Terms & Conditions
HOSTED SOFTWARE TERMS AND CONDITIONS
These Hosted Software Terms and Conditions (these “Terms”), together with any applicable Order Form(s) (collectively, the “Agreement”), constitute a binding agreement between Amtech LLC, a Delaware corporation (“Amtech”) and Customer (as defined below) (each, a “Party” and together, the “Parties”) governing Customer’s access to and use of the Hosted Solution, Ancillary Services, and Service Items (each as defined below). By executing an Order Form incorporating these Terms, Customer accepts and agrees to be bound by the Agreement.
1. Definitions. As used in the Agreement, the following terms will have the following meanings. Additional terms are defined in the Sections in which they first appear.
1.1 “Affiliate” means, with respect to either Party, any entity that directly or indirectly controls, is controlled by or is under common control with such Party (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity, or any other ability to select such directors or managing authority by law or contract.
1.2 “Aggregated Statistics” means data and information related to Customer’s use of the Hosted Solution that is used by Amtech in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Hosted Solutions.
1.3 “Ancillary Services” means, collectively, the ancillary, implementation, installation, data conversion, validation, training, and other professional services provided by Amtech or its Affiliates under this Agreement, as agreed between the Parties and set forth in an Order Form (or an exhibit or other attachment thereto).
1.4 “Confidential Information” means all nonpublic information disclosed by either Party, its Affiliates, or their agents (as applicable, such entities collectively, the “Disclosing Party”) to the other Party, its Affiliates, or their agents (collectively, the “Receiving Party”) in connection with this Agreement that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of this Agreement; (b) was known by the Receiving Party prior to its receipt from the Disclosing Party; (c) is disclosed to the Receiving Party from any third party, except where the Receiving Party knows, or reasonably should know, that such disclosure constitutes a wrongful or tortious act; or (d) is independently developed by the Receiving Party without use of any Confidential Information. Without limiting the generality of the foregoing, (i) the Hosted Solution, Ancillary Services, Documentation, and Service Items are Amtech’s Confidential Information; and (ii) the Customer Data is Customer’s Confidential Information.
1.5 “Customer” means the legal entity (other than Amtech) that executed the Order Form.
1.6 “Customer Data” means information, data and/or files Customer transmits, uploads, or stores to or on the Hosted Solution in connection with this Agreement.
1.7 “Documentation” means the most recent versions of manuals, handbooks, guides and other documentation of the functional operation of the Hosted Solution that is provided to Customer by Amtech, either electronically or in hard copy form, in connection with this Agreement.
1.8 “Effective Date” means the date upon which Customer is bound by this Agreement as described above.
1.9 “Hosted Solution” means the proprietary Amtech software solution(s) identified on the Order Form.
1.10 “Licensed User” means (a) employees of Customer who are authorized by Customer to use the Hosted Solution; and (b) contractors of Customer (and such contractors’ employees) who have been approved by Amtech in writing in advance to use the Hosted Solution on Customer’s behalf; provided, however, that such contractor(s) and its/their employee(s) are only “Licensed Users” to the extent their use of the Hosted Solution is made on behalf of, and solely for the benefit of, Customer. Any other use of the Hosted Solution by such contractors or any of their employees is unlicensed and is hereby expressly prohibited.
1.11 “Order Form” means an Amtech Quotation or other document executed by the Parties from time to time setting forth the Hosted Solutions, Ancillary Services, and Service Items being purchased by Customer, and the scope of use, pricing, payment terms, and other relevant terms relating thereto. Each Order Form will be a part of and be governed by these Terms. In the event of a conflict between the terms of this Agreement and an Order Form, the Order Form will control solely for purposes of that Order Form.
1.12 “Service Items” means deliverables or modifications developed in connection with the configuration, implementation and/or support of the Hosted Solution or the performance of any Ancillary Services, including any technology, documentation, software, and procedures developed, conceived or introduced by or on behalf of Amtech, as well as any designs, inventions, methodologies, techniques, discoveries, know-how, show-how and works of authorship, all United States and foreign patents issued or issuable thereon, all copyrights and other rights in works of authorship, database designs, machine learning items, trade secrets, trademarks, trade names, and other forms of corporate or product identification, and any division, continuation, modification, enhancement, or derivative work of any of the foregoing.
2. Hosted Solution; Services.
2.1 Hosted Solution. In consideration for the payment of all fees and Customer’s ongoing compliance with the terms of the Agreement, Amtech or its Affiliates will make available the Hosted Solution and will use commercially reasonable efforts to provide Customer the Ancillary Services set forth in Order Forms entered into between the Parties under this Agreement. Amtech hereby grants to Customer, for the term of the Order Form (including any renewals), a non-exclusive, non-transferable (except in accordance with Section 10.10 below) license (without the right to sublicense) to use the Hosted Solution and any Service Items developed, conceived, or introduced by Amtech in connection with the performance of Ancillary Services, solely for Customer’s internal business use in accordance with these Terms and the Order Form.
2.2 Subcontractors. In the event Amtech in its discretion engages one or more subcontractors to assist in the provision of the Hosted Solution and/or the performance of the Ancillary Services, Amtech will (a) ensure that such subcontractors are bound by obligations of confidentiality at least as protective of Customer’s Confidential Information as set forth in this Agreement; and (b) be responsible for any breaches of this Agreement caused by the actions or inactions of such subcontractors.
2.3 Restrictions. Customer will not, and will not encourage or permit any other person to: (a) make any Hosted Solution or any Service Items available to anyone other than Customer or Licensed Users, or use the Hosted Solution, Ancillary Services, Documentation, or Service Items for the benefit of anyone other than Customer, unless expressly stated otherwise in an Order Form or the Documentation; (b) sell, resell, license, sublicense, distribute, rent, or lease the Hosted Solution, Ancillary Services, Documentation, or Service Items or include any of the foregoing in a service bureau or outsourcing offering; (c) use the Hosted Solution, Ancillary Services, Documentation, or Service Items to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Hosted Solution, Ancillary Services, Documentation, or Service Items to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Hosted Solution, Ancillary Services, Documentation, or Service Items or third-party data contained therein; (f) attempt to gain unauthorized access to the Hosted Solution, Ancillary Services, Documentation, or Service Items or their related systems or networks; (g) use the Hosted Solution, Ancillary Services, Documentation, or Service Items to access, copy, or use any Amtech intellectual property except as permitted under the Agreement or the Documentation; (h) modify, copy, or create derivative works of the Hosted Solution, Ancillary Services, Documentation, or Service Items or any part, feature, function, or user interface thereof; (i) frame or mirror any part of the Hosted Solution, Ancillary Services, Documentation, or Service Items, other than framing on Customer’s own intranets for its own internal business purposes or as permitted in the Documentation; or (j) disassemble, reverse engineer, or decompile the Hosted Solution, Ancillary Services, Documentation, or Service Items or access any of them to: (i) build a competitive product or service; (ii) build a product or service using similar ideas, features, functions or graphics of the Hosted Solution, Ancillary Services, Documentation, or Service Items; (iii) copy any ideas, features, functions or graphics of the Hosted Solution, Ancillary Services, Documentation, or Service Items; or (iv) determine whether the Hosted Solution, Ancillary Services, Documentation, or Service Items are within the scope of any patent. For purposes of this Agreement, “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
2.4 Scope of Use. The Hosted Solution may be priced based on certain metrics (e.g. Licensed Users) as set forth in an Order Form. Customer may only expand its use of the Hosted Solution upon payment of additional fees at Amtech’s then-current rates. Any such fees for additional scope of use will be immediately due and payable.
2.5 Third-Party Software. Certain software included in, distributed with, or downloaded in connection with the Hosted Solution or Ancillary Services may comprise third-party proprietary software products that are subject to separate license terms (“Third-Party Software”). Such Third-Party Software may include software or software components that are derived, in whole or in part, from software that is distributed as free software, open source software or under similar licensing or distribution models (“Open Source Software,” together with Third-Party Software, “External Software”). Customer’s use of External Software is subject in all cases to the applicable licenses from the External Software provider, which will take precedence over the rights and restrictions granted in the Agreement solely with respect to such External Software. Customer will comply with the terms of all applicable Third-Party Software and Open Source Software licenses, if any. Copyrights to Open Source Software are held by their respective copyright holders indicated in the copyright notices in the corresponding source files. AMTECH PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SUCH EXTERNAL SOFTWARE, INCLUDING WITH RESPECT TO FUNCTIONALITY OF SUCH EXTERNAL SOFTWARE WITH THE HOSTED SOLUTION.
2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Amtech may temporarily suspend Customer’s and/or any Licensed User’s access to any portion or all of the Hosted Solution or Ancillary Services if: (a) Amtech reasonably determines that (i) there is a threat or attack on any of the Amtech’s intellectual property rights; (ii) Customer’s or any Licensed User’s use of the Hosted Solution or Ancillary Services disrupts or poses a security risk to the Hosted Solution or Ancillary Services or to any other customer or vendor of Amtech; (iii) Customer, or any Licensed User, is using the Hosted Solution or Ancillary Services for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Amtech’s provision of the Hosted Solution or Ancillary Services to Customer or any Licensed User is prohibited by applicable law; (b) any vendor of Amtech has suspended or terminated Amtech’s access to or use of any third-party services or products required to enable Customer to access the Hosted Solution or Ancillary Services; or (c) in accordance with Section 5.1 (any such suspension described in subclauses (a), (b), or (c), a “Service Suspension”). Amtech shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Hosted Solution and any Ancillary Services following any Service Suspension. Amtech shall use commercially reasonable efforts to resume providing access to the Hosted Solution and any Ancillary Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Amtech will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Licensed User may incur as a result of a Service Suspension.
2.7 Support. The access rights granted hereunder entitles Customer to the support level purchased by Customer as described in the Order Form.
2.8 Service Levels. Subject to the terms and conditions of this Agreement, Amtech shall use commercially reasonable efforts to make the Hosted Solution available in accordance with the service availability levels [posted at [URL] or [set forth in Exhibit A (which Exhibit is hereby incorporated herein by reference)] (“Service Levels”)
3. Customer Obligations.
3.1 Equipment. Except as set forth in an Order Form, Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Hosted Solution, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer will 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.
3.2 Customer-Provided Materials. Customer agrees to provide Amtech with reasonable access to Customer materials, personnel, Equipment, and facilities to the extent such access is necessary for Amtech to perform its obligations under this Agreement. To the extent that Customer does not timely provide the foregoing access, Amtech will be excused from performance until such access is provided. Customer hereby grants Amtech a limited right to use any Customer materials provided to Amtech in connection with this Agreement (the “Customer-Provided Materials”) for the purpose of providing the Hosted Solution and performing the Ancillary Services. Customer represents and warrants that it has all rights, licenses, and consents necessary to provide the Customer-Provided Materials to Amtech for use in connection with, and for the purposes contemplated by, this Agreement (including any consents required by applicable data protection regulation, rules, or laws). For the avoidance of doubt, as between Customer and Amtech, Customer owns and will retain ownership (including all intellectual property rights) in and to the Customer-Provided Materials.
3.3 Order Forms. Customer will comply with any additional Customer responsibilities set forth in an Order Form.
4. Confidentiality; Security; Ownership
4.1 Each Party will (a) secure and protect the other Party’s Confidential Information using the same degree or greater level of care that it uses to protect such Party’s own confidential information, but no less than a reasonable degree of care; (b) use the Confidential Information of the other Party solely to perform its obligations or exercise its rights under this Agreement; (c) only allow those employees, agents, attorneys, consultants and independent contractors (collectively “Representatives”) who (i) have a need to access such Confidential Information, and (ii) are bound by confidentiality obligations consistent with the terms of this Agreement, to have access to the Confidential Information of the Disclosing Party; and (d) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party (excluding Representatives consistent with this Agreement). A Party may disclose the other Party’s Confidential Information to the extent required by applicable law, regulation, or order of a court or other governmental entity. In such event, the Party obligated to comply with such law, regulation, or order will notify the other Party of such obligation as soon as possible and, if legally permissible, in sufficient time to allow the other Party to respond or object to the disclosure.
4.2 Customer Data and Personal Information. Amtech will establish and maintain administrative, technical, and physical safeguards (“Safeguards”) designed to protect against the destruction, loss, unauthorized access or alteration of Customer Data in the possession or under the control of Amtech or to which Amtech has access in connection with this Agreement. The Safeguards will be no less rigorous than those specified in the Data Processing Addendum [posted at [URL] / attached to this Agreement as Exhibit B] (the “DPA”).
4.3 Ownership. As between the Parties, Customer will own and retain all right, title, and interest, including all intellectual property rights, in and to the Customer Data and the Customer-Provided Materials; Amtech or its licensors will own and retain all right, title, and interest, including all intellectual property rights, in and to the Hosted Solution, Ancillary Services, Documentation, and Service Items. All rights not expressly granted to Customer in this Agreement are reserved by and for Amtech and its licensors.
4.4 License to Customer Data. Customer hereby grants Amtech a non-exclusive, royalty-free, fully paid-up license to collect and analyze data and other information relating to the provision, use and performance of the Hosted Solution and related systems and technologies (including, without limitation, information concerning Customer Data, in de-identified form, and data derived therefrom) and to use such information and data during and after the term of this Agreement to improve and enhance the Hosted Solution and for other development, diagnostic, and corrective purposes in connection with the Hosted Solution and other Amtech offerings.
4.5 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Amtech may monitor Customer’s use of the Hosted Solution and collect and compile Aggregated Statistics. As between Amtech and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Amtech. Customer acknowledges that Amtech may compile Aggregated Statistics based on Customer Data input into the Hosted Solution. Customer agrees that Amtech may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
4.6 Feedback. If Customer provides Amtech any feedback, suggestions, recommendations, or other input, or makes any improvements, enhancements, or modifications, relating to the Hosted Solution, Ancillary Services, Documentation, or any Service Items (collectively, “Feedback”), then Customer agrees to assign and hereby does assign to Amtech all right, title, and interest in and to such Feedback. To the extent any Feedback cannot be assigned as described in the preceding sentence, Customer hereby grants to Amtech and its Affiliates a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, sublicensable license to reproduce, perform, display, distribute, modify, create derivative works of, make, have made, use, sell, offer to sell, import, and otherwise dispose of such Feedback, and any modifications, derivative works, or implementations thereof and any product, software, or service that incorporates, is combined with or uses, or is marketed for use in combination with, any of the foregoing, in Amtech’s sole discretion and without compensation to or attribution of Customer or any third party.
5. Payment of Fees.
5.1 Invoicing and Payment. Amtech will invoice Customer based upon the pricing set forth in the Order Form. Except as otherwise expressly agreed in the Order Form, Customer will pay all amounts in any such invoice no later than thirty (30) calendar days from the date of the invoice. If Customer’s use of the Hosted Solution exceeds the usage limitations set forth on the Order Form or otherwise requires the payment of additional fees, Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. All payments will be made in USD. Payments made under this Agreement after their due date will incur interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Amtech reserves the right to immediately suspend or terminate Customer’s access to the Hosted Solution and/or any Ancillary Services in the event the fees due and payable by Customer are more than thirty (30) days late. Customer will be responsible for reasonable costs associated with collection of overdue amounts, including without limitation, reasonable attorneys’ fees and court costs. If Customer believes that Amtech has billed Customer incorrectly, Customer must contact Amtech no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Except as expressly set forth in the applicable Order Form, all fees are non-refundable.
5.2 Annual Increases. Unless otherwise agreed in the Order Form, following the Initial Subscription Term (as defined below in Section 6.2), annual increates will be in accordance with Amtech’s pricing and policies in effect at the time of renewal, which will become effective beginning upon the first day of the next Subscription Renewal Term. Amtech will notify Customer of any increase at least sixty (60) days prior to the expiration of the then-current subscription period. Such notice may be in the form of an invoice or any other form of notice used by Amtech to communicate with Customer. If Customer objects to the increase, Customer may elect to not renew its subscription.
5.3 Expenses. Customer will reimburse Amtech for all reasonable travel, lodging, and out-of-pocket expenses incurred by Amtech in connection with providing the Ancillary Services under this Agreement.
5.4 Taxes. All fees are exclusive of taxes. Except for taxes based on Amtech’s income generally, Customer will be responsible for all taxes and fees that arise in any jurisdiction, however designated, imposed on, incident to, or based upon the provision, sale, or use of the Hosted Solution, Ancillary Services, or otherwise in connection with this Agreement.
6. Term; Termination; Effect of Termination.
6.1 Agreement Term. The term of this Agreement begins on the Effective Date of the Order Form and, unless earlier terminated in accordance with this Section 6, continues until the termination or expiration of the subscription(s) under such Order Form, as further described in Section 6.2.
6.2 Subscription Terms. Customer will purchase subscriptions to the Hosted Solution under an Order Form. Customer’s subscription begins on the “Subscription Effective Date,” which is either (a) the effective date of the Order Form; or (b) an alternate date mutually agreed by the Parties in writing. Unless the Order Form specifies a different period, Customer’s initial subscription for the Hosted Solution (the “Initial Subscription Term”) is one year, which begins on the Subscription Effective Date and ends on the first anniversary thereof. Unless otherwise agreed in the Order Form, at the end of the Initial Subscription Term the subscription will automatically renew for successive one-year renewal periods (each, a “Subscription Renewal Term”) unless and until (i) either Party provides the other Party written notice of non-renewal at least sixty (60) days before the expiration date of the Initial Subscription Term or the then-current Subscription Renewal Term (as applicable); or (ii) the Agreement is terminated in accordance with this Section 6.
6.3 Termination. Either Party may terminate the Agreement immediately upon notice in the event that the other Party (a) materially breaches the Agreement (including an Order Form) and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of Customer’s failure to pay fees when due, which must be cured within ten (10) days after receipt of written notice from Amtech; or (b) experiences a Bankruptcy Event. Without limiting any rights or remedies available to Amtech under the preceding sentence, Amtech will also have the right to terminate this Agreement immediately upon notice in the event Customer violates Sections 2.3, 2.4, 4, 8.4, or 10.2. For purposes of this Agreement, “Bankruptcy Event” means: (i) voluntary or involuntary proceedings by or against a Party are instituted in bankruptcy or under any insolvency law; (ii) a receiver or custodian is appointed for a Party; (iii) proceedings are instituted by or against a Party for corporate reorganization or the dissolution of such Party, which proceedings, if involuntary, have not been dismissed within sixty (60) days after the date of filing; (iv) a Party makes an assignment for the benefit of creditors; or (v) substantially all of the assets of a Party are seized or attached and not released within sixty (60) days thereafter. In addition, either Party may terminate this Agreement for convenience upon thirty (30) days’ notice at any time while there are no Order Forms in effect.
6.4 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted under this Agreement will immediately terminate and Customer will immediately cease any and all use (including any use by its Licensed Users) of the Hosted Solution, Ancillary Services, Documentation, and Service Items; (b) Amtech’s obligation to provide the Hosted Solution and any support or Ancillary Services will immediately terminate; (c) Customer will pay in full for the Hosted Solution and Ancillary Services up to and including the end of the Initial Subscription Term or the then-current Subscription Renewal Term, as applicable; and (d) Customer will, within ten (10) days following termination or expiration of this Agreement, (i) destroy or return to Amtech, at Amtech’s option, all magnetic media or tangible items and material in Customer’s possession, custody, or control containing any Amtech Confidential Information; and (ii) certify such return or destruction in writing to Amtech. Customer further agrees that, notwithstanding any certification required by this Section, the confidentiality terms in Section 4 above will, upon termination or expiration of this Agreement for any reason, continue in full force and effect with respect to Amtech Confidential Information and will continue to be binding upon Customer following such termination. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE HOSTED SOLUTION, ANCILLARY SERVICES, DOCUMENTATION, AND SERVICE ITEMS MAY CONTAIN DISABLING CODE THAT (EITHER AUTOMATICALLY OR AT AMTECH’S CONTROL) WILL RENDER THEM (AND RELATED DATA) UNUSABLE UPON TERMINATION OR CUSTOMER’S BREACH OF THIS AGREEMENT. Sections 1, 4, 5, 6.4, 6.5, and 7-10 will survive the termination or expiration of this Agreement.
6.5 Return of Customer Data; Transition Assistance. Upon termination or expiration of this Agreement for any reason, Amtech will act in good faith and will continue to provide the Hosted Solution and perform Ancillary Services up to the effective date of termination or expiration to wind down the relationship in an orderly manner and to avoid disruption to Customer or its business. Amtech will make available to Customer or Customer’s designee, at no additional charge, for a period of (30) days following termination or expiration of this Agreement, the Customer Data then in Amtech’s possession. Upon request of Customer and at Customer’s sole expense, Amtech will provide, at its then-standard rates, one or more additional periods of data storage and/or transition services to assist Customer with its transition plans.
7. Limited Warranties.
7.1 Mutual Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the applicable laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement; (c) the execution of an Order Form by its representative whose signature is set forth in such Order form has been duly authorized by all necessary corporate or organizational action of such Party; and (d) this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
7.2 Limited Warranty. Amtech represents, warrants, and covenants to Customer that (a) the Hosted Solution will (i) conform in all material respects to the Documentation, and (ii) be available in accordance with the Service Levels when accessed and used in accordance with this Agreement and the Documentation; and (b) Amtech will use reasonable measures to prevent the introduction of any virus or other form of software code that has a deleterious impact on Customer’s system (“Malicious Code”) in Customer’s operating environment using reasonable care to detect and eliminate any such Malicious Code. If Malicious Code is introduced into Customer’s system or operating environment due to a breach by Amtech of its obligations in the preceding sentence, Amtech shall: (x) remove such Malicious Code from the affected system and provide to Customer a “clean” operating system that is free from the Malicious Code; (y) assist Customer to reduce the effects of any such Malicious Code; and (z) work diligently with Customer to restore any data lost or damaged by the Malicious Code to the extent caused by Amtech’s breach of this Agreement, at Amtech’s cost and expense. [The Service Levels provide for certain remedies in case of unavailability of the Services above permitted thresholds (including credits or offsets to be applied toward or against amounts owed by Customer to Provider). Except in case of Amtech’s’s gross negligence, willful misconduct, or willful breach, and except in the case of third-party claims giving rise to a claim for for indemnification under Section 8, the remedies set forth in the Service Levels are Customer’s sole remedies and Amtech’s sole liability regarding uptime failures or unavailability of any Hosted Solution.] If Ancillary Services are specified within an Order Form, Amtech will provide such Ancillary Services in a professional and workmanlike manner. Customer’s sole and exclusive remedy for any breach of the warranties set forth in this Section 7.2 or in an Order Form will be to notify Amtech of the applicable non-conformity, in which case Amtech will use commercially reasonable efforts to correct such non-conformity by re-establishing access to the Hosted Solution or re-performing the Ancillary Services, as applicable. Notwithstanding the foregoing, Amtech will not be responsible for any non-conformity that arises as a result of (a) any act or omission of Customer, including a failure to use the Hosted Solution in conformance with the Documentation and the Agreement; (b) any person other than Amtech making modifications to the Hosted Solution in any way without Amtech’s prior written consent; or (c) any failure of any component of hardware, software, or other materials not supplied by Amtech under this Agreement.
7.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.2 ABOVE OR IN AN ORDER FORM, THE HOSTED SOLUTION, ANCILLARY SERVICES, DOCUMENTATION, AND SERVICE ITEMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND AMTECH AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, INDUSTRY STANDARD, OR STATUTORY. IN PARTICULAR, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED. AMTECH DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS: (A) THAT THE HOSTED SOLUTION OR THE ANCILLARY SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (B) THAT THE HOSTED SOLUTION OR THE ANCILLARY SERVICES WILL BE ERROR FREE OR FUNCTION IN AN UNINTERRUPTED MANNER; OR (C) REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE HOSTED SOLUTION OR THE ANCILLARY SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE WARRANTIES IN THIS SECTION 7 DO NOT APPLY, AND AMTECH SPECIFICALLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO EXTERNAL SOFTWARE AND ANY OTHER THIRD-PARTY PRODUCTS, SERVICES, SOFTWARE, OR COMPONENTS PROVIDED WITH OR INCORPORATED INTO, THE HOSTED SOLUTION OR ANY SERVICES.
8. Indemnification.
8.1 Amtech Indemnity. Amtech agrees to indemnify and hold Customer harmless from and against any and all third-party claims, losses, liabilities, damages and expenses (including, without limitation, reasonable attorneys’ fees) arising from or relating to an allegation that the Hosted Solution infringes such third party’s United States patent or copyright (an “IP Claim”); provided, that Amtech is given prompt notice of and detailed information with regard to any such IP Claim and, upon Amtech’s request, is permitted to participate in and/or control the defense. Customer will not settle any IP Claim without Amtech’s prior written consent. If the Hosted Solution is held in any such suit to infringe such a right and its use is enjoined, or if in the opinion of Amtech the Hosted Solution is likely to become the subject of such a suit, Amtech may, at its sole option and expense, and as Customer’s sole and exclusive remedy, either: (a) procure for Customer the right to continue using the Hosted Solution; (b) modify or replace the Hosted Solution so it becomes non-infringing while giving substantially equivalent performance; or (c) terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid unused fees for the Hosted Solution or portion thereof that is the subject of such IP Claim.
8.2 Exceptions. Amtech’s obligations under Section 8.1 will not apply to the extent an IP Claim arises out of: (a) portions or components of the Hosted Solution (i) not supplied by Amtech, (ii) made in whole or in part in accordance with Customer specifications, (iii) modified by or on behalf of Customer, or (iv) combined with other products, processes or materials; (b) Customer’s continued infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; (c) Customer-Provided Materials or Customer Data; or (d) Customer’s use of the Hosted Solution other than strictly in accordance with the Documentation, the Agreement, and applicable law.
8.3 SECTION 8.1 (SUBJECT TO SECTION 8.2) STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND AMTECH’S AND ITS LICENSORS’ ENTIRE OBLIGATION AND LIABILITY FOR ANY ACTUAL OR ALLEGED CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT ARISING OUT OF OR RELATED TO THIS AGREEMENT.
8.4 Customer Indemnity. Customer agrees to defend, indemnify and hold Amtech harmless from and against any and all claims, demands, liabilities, obligations, costs and expenses of any nature whatsoever (including attorney’s fees) arising out of or based upon (a) Customer-Provided Materials (including Customer Data); (b) Customer’s use of the Hosted Solution; or (c) Customer’s breach of this Agreement; in each case except to the extent Amtech is obligated to indemnify against such claim under Section 8.1 (subject to Section 8.2).
9. Limitation of Liability; Insurance.
9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AMTECH OR ITS AFFILIATES, SUPPLIERS, OR LICENSORS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S USE OR INABILITY TO USE (A) THE HOSTED SOLUTION, ANCILLARY SERVICES, DOCUMENTATION, OR SERVICE ITEMS OR (B) ANY THIRD-PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE HOSTED SOLUTION, ANCILLARY SERVICES, DOCUMENTATION, OR SERVICE ITEMS, IN EACH CASE ((A) AND (B)) HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF AMTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AMTECH’S AND ITS AFFILIATES’, SUPPLIERS’, AND LICENSORS’ CUMULATIVE LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO CUSTOMER OR ANY LICENSED USER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE HOSTED SOLUTION, ANCILLARY SERVICES, DOCUMENTATION, OR SERVICE ITEMS EXCEED THE FEES PAID BY CUSTOMER TO AMTECH UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.2 Insurance. Amtech will maintain the following insurance coverages in the following amounts during the Term:
a. Commercial General Liability with limits no less than one million dollars ($1,000,000) per occurrence, and two million dollars ($2,000,000) in the aggregate;
b. Workers’ compensation and employer’s liability insurance in amounts meeting minimum statutory limits required by applicable law of the state in which work is performed;
c. Cyber Liability Insurance (including coverage for Professional Liability or Technology Errors and Omissions), with limits of no less than five million dollars ($5,000,000) in the aggregate; and
d. Umbrella Liability that provides additional coverage over primary comprehensive general liability coverage, automobile liability, and employers’ liability limits, in an amount not less than four million dollars ($4,000,000) per occurrence.
Amtech will provide Customer with evidence of coverage on request.
10. Miscellaneous.
10.1 Government End Users. The Hosted Solution and Documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
10.2 Export Control. Customer will not use or otherwise export or re-export the Hosted Solution, Service Items, or Documentation except as authorized by United States law and the laws of the jurisdiction(s) in which Customer is a resident or otherwise uses the Hosted Solution, Service Items, or Documentation. In particular, but without limitation, the Hosted Solution, Service Items, or Documentation may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Hosted Solution, Service Items, and Documentation, Customer represents and warrants that it is not located in any such country or on any such list.
10.3 Cumulative Remedies; Injunctive Relief. The remedies provided herein will not be deemed exclusive, but will be cumulative and will be in addition to all other remedies provided by law or equity. Customer acknowledges and agrees that, because of the unique and proprietary nature of the Hosted Solution, Ancillary Services, Service Items, or Documentation, actual or threatened breach of this Agreement by Customer would cause Amtech irreparable damage for which recovery of money damages would be inadequate, and that Amtech will be entitled to seek injunctive relief, specific performance, and other equitable remedies without the requirement of posting a bond and in addition to all other remedies provided hereunder or available to Amtech at law.
10.4 No Waiver; Time for Filing. No delay or omission in the exercise of any power or remedy available hereunder will impair of affect Amtech’s right to the exercise thereof. Waiver of any breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach. No action, regardless of form, arising out of the transactions contemplated herein may be brought by Customer more than one (1) year after the cause of action has accrued.
10.5 Non-Solicitation. Customer agrees that if Customer hires or engages as a consultant, employee, or otherwise any Amtech employee or any former Amtech employee within one (1) year of the date on which that employee’s employment with Amtech terminated, Customer will immediately pay to Amtech an amount equal to that employee’s annual salary as of the date on which employee’s employment with Amtech terminated. Customer acknowledges that such payment is a reasonable estimate of the damages that would be suffered by Amtech for such solicitation and is not intended as a penalty. Customer’s obligation under this Section 10.5 will survive the termination of this Agreement.
10.6 Customer Reference. During the Agreement Term and at all times thereafter, Amtech may (a) reference Customer as a customer (or former customer, as the case may be) of Amtech in advertising, marketing, and promotional materials designed to promote Amtech and its products and services anywhere in the world (such reference may include Customer’s name, approved logo(s), and any quotes provided by Customer), and (b) list Customer as a reference for future potential customers of Amtech.
10.7 Notices. All notices, requests or other communications required hereunder will be in writing and will be deemed to have been duly given if delivered personally or mailed by United States certified or registered mail, pre-paid, return receipt requested, to the Parties or their permitted assignees at the address indicated in the Order Form (or at such other addresses as will be given in writing by either of the Parties to the other).
10.8 Severability. If any term or provision of the Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or other provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify the Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
10.9 Entire Agreement. No representations, warranties or agreements, oral or written, express or implied, have been made to any Party hereto except as expressly provided in the Agreement. Customer acknowledges that it has read and understands all of the provisions of the Agreement. The Agreement contains the entire agreement between Amtech and Customer with respect to the subject matter hereof and supersedes and cancels any and all prior or contemporaneous oral or written communications, understandings, negotiations, and agreements between Amtech and Customer with respect to such subject matter. No amendment or modification to this Agreement or to either Party’s rights or obligations hereunder may be made in any manner (including without limitation by reference to usage of trade or other regular practice or method of dealing either within the computer industry or between the Parties) other than in writing with specific reference to these Terms, and any such amendment or modification must be signed by a corporate officer of Amtech. Customer’s standard terms of purchase or vendor management terms (including purchase order terms or click-through terms), if any, are inapplicable. Captions used herein are for convenience only.
10.10 Governing Law; Jurisdiction. This Agreement will be governed by the substantive and procedural laws of the State of Pennsylvania, without reference to rules governing choice of law. Customer and Amtech hereby irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts located in Montgomery County, Pennsylvania with respect to any claims, suits, or proceedings arising out of or in connection with this Agreement, and agree not to commence or prosecute any such claim, suit, or proceeding other than in the aforementioned courts; provided, however, Amtech will have the right to seek injunctive relief pursuant to Section 10.3 in any court of competent jurisdiction.
10.11 Binding Nature; Assignment. Customer may not assign this Agreement or any of Customer’s rights or delegate any of Customer’s obligations under this Agreement without the prior written consent of Amtech. Any attempt by Customer to assign or delegate without such prior written consent will be null and void. Amtech may freely assign, delegate, subcontract, or transfer any of its rights or obligations under this Agreement at its sole discretion. Subject to the foregoing, the Agreement is binding upon the Parties and their respective successors and permitted assignees.
10.12 Force Majeure. If Amtech is delayed in its performance of any obligation hereunder or prevented entirely from performing any such obligation due to causes or events beyond its control, including without limitation any act of God, fire, strike or other labor problem, failure of Internet or utilities, legal action, present or future law, government order, rule or regulation, such delay or non-performance will be excused and the time for performance will be extended to include the period of such delay or non-performance.
EXHIBIT A
Service Levels
1. Connectivity
Amtech will not be responsible for Customer’s internet connection or for issues, problems or conditions arising from or related to Customer’s network connection, including bandwidth issues, network outages, and any other conditions that are caused by Customer’s Internet Service Provider or network connection.
2. Support; System Availability
Except as otherwise set forth in this Exhibit A, support for the Hosted Solution will be generally available Monday through Friday from 7:00 a.m. to 7:00 p.m. Eastern Standard Time (EST) (“Business Hours”).
The Hosted Solutions will be available [99.50%] of the time, measured in minutes, on a monthly basis, based upon the total number of minutes in the measured month, but excluding monthly scheduled maintenance times, and excluding Customer or third-party telecommunications/data communications/internet/power outages.
3. Backup Policy
Production backups of the data hosted by the Hosted Solution only (i.e., this does not include any data stored on Customer’s servers and client computers) are run by Amtech each night and stored at a different location from the production server. Amtech will retain production backups for a minimum of 6 months.
4. Incident Recovery and Data Restoration
Amtech is prepared to expedite data recovery from backup media in the event of a system failure or urgent data restoration request. Such data recovery and restoration services may be subject to additional hourly fees.
5. SLA Credits
Amtech will use commercially reasonable efforts to restore availability and connectivity of the Hosted Solution in the case of any interruption of Hosted Solution availability. If availability of a particular Hosted Solution does not meet the availability standard set forth in paragraph 2 above for any month during the Term, then Amtech will apply, as a credit against future amounts owed Amtech by Customer (the “SLA Credit”), an amount equal to twenty-five percent (25%) of the monthly subscription fee owed by Customer under the applicable Order Form for the month during which such availability standard has not been met. Amtech agrees that, in the event of its failure to meet such availability standard, Amtech will apply the SLA Credit as a financial credit against the monthly subscription fee and as liquidated damages, which are believed by the parties to be reasonably indicative of the injury incurred by the Customer in the applicable circumstances. The SLA Credit will be applied against subsequent monthly fees and other amounts due to Amtech under the Agreement, but will not under any circumstances be payable by Amtech out-of-pocket.
6. Termination
If: (a) Amtech fails to meet the availability standard set forth in paragraph 2 above in any three (3) consecutive months; or (b) the Hosted Solution’s availability (determined in the manner set forth in paragraph 2 above) drops below 80% during any month during the Term, Customer may, without limiting Customer’s other rights and remedies, terminate the applicable Order Form upon notice to Amtech within thirty (30) days of the end of the last month in which Amtech fails to achieve such availability standard.