Managed Service Provider (MSP) Program Agreement
THIS MANAGED SERVICES PROVIDER (“MSP”) AGREEMENT (COLLECTIVELY WITH ANY DOCUMENTS INCORPORATED BY REFERENCE, THE “AGREEMENT’) IS A LEGAL CONTRACT BETWEEN THE ENTITY ENTERING INTO THIS AGREEMENT (“COMPANY”) AND CRITICALASSET, INC. A DELAWARE CORPORATION WITH OFFICE LOCATED AT 1007 N SEPULVEDA BLVD, #82, MANHATTAN BEACH, CA 90266, USA (“CRITICALASSET”) (EACH A “PARTY” OR COLLECTIVELY THE “PARTIES”). THIS AGREEMENT GOVERNS ACCESS AND USE OF CRITICALASSET’S PRODUCTS AND SERVICES, AND ANY UPDATES AND MODIFICATIONS THERETO,
THE EFFECTIVE DATE OF THIS AGREEMENT SHALL COMMENCE UPON COMPANY’S ACCEPTANCE OF THIS AGREEMENT AND COMPLETION OF THE MSP REGISTRATION PROCESS AND/OR BY EXECUTING AN ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE. UPON CRITICALASSET’S ACCEPTANCE OF COMPANY’S REGISTRATION OR BY EXECUTING AN ORDER FORM OR QUOTE, COMPANY WILL BE APPOINTED AS A NON-EXCLUSIVE MARKETER AND PROVIDER OF CRITICALASSET PRODUCTS (AND SOLELY IF APPLICABLE, IN THE TERRITORY SPECIFIED BY CRITICALASSET (“TERRITORY”).
THE INDIVIDUAL ACCEPTING THIS AGREEMENT (“YOU”) CONSENT AND AGREE, ON BEHALF OF YOURSELF AND THE COMPANY LEGAL ENTITY, TO BE BOUND BY THIS AGREEMENT. FURTHER, YOU AND COMPANY REPRESENT THAT (I) YOU HAVE THE AUTHORITY TO LEGALLY BIND COMPANY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, (II) YOU HAVE READ THESE TERMS AND CONDITIONS, (III) HEREBY AGREE ON BEHALF OF COMPANY TO COMPLY AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (IV) THAT COMPANY IS A SOPHISTICATED ENTITY, AND HAS HAD SUFFICIENT OPPORTUNITY TO CONSULT WITH COUNSEL, PRIOR TO AGREEING TO THESE TERMS AND SUBMITTING ITS REGISTRATION. IF YOU DO NOT HAVE AUTHORITY TO BIND COMPANY, OR IF YOU OR COMPANY DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, COMPANY MAY NOT USE THE PRODUCTS OR SERVICES.
In consideration of the mutual promises and conditions contained in this Agreement the Parties agree as follows:
1. Scope and Appointment
1.1 Scope
Company is in the business of providing facilities infrastructure asset management software and services (the “Company Services”). The “CriticalAsset Platform” means the online solution for facilities and infrastructure management, and its related documentation, provided by CriticalAsset and delivered on a “Software-as-a-Service” (“SaaS”) basis (and including all related software applications), that is accessed through the internet. The CriticalAsset Platform includes all error corrections and updates that CriticalAsset may provide to Company under this Agreement.
1.2 Direct Customer
CriticalAsset and Company desire that CriticalAsset appoints Company as an authorized CriticalAsset Managed Service Provider to enable Company to provide to its direct customers the CriticalAsset Platform as stand-alone service or bundled with Company’s other Company Services, subject to and in accordance with the terms and conditions of this Agreement. “Direct Customer” means a customer of Company who is on-boarded by CriticalAsset and for whom Company uses and/or provides access to the CriticalAsset Platform as part of the Company Services.
2. License
2.1 Grant of License
Subject to Company’s compliance with the terms and conditions of this Agreement, CriticalAsset grants to Company a revocable, non-exclusive, non-transferable, non-sublicenseable (except as permitted by this Agreement) license and right of access: (i) to use the CriticalAsset Platform, solely for the purpose of (a) provisioning the CriticalAsset Platform on a stand-alone basis as Company Services or bundling the CriticalAsset Platform with the Company’s existing Company Services, (b) demonstrating and marketing the CriticalAsset Platform to potential Direct Customers in the Territory, (including through the usage of demo or free trials as described in Section 2.7) and (c) providing training and maintenance and support services to Direct Customers in the Territory; (ii) to distribute and sublicense the CriticalAsset Platform as part of Company Services, whether on a stand-alone basis or bundled with other Company Services, to its Direct Customers in the Territory; and (iii) to reproduce documentation related to the CriticalAsset Platform, solely as necessary to exercise the license rights granted in the preceding sub-clauses (i) and (ii). CriticalAsset licenses the CriticalAsset Platform to Direct Customers pursuant to its terms of service found at https://criticalasset.com/terms (the “Terms of Service”). Company agrees to make CriticalAsset an intended third-party beneficiary to any contract between Company and its Direct Customers, and as such CriticalAsset may assert any applicable rights set forth therein as may be necessary to protect its Intellectual Property Rights (as defined in Section 8.1, below). Company will promptly notify CriticalAsset of any breach of the CriticalAsset Terms of Service that may come into its knowledge and it will reasonably assist CriticalAsset in enforcing its Terms of Service if appropriate.
2.2 License Restrictions
Except as expressly set forth in Section 2.1, Company may not resell, distribute, sublicense, or otherwise transfer its access and/or licensing rights to the CriticalAsset Platform unless Company and CriticalAsset have entered into a separate reseller or distributor agreement. Company acknowledges that the CriticalAsset Platform contains trade secrets of CriticalAsset and its licensors, and, in order to protect such trade secrets and other interests that CriticalAsset and its licensors may have in the CriticalAsset Platform, Company agrees not to disassemble, decompile or reverse engineer the CriticalAsset Platform, or permit any third Party to do so, except, and solely to the extent, if any, that applicable local law requires that such activities be permitted. Except as expressly authorized by this Agreement, Company will not: (i) copy or reproduce the CriticalAsset Platform, in whole or in part; (ii) modify the CriticalAsset Platform; or (iii) provide the CriticalAsset Platform or make its functionality available to third parties as an application services provider or service bureau, or by hosting, time sharing or providing any other type of services.
2.3 Limited Rights
Company’s rights in the CriticalAsset Platform are limited to those expressly granted in Section 2.1. CriticalAsset reserves all other rights, title and interest in and to the CriticalAsset Platform not expressly granted to Company under this Agreement.
2.4 Orders and Delivery of CriticalAsset Platform
All orders for CriticalAsset Platform must be placed with CriticalAsset. CriticalAsset will make the CriticalAsset Platform available to Company within a reasonable time following execution of this Agreement.
2.5 SaaS Delivery
CriticalAsset shall use commercially reasonable efforts to make such SaaS Services available to Company, subject to downtime for scheduled or emergency maintenance. Company may only use the SaaS Services in furtherance of this Agreement.
2.6 Customer Trials
Company shall be allowed to offer demos or 14 day free-trials of the CriticalAsset Platform to Direct Customers, provided that the trials do not exceed 14 days term lengths and each CriticalAsset Platform trial shall only be made available one time per Direct Customer.
2.7 Bundling CriticalAsset Platform into Company Services
If Company wishes to offer the CriticalAsset Platform as part of its other Company Services and not on a stand-alone basis, then Company shall provide CriticalAsset with a preview of its intended bundled offering for review and prior written approval before proceeding with offering such Company Services to Direct Customers. CriticalAsset shall not be responsible for any expenses that Company incurs in preparing such preview bundled offering for CriticalAsset’s review.
3. Company Obligations
3.1 Business Practices
Company will: (i) conduct business in a manner that reflects favorably at all times on the CriticalAsset Platform and the good name, goodwill and reputation of CriticalAsset; (ii) make no false or misleading representations with regard to CriticalAsset or the CriticalAsset Platform; and (iii) make no representations, warranties or guarantees with respect to the specifications, features or functionality of the CriticalAsset Platform that are inconsistent with the documentation and marketing literature distributed by CriticalAsset.
3.2 Marketing
Company will actively market and promote the CriticalAsset Platform, as part of Company Services, to Customers in the Territory.
3.3 Late Charges
CriticalAsset reserves the right to charge, and Company agrees to pay, a late charge equal to one and one-half percent (1.5%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance.
3.4 Customer Agreements
Company will be solely responsible for providing its products and services to its customers. CriticalAsset will have no liability to any Direct Customer with respect to Company’s use of the CriticalAsset Platform whether such use is on such Direct Customer’s behalf or otherwise. Without limiting the foregoing, Company may not distribute the CriticalAsset Platform to any Direct Customer unless Company has entered into a written agreement with such Direct Customer that contains, at a minimum, terms and conditions substantially similar to the following: Company or its licensors retain all of their Intellectual Property Rights in the Company Services (including the CriticalAsset Platform), and no title to such Intellectual Property Rights are transferred to the Direct Customer; (ii) the Direct Customer agrees not to reverse assemble, reverse engineer, reverse compile, or otherwise translate any portion of the CriticalAsset Platform; and (iii) that otherwise contains terms that are equally protective of CriticalAsset’s rights in the CriticalAsset Platform as those contained in this Agreement. Company will use its best efforts to enforce the terms of each such Direct Customer agreement.
4. Maintenance and Support
4.1 Company Support of Customers
Company will provide Direct Customers with direct first-level maintenance and support services for the CriticalAsset Platform, in accordance with the applicable terms specified in Section 14. Except as expressly specified in this Agreement or as otherwise agreed to in writing by the parties, CriticalAsset will have no obligation to provide maintenance or support services to Direct Customers.
4.2 CriticalAsset Support of Company
CriticalAsset will provide Company with second-level maintenance and support services for the CriticalAsset Platform, in accordance with the applicable terms specified in Section 14. CriticalAsset is not obligated to provide any maintenance and support services beyond those set forth in Section 14, and any such additional maintenance and support services may be subject to the payment of separate support fees (at CriticalAsset’s discretion).
4.3 Contacts
Each Party will designate one or more technical contacts as set forth in Section 14, who will be the other Party’s primary contact for all technical matters relating this Agreement, and a business contact, who will be the other Party’s primary contact for all other day-to-day matters arising under this Agreement.
5. Records and Reporting
5.1 Records; Audit
During the term of this Agreement and for a period of three (3) years thereafter, Company will maintain complete and accurate books and records regarding Company’s use of the CriticalAsset Platform. During such period, CriticalAsset will have the right to inspect and audit such books and records for the purpose of confirming Company’s compliance with the terms of this Agreement, including its payment obligations. Any such inspection and audit will be conducted during regular business hours and in a manner that reasonably minimizes interference with Company’s normal business activities. If such an inspection and audit reveals an underpayment of any amounts payable to CriticalAsset, as applicable, then Company will promptly remit the full amount of such underpayment to CriticalAsset, including interest calculated in accordance with the terms of Section 6.4. If the underpaid amount exceeds 5% of the amounts payable to CriticalAsset, as applicable, for the period audited, then Company will also pay CriticalAsset’s reasonable costs of conducting the inspection and audit.
5.2 Reporting
Contractor understands and agrees that the CriticalAsset Platform may include automated reporting functionality to allow CriticalAsset visibility regarding usage and licensing of the CriticalAsset Platform. If we implement such automatic reporting, CriticalAsset shall endeavor to use such automated reporting for invoicing, however, CriticalAsset reserves the right to request Company to submit usage and
licensing reports if it has a reasonable belief that usage is not compliant or if technical issues prevent or degrade any existing automated reporting functionality. Within 15 days of CriticalAsset’s request, Company shall submit report(s) to CriticalAsset that include reasonable licensing and usage details (as determined by CriticalAsset) that can be used to support any invoicing of fees.
6. Payments
6.1 Fees
For the CriticalAsset Platform used by Company pursuant to Section 2.1, Company will pay to CriticalAsset the fees specified in the CriticalAsset Platform in accordance with the Payment Terms.
6.1.2 Payment Terms
Company will pay CriticalAsset all amounts due under this Agreement in U.S. currency, free of any currency controls or other restrictions.
6.1.2.1 Monthly Billing
Term-based fees are invoiced at the beginning of each term and Company shall pay CriticalAsset, the applicable fees within 30 days of the invoice date. For the avoidance of doubt, if Company does not use all of its licenses or does not wish to use the CriticalAsset Platform through the purchased subscription term, Company is still obligated to fulfill its payment obligations.
6.1.3 Taxes
All amounts payable by Company under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Company will be responsible for, and will promptly pay, all taxes and duties of any kind (including, but not limited to, sales, use and withholding taxes) associated with this Agreement or Company’s receipt or use of the CriticalAsset Platform, except for taxes based on CriticalAsset’s net income. If CriticalAsset is required to collect, or pays on Company’s behalf, any taxes or duties for which Company is responsible, Company will pay or reimburse CriticalAsset, as the case may be, for all such amounts. If Company pays any withholding taxes based on the payments made by Company to CriticalAsset hereunder, Company will furnish CriticalAsset with written documentation of all such tax payments, including receipts and other customary documentation.
6.1.4 Interest
All amounts not paid when due will accrue interest (without the requirement of a notice) at the lower of 1.5% per month or the highest rate permissible by law until the unpaid amounts are paid in full. Company will promptly reimburse CriticalAsset for all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by CriticalAsset in connection with collecting any overdue amounts.
7. Confidentiality
7.1 Definition
“Confidential Information” means any non-public information related to (i) the CriticalAsset Platform and other related information disclosed by CriticalAsset; (ii) any business or technical information of CriticalAsset or Company that is indicated to be or marked “confidential” or “proprietary” at the time of disclosure; (iii) any such information that would be reasonably considered to be confidential or proprietary in nature given the circumstances of disclosure regardless of whether it is marked, identified or summarized or such; and (iv) the specific terms and pricing set forth in this Agreement.
7.2 Exclusions
The obligations in Section 7.3 will not apply to the extent any information: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (ii) is rightfully known by the receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (iv) is rightfully obtained by the receiving party from a third party without restriction on use or disclosure.
7.3 Use and Disclosure Restrictions
Each Party will not use the other Party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its employees and subcontractors that need to know such Confidential Information for the performance of this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of all of the other Party’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own confidential information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party.
8. Proprietary Rights
8.1 Ownership of CriticalAsset Platform
The CriticalAsset Platform and all the Intellectual Property Rights therein are and will remain the sole and exclusive property of CriticalAsset and its licensors. Company will reproduce on each copy it makes of the CriticalAsset Platform, and not alter, remove or obscure, the Intellectual Property Rights notices of CriticalAsset and its licensors that may appear on the CriticalAsset Platform as delivered to Company. “Intellectual Property Rights” means patent rights, copyrights, trade secrets, trademarks, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
8.2 Company’s Duties
Company will use its reasonable efforts to protect CriticalAsset’ Intellectual Property Rights in the CriticalAsset Platform and will promptly report to CriticalAsset any infringement or other violation of such rights of which Company becomes aware.
8.3 Trademark License
Subject to Company’s compliance with the terms and conditions of this Agreement, CriticalAsset grants to Company a non-exclusive, non-transferable license, during the term of this Agreement, to use the CriticalAsset trademarks, trade names, service marks, and service names (collectively “CriticalAsset Marks”) solely in connection with Company’s marketing, promotion, and use of the CriticalAsset Platform pursuant to this Agreement. Any use of a CriticalAsset Mark by Company must correctly attribute ownership of such mark to CriticalAsset and must be in accordance with applicable law and CriticalAsset’s then-current trademark usage guidelines, to be provided by CriticalAsset from time to time. Company will not remove or obscure any CriticalAsset Mark on or in the CriticalAsset Platform as delivered to Company, and will not attach any additional trademarks, logos or trade designations on or to the CriticalAsset Platform. Company acknowledges and agrees that CriticalAsset owns the CriticalAsset Marks and that any and all goodwill and other proprietary rights that are created by or that result from Company’s use of a CriticalAsset Mark hereunder inure solely to the benefit of CriticalAsset. Company will at no time contest or aid in contesting the validity or ownership of any CriticalAsset Mark or take any action in derogation of CriticalAsset’s rights therein, including, without limitation, applying to register any trademark, trade name or other designation that is confusingly similar to any CriticalAsset Mark.
8.4 Use of Branding
CriticalAsset hereby grants Company a non-exclusive, non-transferable, royalty-free, revocable, limited license for the duration of the Agreement, to use CriticalAssset’s approved branding and marketing materials solely and strictly for the purpose of reasonably promoting, marketing and advertising CriticalAsset’s Services. For avoidance of doubt, such limited license applies to placement of CriticalAsset’s name on Company’s Website. Company hereby grants CriticalAsset a non-exclusive, non-transferable, royalty-free, revocable, worldwide license, to use its branding for the purpose of promoting, marketing and advertising of CriticalAsset’s affiliation with, or endorsement of Company’s services. For avoidance of doubt, such limited license applies to placement of Company’s name and logo on CriticalAsset’s websites and other CriticalAsset marketign materials.
9. DISCLAIMER OF WARRANTY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND THE SAAS SERVICES ARE PROVIDED “AS IS,” AND CRITICALASSET DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS REGARDING THE SOFTWARE AND ANY SERVICES PROVIDED BY CRITICALASSET, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CRITICALASSET OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. COMPANY WILL MAKE NO WARRANTIES OR REPRESENTATIONS IN CRITICALASSET’ NAME OR ON CRITICALASSET’S BEHALF.
10. Indemnities
10.1 Indemnification
CriticalAsset shall defend Company, and Company’s officers, directors, employees, affiliates and authorized agents, and their respective heirs, successors, and assigns (collectively, “Company’s Indemnified Parties”), from and against any and all third party losses, damages, injuries, awards, judgments, claims, and expenses (including without limitation reasonable attorneys’ fees actually incurred) arising from or alleging that the CriticalAsset Platform and/or Documentation infringes or misappropriates any United States patent, trademark, copyright and/or trade secret of a third party.
10.2 Exceptions
CriticalAsset shall have no indemnification obligations to any one or more of Company’s Indemnified Parties to the extent that the relevant CriticalAsset Platform was: (A) modified without the prior written consent of CriticalAsset in each instance and such claim would not have arisen except for such modification; (B) operated other than in compliance with the Documentation applicable to such CriticalAsset Platform and such claim would not have arisen except for such operation outside of compliance with Documentation provided to Company, (collectively the “Indemnity Exclusions”).
10.3 Remedy
CriticalAsset may, at its sole option and expense: (A) procure for Company the right to continue using such CriticalAsset Platform under the terms of this Agreement; (B) replace or modify such CriticalAsset Platform so that it is non-infringing and substantially equivalent in function to the CriticalAsset Platform as originally licensed hereunder to Company; or (C) if options (A) and (B), above, cannot be accomplished despite CriticalAsset’s reasonable efforts, then CriticalAsset may terminate its obligations and Company’s rights hereunder with respect to the CriticalAsset Platform. Any indemnification obligations of CriticalAsset remaining after such action shall continue to be governed by this Section 10. This Section 10 states Company sole and exclusive remedy with respect to indemnification.
10.4 Company Indemnity
Company shall defend CriticalAsset, and CriticalAsset’s officers, directors, employees, affiliates and authorized agents, and their respective heirs, successors, and assigns (collectively, “CriticalAsset’s Indemnified Parties”), from and against any and all third party losses, damages, injuries, awards, judgments, claims, and expenses (including without limitation reasonable attorneys’ fees actually incurred) arising from or alleging or otherwise attributable to: (i) Company’s gross negligence or intentional misconduct; (ii) any act or omission of Company in connection with the CriticalAsset Platform, the Company Services, or Company’s activities under this Agreement, including any misrepresentations made by Company with respect to CriticalAsset, the CriticalAsset Platform, the Company Services; or (iii) an Indemnity Exclusion.
10.5 Conditions of Indemnification
Each indemnifying Party’s obligations as described in this Section 10 is conditioned upon that the indemnified Party (i) promptly notifies the indemnifying Party in writing of the claim;, provided, however, that any failure to provide such prompt notice will not relieve the indemnifying Party of its indemnification obligations unless the indemnifying Party is materially prejudiced by such failure (ii) grants the indemnifying Party sole control of the defense and settlement of the claim, provided, however, that no such settlement shall be entered into by the indemnifying Party if it does not relieve the Indemnified Parties of all liability and obligation pertaining to the claim unless the indemnified Party consents to same in writing; and (iii) provide the indemnifying Party, at the expense of the indemnifying Party, with all assistance, information and authority reasonably requested by CriticalAsset for the defense and/or settlement of the claim.
11. Limitation of Liability
11.1 Total Liability
CRITICALASSET’S TOTAL LIABILITY TO COMPANY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE PAYMENTS ACTUALLY RECEIVED FROM COMPANY UNDER THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO ANY LIABILITY.
11.2 Exclusion of Damages
NEITHER PARTY SHALL HAVE ANY OBLIGATION TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY ARISING WITH RESPECT TO THIS AGREEMENT AND/OR THE SOFTWARE FOR CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, SPECIAL DAMAGES, LOSS OF ACTUAL AND/OR POTENTIAL PROFITS, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF DATA, AND/OR INCIDENTAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF, KNEW OF, AND/OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SAME.
11.3
Nothing in this Agreement shall limit or exclude any Party’s liability for fraud or for death or personal injury resulting from negligence, or to the extent otherwise not permitted by law.
12. Terms and Termination
12.1 Term and Termination
12.1.1 Agreement
This Agreement will begin on the Effective Date and, unless terminated earlier in accordance with its terms, will remain in effect until each Company subscription term has expired or been terminated.
12.1.2 Subscription Term
If Company has elected the term-based model, then each term-based CriticalAsset Platform subscription term shall commence on its designated subscription start date. At the end of the designated subscription term, the subscription shall automatically renew for additional successive terms equal to the subscription term length of the current subscription term, and Company shall be responsible for payment of applicable license fees for such renewal term, unless either Party provides the other Party with notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
12.2 Termination for Breach
Either Party may terminate this Agreement (including all subscription terms), at any time, in the event that the other Party breaches any material term of this Agreement and fails to cure such breach within 15 days following notice of such breach from the non-breaching Party. In addition, CriticalAsset may terminate this Agreement (including all subscription terms), at any time, in the event that Company breaches any payment-related provision and fails to cure such breach within ten days following notice of such breach from CriticalAsset.
12.3 Suspension
If any amount owing by Company under this Agreement is fifteen (15) or more days past due, CriticalAsset may, without limiting its other rights and remedies, accelerate Company’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend the Subscription Services and/or Professional Services to Company until such amounts are paid in full. CriticalAsset will give Company at least ten (10) days’ prior notice that Company’s account is overdue before implementing any such suspension.
12.4 Effect of Termination
Upon any termination of this Agreement (a) all licenses granted by CriticalAsset hereunder will automatically cease; (b) Company will immediately stop using the CriticalAsset Marks; and (c) each Party will promptly return to the other (or at the other Party’s option, destroy) all of the other Party’s Confidential Information within its possession or control (and for the avoidance of doubt, the foregoing includes all copies of the CriticalAsset Platform and all portions thereof in Company’s possession or control), and will certify in writing that it has complied with its obligations to return all such Confidential Information. In addition, upon any termination of this Agreement, the payment dates of all amounts due CriticalAsset, as applicable, will automatically be accelerated so that they will become due and payable on the effective date of termination, even if longer terms had been provided previously.
12.5 No Damages Upon Termination; No Dealer Protection
COMPANY EXPRESSLY WAIVES ANY RIGHTS IT MAY HAVE TO RECEIVE ANY COMPENSATION, INDEMNITY, TERMINATION FEE(S) OR DAMAGES UPON TERMINATION OR EXPIRATION OF THIS AGREEMENT UNDER APPLICABLE LAWS, INCLUDING ANY DEALER OR DISTRIBUTOR PROTECTION LAWS IN ANY APPLICABLE JURISDICTION UNDER ANY THEORY, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
12.6 Survival
Sections 5, 6, 7, 8.1, 9, 10, 11, 12.4, 12.5, 12.6 and 13 will survive termination of this Agreement for any reason.
13. General
13.1 Governing Law and Jurisdiction
This Agreement shall be subject to and governed by the laws of the State of California, without giving effect to provisions or procedures regarding conflicts of laws. The parties consent to the jurisdiction of the federal and state courts in Los Angeles County, California.
13.2 Notices
All notices under this Agreement shall be in writing and shall be deemed given upon receipt.
13.3 Severability
If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
13.4 Modifications, Waiver
No amendment to, or waiver of right under, this Agreement or any Order Form is effective unless in writing signed by authorized representatives of the parties. Any failure by a Party to comply with any obligation, agreement or condition herein may be expressly waived in writing by each of the other parties, but such waiver or failure to insist upon strict compliance with such obligation, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any such subsequent or other failure.
13.5 Force Majeure
Except for Company’s payment obligations under this Agreement, neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, pandemics, public health emergencies, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or acts of God.
13.6 Assignment
Neither Party shall assign this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement to any entity that acquires all or substantially all of the business and/or assets of such Party, to any entity that acquires more than fifty percent of the equity securities of such Party, and/or to the surviving entity in a merger to which such Party is a merged entity. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors, and permitted assigns.
13.7 Independent Contractor
CriticalAsset’s relationship with Company will be that of an independent contractor and nothing in this Agreement shall be construed to create a partnership, joint venture, or employer-employee relationship.
13.8 Foreign Corrupt Practices Act
Each Party shall comply with all applicable anti-corruption laws, including, without limitation, the US Foreign Corrupt Practices Act 1977.
13.9 Export Control
Company will comply fully with all applicable export laws and regulations of the United States (“Export Laws”) to ensure that neither the CriticalAsset Platform nor any direct product of or related technical data is exported or re-exported directly or indirectly in violation of Export Laws; or used for any purposes prohibited by the Export Laws.
13.10 No Third-Party Beneficiaries
This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third Party. Only the parties to this Agreement may enforce it.
13.11 Entire Agreement
This Agreement, including the schedules hereto, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of each Party.
13.12 Updates on CriticalAsset Web Site
Notwithstanding anything to the contrary, this Agreement, along with any other materials, its Terms of Service, Privacy Policy, and/or any offerings on the CriticalAsset Platform , may be updated by CriticalAsset from time to time in its discretion, and Company shall be bound by such updates. CriticalAsset reserves the right to modify this Agreement in its sole discretion by providing no less than thirty 30 days calendar days’ notice of such changes. Notice shall be sent through CriticalAsset’s formal partner alerts and posted on the Company Portal. Company shall be solely responsible to monitor the Company Portal for updates and changes. Orders for the purchase of CriticalAsset Platform placed by Company subsequent to notification period shall constitute acceptance of the updated or modified Agreement. Any purported changes to this Agreement that are not entered into by, or not issued by, an actual authorized representative of CriticalAsset and that are not posted on the Company Portal, shall be null and void and shall not be binding on CriticalAsset. For clarity, notwithstanding anything to the contrary, in no event shall any sales executive, sales representative or other sales or systems or sales engineer employee of CriticalAsset be authorized to bind CriticalAsset, and any purported agreement by any such representative or employee, or any CriticalAsset representative not in fact authorized to bind CriticalAsset, shall be null and void and shall not be binding on CriticalAsset.
14. Maintenance and Support
14.1 Company Support of Direct Customers
Company shall perform the following obligations at its cost and expense:
(i) Technical Contact
Within five days of the Effective Date, Company shall appoint and notify CriticalAsset of its technical contact(s). Company’s technical contact(s) shall coordinate all technical issues on behalf of Company which arise out of this Agreement. Company may only make support requests through its designated technical contacts.
(ii) First Level Technical Support
Company shall be solely responsible for providing First Level Technical Support directly to its Direct Customers regarding the CriticalAsset Platform. “First Level Technical Support” shall mean telephone and email support provided in response to the initial inquiry placed by a Direct Customer regarding product operation generally or which identifies, troubleshoots and documents an error in the Company Service.
14.2 CriticalAsset Support of Company
CriticalAsset shall perform the following obligations:
(i) Technical Contact
CriticalAsset shall appoint and notify Company of its technical contact(s).
(ii) Second Level Technical Support
CriticalAsset shall provide technical support only to Company and not to Company’s Direct Customers. The second level technical support will consist of CriticalAsset using its commercially reasonable efforts to diagnose problems and to create error corrections or avoidance (workarounds) with respect to suspected errors in the CriticalAsset Platform reported by Direct Customers to Company and reported by Company to CriticalAsset. Such service shall also include provision of any maintenance releases and updates for the CriticalAsset Platform made generally commercially available by CriticalAsset during the term of the Agreement. CriticalAsset will provide the support described herein to the designated Company contacts during CriticalAsset’s normal business hours, 5 days per week, Monday-Friday from 9:00 AM to 6:00 PM Pacific Standard Time (excluding federal and California state holidays) via email and/or web site ticket system.
