Engagement of Services.Company will provide the software and perform the services as outlined and agreed upon in this Agreement. Subject to the terms of this Agreement, Company will render the software and services set forth herein.
Compensation.Client will pay Company the fee set forth in this Agreement for the software and services rendered pursuant to this Agreement. Company will be reimbursed only for expenses which are expressly provided for in the Agreement or which have been approved in advance in writing by Client, provided Company has furnished such documentation for authorized expenses as Client may reasonably request.
Ownership of Work Product. Client hereby agrees that the Company owns all rights, title and interest in the In8Sync software solutions provided, pursuant to this Agreement (the “Work Product”), including all copyrights, trademarks and other intellectual property rights contained therein. Company hereby agrees that the Client owns all rights, title and interest in any market facing Work Product specifically developed by In8Sync for the Client (excluding any customizations related to existing In8Sync Work Products), including all copyrights, trademarks and other intellectual property rights contained therein.
Grant of Use License. In8Sync grants to Client a limited, non-exclusive, terminable, non-transferable, non-sublicensable license to access the software and services specified in this Agreement, and to use such software and services during the term of this Agreement, subject to the terms set forth in this Agreement.
Limitations to Use License. In addition to the terms set forth elsewhere in this Agreement, the following terms shall apply to Client’s use of the software and services: Client must use the software and services only (i) in a manner and for the purposes for which they were designed, (ii) in accordance with the terms of this Agreement, and in accordance with all applicable law, and (iii) on Client’s own data for its own internal purposes. Unless otherwise explicitly permitted in this Agreement, Client shall not copy any portion of the software or services. Client may not post or upload any unlawful, illegal, or inappropriate content in connection with the software or services. In8Sync reserves the right to remove Client’s content from the software at any time, without notice, for any reason including, but not limited to, content that violates this Agreement. All uses not permitted under this Section 4 are prohibited. By way of example and without limitation, Client may not: (i) disassemble, decompile, reverse engineer, or modify the software or services; (ii) examine the software or services with debugging, memory inspection, or disk inspection tools; (iii) rent or sublicense the software or services; (iv) permit use of the software or services by a person who is not permitted under this terms of this Agreement; (v) bypass or breach any security device or protection used in the software or services; or (vi) transmit an electronic copy of the software or services by any means. This Agreement is a license to use, and not a contract of sale for, the software or services. Client agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the software or services or any copies thereof in any form. Client receives no rights to and will not sell, assign, lease, market, transfer, encumber or otherwise suffer to exist any lien or security interest on, nor allow any third person, firm, company, or other entity to copy, reproduce or disclose the software or services, whether in whole, in part, or in any manner whatsoever. Client shall be responsible for compliance with the terms of this Agreement by Client’s employees, agents and clients who have access to the software or services.
Client Cooperation. Client acknowledges that the successful and timely provision of software or services shall require the good faith cooperation of Client. Accordingly, Client shall fully cooperate with In8Sync, including, without limitation, by: (a) providing In8Sync with all information concerning the proposed software or services as may be reasonably required by In8Sync; (b) making available to In8Sync (i) personnel of Client, and (ii) appropriate development time on Client’s systems, so as to permit In8Sync to render and provide the software or services, provided that the foregoing shall be at such times so as to not unreasonably disrupt the conduct of Client’s business; (c) providing at least one (1) employee or consultant of Client, reasonably acceptable to In8Sync, who shall have substantial relevant experience, to act as a project manager in connection with the rendering and provision of the software or services (each such person a “Project Manager”). Each party shall provide the name of its Project Manager to the other party..
Changes to Software or Services and Agreement. In8Sync reserves the right, in its sole discretion, to make any changes to the software or services that it deems necessary, desirable or useful including, without limitation, changes intended to: (a) maintain or enhance (i) the quality or delivery of In8Sync’s software or services to its clients, (ii) the competitive strength of or market for In8Sync’s software or services or (iii) the software or services’ cost efficiency or performance; or (b) to comply with applicable law. If such changes will remove features in a manner that substantially changes the functionality of the software or services, then In8Sync shall provide written notice to the Client of such changes and such changes shall become effective thirty (30) days following such notice unless Client notifies In8Sync of its desire to terminate the Agreement within such thirty (30) day period, in which case this Agreement shall terminate as of the end of such thirty (30) day period. In addition, In8Sync reserves the right, at any time and in its sole discretion, to make any amendments or modifications to the Agreement that it deems necessary or desirable, including increasing the fees charged to Client under this Agreement. All such amendments and modifications will become effective thirty (30) days after notification is provided to Client unless Client notifies In8Sync of its desire to terminate the Agreement within such thirty (30) day period, in which case this Agreement shall terminate as of the end of such thirty (30) day period.
Aggregated Data. In8Sync shall own all aggregated, statistical and usage data derived from the operation of the software or services, including, without limitation, information regarding user interactions, the number of records in the software, the number and types of transactions, configurations, and reports processed in the software and the performance results for the software or services (collectively “Aggregated Data”). If the Aggregated Data contains Personal Data, then In8Sync may utilize such Aggregated Data for purposes of operating In8Sync’s business including, without limitation, for the purposes of improving the software or services, analyzing usage data and marketing, and any other legitimate interests of In8Sync, provided that In8Sync shall not reveal any confidential information of Client or Personal Data subject to the General Data Protection Regulation (“GDPR”) (Regulation (EU) 2016/679).
Credit; Links; Trademarks. If the software or services is a web site, then the web site shall bear prominently on its homepage the credit “Produced by In8Sync,” or such other credit as may be reasonably acceptable to In8Sync, which credit shall link to the home page of In8Sync’s web site (www.in8sync.com). Except for In8Sync’s use of Client’s name, trademark, and/or logo on In8Sync’s websites, slide decks, presentations, and Client-lists, neither party shall have the right to use the name(s), logo(s) and/or trademark(s) of the other without the express written consent in each instance of the party whose name and/or trademark(s) are desired to be used.
Security. By Agreeing to this Agreement, you agree that In8Sync LLC is not, and cannot be held liable for any issues related to data breaches or security, of either the website or NetSuite. In8Sync LLC cannot be liable for lack of security procedures and best practices not implemented by its clients, resulting in any Data Breach. Protection and Mitigation of Security Risks fall to Client, implementing the needed security for those said systems, including but not limited to Two-Factor Authentication and IP Restrictions for example.
GDPR. Based on the Definition for Processor in GDPR (Art. 4 ) “Processor means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.”, In8sync, LLC does not fall under the classification for GDPR Processor as we only facilitate the Automated Direct Transfer, without use of external third party software, of information between our Client’s Owned systems. In8Sync LLC does not store, copy or process data from Client’s systems, only facilitates the Automated Direct Transfer of the data stored by the Clients on their systems, between the Client’s systems.
Representations and Warranties. Company represents and warrants that Company has the right and unrestricted ability to assign this Work Product per the agreement to the Client as set forth in Section 3 (including without limitation the right to assign any Work Product created by Company’s employees or Company.) Client represents and warrants that as of the Effective Date, Client will have evaluated, tested, and examined the software or services and will have determined independently that the software or services are suitable for its requirements. Client assumes all responsibility and risk of selection and suitability of the software or services, and In8Sync shall have no liability therefore. Client is solely responsible for all data provided by Client or on Client’s behalf to In8Sync or incorporated into or stored within the software or services by Client or on Client’s behalf, and In8Sync shall have no liability therefore.
Disclaimer of Warranty. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THE AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY CANNOT AND DOES NOT GUARANTY ANY RESULT OR THE EFFECTIVENESS OR PERFORMANCE OF THE SOFTWARE AND SERVICES. ALL SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND ANY IMPLIED WARRANTY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT IS EXPRESSLY DISCLAIMED.
Force Majeure. Except for payment of money, neither party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions of the other party or third parties, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any government agency or authority.
Independent Company Relationship.Company’s relationship with Client is that of an independent Company, and nothing in this Agreement is intended to, or should be construed to create a partnership, agency, joint venture or employment relationship. Company will not be entitled to any of the benefits which Client may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Company is not authorized to make any representation, contract or commitment on behalf of Client unless specifically requested or authorized in writing to do so by a Client officer. Company is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. Company is solely responsible for, and must maintain adequate records of expenses incurred in the course of performing services under this Agreement. No part of Company’s compensation will be subject to withholding by Client for the payment of any taxes.
Confidential Information.Company agrees to hold Client’s Confidential Information in strict confidence and not to disclose such Confidential Information to any third parties. “Confidential Information” as used in this Agreement shall mean all information when disclosed by Client to Company is and clearly and conspicuously marked or labeled as “CONFIDENTIAL” or “PROPRIETARY”. Company’s obligations set forth in this Section 6 shall not apply with respect to any portion of the Confidential Information that Company can document by competent proof that such portion: (a) was in the public domain at the time it was communicated to Company by Client; (b) entered the public domain through no fault of Company, subsequent to the time it was communicated to Company by Client; (c) was in Company’s possession free of any obligation of confidence at the time it was communicated to Company by Client; (d) was rightfully communicated to Company free of any obligation of confidence subsequent to the time it was communicated to Company by the Client; (e) was developed by employees or agents of Company independently of and without reference to any information communicated to Company by Client; or (f) was communicated by Client to an unaffiliated third party free of any obligation of confidence. In addition, Company may disclose Client’s Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law. All Confidential Information furnished to Company by Client is the sole and exclusive property of Client or its suppliers or customers. Upon request by Client, Company agrees to promptly deliver to Client the original and any copies of such Confidential Information. This Agreement shall remain in effect for five (5) years after the termination of the Agreement.
Indemnification. Each party agrees to indemnify and hold the other party and its affiliates harmless from and against any and all costs, fees, expenses, damages and liabilities (including attorneys’ fees and costs related to the defense) associated with any third party claims resulting from any of the services under this Agreement, except to the extent determined to have resulted from indemnifying party’s gross negligence or intentional misconduct relating to such services.
Limitations on Liability and Indemnification. Except to the extent determined to have resulted from Company’s gross negligence or intentional misconduct, Company’s aggregate liability for all claims, losses, liability, or damages in connection with this Agreement, whether as a result of breach of contract, tort, or otherwise, regardless of the theory of liability asserted, is limited to no more than the total amount of fees paid to Company for the particular item of work set forth on the proposal giving rise to the liability. In addition Company will not be liable in any event for lost profits, consequential, indirect, incidental, punitive, exemplary or special damages unless it was due to Company’s gross negligence or intentional misconduct.
Term and Termination.
Term.The initial term of this Agreement is set forth for the software and services indicated and agreed upon above, unless earlier terminated as provided in this Agreement.
Termination by Client. Client may terminate this Agreement: (i) upon thirty (30) days written notice in the event of a material breach by Company of this Agreement, provided that, such breach remains uncured at the end of such thirty (30) day period; (ii) immediately in its sole discretion upon Company’s material breach of Sections 16 (“Confidential Information”) or 20 (“Noninterference with Business”); or (iii) upon sixty (60) days written notice to Company.
Termination by Company. Company may terminate this Agreement upon sixty (60) days written notice to Client.
Obligations Upon Termination. In the event that this Agreement is terminated by either party for any reason: (a) Client shall pay for all accrued and unpaid charges for the software or services provided through the effective date of such termination; (b) no refund will be provided, and (c) the licenses to use the software and services shall be immediately terminated. All payments from Client to In8Sync made under this Agreement are earned by In8Sync when paid, are irrevocable, non-refundable or non-credited under any circumstances, including early termination.
Noninterference with Business. During this Agreement, and for a term of two (2) years after this Agreement concludes, Client agrees not to interfere with the business of Company in any manner. By way of example and not of limitation, Client agrees not to solicit or induce any Company employee to terminate or breach an employment, contractual or other relationship with Company.
Non-Disparagement. Neither party shall, at any time during the term of this Agreement and for all time thereafter, make any statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage the name of the other party.
Arbitration Requirement. If any dispute arises between the parties with respect to any matter, the parties agree to first try in good faith to settle the dispute by arbitration administered by the American Arbitration Association (“AAA”). Fees charged by arbitrator or the AAA shall be shared equally by the parties, unless one party is determined to be at fault in which case the arbitrator can award fees/costs to the party at fault.
Additional Arbitration Matters. Any arbitration shall take place in Glenwood Springs, Colorado, unless the parties agree to another location. The arbitrator shall have no power to (i) award non-monetary or equitable relief of any sort, or (ii) award damages inconsistent with the Limitations on Liability provisions herein. Client accepts and acknowledges that any demand for arbitration must be issued within (1) year from the date Client became aware of or should reasonably have become aware of the facts that give rise to Company’s alleged liability, and in any event no later than (2) years after any such cause of action accrued. IN AGREEING TO ARBITRATION, BOTH CLIENT AND COMPANY ACKNOWLEDGE THAT EACH PARTY IS GIVING UP THE RIGHT TO HAVE THE DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY AND INSTEAD THE PARTIES ARE ACCEPTING THE USE OF ARBITRATION FOR DISPUTE RESOLUTION. The prevailing party shall be entitled to an award of reasonable attorney’s fees and costs incurred in connection with the arbitration of the dispute in an amount to be determined by the arbitrators.
Survival.The rights and obligations contained in Sections 3 (“Ownership of Work Product”), 12 (“Representations and Warranties”), 16 (“Confidential Information”), 18 (“Limitations on Liability and Indemnification”), 17 (“Indemnification”), 20 (“Noninterference with Business”) and 22 (“Dispute Resolutions”) will survive any termination or expiration of this Agreement.
Successors and Assigns. Company may not subcontract or otherwise delegate its obligations under this Agreement without Client’s prior written consent. Subject to the foregoing, this Agreement will be for the benefit of Client’s successors and assigns, and will be binding on Company’s assignees.
Notices.Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by email or facsimile transmission upon acknowledgment of sent-receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing.
Governing Law.This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of Colorado.
Severability.Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
Waiver.The waiver by Client of a breach of any provision of this Agreement by Company shall not operate or be construed as a waiver of any other or subsequent breach by Company. The waiver by Company of a breach of any provision of this Agreement by Client shall not operate or be construed as a waiver of any other or subsequent breach by Client.
Entire Agreement.This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all software and services undertaken by Company for Client; provided, however, that in the event of any conflict between the terms of this Agreement and any Proposal, the terms of the applicable Proposal will control. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.