This page has the general agreements between you (also referred to as “Licensee”) and Aurora Predictions, LLC (also referred to as “Aurora”) when we provide you products and services. Specifics on the products, services, delivery terms and pricing are contained in an Authorization writing agreed to by both of us. When an Authorization is mutually executed the sections that follow below provide the terms the Services will be provided that includes a General Terms & Conditions Agreement, Software & Software Support Agreements (including the Software License and Software Maintenance agreements), and Hosting Service Level & Use Agreement.
GENERAL TERMS & CONDITIONS AGREEMENT
In Aurora Predictions, LLC (“Aurora”) providing software products (“Software”) and services to you (“Licensee”) we both agree to the following general terms and conditions. Should these general terms conflict with any of the terms in the other sections of Software Agreements, and Hosting Agreement below the terms of the other sections below will prevail. The general terms below and the other agreements previously mentioned are individually and collectively referred to as the “Agreement”.
1. LIMITED WARRANTY & LIMITATION OF LIABILITY. Aurora provides the Services using commercially reasonable level of care but Aurora makes no warranties (express, implied or statutory) of any kind (not explicitly stated herein) including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose of any product or service provided to Licensee. Unless expressly written herein to the contrary in no event will either party be liable to the other for any direct or indirect damages including loss of profits, lost savings, loss of data, or other special incidental or consequential damages arising out of this Agreement, and in no event, except for those items explicitly written herein, will either party’s total liability to the other exceed the amount of the payments associated with the license fees identified in the Authorization received by Aurora from Licensee under this Agreement. Further, and without limitation of liability, License shall indemnify, release, and hold Aurora harmless from any and all liability, claims, actions, loss, harm, damage, injury, cost or expense arising out of Licensee’s use or misuse of Licensee’s data. Further all consulting, support and training services will be delivered electronically but should Licensee request, and Aurora consent, to provide consulting, support or training services at the Licensee’s premises and should an accident occur thereon directly caused by the consulting, support or training services that results in bodily or property injury then the amount of liability will be limited to the proceeds from the offending party’s general liability insurance policy proceeds but not to exceed $2 million in any single or in aggregate claim(s). Further, pursuant to the End User Non Exclusive Software Limited License, this limitation of liability does not apply to infringement of third party intellectual property by Aurora.
2. TERM AND RENEWAL. The initial term of this Agreement shall be pursuant to the Authorization between us. Thereafter this Agreement will automatically renew at the then current rates for an additional twelve (12) months unless either party provides its written notice to terminate the Agreement no later than 60 days prior to any expiration. Should the rates that can affect Licensee change for any upcoming renewal then Aurora shall notify Licensee at least 90 days prior to the end of any term and failure to notify License shall keep the rate unchanged for the next term.
3. CONFIDENTIALITY. Either party may be provided access to the other’s proprietary or confidential information (“Confidential Information”). Each party agrees to maintain the confidentiality of the other’s Confidential Information in accordance with this provision and any separate nondisclosure agreement that expressly references the disclosure(s) between the parties. At a minimum, each party agrees that it shall not make the other’s Confidential Information available to any third party without the prior written consent of the other and that title and ownership of the Confidential Information provided by one party to the other shall remain the exclusive property of that party who provided its Confidential Information.
4. NON-WAIVER. Either party’s failure at any time to require strict performance from the other party of any of the provisions hereof shall not waive or diminish the party’s right thereafter to demand strict compliance therewith or with any other provision. Waiver of any default shall not waive any other default. Each party’s rights hereunder are cumulative and not alternative.
5. LICENSEE DEFAULT. Default will occur if Licensee (i) fails to pay any fee within five (5) business days after the same is due and payable or, (ii) fails to observe, keep or perform any other material provision of this Agreement, or (iii) without Aurora prior consent, attempts to alter, modify, translate, decompile, disassemble, copy, sell, trade, transfer, encumber, pledge, sublease or in any way dispose of the Software, then Aurora or its agents shall have the right to exercise any one or more of the following remedies: (a) declare the balance of the entire amount of fees for the remainder of the Agreement then immediately due and payable upon notice to Licensee; (b) to sue and recover from Licensee an amount equal to the unpaid balance of any fees due, or to become due, during the remainder of the then-applicable term of this Agreement, as well as reasonable attorneys’ fees and other expenses incurred by Licensee in an attempt to enforce the provisions of this Agreement; (c) to take possession of the Software without demand or notice, with or without court order. Licensee hereby waives any and all damages occasioned by such retaking of possession of such Software. Any taking of possession shall not constitute a termination of this Agreement and not relieve Licensee of its obligations hereunder unless Aurora expressly so notifies Licensee in writing. Aurora shall have upon default such other and further remedies and rights as may be available at law by reason of the Licensee’s default.
6. ATTORNEYS’ FEES. In the event either party is required to retain the services of any attorney to enforce their rights hereunder with legal action, then the prevailing party shall be entitled to all reasonable and necessary attorneys’ fees, court costs and disbursements.
7. BINDING AGREEMENT & NOTICES. This Agreement shall be binding upon the parties and successors and assigns and shall inure to the benefit of the parties, their permitted successors, legal representatives and assigns. All notices shall be deemed given when mailed first class or priority mail (by a major express mail service) to a designated authorized representative of the party.
8. GOVERNING LAW, VENUE & DISPUTE RESOLUTION. The Agreement shall be deemed to be made and executed in Orange County, California and shall be interpreted and enforced in accordance with the laws of the State of California. In the event of a dispute between the parties over a breach of a material term of the Agreement the non-breaching part will notify in a detail writing the breaching party the specifics of the breach and both parties will arrange to discuss the breach within five (5) business days of receipt of notification and if not resolved during the discussion. The breaching party will have 30 days from the date of receipt of notification to resolve the breach to the reasonable satisfaction of the non-breaching party which satisfaction shall not be unreasonably withheld. Should the parties be unable to come to resolution then the parties agree to binding arbitration through JAMS in Orange County, California.
9. SEVERABILITY, INTERPRETATION & SURVIVAL. If any provision hereof or any remedy herein provided for is invalid under any applicable law, such provision shall be inapplicable and deemed omitted. However, the remaining portions herein, including remaining default remedies, shall be given full force and effect in accordance with the intent of this document. The provisions of Section 4 shall survive the termination of this Agreement. The parties have had the opportunity to review and comment on this Agreement with their counsel and any ambiguity herein shall not be interpreted against a party but as if the parties equally drafted the Agreement.
10. PAYMENTS & DISABLEMENT. LICENSEE UNDERSTANDS THE SOFTWARE CONTAINS A KEY THAT ENABLES ITS USE AND SHOULD LICENSEE FAIL TO MAKE ANY SCHEDULED PAYMENT THE RIGHT TO USE THE SOFTWARE MAY, AT THE SOLE DISCRETION OF AURORA, BE DISABLED. Aurora will assure that the Software when installed on its specified operating system will be compatible for use with that operating system and that the key will remain enabled once the Licensee has made all its scheduled payments. Further, Aurora represents that the key is not designed to damage, disable, interfere, impair or adversely affect other computer programs, data or hardware.
SOFTWARE & SOFTWARE SUPPORT AGREEMENTS
The following agreements cover your license (“Licensee”) right to use the software (“Software”) identified on the Authorization and the maintenance for the Software.
— END USER NON-EXCLUSIVE SOFTWARE LIMITED LICENSE —
1. GRANT OF NONEXCLUSIVE LIMITED LICENSE
Licensee is granted a limited, non-exclusive, non-transferable, license (“License”) to Use that software and documentation more particularly listed in the Authorization. The term “use” as it applies to the Software shall mean only the installation and operation of the Software on authorized Licensee or Company computer(s) over a network, for the internal business purposes of the Licensee. Licensee may not disclose, publish, translate, release, or distribute copies of the Software or accompanying written materials to any third party. Licensee may not sub-license, lease, rent, sell, assign, or in any way convey or distribute the Software in any form, to any third party, at any time. The transfer of the Software to any third party without Aurora’s express written consent is prohibited. This License specifically excludes the right to (i) make any modifications to the Software, (ii) create any program or documentation which is a derivative work thereof, (iii) except as provided in paragraph 4, physically or electronically transfer the Software outside the Licensee site(s) of business, (iv) except as provided in paragraph 4, allow the Software to be used by any third party, and (v) use the Software to provide time-sharing, multi-user service bureau, outsourcing or any other processing services to any third parties. Licensee expressly understands and agrees that it has not been granted any right to use or receive source code of the Software.
This License is not a sale of the Software, or of any copy, or of the copyright to the Software. This License does not transfer or convey any title, interest, or intellectual property rights to any part of the Software to Licensee or any other party.
3. COPY RESTRICTIONS
The Software and all accompanying materials are protected by various intellectual property rights including, but not necessarily limited to copyrights, trademarks, and patents. Unauthorized copying, duplication, modification, revision, or addition of and to this Software, including merging of this Software and/or documentation with any other software or written materials is expressly forbidden. Any attempt to remove, emulate, replicate, or in any way circumvent the security features or mechanisms of the Software shall constitute an unauthorized modification to the Software and is specifically prohibited and shall cause the immediate termination of this License. In such event, Licensee shall be required to immediately return, if in Licensee’s possession, all Software and associated written materials to Aurora and Aurora shall not be obligated to refund any portion of the license, maintenance or any other fees. Licensee may be held legally responsible for any copyright, trademark or patent infringement that is directly or indirectly caused or incurred by Licensee material failure to abide by the terms of this License. Subject to these restrictions, Licensee may make one (1) archival copy of the Software solely for backup purposes as permitted by 17 U.S.C. § 117 and one (1) copy of the Software for disaster recovery purposes; however, Licensee must reproduce and include the original copyright notice with this copy. This clause does not provide any rights beyond those provided by 17 U.S.C. § 117.
4. ADDITIONAL USE
The Party hosting the Software may copy the Software to another network server or storage device for backup purposes only however, the back-up copy may only be used if the original copy of the Software from which the back-up copy is made from should fail to be accessible. Both the back-up and original Software may not be used concurrently by Licensee without prior written permission from Aurora.
5. INDEMNIFICATION AND WARRANTY
Aurora shall indemnify, defend and hold harmless Licensee from and against any claim, suit, or proceeding (collectively “Claim”), and pay costs, including reasonable attorney’s fees, settlement amounts or damages awarded arising out of third party claims that Licensee use of the Software in the manner permitted by this License infringes on a copyright, patent, trademark, trade secret or other intellectual property of a third party, provided Licensee (i) gives Aurora written notice of any Claim or threatened Claim within ten (10) business days from receipt by Licensee of the Claim or threatened Claim, and (ii) at the option of Aurora, grants Aurora authority to assume the sole defense thereof through Aurora’s or Aurora’s representative own counsel and to settle any Claim, and (iii) uses its best efforts to cooperate with Aurora or Aurora’s representative to defend or resolve the Claim or threatened Claim providing available information and assistance. If in any Claim the Software is held to constitute an infringement and its use is enjoined, or, if in the sole opinion of Aurora, the Software is likely to become the subject of a claim for infringement, Aurora shall in its sole determination, undertake one of the following courses of action: (i) procure for Licensee the right to continue using the Software, or (ii) modify the Software to render it non-infringing, or (iii) grant to Licensee the option to terminate the Agreement prior to its normal termination from the date the Software was the subject of a claim of infringement. Aurora shall have no indemnification obligation to the extent such infringement: (a) as it relates to use of the Software in combination with other software, data products, processes, or materials not provided by Aurora and the infringement would not have occurred but for the combination; (b) arises from or relates to modifications to the Software not made or authorized by Aurora; or (c) where Licensee continues the activity or use constituting or contributing to the infringement after notification thereof by Aurora.
6. WARRANTY BY LICENSEE
LICENSEE EXPLICITLY WARRANTS THAT IT SHALL NOT (A) ATTEMPT TO MODIFY, ADAPT, TRANSLATE, REVERSE ENGINEER, DECOMPILE, OR DISASSEMBLE THE SOFTWARE, OR CREATE ANY DERIVATIVE WORKS BASED ON THE SOFTWARE, OR (B) DIRECTLY OR INDIRECTLY DERIVE THE SOURCE CODE OF THE SOFTWARE. ANY BREACH OF THIS SECTION 6 DIRECTLY OR INDIRECTLY SHALL CAUSE THE IMMEDIATE TERMINATION OF THIS LICENSE.
— END USER SOFTWARE MAINTENANCE AGREEMENT —
This End User Software Maintenance Agreement (“Maintenance Agreement”) provides maintenance services to the Licensee on the Software listed in the Authorization with Licensee. “Maintenance Services” include (i) correction of defects in the Software, (ii) providing ongoing updates, improvements, and enhancements to the Software as they become available, and (iii) correcting and repairing failures of the Software to operate as described in the appropriate documentation on the hardware and operating systems platforms for which it was designed as specified by Aurora. A defect is defined as a material deviation from the Software’s performance to its documentation or specification. If a defect has been reported to, and validated by Aurora, the program causing the defect will be removed or repaired, at the option of Aurora, and the correction made available in the next scheduled maintenance release. Licensee is responsible to provide a detail writing of the defect and the procedure that caused it or to demonstrate to Aurora the procedure that caused the defect. Unless specified differently herein, Maintenance Services shall cover all modules of the Software. Periodic maintenance updates to the Software that may include defect fixes or enhancements and all documentation related to such updates will be made available to Licensee at no additional cost.
All such maintenance updates will be made available to Licensee via the Internet. This Maintenance Agreement does include ancillary services (“Ancillary Services”). Ancillary Services cover (i) Licensee training on the features, functionality or operations of the Software, (ii) Software installation, implementation, analytical model specification or development, (iii) data collection, analysis, authentication, verification, acquisition, clean-up, or extraction from any system, or posting or entry of any data to the Software, or (iv) any form of financial, operational, management, information systems, programming or other consulting which may be performed in support of, in connection with, or which may be supported by the Software. If requested and preapproved by Licensee, and consented to by Aurora, Ancillary Services provided by Aurora are billable on a time and material basis at the then current Aurora rates. The Maintenance Agreement may subject the Software to revisions of its feature, functionality, operability, scalability and performance resulting from support, enhancements, upgrades and other modifications and new versions of the Software, however, the terms and conditions of the License shall apply.
1. USER SUPPORT SERVICES
Aurora provides support services on only the Software between the hours of 8 AM to 5 PM Pacific Time Monday to Friday (excluding all U.S. national holidays) by calling the Aurora Support Line at the telephone number identified on the website www.aurorapredictions.com. Aurora will use commercially reasonable efforts to respond, verify, diagnose and correct reported failures of the Software within two (2) business days of notification but makes no warranty to the response and correction time. Licensee will identify at least one (1) but no more than four (4) of its employees, for every 100 users of the Software, (“Licensee Contacts”) who shall be responsible for accumulating questions and Software errors from Licensee employees and presenting these questions and errors to Aurora whenever Licensee employees require support from Aurora. Licensee agrees that Aurora will only be obligated to answer support questions from the designated Licensee Contacts.
HOSTING SERVICE LEVEL & USE AGREEMENT
This Hosting Service Level & Use Agreement that provides Critical Application Services has words with particular meanings as follows:
“Availability” and “Available” for purposes of the Production Platform Uptime Guarantee shall mean that your Hosted System and the Operating System shall be operational and responding to the Monitoring Services.
“Monitoring Alert” is when a device being monitored violates a predefined error condition, and some form of notification (“Alert”) is generated.
“Monitoring Services” means the infrastructure, software and services responsible for monitoring devices and generating/tracking “Monitoring Alerts.”
“Month” means a thirty (30) day month, and all availability calculations shall be based upon a thirty (30) day month.
“Production Platform” means the supplied and configured software and hardware that comprise the platform for which Critical Application Services, but specifically excluding your and the ISP networks.
“Unavailability” and “Unavailable” for purposes of the Production Platform Uptime Guarantee shall mean the opposite of availability.
Platform Uptime. After the first sixty (60) days following Activation we guarantees that your Production Platform will be Available 98% of the time in any given calendar month, excluding downtime due to maintenance or unavailability or we will provide a credit to you of 10% of the monthly Cloud Hosting license fee for any month Availability is under 98%.
Unavailability that is excluded from consideration includes downtime as a result of: the failure of a Storage Area Network (“SAN”), Network Attached Storage (“NAS”) or Direct Attached Storage (“DAS”) device); events that are out of our control such as but not limited to denial of service attacks, virus attacks, hacking attempts, or if you should disable, block or degrade the Monitoring or Security Services; outages resulting from System Maintenance (“Maintenance” ) for upgrades or repairs to shared infrastructure (such as core routing or switching infrastructure) that we scheduled at least seventy-two (72) hours in advance and that occurs during off peak hours in the time zone where the data center is located; maintenance of your configuration that you request and that we schedule with you in advance (either on a case by case basis, or based on standing instructions), such as hardware or software upgrades, or; critical unforeseen maintenance needed for the security or performance of your configuration or network.
Acceptable Use Policy. This Acceptable Use Policy (“AUP”) describes activities that are not allowed including, but not limited to: use of the network, servers, or Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior; to publish, transmit or store on or via the network and its servers any content or links to any content that we believe are pornographic, incites violence, risks the health and safety of the public or national security, deceptive, defamatory, malicious, or repugnant; information that would require the Services, servers or network to be HIPPA compliant; violation of export laws, controls, regulations or sanction policies of the United States or your applicable jurisdiction; illegal gambling, terrorism, narcotics trafficking, arms trafficking or the proliferation, development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, or; any manner that infringes on or misappropriates the rights of a third party in any work protected by copyright, trade or service mark, invention, or other intellectual property or proprietary information or to publish another person’s trade secrets, or to publish information in violation of a duty of confidentiality. We may intercept or block any content or traffic belonging to you or to users we reasonably believe is in violation of the AUP.
Changes to the AUP. The Internet is still evolving, and the ways in which the Internet may be abused are also evolving. Therefore, we may from time to time amend this AUP to further detail or describe reasonable restrictions on your use of our Services, servers or network by publishing a revised version of the AUP at https://www.aurorapredictions.com/agreements.html. However, if your compliance with the revised AUP would reasonably adversely affect your use of the Services, you may elect to terminate the Agreement by giving us 30 days prior written notice of your objection. If you elect to terminate, you may continue using the Services for up to an additional ninety (90) days and we will not enforce the revision as to you during this time, or we may decide to waive that change as to you and keep your agreements in place for the remainder of the term.
Inspection & Notification. If we are legally required to permit any relevant authority to inspect your content or traffic, you agree we can do so; provided however that, where possible without breaching any legal or regulatory requirement, we give you reasonable prior notice of such requirement. We may, without notice to you, report to the appropriate authorities any conduct by you that we believe violates applicable law, and provide any information we have about you, or your users or your traffic and cooperate in response to a formal request from a law enforcement or regulatory agency investigating any such activity, or in response to a formal request in a civil action that on its face meets the requirements for such a request.
Breach. You are not entitled to a credit if you are in breach of this agreement (including your payment obligations to us) at the time of the occurrence of the event giving rise to the credit until you have cured the breach. You are not entitled to a credit if the event giving rise to the credit would not have occurred but for your breach of the Agreement. Further, if you breach the AUP we may suspend or terminate your agreements without refund of any fees or credit of service interruptions.