1.1 Subject to the terms of this Agreement, ThinAir will use commercially reasonable efforts to provide Customer the Services set forth on the attached order form and any subsequent order form that references this Agreement and is mutually executed by the parties (each, an “Order Form”). As part of the registration process, Customer will identify an administrative user name and password for Customer’s ThinAir account. ThinAir reserves the right, in its sole discretion, to refuse registration of, or cancel user names or passwords it deems inappropriate and to deactivate, change and/or require Customer (or Customer’s end users) to change its or their account user names and/or passwords. Customer shall be responsible for providing accurate registration information, notifying ThinAir of any changes to such information and maintaining the security of its account passwords (including but not limited to Customer’s end users’ accounts and passwords) and files, and for all uses of Customer’s account. Customer shall notify ThinAir immediately of any unauthorized use of the Services and, in the event of any unauthorized use or access, shall take all steps reasonably necessary to terminate such unauthorized use or access and cooperate with any actions taken by ThinAir to prevent or terminate any unauthorized use or access.
1.2 Subject to the terms hereof, ThinAir will provide Customer with reasonable email technical support services via email@example.com.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly (and will not permit any third party to): reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”) (except to the extent that reverse engineering restrictions are prohibited by applicable law); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by ThinAir or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; transmit or post on or through the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs; circumvent or disable any usage rules or other security features of the Services or any Software; or remove, alter or obscure any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, ThinAir hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term or Order Form Term (each as defined below), as applicable, only in connection with the Services.
2.2 The Services (including, without limitation, any reports or data provided in connection therewith) may only be used or accessed by authorized employees of Customer (in accordance with the maximum number of seat licenses set forth in the applicable Order Form) solely for Customer’s internal business purposes. Customer shall not permit any contractor, agent, or other third party to access or use the Services, unless such access and use of the Services is (i) solely for Customer’s internal business purposes and (ii) subject to an executed written agreement with terms at least as protective of ThinAir as the terms of this Agreement. Customer shall be responsible for any third party’s use of the Services and compliance with the terms of this Agreement.
2.3 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with ThinAir’s standard published policies then in effect and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless ThinAir against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although ThinAir has no obligation to monitor Customer’s use of the Services, ThinAir may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. The Services may provide Customer with access to, be integrated with, or contain links or references to, products, services, data, information, sites or other materials which are provided or operated by third parties (collectively, “Third Party Services”). Third Party Services are not under ThinAir’s control and Customer acknowledges that ThinAir is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such Third Party Services. Any purchase or use of Third Party Services by Customer may be subject to separate or additional terms (“Third Party Terms”). Customer will comply with all Third Party Terms and will indemnify and hold ThinAir harmless from all damages, costs, settlements, attorneys’ fees and expenses arising from or related to Customer’s breach of any Third Party Terms. In the event Customer purchases or uses any Third Party Services, Customer acknowledges and agrees that ThinAir may provide Customer Data (as defined below) to the applicable Third Party Services provider in connection with Customer’s use of such service.
CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of ThinAir includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to ThinAir to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. ThinAir shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services and/or the Software, all of which are hereby assigned to ThinAir, and (d) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, ThinAir shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information derived from Customer Data), and ThinAir will be free (during and after the term hereof) to (i) use such information and data for its business purposes, including without limitation to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other ThinAir offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
4.1 Customer will pay ThinAir all fees described in the applicable Order Form in accordance with the terms therein (collectively, the “Fees”). ThinAir reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of an Order Form Service Term (as defined below) or then current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email).
4.2 Unless otherwise specified in the applicable Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on ThinAir’s net income.
TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, (i) this Agreement shall commence on the Effective Date and will continue until the termination or expiration of the last Order Form (collectively, the “Term”); and (ii) each Order Form shall commence on the Order Form Effective Date and continue for the length of the Order Form Service Term (each as specified in the applicable Order Form) and thereafter shall be automatically renewed for additional periods of the same duration as the Order Form Service Term (collectively, the initial Order Form Service Term and all renewal terms therefor are the “Order Form Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. Notwithstanding the foregoing, in the event that any Order Form Service Term is coterminous with the Pilot Term set forth in such Order Form, such Order Form shall expire at the end of the Order Form Service Term and shall not be automatically renewed.
5.2 In addition to any other remedies it may have, either party may terminate this Agreement or any Order Form upon thirty (30) days’ prior notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement or Order Form, as applicable, and such breach has not been cured during the notice period. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination or expiration of this Agreement, Customer will cease all use of the Services and ThinAir may, but is not obligated to, delete stored Customer Data. For the sake of clarity, Thin Air will not be obligated to provide or continue providing the Services or any part thereof after any termination or expiration of this Agreement (including, without limitation, continuing to provide endpoint protection to any data residing on any of Customer’s devices as of the date of termination or expiration). Sections 2.1, 2.3, 2.4, 3, 4, 5.2 and 6-9 shall survive any termination or expiration of this Agreement.
WARRANTY AND DISCLAIMER
6.1 ThinAir shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ThinAir or by third-party providers, or because of other causes beyond ThinAir’s reasonable control, but ThinAir shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, ThinAir does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 ThinAir shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided ThinAir is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; ThinAir will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by ThinAir, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by ThinAir, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by ThinAir to be infringing, ThinAir may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, THINAIR AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), LICENSORS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (I) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (III) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (IV) FOR ANY AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF (A) THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY OR (B) $1000, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with ThinAir’s prior written consent. ThinAir may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind ThinAir in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any dispute relating to this Agreement shall be finally resolved by binding arbitration in San Francisco County, California, in the English language, in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation service Inc. (“JAMS”) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial disputes. The arbitrator(s) shall have the authority to award any and all available remedies, including legal and equitable relief. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction or other conservatory relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s). The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with ThinAir to serve as a reference account upon request.