In the General Terms:
1.1 “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with, such party. "Control," for purposes of this definition, means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
1.2 "Agreement" means the General Terms, each SOW (if any), and any other document executed by the parties.
1.3. “App” means Definity First’s M&A Tracker plug-in software application for Microsoft Dynamics.
“Confidential Information” has the meaning set forth in Section 3.
1.4 “Customer Data” means the Customer specific configurations and rules implemented in the App and any Customer content processed by the App.
1.5 “Documentation” means the technical description of the App and functional specifications of the App as described on Definity First’s website at www.definityfirst.com
1.6 “Extension Term(s)” means each additional one year (or other agreed upon period) subscription term for which the subscription term for the App is extended pursuant to Section 8.
1.7 “Initial Term” means the initial Subscription term for the App commencing on the Effective Date and ending one (1) year thereafter.
1.8 “Professional Services” means implementation, configuration, customization, data migration or other consulting services provided by Definity First to Customer pursuant to a mutually executed SOW.
1.9 "Service" means the App licensed on a hosted basis as Software-as-a-Service or otherwise provides to Customer under this Agreement.
1.10 “SOW” means each statement of work, engagement letter or other writing signed by Definity First and Customer that describes the Professional Services provided by Definity First. Each SOW shall reference this Agreement and will be subject to the terms and conditions hereof. Additionally, a Definity First service brief identified in a Purchase Order is also considered an SOW but does not require a separate signature.
1.11 “Subscription means the Customer ‘s authorization to use the Service in accordance with this Agreement.
1.12 “Subscription Fees” mean the fees paid by Customer to Definity First for the right to use (and receive applicable Updates to) the Service for the Initial Term or Extension Term, as applicable.
1.13 "Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
1.14 “Term” means the Initial Term and any Extension Term applicable to each Purchase Order.
1.15 "Update(s)" means each Update and enhancement that Definity First generally makes available at no additional charge to its customers who are current in payment of applicable Subscription Fees.
1.16 "User" means Customer's and its Affiliates' employees, agents, contractors, consultants or other individuals licensed to use the Service.
1.17 “Work Product” means all work product developed or created by Definity First during the course of providing support or Professional Services to Customer. Notwithstanding anything herein to the contrary, Work Product shall not include any Customer Data.
2.1 Subject to the terms of these General Terms, Definity First grants to Customer and its Affiliates, a worldwide, royalty-free, non-exclusive, non-transferable (except to a successor in interest as permitted hereunder), limited license to access and/or use (as applicable) the Service during the Term, solely for Customer’s own internal business purposes. Customer may authorize subcontractors to access and/or use the Service, provided Customer is jointly and severally liable for all acts and omissions of the subcontractors. Customer may use the Documentation in connection with the license granted hereunder.
2.2 Customer specifically agrees to limit the use of the Service in accordance with these General Terms and the Documentation. Without limiting the foregoing, Customer specifically agrees not to: (i) resell, sublicense, lease, time-share or otherwise make the App or Service (including the Documentation) available to any third party (except subcontractors); (ii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the App or Service or the data contained therein (including but not limited to hacking or penetration testing Definity First’s systems); (iii) modify, copy or create derivative works based on the App or Service; (iv) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from the App or Service, in whole or in part; or (v) access the App or Service for the purpose of building a competitive product or service or copying its features or user interface.
2.3 In addition, Customer agrees not to use the App, Service, or permit either to be used, for purposes of: (i) product evaluation, benchmarking or other comparative analysis intended for publication outside the Customer organization without Definity First's prior written consent; (ii) infringement on the intellectual property rights of any third party or any rights of publicity or privacy; (iii) violation of any law, statute, ordinance, or regulation (including, but not limited to, the laws and regulations governing export/import control, unfair competition, anti-discrimination, and/or false advertising); (iv) propagation of any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; and/or (v) filing copyright or patent applications that include the App, Service and/or Documentation or any portion thereof.
3.1 As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in a Purchase Order), the App, business and marketing plans, technology and technical information, product designs, and business processes.
3.2 "Confidential Information" shall not include information that (i) is or becomes a matter of public knowledge through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure without restriction on disclosure; (iii) is lawfully disclosed to the Receiving Party by a third party that lawfully and rightfully possesses such information without restriction on disclosure; (iv) the Receiving Party can document resulted from its own research and development, independent of receipt of the disclosure from the Disclosing Party; or (v) is disclosed with the prior written approval of the Disclosing Party.
3.3 Receiving Party shall not (i) disclose any Confidential Information of the Disclosing Party to any third party, except as otherwise expressly permitted herein or (ii) use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement or in any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States, except with Disclosing Party's prior written consent. The Receiving Party shall not make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in confidence and to take all precautions to protect such Confidential Information that the Receiving Party employs with respect to its own Confidential Information of a like nature, but in no case shall the Receiving Party employ less than reasonable precautions. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information. This Agreement will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, to the extent permitted by law, the responding party shall give prompt written notice to the other party to enable the other party to seek a protective order or otherwise prevent or restrict such disclosure and, if disclosed, the scope of such disclosure is limited to the extent possible.
3.4 The Receiving Party will return all copies of the Disclosing Party’s Confidential Information upon the earlier of (i) the Disclosing Party’s request, or (ii) the termination or expiration of this Agreement. Instead of returning such Confidential Information, the Receiving Party may destroy all copies of such Confidential Information in its possession; provided, however, the Receiving Party may retain a copy of any Confidential Information disclosed to it solely for archival purposes, provided that such copy is retained in secure storage and held in the strictest confidence for so long as the Confidential Information remains in the possession of the Receiving Party.
3.5 The parties acknowledge and agree that the confidentiality obligations set forth in this Agreement are reasonable and necessary for the protection of the parties’ business interests, that irreparable injury may result if such obligations are breached, and that, in the event of any actual or potential breach of Section 3, the non-breaching party may have no adequate remedy at law and shall be entitled to seek injunctive and/or other equitable relief as may be deemed proper by a court of competent jurisdiction.
4.1 Customer retains all title, intellectual property and other ownership rights in all Customer Data, Customer Confidential Information and all data, text, files, output, programs, information, or other information and material that Customer provides, develops, makes available, or uses in conjunction with the Service. Definity First retains all title, intellectual property, and other ownership rights throughout the world in and to the App, Documentation, any Service offering contained therein as well as any Work Product relating to the performance of Professional Services. So long as Customer has fully paid the Fees owed to Definity First for Professional Services rendered under the SOW, Definity First hereby grants to Customer a non-exclusive, non-transferable, fully paid up, license to use the Work Product solely in connection with the Service and solely for Customer’s internal business purposes. Professional Services (and any resulting Work Product) are specific to the Service and are not provided on a “work made for hire” basis.
4.2 There are no implied rights and all rights not expressly granted herein are reserved. No license, right, or interest in any Definity First trademark, copyright, patent, trade name, or service mark is granted hereunder. Customer shall not remove from any full or partial copies made by Customer of the App, Updates, and Documentation any copyright or other proprietary notice contained in or on the original, as delivered to Customer.
4.3 Each party acknowledges that the App and Service contain valuable trade secrets and proprietary information of Definity First, that in the event of any actual or threatened breach of the scope of any of the licenses granted hereunder, such breach shall constitute immediate, irreparable harm to Definity First for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach in addition to whatever remedies Definity First might have at law or under this Agreement.
5.1 Fees. Fees for the Service will be the Subscription Fees and other fees set forth in the SOW (collectively, the “Fees”) and will be paid by Customer to Definity First. The Fees stated in each SOW shall be effective during the Initial Term specified in that SOW; the Subscription Fees and other fees for each Extension Term shall be set forth in a Purchase Order or Statement of Work.
5.2 Taxes. Customer will be liable for payment of all Taxes that are levied upon and related to the performance of obligations or exercise of rights under this Agreement. Definity First may be required to collect and remit Taxes from Customer. In no event will either party be responsible for any taxes levied against the other party's net income.
6.1 Definity First shall provide support provided Customer is current in payment of the applicable Fees and any additional fees for platinum or premium support, if applicable. Definity First’s current support terms are described on Definity First’s website at https://mergers-acquisitions.definityfirst.com/service-level-agreement
6.2 Definity First shall provide the Professional Services, if any, specified in one or more SOWs. All Professional Services shall be billed as stated in the applicable SOW.
6.3 Definity First warrants it will provide Professional Services in a professional and workmanlike manner consistent with good industry standards and practices. As Customer’s sole and exclusive remedy and Definity First’s entire liability for any breach of the foregoing warranty, Definity First will use reasonable efforts to re-perform the Professional Services or, if Definity First is unable to do so, terminate the applicable SOW and refund to Reseller that portion of any Fees paid to Definity First by Reseller that correspond to the allegedly defective Professional Services.
7.1 Either party may terminate the General Terms or any Purchase Order (i) immediately upon written notice if the other party commits a non-remediable material breach, or (ii) if the other party fails to cure any remediable material breach within thirty (30) days of being of notified in writing of such breach.
7.3 On termination or expiration of the General Terms, all licenses, and Service access granted under this Agreement shall automatically terminate with immediate effect.
7.4 Upon expiration of the Initial Term under each Purchase Order, the subscription term to the Service shall automatically renew for Extension Terms unless otherwise agreed by the parties or either party gives the other notice of non-renewal at least ninety (90) days prior to the end of the relevant subscription term.
7.5 In the event of the termination or expiration of this Agreement, the provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive, including but not limited to, Sections 2.2-2.3 (“License Restrictions”); 3 (“Confidentiality”); 4 (“Ownership”); 5 (“Fees and Reporting”); 7 (“Termination and Expiration”); 8 (“Intellectual Property Indemnity”), 9 (“Warranties”); 10 (“Limitation of Liability”); and 11 (“General”).
8.1 Indemnity. Subject to Section 8.3 below, Definity First agrees to defend and indemnify Customer from and against any third party claim filed against Customer in the United States alleging that the App, Service or Documentation, as sold and delivered to Customer pursuant to this Agreement (the “Indemnified Service”), directly infringe the valid intellectual property rights of a third party (a “Claim”). Definity First agrees to pay any amounts finally awarded by a court of law in respect of such Claim or pursuant to its signed settlement. Definity First may, at its sole election and expense: (a) procure sufficient rights to allow Customer continued use and exploitation of the Indemnified Service under the terms of this Agreement; (b) replace or modify the Indemnified Service to avoid the alleged infringement; or (c) if the foregoing options are not reasonably practicable, terminate Customer’s rights to use the Indemnified Service and refund to Reseller all amounts paid by Definity First attributable to Customers’ future usage or access to the Indemnified Service.
8.2 Exclusions. Definity First shall have no obligation or any liability to Customer for any Claim arising out of or related to: (a) modification or adaptation to the Indemnified Service; (b) the use of the Indemnified Service in combination with any other product, service or device, if the Claim would have been avoided by the use of the Indemnified Service without such other product, service or device; (c) compliance with Customer’s specifications, instructions, functions, features or requirements, or any customization of an Indemnified Product made for or on behalf of Customer; (d) use or exploitation of the Indemnified Service other than as set forth in this Agreement or applicable Definity First Documentation; or (e) failure to implement any update, modification, or replacement to Indemnified Service as provided by Definity First.
8.3 Process. Definity First’s obligations under this Section 8 are conditioned upon the following: (a) Customer first providing written notice of the Claim to Definity First within thirty (30) days after Customer becomes aware of or reasonably should have been aware of the Claim (provided, however, the failure to provide such notice will only relieve Definity First of its indemnity obligations hereunder to the extent Definity First is prejudiced thereby); (b) Customer tendering sole and exclusive control of the Claim to Definity First at the time Customer provides written notice of such Claim to Definity First, and (c) Customer providing reasonable assistance, cooperation and required information with respect to defense and/or settlement of the Claim, including Customer providing Definity First with access to documents and personnel at Definity First’s request and expense. Customer may at its sole expense participate in the Claim, except that Definity First will retain sole control of the defense and/or settlement. Definity First shall not agree to any settlement of a Claim that includes an injunction against Customer or admits Customer liability without Customer’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed.
8.4 The foregoing is the sole and exclusive remedy of Customer and the entire liability of Definity First with respect to any Claim.
9.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all applicable laws in its performance hereunder.
9.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, DEFINITY FIRST HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES OF REGULATORY COMPLIANCE, PERFORMANCE, ACCURACY, RELIABILITY, AND NONINFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER.
10.1 EXCEPT FOR (i) THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (ii) DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT; (iii) DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 3 (CONFIDENTIALITY); OR (iv) CUSTOMER’S BREACH OF SECTION 2 (“GENERAL LICENSE TERMS”), EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE ANNUALIZED SUBSCRIPTION FEES RECEIVED BY DEFINITY FIRST FOR THE APPLICABLE DEFINITY FIRST PRODUCT.
10.2 EXCEPT FOR (i) DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 3 (CONFIDENTIALITY) OR (ii) CUSTOMER’S BREACH OF SECTION 2 (“GENERAL LICENSE TERMS”), IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.
11.1 Government End-User Notice. This Section shall apply only if Customer is a federal government entity. The Service is deemed commercially available hosted services and commercial computer software as defined in FAR 12.212 (Software) and/or commercially available technical data as defined in FAR 12.211 (Technical Data), and are subject to Definity First’s commercial licensing/use terms, as required by and FAR 52.227-19 (Commercial Computer Licensed Software – Restricted Rights) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
11.2 Publicity. Neither party may issue press releases or otherwise publicize the parties’ relationship without the other party’s prior written consent, which shall not be unreasonably withheld.
11.3 Independent Contractors; Relationship with Third Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
11.4 Notices. All notices shall be in writing to each party’s address on the signature page of this Agreement (or as updated by a party in writing to the other) and effective upon receipt.
11.5 Entire Agreement; Integration. This Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, any Purchase Order issued by Customer or Reseller shall be deemed a convenient order and payment device only and no terms (other than product name, license quantity, price, subscription term, and billing contact) stated in any Purchase Order shall be incorporated into this Agreement, and all such other terms shall be void and of no effect.
11.6 Waiver. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
11.7 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, pandemic, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's possession or reasonable control, and denial of service attacks.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party.
11.9 Export Restrictions. Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the App and Definity First Confidential Information and any media, to assure that the App, Service, Definity First Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.
11.10 Applicable Law. This Agreement will be governed by the laws of the State of California and the United States of America, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts located in San Diego County, California, for resolution of any disputes arising out of this Agreement.
11.11 Counterparts. These General Terms and each Product Exhibit may be executed by facsimile and in counterparts.
11.12 Headings; Language. All headings used herein are for convenience of reference only and will not in any way affect the interpretation hereof. The English language version of this Agreement controls. It is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English.
12. Notice. Definity First may deliver notice to Customer under these General Terms by means of electronic mail, a general notice on the Service, a notice through the App or by written communication delivered by first class U. S. mail to Customer’s address on record in Customer’s account information, if any. Customer may give notice to Definity First at any time by letter delivered by first class postage prepaid U. S. mail or overnight courier to the following address:
600 B Street., Suite 300
San Diego CA 92101-4505
Attn: Legal Department