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CARVER+ Software as a Service Agreement

This Software as a Service (SaaS) Agreement (this “Agreement”), dated as of 28 March 2023
(the “Effective Date”), is by and between Spartan Solutions International, LLC, a Florida limited
liability company with offices located at 1800 2nd Street, Suite 797, Sarasota, FL 34236
(“Provider”) and ______ (“Customer”), a with offices located.
WHEREAS Customer wishes to procure from Provider the software services described
herein, and Provider wishes to provide such services to Customer, each on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set
forth herein, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Definitions.
“Access Credentials” means any username, identification number, password, license or
security key, security token, PIN or other security code, method, technology, or device used, alone
or in combination, to verify an individual’s identity and authorization to access and use the Hosted
Services.
“Action” has the meaning set forth in Section 13.1.
“Agreement” has the meaning set forth in the preamble.
“Authorized User” means each of the individuals authorized to use the Services pursuant
to Section 3.1 and the other terms and conditions of this Agreement as identified in Schedule B.
“Availability Requirement” has the meaning set forth in Section 5.1.
“Available” has the meaning set forth in Section 5.1.
“Backup Policy” has the meaning set forth in Section 6.
“Customer” has the meaning set forth in the preamble.
“Customer Data” means, other than Resultant Data, information, data and other content,
in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly
from Customer or an Authorized User by or through the Services or that incorporates or is derived
from the Processing of such information, data or content by or through the Services.
“Customer Failure” has the meaning set forth in Section 4.2.
“Customer Systems” means the Customer’s information technology infrastructure,
including computers, software, hardware, databases, electronic systems (including database
management systems) and networks, whether operated directly by Customer or through the use of
third-party services.
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“Disclosing Party” has the meaning set forth in Section 10.1.
“Documentation” means any manuals, instructions or other documents or materials listed
in Schedule C that the Provider provides or makes available to Customer in any form or medium
and which describe the functionality, components, features or requirements of the Services or
Provider Materials, including any aspect of the installation, configuration, integration, operation,
use, support or maintenance thereof.
“Effective Date” has the meaning set forth in the preamble.
“Exceptions” has the meaning set forth in Section 5.1.
“Fees” has the meaning set forth in Section 8.1.
“Force Majeure Event” has the meaning set forth in Section 15.1.
“Harmful Code” means any software, hardware or other technology, device or means,
including any virus, worm, malware or other malicious computer code, the purpose or effect of
which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise
harm or impede in any manner any (i) computer, software, firmware, hardware, system or network
or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality
or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from
accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code
does not include any Provider Disabling Device.
“Hosted Services” has the meaning set forth in Section 2.1.
“Indemnitee” has the meaning set forth in Section 13.3.
“Indemnitor” has the meaning set forth in Section 13.3.
“Initial Term” has the meaning set forth in Section 11.1.
“Intellectual Property Rights” means any and all registered and unregistered rights
granted, applied for or otherwise now or hereafter in existence under or related to any patent,
copyright, trademark, trade secret, database protection or other intellectual property rights laws,
and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty,
common law, judgment, decree or other requirement of any federal, state, local or foreign
government or political subdivision thereof, or any arbitrator, court or tribunal of competent
jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions,
judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind,
including reasonable attorneys’ fees and the costs of enforcing any right to indemnification
hereunder and the cost of pursuing any insurance providers.
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“Permitted Use” means any use of the Services by an Authorized User for the benefit of
Customer solely for any and all lawful purposes.
“Person” means an individual, corporation, partnership, joint venture, limited liability
entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that, individually or in combination, does
or can identify a specific individual or device or by or from which a specific individual or device
may be identified, contacted or located. Personal Information includes all “nonpublic personal
information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as
defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal
Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal
Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules
and regulations issued under any of the foregoing.
“Privacy and Security Policy” has the meaning set forth in Section 7.1.
“Process” means to take any action or perform any operation or set of operations that the
SaaS Services are capable of taking or performing on any data, information or other content,
including to collect, receive, input, upload, download, record, reproduce, store, organize, compile,
combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make
other derivative works or improvements, process, retrieve, output, consult, use, perform, display,
disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or
block, erase or destroy. “Processing” and “Processed” have correlative meanings.
“Proprietary Information” has the meaning set forth in Section 10.1.
“Provider” has the meaning set forth in the preamble.
“Provider Disabling Device” means any software, hardware or other technology, device
or means (including any back door, time bomb, time out, drop dead device, software routine or
other disabling device) used by Provider or its designee to disable Customer’s or any Authorized
User’s access to or use of the Services automatically with the passage of time or under the positive
control of Provider or its designee.
“Provider Indemnitee” has the meaning set forth in Section 13.2.
“Provider Materials” means the Service Software, Specifications, Documentation and
Provider Systems and any and all other information, data, documents, materials, works and other
content, devices, methods, processes, hardware, software and other technologies and inventions,
including any deliverables, technical or functional descriptions, requirements, plans or reports, that
are provided or used by Provider or any Subcontractor in connection with the Services or otherwise
comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider
Materials include Resultant Data and any information, data or other content derived from
Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer
Data.
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“Provider Personnel” means all individuals involved in the performance of Services as
employees, agents or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf
of Provider in performing the Services, including all computers, software, hardware, databases,
electronic systems (including database management systems) and networks, whether operated
directly by Provider or through the use of third-party services.
“Receiving Party” has the meaning set forth in Section 10.1.
“Reimbursable Expenses” has the meaning set forth in Section 8.3.
“Representatives” means, with respect to a party, that party’s and its Affiliates’
employees, officers, directors, consultants, agents, independent contractors, service providers,
sublicensees, subcontractors and legal advisors.
“Resultant Data” means information, data and other content that is derived by or through
the Services from Processing Customer Data and is sufficiently different from such Customer Data
that such Customer Data cannot be reverse engineered or otherwise identified from the inspection,
analysis or further Processing of such information, data or content.
“Scheduled Downtime” has the meaning set forth in Section 5.2.
“Service Allocation” has the meaning set forth in Section 3.4.
“Service Level Failure” has the meaning set forth in Section 5.1.
“Service Period” has the meaning set forth in Section 5.1.
“Service Software” means the Provider software application or applications and any third-
party or other software, and all new versions, updates, revisions, improvements and modifications
of the foregoing, that Provider provides remote access to and use of as part of the Services.
“Services” has the meaning set forth in Section 2.1.
“Specifications” means the specifications for the Services set forth in Schedule C and, to
the extent consistent with and not limiting of the foregoing, the Documentation.
“Subcontractor” has the meaning set forth in Section 2.5.
“Support Schedule” has the meaning set forth in Section 5.3.
“Support Services” has the meaning set forth in Section 5.3.
“Term” has the meaning set forth in Section 11.2.
“Territory” means the [COUNTRY].
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“Third Party Materials” means materials and information, in any form or medium,
including any open-source or other software, documents, data, content, specifications, products,
equipment or components of or relating to the Services that are not proprietary to Provider.
2. Services.
2.1 Services. Subject to and conditioned on Customer’s and its Authorized Users’
compliance with the terms and conditions of this Agreement, during the Term, Provider shall use
commercially reasonable efforts to provide to Customer and its Authorized Users the services
described in the attached Schedule A and this Agreement (collectively, the “Services”) in
accordance with the Specifications and terms and conditions hereof, including to host, manage,
operate and maintain the Service Software for remote electronic access and use by Customer and
its Authorized Users (“Hosted Services”) in substantial conformity with the Specifications
twenty-four (24) hours per day, seven days per week every day of the year, except for:
(a) Scheduled Downtime in accordance with Section 5.2;
(b) Service downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond Provider’s reasonable control, including
Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Hosted Services,
or use of the Services other than in compliance with the express terms of this Agreement and the
Specifications; and
(d) any suspension or termination of Customer’s or any Authorized Users’
access to or use of the Hosted Services as permitted by this Agreement.
2.2 Service and System Control. Except as otherwise expressly provided in this
Agreement, as between the parties:
(a) Provider has and will retain sole control over the operation, provision,
maintenance and management of the Services and Provider Materials, including the: (i) Provider
Systems; (ii) location(s) where any of the Services are performed, including in the United States,
in countries outside the United States, or outside the borders of the country in which Customer or
the Customer Systems are located; (iii) selection, deployment, modification and replacement of
the Service Software; and (iv) performance of Support Services and Service maintenance,
upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over the operation, maintenance
and management of, and all access to and use of, the Customer Systems, and sole responsibility
for all access to and use of the Services and Provider Materials by any Person by or through the
Customer Systems or any other means controlled by Customer or any Authorized User, including
any: (i) information, instructions or materials provided by any of them to the Services or Provider;
(ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions,
decisions or actions based on such use.
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Notwithstanding anything to the contrary in this Agreement, all Services, including all
Processing of Customer Data by or on behalf of Provider shall be provided solely from within, and
on computers, systems, networks and other infrastructure located in, the United States.
2.3 Service Management. Each party shall, throughout the Term, maintain within its
organization a service manager to serve as such party’s primary point of contact for day-to-day
communications, consultation and decision-making regarding the Services. Each service manager
shall be responsible for providing all day-to-day consents and approvals on behalf of such party
under this Agreement. Each party shall ensure its service manager has the requisite organizational
authority, skill, experience and other qualifications to perform in such capacity. The parties’ initial
service managers are identified in Schedule B. Each party shall use commercially reasonable
efforts to maintain the same service manager in place throughout the Term. If either party’s service
manager ceases to be employed by such party or such party otherwise wishes to replace its service
manager, such party shall promptly name a new service manager by written notice to the other
party.
2.4 Changes. Provider reserves the right, in its sole discretion, to make any changes to
the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance
(i) the quality or delivery of Provider’s services to its customers, (ii) the competitive strength of or
market for Provider’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply
with applicable Law. Without limiting the foregoing, either party may, at any time during the
Term, request in writing changes to the Services. The parties shall evaluate and, if mutually agreed,
implement all such requested changes. No change requested or not requested, will be effective
unless and until memorialized in a written change order signed by both parties, except that
Customer may increase or decrease the number of Authorized Users for any Services pursuant to
Section 3.4.
2.5 Subcontractors. Provider may from time to time in its discretion engage third parties to
perform Services (each, a “Subcontractor”). All representatives that come on site including
subcontractors must be registered in YRMC vendor management system at all times for the
duration of this agreement.
2.6 Suspension or Termination of Services. Provider may, directly or indirectly, and by use
of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny
Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the
Services or Provider Materials, without incurring any resulting obligation or liability, if: (a)
Provider receives a judicial or other governmental demand or order, subpoena or law
enforcement request that expressly or by reasonable implication requires Provider to do so; or (b)
Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to
comply with, any material term of this Agreement, or accessed or used the Services beyond the
scope of the rights granted or for a purpose not authorized under this Agreement or in any
manner that does not comply with any material instruction or requirement of the Specifications;
(ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent,
misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section
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2.6 does not limit any of Provider’s other rights or remedies, whether at law, in equity or under
this Agreement.
3. Authorization and Customer Restrictions.
3.1 Authorization. Subject to and conditioned on Customer’s payment of the Fees and
compliance and performance in accordance with all other terms and conditions of this Agreement,
Provider hereby authorizes Customer to access and use, solely in the Territory and during the
Term, the Services and such Provider Materials as Provider may supply or make available to
Customer solely for the Permitted Use by and through Authorized Users in accordance with the
Specifications, the conditions and limitations set forth in this Agreement and Provider’s End User
License Agreement, a current copy of which is attached as Exhibit 1. This authorization is non-
exclusive and other than as may be expressly set forth in Section 16.8, non-transferable.
3.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest
in or to (including any license under) any Intellectual Property Rights in or relating to, the Services,
Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or
otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third
Party Materials are and will remain with Provider and the respective rights holders in the Third
Party Materials.
3.3 Authorization Limitations and Restrictions. Customer shall not, and shall not
permit any other Person to, access or use the Services or Provider Materials except as expressly
permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party
license agreement. For purposes of clarity and without limiting the generality of the foregoing,
Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or
Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or
otherwise make available any Services or Provider Materials to any Person, including on or in
connection with the internet or any time-sharing, service bureau, software as a service, cloud or
other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise
attempt to derive or gain access to the source code of the Services or Provider Materials, in whole
or in part;
(d) bypass or breach any security device or protection used by the Services or
Provider Materials or access or use the Services or Provider Materials other than by an Authorized
User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or
Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit
or activate any Harmful Code;
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(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise
impede or harm in any manner the Services, Provider Systems or Provider’s provision of services
to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Specifications,
Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other
intellectual property or proprietary rights notices from any Services or Provider Materials,
including any copy thereof;
(h) access or use the Services or Provider Materials in any manner or for any
purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or
other right of any third party (including by any unauthorized access to, misappropriation, use,
alteration, destruction or disclosure of the data of any other Provider customer), or that violates
any applicable Law;
(i) access or use the Services or Provider Materials for purposes of competitive
analysis of the Services or Provider Materials, the development, provision or use of a competing
software service or product or any other purpose that is to the Provider’s detriment or commercial
disadvantage;
(j) access or use the Services or Provider Materials in, or in association with,
the design, construction, maintenance, operation of any hazardous environments, systems or
applications, any safety response systems or other safety-critical applications, or any other use or
application in which the use or failure of the Services could lead to personal injury or severe
physical or property damage; or
(k) otherwise access or use the Services or Provider Materials beyond the scope
of the authorization granted under Section 3.1.
3.4 Service Use and Data Storage. Schedule A sets forth a schedule of Fees for
designated levels of Hosted Service usage and data storage (each a “Service Allocation”),
beginning with the Fees payable by Customer for the levels of Hosted Service usage and data
storage in effect as of the Effective Date. Provider will use commercially reasonable efforts to
promptly notify Customer in writing if Customer has reached ninety percent (90%) of its then
current Service Allocation and Customer may increase its Service Allocation and corresponding
Fee obligations in accordance with Schedule A. If Customer exceeds its Service Allocation for any
relevant period, Customer shall also pay to Provider the applicable excess usage and storage Fees
set forth in Schedule A. Customer acknowledges that exceeding its then-current Service Allocation
may result in service degradation for Customer and other Provider customers and agrees that:
(a) Provider has no obligation to permit Customer to exceed its then-current
Service Allocation; and
(b) Customer is not entitled to any Service Level Credits for periods during
which Customer exceeds its then-current Service Allocation, regardless of whether the Hosted
Services fail to meet the Availability Requirement during such period.
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4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term:
(a) set up, maintain and operate in good repair and in accordance with the Specifications all
Customer Systems on or through which the Services are accessed or used; (b) provide Provider
Personnel with such access to Customer’s premises and Customer Systems as is necessary for
Provider to perform the Services in accordance with the Availability Requirement and
Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request
to enable Provider to exercise its rights and perform its obligations under and in connection with
this Agreement.
4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any
delay or failure of performance caused in whole or in part by Customer’s delay in performing, or
failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or
threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users
to, immediately: (a) take all reasonable and lawful measures within their respective control that
are necessary to stop the activity or threatened activity and to mitigate its effects (including, where
applicable, by discontinuing and preventing any unauthorized access to the Services and Provider
Materials and permanently erasing from their systems and destroying any data to which any of
them have gained unauthorized access); and (b) notify Provider of any such actual or threatened
activity.
4.4 Non-Solicitation. During the Term and for one (1) year after, Customer shall not,
and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general
advertisement not directed specifically to any Person or Persons) for employment or engagement
as an independent contractor any Person then or within the prior twelve (12) months employed or
engaged by Provider or any Subcontractor. In the event of a violation of this Section 4.4, Provider
will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable
employee or contractor during the prior twelve (12) months.
5. Service Levels.
5.1 Service Levels. Subject to the terms and conditions of this Agreement, Provider
will use commercially reasonable efforts to make the Hosted Services Available at least ninety-
nine percent (99%) of the time as measured over the course of each calendar month during the
Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any
of the Exceptions described below in this Section 5.1 (the “Availability Requirement”). “Service
Level Failure” means a material failure of the Hosted Services to meet the Availability
Requirement. “Available” means the Hosted Services are available for access and use by Customer
and its Authorized Users over the Internet and operating in material accordance with the
Specifications. For purposes of calculating the Availability Requirement, the following are
“Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered
un-Available nor any Service Level Failure be deemed to occur in connection with any failure to
meet the Availability Requirement or impaired ability of Customer or its Authorized Users to
access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by
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Customer or any Authorized User; (b) Customer Failure; (c) Customer’s or its Authorized User’s
Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem
with any software, hardware, system, network, facility or other matter not supplied by Provider
pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination
of the Services pursuant to Section 2.6.
5.2 Scheduled Downtime. Provider will use commercially reasonable efforts to: (a)
schedule downtime for routine maintenance of the Hosted Services between the hours of 4 a.m.
and 7 a.m., Central Time; and (b) give Customer at least twelve (12) hours prior notice of all
scheduled outages of the Hosted Services (“Scheduled Downtime”).
5.3 Service Support. The Services include Provider’s standard customer support
services (“Support Services”) in accordance with the Provider service support schedule, a current
copy of which is attached as Schedule D (the “Support Schedule”). Provider may amend the
Support Schedule from time to time in its sole discretion. Customer may purchase enhanced
support services separately at Provider’s then current rates.
6. Data Backup. The Provider Systems are programmed to perform routine data backups as
set out in Provider’s backup policy in effect from time to time, a current version of which is
attached as Exhibit 2 (the “Backup, Privacy and Security Policy”). In the event of any loss,
destruction, damage or corruption of Customer Data caused by the Provider Systems or Services,
Provider will, as its sole obligation and liability and as Customer’s sole remedy, use commercially
reasonable efforts to restore the Customer Data from Provider’s then most current backup of such
Customer Data in accordance with the then current Backup Policy.
7. Security.
7.1 Provider Systems and Security Obligations. Provider will employ security
measures in accordance with Backup, Privacy and Security Policy, as amended from time to time.
7.2 Data Breach Procedures. Provider maintains a data breach plan in accordance with
the criteria set forth in Provider’s Privacy and Security Policy and shall implement the procedures
required under such data breach plan on the occurrence of a “Data Breach” (as defined in such
plan).
7.3 Customer Control and Responsibility. Customer has and will retain sole
responsibility for: (a) all Customer Data, including its content and use; (b) all information,
instructions and materials provided by or on behalf of Customer or any Authorized User in
connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and
its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider
Materials directly or indirectly by or through the Customer Systems or its Authorized Users’
Access Credentials, with or without Customer’s knowledge or consent, including all results
obtained from, and all conclusions, decisions and actions based on, such access or use.
7.4 Access and Security. Customer shall employ all physical, administrative and
technical controls, screening and security procedures and other safeguards necessary to: (a)
securely administer the distribution and use of all Access Credentials and protect against any
unauthorized access to or use of the Hosted Services; and (b) control the content and use of
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Customer Data, including the uploading or other provision of Customer Data for Processing by the
Hosted Services.
8. Fees; Payment Terms.
8.1 Fees. Customer shall pay Provider the fees set forth in Schedule A (“Fees”) in
accordance with this Section 8.
8.2 Fee Increases. Provider may increase Fees for any contract year after the first
contract year of the Term, including any contract year of any Renewal Term once a year, by
providing written notice to Customer at least sixty (60) calendar days prior to the commencement
of that contract year, and Schedule A will be deemed amended accordingly. Annual increase shall
not exceed 3%.
8.3 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket
expenses incurred by Provider in connection with performing the Services (“Reimbursable
Expenses”). Prior to Provider performing services outside of the scope, the Provider must obtain
written consent from Customer.
8.4 Taxes. 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 Provider’s income.
8.5 Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to
the due date set forth in Schedule A. Customer shall make all payments hereunder in US dollars
by wire transfer. Customer shall make payments to the address or account specified in Schedule A
or such other address or account as Provider may specify in writing from time to time.
8.6 Late Payment. If Customer fails to make any payment when due then, in addition
to all other remedies that may be available:
(a) Provider 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 Provider for all reasonable costs incurred by
Provider in collecting any late payments or interest, including attorneys’ fees, court costs and
collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice
thereof, Provider may suspend performance of the Services until all past due amounts and interest
thereon have been paid, without incurring any obligation or liability to Customer or any other
Person by reason of such suspension.
8.7 No Deductions or Setoffs. All amounts payable to Provider under this Agreement
shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim,
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deduction, debit or withholding for any reason (other than any deduction or withholding of tax as
may be required by applicable Law).
9. Intellectual Property Rights.
9.1 Services and Provider Materials. All right, title and interest in and to the Services
and Provider Materials, including all Intellectual Property Rights therein, are and will remain with
Provider and the respective rights holders in the Third-Party Materials. Customer has no right,
license or authorization with respect to any of the Services or Provider Materials (including Third-
Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license,
in each case subject to Section 3.3 All other rights in and to the Services and Provider Materials
(including Third-Party Materials) are expressly reserved by Provider and the respective third-party
licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants
to Provider an assignment of all right, title and interest in and to the Resultant Data, including all
Intellectual Property Rights relating thereto.
9.2 Customer Data. As between Customer and Provider, Customer is and will remain
the sole and exclusive owner of all right, title and interest in and to all Customer Data, including
all Intellectual Property Rights relating to security vulnerability assessment data.
10. Confidentiality.
10.1 Proprietary Information. In connection with this Agreement each party (as the
“Disclosing Party”) may disclose or make available Proprietary Information to the other party (as
the “Receiving Party”). Subject to Section 10.2, “Proprietary Information” means information
in any form or medium (whether oral, written, electronic or other) that the Disclosing Party
considers confidential or proprietary, including information consisting of or relating to the
Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies,
customers, and pricing, and information with respect to which the Disclosing Party has contractual
or other confidentiality obligations, in each case whether or not marked, designated or otherwise
identified as “confidential”. Without limiting the foregoing: all Provider Materials are the
Proprietary Information of Provider and the terms and existence of this Agreement are the
Proprietary Information of each of the parties.
10.2 Exclusions. Proprietary Information does not include information that the
Receiving Party can demonstrate by written or other documentary records: (a) was rightfully
known to the Receiving Party without restriction on use or disclosure prior to such information’s
being disclosed or made available to the Receiving Party in connection with this Agreement; (b)
was or becomes generally known by the public other than by the Receiving Party’s or any of its
Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving
Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was
not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d)
the Receiving Party can demonstrate by written or other documentary records was or is
independently developed by the Receiving Party without reference to or use of any Proprietary
Information.
{H0517773.2} 13
10.3 Protection of Proprietary Information. As a condition to being provided with any
disclosure of or access to Proprietary Information, the Receiving Party shall:
(a) not access or use Proprietary Information other than as necessary to exercise
its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section
10.4, not disclose or permit access to Proprietary Information other than to its Representatives
who: (i) need to know such Proprietary Information for purposes of the Receiving Party’s exercise
of its rights or performance of its obligations under and in accordance with this Agreement; (ii)
have been informed of the confidential nature of the Proprietary Information and the Receiving
Party’s obligations under this Section 10.3; and (iii) are bound by written confidentiality and
restricted use obligations at least as protective of the Proprietary Information as the terms set forth
in this Section 10.3;
(c) safeguard the Proprietary Information from unauthorized use, access or
disclosure using at least the degree of care it uses to protect its similarly sensitive information and
in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with and be responsible and liable
for any of its Representatives’ non-compliance with, the terms of this Section 10.
10.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is
compelled by applicable Law to disclose any Proprietary Information then, to the extent permitted
by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the
Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective
order or other remedy or waive its rights under Section 10.3; and (b) provide reasonable assistance
to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure
or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives
compliance or, after providing the notice and assistance required under this Section 10.4, the
Receiving Party remains required by Law to disclose any Proprietary Information, the Receiving
Party shall disclose only that portion of the Proprietary Information that, on the advice of the
Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the
Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from
the applicable court or other presiding authority that such Proprietary Information will be afforded
confidential treatment.
11. Term and Termination .
11.1 Initial Term. The initial term of this Agreement commences as of the Effective Date
and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue
in effect until twelve (12) months from such date (the “Initial Term”).
11.2 Renewal. This Agreement will be renewed in writing by both parties.
11.3 Termination. In addition to any other express termination right set forth elsewhere
in this Agreement:
{H0517773.2} 14
(a) Provider may terminate this Agreement, effective on written notice to
Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues
more than thirty (30) days after Provider’s delivery of written notice thereof; or (ii) breaches any
of its obligations under Section 3.3 (Use Limitations and Restrictions), or Section 10
(Confidentiality).
(b) either party may terminate this Agreement, effective on written notice to the
other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable
of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching
party provides the breaching party with written notice of such breach; and
(c) either party may terminate this Agreement, effective immediately upon
written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to
pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for
voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to
any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks
to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a
receiver, trustee, custodian or similar agent appointed by order of any court of competent
jurisdiction to take charge of or sell any material portion of its property or business.
11.4 Effect of Expiration or Termination. Upon any expiration or termination of this
Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to
the other hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data or
Customer’s Proprietary Information and (i) promptly return to Customer, or at Customer’s written
request destroy, all documents and tangible materials containing, reflecting, incorporating or based
on Customer Data or Customer’s Proprietary Information, if any; and (ii) permanently erase all
Customer Data and Customer’s Proprietary Information from all systems Provider directly or
indirectly controls, provided that, for clarity, Provider’s obligations under this Section 11.4(b) do
not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or Provider
Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all
documents and tangible materials containing, reflecting, incorporating or based on any Provider
Materials or Provider’s Proprietary Information; (ii) permanently erase all Provider Materials and
Provider’s Proprietary Information from all systems Customer directly or indirectly controls; and
(iii) certify to Provider in a signed and notarized written instrument that it has complied with the
requirements of this Section 11.4(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to
information and materials then in its possession or control: (i) the Receiving Party may retain the
Disclosing Party’s Proprietary Information; and (ii) Provider may retain Customer Data, in the
case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long
as required by applicable Law; (iii) Provider may also, upon the prior consent of Customer and
{H0517773.2} 15
solely for Customer Data that is cloud-hosted and managed by Provider, access Customer Data
solely to provide Customer with a backup copy of such Customer Data, after which point the
Customer Data will be deleted by Provider in the ordinary course in accordance with Microsoft
Azure’s policies; and (iv) all information and materials described in this Section 11.4(d) will
remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) Provider may disable all Customer and Authorized User access to the
Hosted Services and Provider Materials;
(f) if Customer terminates this Agreement pursuant to Section 11.3(b),
Customer will be relieved of any obligation to pay any Fees attributable to the period after the
effective date of such termination and Provider will refund to Customer Fees paid in advance for
Services that Provider has not performed as of the effective date of termination;
11.5 Surviving Terms. The provisions set forth in the following sections, and any other
right or obligation of the parties in this Agreement that, by its nature, should survive termination
or expiration of this Agreement, will survive any expiration or termination of this Agreement:
Section 3.3, Section 10, Section 11.4, this Section 11.5, Section 12, Section 13, Section 14 and
Section 16.
12. Representations and Warranties.
12.1 Mutual Representations and Warranties. Each party represents and warrants to the
other party that:
(a) it is duly organized, validly existing and in good standing as a corporation
or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its
obligations and grant the rights, licenses, consents and authorizations it grants or is required to
grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set
forth at the end of this Agreement has been duly authorized by all necessary corporate or
organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute
the legal, valid and binding obligation of such party, enforceable against such party in accordance
with its terms.
12.2 Additional Provider Representations, Warranties and Covenants. Provider
represents, warrants and covenants to Customer that Provider will perform the Services using
personnel of required skill, experience and qualifications and in a professional and workmanlike
manner in accordance with generally recognized industry standards for similar services and will
devote adequate resources to meet its obligations under this Agreement.
12.3 Additional Customer Representations, Warranties and Covenants. Customer
represents, warrants and covenants to Provider that Customer owns or otherwise has and will have
{H0517773.2} 16
the necessary rights and consents in and relating to the Customer Data so that, as received by
Provider and Processed in accordance with this Agreement, they do not and will not infringe,
misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights
of any third party or violate any applicable Law.
12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS
WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL
SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER
HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHER, AND PROVIDER 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. WITHOUT LIMITING THE FOREGOING,
PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR
PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF,
WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE
WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR
WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO
THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE,
ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-
PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR
WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY
BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE
THIRD-PARTY MATERIALS.
13. Indemnification.
13.1 Provider Indemnification. Provider shall indemnify, defend and hold harmless
Customer from and against any and all Losses incurred by Customer arising out of or relating to
any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate
of Customer) to the extent that such Losses arise from any allegation in such Action that
Customer’s use of the Services (excluding Customer Data and Third Party Materials) in
compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual
Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or
relating to any:
(a) access to or use of the Services or Provider Materials in combination with
any hardware, system, software, network or other materials or service not provided or authorized
in writing by Provider;
(b) modification of the Services or Provider Materials other than: (i) by or on
behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written
specification;
{H0517773.2} 17
(c) failure to timely implement any modifications, upgrades, replacements or
enhancements made available to Customer by or on behalf of Provider; or
(d) act, omission or other matter described in Section 13.2(a), Section 13.2(b),
Section 13.2(c) or Section 13.2(d), whether or not the same results in any Action against or Losses
by any Provider Indemnitee.
13.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless
Provider and its and Affiliates, and each of its and their respective officers, directors, employees,
agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all
Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other
than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or relate to
any:
(a) Customer Data, including any Processing of Customer Data by or on behalf
of Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data,
specifications, software, content or technology) provided by or on behalf of Customer or any
Authorized User, including Provider’s compliance with any specifications or directions provided
by or on behalf of Customer or any Authorized User to the extent prepared without any
contribution by Provider;
(c) allegation of facts that, if true, would constitute Customer’s breach of any
of its representations, warranties, covenants, or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or
willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer
or any Authorized User, in connection with this Agreement.
13.3 Indemnification Procedure. Each party shall promptly notify the other party in
writing of any Action for which such party believes it is entitled to be indemnified pursuant to
Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the
“Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole
cost and expense. The Indemnitor shall immediately take control of the defense and investigation
of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and
defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform
any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this
Section 13 except to the extent that the Indemnitor can demonstrate that it has been materially
prejudiced as a result of such failure. The Indemnitee may participate in and observe the
proceedings at its own cost and expense with counsel of its own choosing.
13.4 Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion
are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual
Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials
is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
{H0517773.2} 18
(a) obtain the right for Customer to continue to use the Services and Provider
Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in part,
to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing,
while providing materially equivalent features and functionality, in which case such modifications
or replacements will constitute Services and Provider Materials, as applicable, under this
Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all
or part of the Services and Provider Materials, and require Customer to immediately cease any use
of the Services and Provider Materials or any specified part or feature thereof.
THIS SECTION 13 SETS FORTH CUSTOMER’S SOLE REMEDIES AND
PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED
OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF
(INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES,
MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL
PROPERTY RIGHT.
14. Limitations of Liability.
14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF
ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY
LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a)
LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN
VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY
OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE
CREDITS PURSUANT TO SECTION 5.2, (c) LOSS, DAMAGE, CORRUPTION OR
RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d)
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR
PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED
OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR
DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE
AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS
AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS
SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND
OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO PROVIDER UNDER
THIS AGREEMENT. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING
THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
{H0517773.2} 19
15. Force Majeure.
15.1 No Breach or Default. In no event will either party be liable or responsible to the
other party, or be deemed to have defaulted under or breached this Agreement, for any failure or
delay in fulfilling or performing any term of this Agreement, (except for any payment obligation),
when and to the extent such failure or delay is caused by any circumstances beyond such party’s
reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or
explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on
or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or
slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental
or public authority, including imposing an embargo, export or import restriction, quota or other
restriction or prohibition or any complete or partial government shutdown, or national or regional
shortage of adequate power or telecommunications or transportation. Either party may terminate
this Agreement if a Force Majeure Event affecting the other party continues substantially
uninterrupted for a period of 30 days or more.
15.2 Affected Party Obligations. In the event of any failure or delay caused by a Force
Majeure Event, the affected party shall give prompt written notice to the other party stating the
period of time the occurrence is expected to continue and use commercially reasonable efforts to
end the failure or delay and minimize the effects of such Force Majeure Event.
16. Miscellaneous.
16.1 Further Assurances. Upon a party’s reasonable request, the other party shall, at the
requesting party’s sole cost and expense, execute and deliver all such documents and instruments,
and take all such further actions, necessary to give full effect to this Agreement.
16.2 Relationship of the Parties. The relationship between the parties is that of
independent contractors. Nothing contained in this Agreement shall be construed as creating any
agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary
relationship between the parties, and neither party shall have authority to contract for or bind the
other party in any manner whatsoever.
16.3 Public Announcements. Neither party shall issue or release any announcement,
statement, press release or other publicity or marketing materials relating to this Agreement or
otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or
other indicia of source, affiliation or sponsorship, in each case, without the prior written consent
of the other party, which consent shall not be unreasonably withheld, conditioned or delayed,
provided, however, that Provider may, without Customer’s consent, include Customer’s name
and/or other indicia in its lists of Provider’s current or former customers of Provider in promotional
and marketing materials.
16.4 Notices. Except as otherwise expressly set forth in this Agreement, all notices,
requests, consents, claims, demands, waivers and other communications under this Agreement
have binding legal effect only if in writing and addressed to a party as follows (or to such other
address or such other person that such party may designate from time to time in accordance with
this Section 16.4):
{H0517773.2} 20
If to Provider: Spartan Solutions International, LLC
1800 2nd Street
Suite 797
Sarasota, FL 34236
E-mail: [email protected]
Attention: John Bencie
If to Customer:
Notices sent in accordance with this Section 16.4 will be deemed effectively given: (a)
when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent
by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or
e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal
business hours, and on the next business day, if sent after the addressee’s normal business hours;
and (d) on the third day after the date mailed by certified or registered mail, return receipt
requested, postage prepaid.
16.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes”
and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is
not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this
Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in
the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the
context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules,
attachments and appendices mean the sections of, and exhibits, schedules, attachments and
appendices attached to, this Agreement; (y) to an agreement, instrument or other document means
such agreement, instrument or other document as amended, supplemented and modified from time
to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as
amended from time to time and includes any successor legislation thereto and any regulations
promulgated thereunder. The parties intend this Agreement to be construed without regard to any
presumption or rule requiring construction or interpretation against the party drafting an instrument
or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices
referred to herein are an integral part of this Agreement to the same extent as if they were set forth
verbatim herein.
16.6 Headings. The headings in this Agreement are for reference only and do not affect
the interpretation of this Agreement.
16.7 Entire Agreement. This Agreement, together with any other documents
incorporated herein by reference, constitutes the sole and entire agreement of the parties with
respect to the subject matter of this Agreement and supersedes all prior and contemporaneous
understandings, agreements, representations and warranties, both written and oral, with respect to
{H0517773.2} 21
such subject matter. In the event of any inconsistency between the statements made in the body of
this Agreement, the related exhibits, schedules, attachments and appendices (other than an
exception expressly set forth as such therein) and any other documents incorporated herein by
reference, the following order of precedence governs: (a) first, this Agreement, excluding its
exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments
and appendices to this Agreement as of the Effective Date; and (c) third, any other documents
incorporated herein by reference.
16.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or
delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each
case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider’s prior
written consent, which consent Provider may give or withhold in its sole discretion. For purposes
of the preceding sentence, and without limiting its generality, any merger, consolidation or
reorganization involving Customer (regardless of whether Customer is a surviving or disappearing
entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement
for which Provider’s prior written consent is required. No delegation or other transfer will relieve
Customer of any of its obligations or performance under this Agreement. Any purported
assignment, delegation or transfer in violation of this Section 16.8 is void. This Agreement is
binding upon and inures to the benefit of the parties hereto and their respective permitted
successors and assigns.
16.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties
hereto and their respective permitted successors and permitted assigns and nothing herein, express
or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
16.10 Amendment and Modification; Waiver. No amendment to or modification of or
rescission, termination or discharge of this Agreement is effective unless it is in writing, identified
as an amendment to or rescission, termination or discharge of this Agreement and signed by an
authorized representative of each party. No waiver by any party of any of the provisions hereof
shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except
as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights,
remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege.
16.11 Severability. If any provision of this Agreement is invalid, illegal or unenforceable
in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or
provision of this Agreement or invalidate or render unenforceable such term or provision in any
other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or
unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally contemplated to the
greatest extent possible.
{H0517773.2} 22
16.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and
construed in accordance with the internal laws of the State of Arizona 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 Arizona. Any legal suit, action or proceeding
arising out of or related to this Agreement or the licenses granted hereunder shall be instituted
exclusively in the federal courts of the United States or the courts of the State of Arizona.
16.13 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right
it may have to a trial by jury in respect of any legal action arising out of or relating to this
Agreement or the transactions contemplated hereby.
16.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened
breach by such party of any of its obligations under Section 10 or, in the case of Customer, Section
3.3, Section 4.3 , would cause the other party irreparable harm for which monetary damages would
not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the
other party will be entitled to equitable relief, including a restraining order, an injunction, specific
performance and any other relief that may be available from any court, without any requirement
to post a bond or other security, or to prove actual damages or that monetary damages are not an
adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that
may be available at law, in equity or otherwise.
16.15 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative
proceeding is instituted or commenced by either party hereto against the other party arising out of
or related to this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys’ fees and court costs from the non-prevailing party.
16.16 Counterparts. This Agreement may be executed in counterparts, each of which is
deemed an original, but all of which together are deemed to be one and the same agreement. A
signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic
transmission is deemed to have the same legal effect as delivery of an original signed copy of this
Agreement.
[Signature page to follow]
{H0517773.2} 23
[Signature page to Software as a Service Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
PROVIDER:
Spartan Solutions International, LLC
By:
Name: John Bencie
Title: Director of Contracts
Date:
______________________________
CUSTOMER:
By:
Name:
Title:
Date: _______________________________
{H0517773.2} 24
SCHEDULE A
SERVICES AND FEES
1.
______
will be provided the CARVER+
______subscription package. This package
includes the usage of the CARVER+ mobile application for conducting up to ____
new facility
and security vulnerability assessments and 24/7 full access to the web-based backend dashboard
for tracking and managing organizational vulnerabilites & facility issues.
2. One year subscription commences on
____
3. Customer requested modifications to the current version of CARVER+ will be quoted
by Spartan Solutions International for customer’s written approval, prior to commencing any
customization to the CARVER+ platform.
4. Technical & Customer support and CARVER+ user training is included with the cost of
the subscription.
5. COMPAY cost for a subscription of CARVER+ as stated above will be a one-time
payment of ________
6. All payments shall be in US dollars and made at Provider’s option by check or wire
transfer to Provider at 1800 2nd Street, Suite 797, Sarasota, FL 34236 or provided bank routing
information.
{H0517773.2} 25
[Signature page to Schedule A – Services and Fees]
PROVIDER:
Spartan Solutions International, LLC
By:
Name: John A. Bencie
Title: Director of Contracts
Date:
CUSTOMER:
By:
Name:
Title
Date: _______________________________
{H0517773.2} 26
EXHIBIT 1
BACKUP, PRIVACY AND SECURITY POLICY
Microsoft Online Subscription Agreement
This Microsoft Online Subscription Agreement is between the entity you represent, or, if you do
not designate an entity in connection with a Subscription purchase or renewal, you individually
(“you” or “your”), and Microsoft Corporation (“Microsoft”, “we”, “us”, or “our”). It consists of
the terms and conditions below, as well as the Online Services Terms, the SLAs, and the Offer
Details for your Subscription or renewal (together, the “agreement”). It is effective on the date
we provide you with confirmation of your Subscription or the date on which your Subscription is
renewed, as applicable. Key terms are defined in Section 8.
1. Use of Online Services.
a. Right to use. We grant you the right to access and use the Online Services and to install and
use the Software included with your Subscription, as further described in this agreement. We
reserve all other rights.
b. Acceptable use. You may use the Product only in accordance with this agreement. You may
not reverse engineer, decompile, disassemble, or work around technical limitations in the
Product, except to the extent applicable law permits it despite these limitations. You may not
disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your
use of the Online Services. You may not rent, lease, lend, resell, transfer, or host the Product, or
any portion thereof, to or for third parties except as expressly permitted in this agreement or the
Online Services Terms.
c. End Users. You control access by End Users, and you are responsible for their use of the
Product in accordance with this agreement. For example, you will ensure End Users comply with
the Acceptable Use Policy.
d. Customer Data. You are solely responsible for the content of all Customer Data. You will
secure and maintain all rights in Customer Data necessary for us to provide the Online Services
to you without violating the rights of any third party or otherwise obligating Microsoft to you or
to any third party. Microsoft does not and will not assume any obligations with respect to
Customer Data or to your use of the Product other than as expressly set forth in this agreement or
as required by applicable law.
e. Responsibility for your accounts. You are responsible for maintaining the confidentiality of
any non-public authentication credentials associated with your use of the Online Services. You
must promptly notify our customer support team about any possible misuse of your accounts or
authentication credentials or any security incident related to the Online Services.
f. Preview releases. Previews are provided “as-is,” “with all faults,” and “as-available,” and are
excluded from the SLAs and all limited warranties provided in this agreement. Previews may not
be covered by customer support. We may change or discontinue Previews at any time without
notice. We also may choose not to release a Preview into general availability.
{H0517773.2} 27
g. Managed Services for Microsoft Azure. You may use Microsoft Azure Services to provide a
Managed Service Solution provided (1) you have the sole ability to access, configure, and
administer the Microsoft Azure Services, (2) you have administrative access to the virtual
OSE(s), if any, in the Managed Service Solution, and (3) the third party has administrative access
only to its application(s) or virtual OSE(s). You are responsible for the third party’s use of
Microsoft Azure Services in accordance with the terms of this agreement. Your provision of
Managed Services remains subject to the following limitations (and any other limitations in the
Online Services Terms).
(i) you may not resell or redistribute the Microsoft Azure Services, and
(ii) you may not allow multiple users to directly or indirectly access any Microsoft Azure
Services feature that is made available on a per-user basis.
h. Administrator Assumption of Control. If you use an email address provided by an
organization you are affiliated with (e.g. an employer or school) to order an Online Service
individually, you represent that you have authority to use that organization’s domain to sign up
for a Subscription in your capacity as a member of that organization. The organization, as the
owner of the domain associated with your email address, may assume control over and manage
your use of the Online Services. In such a case, your organization’s designated administrator
(your “admin”) may (i) control and administer your account, including modifying and
terminating your access and (ii) access and process your data, including the contents of your
communications and files. Microsoft may inform you that your organization has assumed control
of the Online Services covered by your Subscription, but Microsoft is under no obligation to
provide such notice. If your organization is administering your use of the Online Services or
managing the tenant associated with your Subscription, direct your data subject requests and
privacy inquiries to your administrator. If your organization is not administering your use of the
Online Service or managing such tenant, direct your data subject requests and privacy inquiries
to Microsoft.
i. Shared Directory Data. When you order an Online Service using an email address with a
domain provided by an organization you are affiliated with (e.g. an employer or school), the
Online Service adds you to a directory of users that share the same email domain. Your directory
data (name, date of signup, and email address) may be visible to other users of Online Services
within your organization’s email domain.
j. Additional Software for use with the Online Services. To enable optimal access to and use
of certain Online Services, you may install and use certain Software in connection with your use
of the Online Service as described in the Online Services Terms. We license Software to you; we
do not sell it. Proof of your Software license is (1) this agreement, (2) any order confirmation,
and (3) proof of payment. Your rights to access Software on any device do not give you any right
to implement Microsoft patents or other Microsoft intellectual property in software or devices
that access that device.
2. Purchasing services.
a. Available Subscription offers. The Portal provides Offer Details for available Subscription
offers, which generally can be categorized as one or a combination of the following:
{H0517773.2} 28
(i) Commitment Offering. You commit in advance to purchase a specific quantity of Online
Services for use during a Term and to pay upfront or on a periodic basis in advance of use. With
respect to Microsoft Azure Services, additional or other usage (for example, usage beyond your
commitment quantity) may be treated as a Consumption Offering. Committed quantities not used
during the Term will expire at the end of the Term. Cost of Azure data usage is included in the
customers quoted price.
(ii) Limited Offering. You receive a limited quantity of Online Services for a limited term
without charge (for example, as a trial Subscription or free account) or as part of another
Microsoft offering (for example, MSDN). Provisions in this agreement with respect to pricing,
cancellation fees, payment, and data retention may not apply.
b. Ordering.
(i) By ordering or renewing a Subscription, you agree to the Offer Details for that Subscription.
Unless otherwise specified in those Offer Details, Online Services are offered on an “as
available” basis. You may place orders for your Affiliates under this agreement and grant your
Affiliates administrative rights to manage the Subscription, but Affiliates may not place orders
under this agreement. You also may assign the rights granted under Section 1.a. to a third party
for use by that third party in your internal business. If you grant any rights to Affiliates or third
parties with respect to Software or your Subscription, such Affiliates or third parties will be
bound by this agreement and you agree to be jointly and severally liable for any actions of such
Affiliates or third parties related to their use of the Products.
(ii) Some offers may permit you to modify the quantity of Online Services ordered during the
Term of a Subscription. Additional quantities of Online Services added to a Subscription will
expire at the end of that Subscription. If you decrease the quantity during a Term, we may charge
you a cancellation fee for the decrease in quantity as described below in Section 3.b.
c. Pricing and payment. Payments are due and must be made according to the Offer Details for
your Subscription.
(i) For Commitment Offerings, the price level may be based on the quantity of Online Services
you ordered. Some offers may permit you to modify the quantity of Online Services ordered
during the Term and your price level may be adjusted accordingly, but price level changes will
not be retroactive. During the Term of your Subscription, prices for Online Services will not be
increased, as to your Subscription, from those posted in the Portal at the time your Subscription
became effective or was renewed, except where prices are identified as temporary in the Offer
Details, or for Previews or Non-Microsoft Products. All prices are subject to change at the
beginning of any Subscription renewal.
(ii) For Consumption Offerings, pricing is subject to change at any time upon notice.
d. Renewal
(i) Upon renewal of your Subscription, this agreement will terminate, and your Subscription will
thereafter be governed, by the terms and conditions set forth in the Portal on the date on which
your Subscription is renewed (the “Renewal Terms”). If you do not agree to any Renewal Terms,
you may decline to renew your Subscription.
{H0517773.2} 29
(ii) For Commitment Offerings, you may choose to have a Subscription automatically renew or
terminate upon expiration of the Term. Automatic renewal is pre-selected. You can change your
selection at any time during the Term. If the existing Term is longer than one calendar month, we
will provide you with notice of the automatic renewal before the expiration of the Term.
(iii) For Consumption Offerings, your Subscription will renew automatically for additional one-
month terms until you terminate the Subscription.
(iv) For Limited Offerings, renewal may not be permitted.
e. Eligibility for Academic, Government and Nonprofit versions. You agree that if you are
purchasing an academic, government or nonprofit offer, you meet the respective eligibility
requirements listed at the following sites:
(i) For academic offers, the requirements for educational institutions (including administrative
offices or boards of education, public libraries, or public museums) listed at
https://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId
=7;
(ii) For government offers,
https://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId
=6; and
(iii) For nonprofit offers, the requirements listed at IRS.gov/charities-and-nonprofits
Microsoft reserves the right to verify eligibility at any time and suspend the Online Service if the
eligibility requirements are not met.
f. Taxes. Prices are exclusive of any taxes unless otherwise specified on the invoice as tax
inclusive. You must pay any applicable value added, goods and services, sales, gross receipts, or
other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or
similar amounts that are owed under this agreement and which we are permitted to collect from
you under applicable law. You will be responsible for any applicable stamp taxes and for all
other taxes that you are legally obligated to pay including any taxes that arise on the distribution
or provision of Products to your Affiliates. We will be responsible for all taxes based on our net
income, gross receipts taxes imposed in lieu of taxes on income or profits, or taxes on our
property ownership.
If any taxes are required to be withheld on payments you make to us, you may deduct such taxes
from the amount owed to us and pay them to the appropriate taxing authority; provided,
however, that you promptly secure and deliver an official receipt for those withholdings and
other documents we reasonably request to claim a foreign tax credit or refund. You must ensure
that any taxes withheld are minimized to the extent possible under applicable law.
3. Term, termination, and suspension.
a. Agreement term and termination. This agreement will remain in effect until the expiration,
termination, or renewal of your Subscription, whichever is earliest.
b. Subscription termination. You may terminate a Subscription at any time during its Term;
however, you must pay all amounts due and owing before the termination is effective.
{H0517773.2} 30
c. Suspension. We may suspend your use of the Online Services if: (1) it is reasonably needed to
prevent unauthorized access to Customer Data; (2) you fail to respond to a claim of alleged
infringement under Section 5 within a reasonable time; (3) you do not pay amounts due under
this agreement; (4) you do not abide by the Acceptable Use Policy or you violate other terms of
this agreement; or (5) for Limited Offerings, the Subscription becomes inactive from your failure
to access the Online Services as described in the Offer Details. If one or more of these conditions
occurs, then:
(i) For Limited Offerings, we may suspend your use of the Online Services, your Subscription
and your account immediately without notice.
(ii) For all other Subscriptions, a suspension will apply to the minimum necessary part of the
Online Services and will be in effect only while the condition or need exists. We will give notice
before we suspend, except where we reasonably believe we need to suspend immediately. We
will give at least 30 days’ notice before suspending for non-payment. If you do not fully address
the reasons for the suspension within 60 days after we suspend, we may terminate your
Subscription and delete your Customer Data without any retention period. We may also
terminate your Subscription if your use of the Online Services is suspended more than twice in
any 12-month period.
4. Warranties.
a. Limited warranty.
(i) Online Services. We warrant that the Online Services will meet the terms of the SLA during
the Term. Your only remedies for breach of this warranty are those in the SLA.
(ii) Software. We warrant for one year from the date you first use the Software that it will
perform substantially as described in the applicable user documentation. If Software fails to meet
this warranty we will, at our option and as your exclusive remedy, either (1) return the price paid
for the Software or (2) repair or replace the Software.
b. Limited warranty exclusions. This limited warranty is subject to the following limitations:
(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law
will last one year from the start of the limited warranty;
(ii) this limited warranty does not cover problems caused by accident, abuse or use of the
Products in a manner inconsistent with this agreement or our published documentation or
guidance, or resulting from events beyond our reasonable control;
(iii) this limited warranty does not apply to problems caused by a failure to meet minimum
system requirements; and
(iv) this limited warranty does not apply to Previews or Limited Offerings.
c. DISCLAIMER. Other than this warranty, we provide no warranties, whether express,
implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular
purpose. These disclaimers will apply except to the extent applicable law does not permit them.
5. Defense of claims.
{H0517773.2} 31
a. Defense.
(i) We will defend you against any claims made by an unaffiliated third party that a Product
infringes that third party’s patent, copyright or trademark or makes unlawful use of its trade
secret.
(ii) You will defend us against any claims made by an unaffiliated third party that (1) any
Customer Data, Customer Solution, or Non-Microsoft Products, or services you provide, directly
or indirectly, in using a Product infringes the third party’s patent, copyright, or trademark or
makes unlawful use of its trade secret; or (2) arises from violation of the Acceptable Use Policy.
b. Limitations. Our obligations in Section 5.a. will not apply to a claim or award based on:
(i) any Customer Solution, Customer Data, Non-Microsoft Products, modifications you make to
the Product, or services or materials you provide or make available as part of using the Product;
(ii) your combination of the Product with, or damages based upon the value of, Customer Data or
a Non-Microsoft Product, data, or business process; (iii) your use of a Microsoft trademark
without our express written consent, or your use of the Product after we notify you to stop due to
a third-party claim; (iv) your redistribution of the Product to, or use for the benefit of, any
unaffiliated third party; or (v) Products provided free of charge.
c. Remedies. If we reasonably believe that a claim under Section 5.a.(i). may bar your use of the
Product, we will seek to:(i) obtain the right for you to keep using it; or (ii) modify or replace it
with a functional equivalent and notify you to stop use of the prior version of the Product. If
these options are not commercially reasonable, we may terminate your rights to use the Product
and then refund any advance payments for unused Subscription rights.
d. Obligations. Each party must notify the other promptly of a claim under this Section. The
party seeking protection must (i) give the other sole control over the defense and settlement of
the claim; and (ii) give reasonable help in defending the claim. The party providing the
protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in
giving that help and (2) pay the amount of any resulting adverse final judgment or settlement.
The parties’ respective rights to defense and payment of judgments (or settlement the other
consents to) under this Section 5 are in lieu of any common law or statutory indemnification
rights or analogous rights, and each party waives such common law or statutory rights.
6. Limitation of liability.
a. Limitation. The aggregate liability of each party for all claims under this agreement is limited
to direct damages up to the amount paid under this agreement for the Online Service during the
12 months before the cause of action arose; provided, that in no event will a party’s aggregate
liability for any Online Service exceed the amount paid for that Online Service during the
Subscription. For Products provided free of charge, Microsoft’s liability is limited to direct
damages up to $5,000.00 USD.
b. EXCLUSION. Neither party will be liable for loss of revenue or indirect, special, incidental,
consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business
interruption, or loss of business information, even if the party knew they were possible or
reasonably foreseeable.
{H0517773.2} 32
c. Exceptions to limitations. The limits of liability in this Section apply to the fullest extent
permitted by applicable law, but do not apply to: (1) the parties’ obligations under Section 5; or
(2) violation of the other’s intellectual property rights.
7. Miscellaneous.
a. Notices. Notices must be in writing and will be treated as delivered on the date received at the
address, date shown on the return receipt, email transmission date, or date on the courier or fax
confirmation of delivery. Notices to Microsoft must be sent to the following address:
Microsoft Corporation
Dept. 551, Volume Licensing
6100 Neil Road, Suite 210
Reno, Nevada 89511-1137
USA
Notices to you will be sent to the address that you identify on your account as your contact for
notices. Microsoft may send notices and other information to you by email or other electronic
form.
b. License Transfers and Assignment. You may not assign this agreement either in whole or in
part or transfer licenses without Microsoft’s consent.
c. Consent to partner fees. When you place an order, you may be given the opportunity to
identify a “Partner of Record” associated with your Subscriptions. By identifying a Partner of
Record, directly or by authorizing a third party to do so, you consent to our paying fees to the
Partner of Record. The fees are for pre-sales support and may also include post-sales support.
The fees are based on, and increase with, the size of your order. Our prices for Online Services
are the same whether or not you identify a Partner of Record.
d. Severability. If any part of this agreement is held unenforceable, the rest remains in full force
and effect.
e. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
f. No agency. This agreement does not create an agency, partnership, or joint venture.
g. No third-party beneficiaries. There are no third-party beneficiaries to this agreement.
h. Applicable law and venue. This agreement is governed by Washington law, without regard
to its conflict of laws principles, except that (i) if you are a U.S. Government entity, this
agreement is governed by the laws of the United States, and (ii) if you are a state or local
government entity in the United States, this agreement is governed by the laws of that state. Any
action to enforce this agreement must be brought in the State of Washington. This choice of
jurisdiction does not prevent either party from seeking injunctive relief in any appropriate
jurisdiction with respect to a violation of intellectual property rights.
{H0517773.2} 33
i. Entire agreement. This agreement is the entire agreement concerning its subject matter and
supersedes any prior or concurrent communications. In the case of a conflict between any
documents in this agreement that is not expressly resolved in those documents, their terms will
control in the following order of descending priority: (1) this Microsoft Online Subscription
Agreement, (2) the Online Services Terms, (3) the applicable Offer Details, and (4) any other
documents in this agreement.
j. Survival. The terms in Sections 1, 2.c., 2.e., 4, 5, 6, 7, and 8 will survive termination or
expiration of this agreement.
k. U.S. export jurisdiction. The Products are subject to U.S. export jurisdiction. You must
comply with all applicable laws, including the U.S. Export Administration Regulations, the
International Traffic in Arms Regulations, and end-user, end-use and destination restrictions
issued by U.S. and other governments.
l. Force majeure. Neither party will be liable for any failure in performance due to causes
beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake,
flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war,
terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers,
actions or omissions of regulatory or governmental bodies (including the passage of laws or
regulations or other acts of government that impact the delivery of Online Services)). This
Section will not, however, apply to your payment obligations under this agreement.
m. Contracting authority. If you are an individual accepting these terms on behalf of an entity,
you represent that you have the legal authority to enter into this agreement on that entity’s
behalf. If you specify an entity, or you use an email address provided by an entity you are
affiliated with (such as an employer) in connection with a Subscription purchase or renewal, that
entity will be treated as the owner of the Subscription for purposes of this agreement.
n. Government customers. Government customers should consult with Microsoft prior to
acceptance. By accepting this agreement, you represent that you have complied and will continue
to comply with all applicable laws and governmental procurement requirements.
8. Definitions.
Any reference in this agreement to “day” will be a calendar day.
“Acceptable Use Policy” is set forth in the Online Services Terms.
“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common
ownership with a party. “Ownership” means, for purposes of this definition, control of more than
a 50% interest in an entity.
“Consumption Offering”, “Commitment Offering”, or “Limited Offering” describe categories of
Subscription offers and are defined in Section 2.
“Customer Data” is defined in the Online Services Terms.
“Customer Solution” is defined in the Online Services Terms.
{H0517773.2} 34
“End User” means any person you permit to access Customer Data hosted in the Online Services
or otherwise use the Online Services, or any user of a Customer Solution.
“Managed Service Solution” means a managed IT service you provide to a third party that
consists of the administration of and support for Microsoft Azure Services.
“Microsoft Azure Services” is defined in the Online Services Terms.
“Non-Microsoft Product” is defined in the Online Services Terms.
“Offer Details” means the pricing and related terms applicable to a Subscription offer, as
published in the Portal.
“Online Services” means any of the Microsoft-hosted services to which you subscribe under this
agreement.
“Online Services Terms” means the terms that apply to your use of the Products available at
https://www.microsoft.com/en-us/Licensing/product-licensing/products.aspx. The Online
Services Terms include terms governing your use of Products that are in addition to the terms in
this agreement.
“Previews” means preview, beta, or other pre-release version or feature of the Online Services or
Software offered by Microsoft to obtain customer feedback.
“Portal” means the Online Services’ respective web sites that can be found at
https://products.office.com/en-us/home, https://azure.microsoft.com/en-us/pricing/, or at an
alternate website we identify.
“Product” means any Online Service (including any Software).
“SLA” means the commitments we make regarding delivery and/or performance of an Online
Service, as published at https://aka.ms/csla, https://azure.microsoft.com/en-us/support/legal/sla/,
or at an alternate site that we identify.
“Software” means Microsoft software we provide for installation on your device as part of your
Subscription or to use with the Online Service to enable certain functionality.
“Subscription” means an enrollment for Online Services for a defined Term as specified on the
Portal. You may purchase multiple Subscriptions, which may be administered separately, and
which will be governed by the terms of a separate Microsoft Online Subscription Agre