GENERAL TERMS & CONDITIONS OF SOFTWARE, SERVICE, MAINTENANCE & HOSTING 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 will prevail. The general terms below and the other agreements previously mentioned are individually and collectively referred to as the “Agreement”. This Agreement shall be controlling between us unless Aurora and Licensee have entered into a separate agreement for Aurora to provide Software and services to you.
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 $10,000.00 (USD). Neither party shall be liable for errors or omissions. Further, and without limitation of liability, Licensee 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 the Software or 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 term of this Agreement shall be pursuant to the term of the paid subscription.
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 ten (10) days after the same is due and payable and with regard to monthly fees that such has occurred for two consecutive months or three times in a twelve-month period 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 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, to recover reasonable attorneys’ fees and other expenses incurred by Aurora in its efforts 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 constitute a termination of this Agreement and shall relieve Licensee of its obligations hereunder arising after the date of termination. Before Aurora takes the Software it will terminate Licensee’s use of and connection with the Software and immediately notify Licensee in writing of such. The parties shall immediately meet to assess the scope and cause of the breach and determine if there is a remedy that can be implemented that would prevent further breaches and reestablish use of the Software by Licensee. The parties recognize time is of the essence. The Software will be kept off-line and monthly payments suspended while the parties seek a remedy. Aurora will make the decision that the remedy can reasonably preclude the reoccurrence of the breach, which decision by Aurora will not be unreasonably withheld or delayed. 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 its 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 their respective successors and permitted assigns, and shall inure to the benefit of the parties, their permitted successors, legal representatives and permitted 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 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. Unless mutually agreed otherwise, 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. Any party bringing legal action or proceeding against any other party arising out of or relating to this Agreement may bring the legal action or proceeding in Superior Court in Orange County, California.
Each party waives, to the fullest extent permitted by law,
(a) any objection which it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any such court,
(b) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
Each party to this Agreement submits to the nonexclusive jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement.
EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY ACTION OR OTHER LEGAL PROCEEDING AMONG THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR OTHERWISE. THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
The agreement of each party to waive its right to a jury trial will be binding on its successors and assignees.
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 (NON-WAIVER) 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 and warrants 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. This License is in addition to the License agreement each user of the Software accepts to access 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 prior 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. Unless stated otherwise in the Authorization, the License is issued to Named Users; i.e. only those employee(s) identified in writing by Licensee to use the Software up to the number of employees identified in the Authorization. If the License is for Concurrent Users then any Licensee employee may use the Software up to the number of users that are concurrently logged on to the Software at any one time. The term of the subscription specified on the Authorization starts upon Activation, which shall occur when Aurora has notified Licensee in writing that the Software is available for a user to logon.
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, if Licensee is hosting the Software on its computer(s), then 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
If Licensee is directly hosting the Software or responsible for hosting the Software through a third party then Licensee 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 for providing a detailed account of the defect and the procedure that caused it or to demonstrate to Aurora the procedure that caused the defect. 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
Support is provided via email at email@example.com and is processed in the order received and there is no commitment whatsoever for the response time. For Licensees who have paid for Enhanced Support, Aurora provides support services between the hours of 8 AM to 5 PM Pacific Time Monday to Friday (excluding all U.S. national holidays) by email to Aurora Support at firstname.lastname@example.org or via the Aurora website at www.aurorapredictions.com using the Contact Us form and Aurora will use commercially reasonable efforts to diagnose the issue in two (2) business days but makes no representation or warranty to its resolution time. For Enhanced Support Licensee will identify up to four (4) of its employees, for every 100 users of the Software (“Licensee Contacts”) who shall be responsible for reporting errors from Licensee employees and presenting these to Aurora whenever Licensee employees require support from Aurora and Aurora will only be obligated to answer support questions from the designated Licensee Contacts. If the Software is installed on computer(s) under Licensee control then Support Services by Aurora will only pertain to the Software.
CLOUD & HOSTING SERVICE LEVEL & USE AGREEMENT
This Cloud Hosting agreement provides the terms under which Aurora will provide cloud/hosting through Aurora servers or Aurora’s third-party cloud vendor should Licensee request that Aurora assume hosting from Licensee. This agreement does not apply so long as Licensee provides on premise or cloud hosting.
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 that will provided in a writing to you. The revisions, if any, will be reasonable and necessary to comply with law, regulation, or technology changes.
Inspection & Notification. If we are legally required under the laws of the United States or any state of the United States to permit any relevant authority with personal or subject matter jurisdiction over you 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, with notice to you, report to the appropriate authorities of the United States or any state of the United States with personal or subject matter jurisdiction over you 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 the terms herein (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.
Cloud Service Level Agreement
Aurora currently provides cloud hosting via Microsoft Azure and adopts their Service Level Agreement (SLA) as below where “you” or “yours” refers to Aurora which we in turn represent to Licensee, and “we” refers for Microsoft.
For Cloud Services, we guarantee that when you deploy two or more role instances in different Update Domains, at least one role instance will have Role Instance Connectivity at least 99.95% of the time.
This Service Level Agreement for Microsoft Online Services (this “SLA”) is a part of your Microsoft volume licensing agreement (the “Agreement”). Capitalized terms used but not defined in this SLA will have the meaning assigned to them in the Agreement. This SLA applies to the Microsoft Online Services listed herein (a “Service” or the “Services”), but does not apply to separately branded services made available with or connected to the Services or to any on-premises software that is part of any Service. If we do not achieve and maintain the Service Levels for each Service as described in this SLA, then you may be eligible for a credit towards a portion of your monthly service fees. We will not modify the terms of your SLA during the initial term of your subscription; however, if you renew your subscription, the version of this SLA that is current at the time of renewal will apply throughout your renewal term. We will provide at least 90 days’ notice for adverse material changes to this SLA.
In order for Microsoft to consider a claim, you must submit the claim to customer support at Microsoft Corporation including all information necessary for Microsoft to validate the claim, including but not limited to: (i) a detailed description of the Incident; (ii) information regarding the time and duration of the Downtime; (iii) the number and location(s) of affected users (if applicable); and (iv) descriptions of your attempts to resolve the Incident at the time of occurrence.
For a claim related to Microsoft Azure, we must receive the claim within two months of the end of the billing month in which the Incident that is the subject of the claim occurred. For claims related to all other Services, we must receive the claim by the end of the calendar month following the month in which the Incident occurred. For example, if the Incident occurred on February 15th, we must receive the claim and all required information by March 31st.
We will evaluate all information reasonably available to us and make a good faith determination of whether a Service Credit is owed. We will use commercially reasonable efforts to process claims during the subsequent month and within forty-five (45) days of receipt. You must be in compliance with the Agreement in order to be eligible for a Service Credit. If we determine that a Service Credit is owed to you, we will apply the Service Credit to your Applicable Monthly Service Fees.
If you purchased more than one Service (not as a suite), then you may submit claims pursuant to the process described above as if each Service were covered by an individual SLA. For example, if you purchased both Exchange Online and SharePoint Online (not as part of a suite), and during the term of the subscription an Incident caused Downtime for both Services, then you could be eligible for two separate Service Credits (one for each Service), by submitting two claims under this SLA. In the event that more than one Service Level for a particular Service is not met because of the same Incident, you must choose only one Service Level under which to make a claim based on the Incident. Unless as otherwise provided in a specific SLA, only one Service Credit is permitted per Service for an Applicable Monthly Period.
Service Credits are your sole and exclusive remedy for any performance or availability issues for any Service under the Agreement and this SLA. You may not unilaterally offset your Applicable Monthly Service Fees for any performance or availability issues.
Service Credits apply only to fees paid for the particular Service, Service Resource, or Service tier for which a Service Level has not been met. In cases where Service Levels apply to individual Service Resources or to separate Service tiers, Service Credits apply only to fees paid for the affected Service Resource or Service tier, as applicable. The Service Credits awarded in any billing month for a particular Service or Service Resource will not, under any circumstance, exceed your monthly service fees for that Service or Service Resource, as applicable, in the billing month.
If you purchased Services as part of a suite or other single offer, the Applicable Monthly Service Fees and Service Credit for each Service will be pro-rated.
If you purchased a Service from a reseller, you will receive a service credit directly from your reseller and the reseller will receive a Service Credit directly from us. The Service Credit will be based on the estimated retail price for the applicable Service, as determined by us in our reasonable discretion.
This SLA and any applicable Service Levels do not apply to any performance or availability issues:
Services purchased through Open, Open Value, and Open Value Subscription volume licensing agreements, and Services in an Office 365 Small Business Premium suite purchased in the form of a product key are not eligible for Service Credits based on service fees. For these Services, any Service Credit that you may be eligible for will be credited in the form of service time (i.e., days) as opposed to service fees, and any references to “Applicable Monthly Service Fees” is deleted and replaced by “Applicable Monthly Period.”
Monthly Uptime % = (Maximum Available Minutes-Downtime) / Maximum Available Minutes X 100
The following Service Levels and Service Credits are applicable to Customer’s use of Cloud Services:
|Monthly Uptime Percentage||Service Credit|