minnesota 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 State of Minnesota. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in Hennepin County, Minnesota, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
16. Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at 201 General Mills Blvd, Golden Valley, MN 55426, and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Cloud Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.