PLEASE READ THIS POWERSUITE AGREEMENT CAREFULLY. BY INDICATING YOUR ASSENT TO THIS AGREEMENT (FOR EXAMPLE, BY SIGNING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES OR CONTAINS THIS AGREEMENT, BY INDICATING YOUR AGREEMENT BY CLICKING ON AN “ACCEPT”, “AGREE” OR SIMILAR BUTTON, OR CHECKING A BOX INDICATING YOUR AGREEMENT TO THIS AGREEMENT, OR OTHERWISE BY ACCESSING OR USING POWERSUITE), YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT SIGN THE SALES ORDER OR OTHER DOCUMENT OR OTHERWISE INDICATE YOUR AGREEMENT TO THESE TERMS, AND YOU MAY NOT ACCESS OR USE POWERSUITE.
You represent and warrant that you have full power, capacity, and authority to accept this Agreement on behalf of your employer or other entity and bind your employer or such entity to this Agreement. If you do not have the requisite authority, you may not accept the Agreement on behalf of your employer or other entity.
This PowerSuite Agreement (“Agreement“) is a legal agreement between Unify Square, Inc., with headquarters at 777 108th Avenue NE, Suite 2020, Bellevue, WA 98004, USA, and including its authorized Affiliates (“Unify Square”) and the entity represented by the person accepting this Agreement (“Customer”). This Agreement is effective as of the date accepted by Customer (the “Effective Date”).
In this Agreement, the following definitions apply:
(a) “Affiliate” means, with respect to an entity, any person or entity owns, is owned by, or is commonly owned with a party. “Own” means having more than 50% ownership or the right to direct the management of the entity.
(b) “Authorized PowerSuite Users” means individuals who are employees or contractors of Customer or its Affiliates and who will use the PowerSuite Software in order to perform their obligations to Customer or its Affiliates.
(c) “Client Software” means Unify Square proprietary PowerSuite Software components to be installed on Customer or its Affiliate’s computer systems.
(d) “Customer Data” means data and information (including personal data) transferred from Customer servers to Unify Square servers for processing by Unify Square.
(e) “Documentation” means Unify Square-provided user documentation, in all forms, relating to the PowerSuite Software (e.g., user manuals, on-line help files).
(f) “Enabled Account” means a Skype for Business-enabled account or a Teams-enabled account. For the avoidance of doubt, Skype for Business and Teams accounts which are enabled, but (for whatever reason) “inactive” will still be considered an Enabled Account for purposes of this Agreement.
(g) “Order Form” means each and every Order Form, Service Order, Statement of Work, Services Schedule, Order, or other ordering document between Customer and the Reseller that lists the Services package purchased by Customer.
(h) “Party” means Unify Square or Customer individually, and “Parties” means both Unify Square and Customer.
(i) “PowerSuite” means PowerSuite Software and optionally includes PowerSuite Cloud Managed Services depending on the package purchased by Customer, as described in the Service Level Agreement and applicable Order Form.
(j) “PowerSuite Cloud Managed Services” means Unify Square’s remote managed services (an optional component of PowerSuite) related to Customer’s use of Skype for Business and/or Teams, as identified in an Order Form and set out in the Service Description.
(k) “PowerSuite Software” means the Unify Square proprietary software identified in an Order Form and set out in the Service Description that is provided primarily on a software-as-a service, subscription basis pursuant to the terms of this Agreement and including all patches, bug fixes, upgrades and Releases to the PowerSuite Software that Unify Square makes available for general release at no additional charge to its customers. References to PowerSuite Software in this Agreement include Client Software.
(l) “PowerSuite Software Technical Support” means support and other services related to the PowerSuite Software, as described in the Service Level Agreement and/or Service Description.
(m) “Release” means a version of the PowerSuite Software that incorporates corrections or provides functional or performance improvements.
(n) “Reseller” means the reseller or distributor authorized by Unify Square to resell the Services.
(o) “Service Description” means the description of PowerSuite, available at www.unifysquare.com/support, as it may be amended from time-to-time, which is incorporated into and made a part of this Agreement.
(p) “Service Level Agreement” or “SLA” means, as applicable, the service level agreement for the PowerSuite Software or PowerSuite Cloud Managed Services, available at www.unifysquare.com/support, as it may be amended from time-to-time, which is incorporated into and made a part of this Agreement. Notwithstanding the terms of the SLA, the “Applicable Service Fees” (as defined in the SLA) on which “Service Credits” (as defined in the SLA) are calculated by Unify Square will be the fees that the Reseller pays Unify Square for the relevant Services, not the fees paid by Customer to the Reseller, and any Service Credits that Unify Square is required to provide will be issued to the Reseller
(q) “Services” means, collectively or individually, the PowerSuite Software, PowerSuite Cloud Managed Services and PowerSuite Software Technical Support.
(r) “Skype for Business” means the Microsoft Skype for Business platform.
(s) “Skype for Business Update” means a patch, bug fix, or other update to the Skype for Business software.
(t) Success Services” means the standard planning, installation/setup/configuration and knowledge-transfer services related to the PowerSuite Software, as described in the Service Description.
(u) “Teams” means the Microsoft Teams platform.
2. Engagement for Services
(a) Ordering Services. Services are ordered when Customer enters into an Order Form with the Reseller and the Reseller provides the order information to Unify Square. The purpose of an Order Form is to list the Services package purchased by Customer. An Order Form shall not alter the terms of this Agreement, place any additional obligations or liabilities on Unify Square or provide Customer with any additional rights not provided by the body of this Agreement. An Order Form shall not alter or deviate from Unify Square’s standard Services packages and offerings.
(b) Nature of Services. Customer may order PowerSuite, which consists of PowerSuite Software and optionally includes PowerSuite Cloud Managed Services. PowerSuite Software can be purchased in various packages of functionality.
3. PowerSuite Software
(a) Use of the PowerSuite Software. Subject to the terms and conditions of this Agreement, Unify Square grants to Customer a limited, worldwide, non-exclusive, non-transferable license during the term of the applicable Order Form to use the purchased PowerSuite Software solely for use by Authorized PowerSuite Users in connection with Customer’s internal business operations related to Skype for Business and/or Teams. As part of the subscription to the PowerSuite Software, Unify Square may provide Customer and its Affiliates with Client Software, which Customer and its Affiliates may install on its computer system and use solely in connection with the PowerSuite Software. Customer may maintain up to two copies of the Client Software solely for back-up purposes.
(b) Use of the Documentation. Subject to the terms and conditions of this Agreement, Unify Square grants to Customer a limited, worldwide, non-exclusive, non-transferable right to reproduce, without modification, and internally use a reasonable number of copies of the Documentation provided to Customer solely in connection with the use of the PowerSuite Software that Customer is entitled to receive pursuant to an Order Form and only for the term of the relevant Order Form.
(c) PowerSuite Software Technical Support. Unify Square will use reasonable efforts to provide Customer with the PowerSuite Software Technical Support so long as Customer is current with its payment of Services fees to the Reseller.
(d) Availability of PowerSuite Software. Unify Square will use reasonable efforts to make the PowerSuite Software available, excluding scheduled downtime for periodic maintenance and updates and emergency outages. Unify Square will make reasonable efforts to provide Customer with notice of scheduled downtime at least 24 hours in advance of such downtime. Both Parties agree that availability of PowerSuite Software is also dependent on the availability of third party servers where Unify Square software is installed. Unify Square will endeavor to work with these third parties to ensure high availability of these servers but cannot guarantee 100% uptime. Customer’s sole and exclusive remedy, and Unify Square’s sole and exclusive liability for any non-conformity with this Section 3(d) is set forth in the Service Level Agreement for PowerSuite Software.
(e) Restrictions. Only Authorized PowerSuite Users are authorized to use or have access to the PowerSuite Software. Authorized PowerSuite User accounts cannot be shared by more than one individual. Customer will ensure that Authorized PowerSuite Users comply with the applicable obligations of Customer under this Agreement and will be directly responsible to Unify Square for their conduct and any breach of this Agreement by them. Customer is responsible at all times for the accuracy, quality and legality of the Customer Data and the means by which Customer acquires, stores, discloses or otherwise uses Customer Data, as well as for determining access privileges and rights for Authorized PowerSuite Users. Customer agrees to provide any required disclosures to and obtain any required consents for the transfer of Customer Data to Unify Square. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not:
(i) rent, lease, or otherwise permit any third party to use the PowerSuite Software (including Client Software) or Documentation, other than an Authorized PowerSuite User;
(ii) use PowerSuite Software to provide services to third parties (e.g., as a service bureau) or to demonstrate the PowerSuite Software to third parties who are not Authorized Users;
(iii) circumvent or disable any security or other technological features or measures of the PowerSuite Software;
(iv) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or otherwise attempt to discover the source code, or create derivative works of the PowerSuite Software (including Client Software);
(v) upload or provide for processing any information or materials that are illegal, defamatory, offensive, abusive, obscene, or that violate privacy or intellectual property rights;
(vi) use the PowerSuite Software to harm, threaten or harass another person or organization;
(vii) send, store or distribute any viruses, worms, Trojan horses, or other malware component harmful to a network or system; or
(viii) attempt to access any modules or functionality that is not part of the purchased PowerSuite Software.
(f) Acceptable Use Policy. In addition to Customer’s other obligations regarding use of the PowerSuite Software, Customer acknowledges that Unify Square currently hosts the PowerSuite Software on the Microsoft Azure platform and that Microsoft imposes an acceptable use policy on Unify Square and those who use the Microsoft Azure platform through Unify Square. Accordingly, Customer will ensure that users of the PowerSuite Software will not use the PowerSuite Software: (i) in a way prohibited by law, regulation, governmental order or decree; (ii) to violate the rights of others; (iii) to try to gain unauthorized access to or disrupt any service, device, data, account or network; (iv) to spam or distribute malware; (v) in a way that could harm Microsoft Azure or the PowerSuite Software or impair anyone else’s use of it; or (vi) in any application or situation where failure of Microsoft Azure or the PowerSuite Software could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage.
(g) Protection against Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the PowerSuite Software (including Client Software) and Documentation and immediately notify Unify Square in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the PowerSuite Software or Documentation directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Unify Square to prevent or terminate unauthorized use of the PowerSuite Software and Documentation.
(h) True Ups. Customer acknowledges that PowerSuite subscriptions are based and priced on a per Enabled Account, per month basis, as further described in the Service Description and the applicable Order Form, or on any other basis as provided in the applicable Order Form. Unify Square and Customer acknowledge that the number of Enabled Accounts may increase or decrease over time. Unless a different frequency is specified in the applicable Order Form, and as further described in the Service Description, Customer and Reseller (or Unify Square) will review (audit) and true-up the actual number of Enabled Accounts on the same periodic basis as the Customer’s billing period. Reseller (or Unify Square) may also re-evaluate and true up the actual number of Enabled Accounts any time that the number of Enabled Accounts has increased by fifteen percent (15%) or more from the start of the then-current billing period. True-ups and resulting subscription changes will be handled as follows:
(i) Subscriptions for new Enabled Accounts are co-terminus with the original subscription term of the applicable Order Form;
(ii) Subscriptions for new Enabled Accounts will be priced based on the aggregate number of Enabled Accounts and invoiced on a pro-rated basis following each periodic true-up for the remainder of the then-current billing period;
(iii) At the next billing period, the subscription for the then-current aggregate number of Enabled Accounts will be priced at the aggregate price point and invoiced accordingly; and
(iv) A decrease in the number of Enabled Accounts to achieve a lower price point will not be allowed.
4. PowerSuite Cloud Managed Services
(a) General. Subject to the terms and conditions of this Agreement (including the Service Description and Service Level Agreement for PowerSuite Cloud Managed Services), Unify Square will provide the PowerSuite Cloud Managed Services to Customer. PowerSuite Cloud Managed Services do not include services that are not described in the Service Description as PowerSuite Cloud Managed Services. Except as may be specifically set forth in the Service Level Agreement for PowerSuite Cloud Managed Services, nothing in this Agreement obligates Unify Square to provide any support for any product or service other than Skype for Business and/or Teams. For the avoidance of doubt, PowerSuite Cloud Managed Services do not relate to support services for PowerSuite Software (including Client Software).
(b) Management of PowerSuite Cloud Managed Services. Each Party will designate an individual (each, a “Service Delivery Manager”) as a single point of contact within each Party’s organization for the PowerSuite Cloud Managed Services. The Service Delivery Managers will meet as necessary to manage the PowerSuite Cloud Managed Services. Disputes will be escalated to more senior executives if the Service Delivery Managers are unable to resolve a problem.
5. Certain Customer Obligations
(a) Customer Obligations. The obligations of Customer in connection with a particular engagement shall be as set forth in the Service Description and applicable Order Form. Customer agrees to cooperate with Unify Square in the performance of the Services hereunder, including, without limitation, providing Unify Square with reasonable facilities and timely access to data, information and personnel of Customer, and Customer acknowledges and agrees that Unify Square’s performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities hereunder and timely decisions and approvals of Customer in connection with the Services. Customer agrees to perform such obligations in accordance with, and subject to, the Service Description and such Order Form. Customer acknowledges that when Customer’s personnel are required to work with Unify Square’s personnel in connection with an engagement, Customer’s failure to assign Customer personnel having skills commensurate with their role with respect to such engagement could adversely affect Unify Square’s ability to provide the Services.
(b) Remote Access. Customer will provide remote access into Customer’s network and systems to designated Unify Square or Reseller personnel from time-to-time for purposes of providing the Services.
(c) Installation of Releases. Customer will promptly (but consistent with Customer’s change management practices) implement all Skype for Business Updates, Releases, bug fixes, service packs and workarounds designated as mandatory by Unify Square.
(d) Customer Satisfaction Surveys. Customer will make reasonable efforts to participate in customer satisfaction surveys as reasonably requested by Microsoft, Unify Square, or a designee, in order to help Unify Square improve its products and services.
(e) Customer Data/Recommendations. Customer acknowledges and agrees that Unify Square may, in performing Services, be dependent upon or use data, material, and other information furnished by Customer without any independent investigation or verification thereof, and that Unify Square shall be entitled to rely upon the accuracy and completeness of such information in performing the Services. Unify Square, in performing the Services, will be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of Customer.
(f) Compliance. Customer will use the Services and Documentation in compliance with all applicable laws and regulations. Customer will be responsible for any violations of this Agreement by its users.
(g) Customer Responsibilities. Customer is solely responsible for (i) its use of any information obtained via the Services; and (ii) any fees charged by third parties related to Customer’s use of the Services, e.g., charges by Customer’s telephone, Internet, Skype for Business or other third party service providers.
(h) Publicity. Customer agrees that (i) Customer will make one or more representatives reasonably available to participate in reference inquiries from Unify Square’s potential customers and partners; (ii) provided that Unify Square agrees not to disclose any of Customer’s Confidential Information in such case study, Unify Square may create and publish a case study regarding the nature of Customer’s use of PowerSuite and/or Unify Square Professional Services and return on investment and Customer will reasonably cooperate in the preparation of such case study; and (iii) Unify Square may identify Customer – by name and logo – as a customer in Unify Square’s published customer lists.
6. Intellectual Property
(a) PowerSuite. Customer acknowledges and agrees that Unify Square exclusively owns all right, title and interest in and to the PowerSuite Software and Documentation and all portions thereof, together with all other information, materials and deliverables provided hereunder, including copyrights, patents, trade secret rights and other intellectual property and proprietary rights relating thereto, as well as all updates, upgrades, improvements, enhancements, modifications, configurations, extensions, and derivative works of any of the foregoing, notwithstanding any other provision in this Agreement. Customer agrees not to challenge Unify Square’s ownership of or rights in the foregoing. Unify Square reserves all rights not expressly granted to Customer under this Agreement. Customer hereby irrevocably assigns to Unify Square all right, title, and interest in and to all authorized and unauthorized derivative works of the PowerSuite Software or Documentation created by Customer, its Affiliates or users.
(b) Customer Data. Unify Square acknowledges that, as between Unify Square and Customer, Customer owns all intellectual property and other proprietary rights in and to the Customer Data, including all copyrights, patent and trade secret rights therein. Subject to the rights granted by Customer under this Agreement, Unify Square acquires no right, title or interest from Customer or Customer’s licensors under this Agreement in or to Customer Data, including any intellectual property rights therein. Customer hereby grants to Unify Square a worldwide, nonexclusive, fully-paid up, royalty-free license to use the Customer Data as reasonably necessary to carry out Unify Square’s business operations and to sublicense the use of the Customer Data to its vendors to the extent necessary to provide the Services to Customer. For clarity, any formerly personal data that has been anonymized and aggregated such that it no longer describes an identifiable individual will not be considered “Customer Data”.
(c) UC or WSC Platform License. Customer must maintain a valid license agreement for its Unified Communications and/or Workstream Collaboration Platform (i.e. Microsoft, Zoom, Slack, etc.) with the platform vendor at all times during the term of this Agreement, as relevant to the purchased Services hereunder. If Unify Square facilitates Customer download and installation of any platform vendor updates, Customer’s use of the platform vendor update will be governed by Customer’s license agreement with the platform vendor.
(d) Third Party Software Licenses. Customer is solely responsible for obtaining licenses to any third-party software that may be required to operate Skype for Business and Teams, and for determining that all products and services received under this Agreement comply with all legal requirements applicable to Customer.
(e) Proprietary Rights Notices. Customer will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on the PowerSuite Software, Documentation or any other materials provided by Unify Square.
(f) Feedback. If Customer provides any feedback to Unify Square concerning the functionality or performance of the Services (including identifying potential errors and improvements), Customer hereby assigns to Unify Square all right, title, and interest in and to the feedback, and Unify Square is free to use the feedback without payment or restriction.
7. Data Security
(a) Data Security.
(i) Unify Square will establish and maintain technical and organizational measures reasonably designed to protect against unauthorized or unlawful processing of the Customer Data and against accidental loss or destruction of, or damage to, the Customer Data and shall take reasonable steps to ensure the reliability of Unify Square personnel who have access to the Customer Data. These measures shall be designed to provide a level of security appropriate to the harm that might result from unauthorized access to or use of Customer Data and the nature of the Customer Data, having regard to the state of technological development and the cost of implementing the measures.
(ii) Unify Square will perform annual vulnerability scans that include application and internal/external network infrastructure vulnerability scans, and ethical hacking/penetration tests. Vulnerabilities will be reviewed and prioritized based on risk, and remediated accordingly.
(iii) Customer acknowledges that use of the Services will involve transmission of Customer Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties when communicated across the Internet or other networks. Unify Square is not responsible for any Customer Data which is delayed, lost, altered, intercepted or stored during transmission across networks not owned or operated by Unify Square and its subcontractors, including but not limited to the Internet and Customer’s local network. Customer shall protect its user login names and passwords from access or use by unauthorized parties, and shall ensure that its users do so as well, and Customer is solely responsible for its or its users’ failure to do so.
(iv) Customer must promptly notify Unify Square of any suspected security breach at firstname.lastname@example.org. In addition, Unify Square will promptly notify Customer of any unauthorized access to, or use of, Customer Data that comes to Unify Square’s attention. In the event of any unauthorized disclosure of Customer Data resulting from Customer’s use of the Services, Unify Square and Customer will promptly investigate the cause of such unauthorized disclosure, and will work together in good faith to take the steps reasonably necessary to prevent any future reoccurrence and to comply with applicable data breach notification laws.
(b) Malicious Code. Unify Square will use measures consistent with prevailing practices in the United States software-as-a-service industry to screen the PowerSuite Software prior to making it available or providing it Customer, for the purpose of avoiding the introduction of any Malicious Code into Customer Data or Customer’s computer hardware and software systems or software. For the purposes of this Agreement, “Malicious Code” means software (including, without limitation, code, instructions, programs, routines and/or scripts) that is designed to (i) permit unauthorized access to and/or copying of Customer’s data, hardware or software; or (ii) damage, delete, delay, disable, erase, interfere with, modify, shut-down or otherwise harm Customer’s data, hardware or software, including, but not limited to, components that are commonly referred to as “back doors,” “bots”, “drop dead devices”, “malware”, “time bombs,” “Trojan Horses,” “viruses”, and “worms”. In the event Unify Square introduces Malicious Code into Customer Data or Customer’s computer hardware or software systems or software, Unify Square will reasonably assist Customer in removing such virus and/or Malicious Code at no additional charge.
8. Confidential Information
(a) Definition. “Confidential Information” means all documents, software and documentation (including the Documentation), reports, financial or other data, records, forms, tools, products, services, price lists, methodologies, present and future research, technical knowledge, marketing plans, customer lists, sales projections, trade secrets, and other materials Unify Square and Customer provide to each other in the course of the engagement, whether tangible or intangible. Confidential Information includes, without limitation, records and information (i) that has been marked as proprietary or confidential; (ii) whose confidential nature has been made known by Customer or Unify Square; or (iii) that due to its character and nature, a reasonable person under like circumstances would treat as confidential.
(b) Exceptions. Confidential Information will not include any information that (i) was publicly known and made generally available prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party in violation of this Agreement; (iii) is already rightfully in the possession of the receiving Party at the time of disclosure; (iv) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
(c) Non-Use and Non-Disclosure. Each receiving Party agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or use of the other Party’s Confidential Information and the disclosure of the other Party’s Confidential Information to third parties without the other Party’s prior written consent. Each receiving Party may disclose the other Party’s Confidential Information to the receiving Party’s employees, contractors and agents who reasonably need to have access to such information to perform its obligations under this Agreement, and who will treat such Confidential Information under the terms of this Agreement. Each Party is permitted to disclose the other Party’s Confidential Information if required by law so long as the other Party is given prompt written notice of such requirement prior to disclosure (if legally permissible) and assistance (at the Disclosing Party’s expense) in obtaining an order protecting such information from public disclosure.
(d) Return or Destruction of Confidential Information. Upon expiration or termination of the relevant Order Form, each receiving Party will return or destroy, at the receiving Party’s election, all Confidential Information of the disclosing Party that is not required in relation to ongoing Services under a separate Order Form. Upon expiration or termination of this Agreement or the earlier written request of the disclosing Party, each receiving Party will return or destroy, at the receiving Party’s election, all Confidential Information of the other Party. Notwithstanding the foregoing, the receiving Party may retain one copy of the disclosing Party’s Confidential Information solely for use for recordkeeping and compliance purposes.
(e) Confidentiality of Agreement. Neither Party will disclose the terms of this Agreement to any third party without the consent of the other Party, except as required by securities or other applicable laws. Notwithstanding the above provisions, each Party may disclose the terms of this Agreement (i) in connection with the requirements of a public offering or securities filing; (ii) in confidence, to accountants, auditors, banks, and financing sources and their advisors; (iii) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
9. Term and Termination
(a) Term of this Agreement. The term of this Agreement will commence on the Effective Date and will continue until the earlier of (a) expiration or termination of the last-to-expire Order Form, and (b) expiration or termination of the Reseller’s right to resell the Services to Customer.
(b) Termination for Material Breach. Either Party may terminate this Agreement if the other Party does not cure its material breach of this Agreement within thirty (30) days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 9(b) will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the thirty (30)-day cure period.
(c) Post-Termination Obligations. If this Agreement is terminated for any reason any and all liabilities accrued prior to the effective date of the termination will survive.
(d) Survival. The provisions of this Agreement that, by their nature, require performance following the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
(a) General. Each Party represents and warrants to the other upon acceptance of this Agreement by Customer that: (i) this Agreement constitutes a valid and binding Agreement enforceable against such Party in accordance with its terms; and (ii) no authorization or approval from any third party is required in connection with such Party’s acceptance, delivery, or performance of this Agreement.
(b) PowerSuite Software. Unify Square represents and warrants to Customer that the PowerSuite Software shall perform substantially as specified in the Documentation when used in accordance with such Documentation. Customer must notify Unify Square of a claim under this warranty within thirty (30) days of the date on which the condition giving rise to the claim first appeared. However, Unify Square does not warrant (i) the performance of the PowerSuite Software outside the scope of the Documentation, unless it has been expressly agreed upon in writing between the Parties; (ii) the use of the PowerSuite Software with any third party software not delivered by Unify Square or third party services if such third party software or third party services cause the problem(s) reported by Customer; (iii) resolution of problems caused by misuse, improper testing, unauthorized attempts to repair, modifications or customizations to the PowerSuite Software (including Client Software) by Customer; or (iv) that the PowerSuite Software will achieve Customer’s intended results, or that the PowerSuite Software will meet the individual requirements of Customer.
(c) Intellectual Property. Unify Square represents and warrants to Customer that Unify Square has sufficient right, title and interest in the PowerSuite Software to license the PowerSuite Software to Customer in accordance with this Agreement, and to Unify Square’s knowledge as of the Effective Date, Customer’s use of the PowerSuite Software in accordance with this Agreement will not infringe, misappropriate or otherwise violate any third party intellectual property or other proprietary rights.
(d) Open Source. Unify Square represents and warrants to Customer that PowerSuite Software (including Client Software) are not subject to any obligation or condition (including without limitation any “copyleft” or other obligation or condition under any “open source” license such as without limitation the GNU Public License, Lesser GNU Public License or Mozilla Public License) that will when used in compliance with this Agreement: (i) require the inclusion of any terms or conditions in connection with any use or distribution of any of the PowerSuite Software, or the disclosure, licensing, or distribution of any source code owned or controlled by Customer; (ii) condition the copying, modification, use or distribution of any of the PowerSuite Software on (i) above; or (iii) impose any limitation, restriction, or condition (other than those set forth explicitly in this Agreement) on the right or ability of Customer to use the PowerSuite Software.
(e) Computing Environment. Unify Square represents and warrants to Customer that it will operate and maintain the server(s) and computing environment(s) on which the software related to the PowerSuite Software (excluding Client Software) and on which the Customer Data is stored in good working order with access restricted to qualified personnel of Unify Square and its contractors.
(f) PowerSuite Cloud Managed Services and PowerSuite Software Technical Support. Unify Square represents and warrants that the PowerSuite Cloud Managed Services and PowerSuite Software Technical Support will be performed in a professional and workmanlike manner and will be of a grade, nature, and quality that meets prevailing standards in the software industry.
(g) Disclaimer. Except for the express representations and warranties stated in this Agreement, unify square does not make any additional representation or warranty of any kind whether express, implied (either in fact or by operation of law), or statutory, as to any matter whatsoever unless required by local law. unify square expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, title, and non-infringement. Unify Square does not warrant that the Services are error-free or that operation of the Services will be secure or uninterrupted. Unify Square does not warrant that any information provided through the Services are accurate or complete or that any information provided through the Services will always be available. Unify Square exercises no control over and expressly disclaims any liability arising out of or based upon the results of Customer’s use of the Services. Unify Square does not warrant that any of the content, recommendations or information provided by Unify Square will meet Customer’s requirements. All warranties provided herein are personal to, and intended solely for the benefit of, Customer and do not extend to any third party. Except as otherwise set forth herein, all content, recommendations, information, and Unify Square’s efforts, are provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with Customer.
11. Limitations of Liability
(a) Disclaimer of Indirect Damages. Notwithstanding anything to the contrary contained in this Agreement, Unify Square will not, under any circumstances, be liable to Customer for consequential, incidental, special, PUNITIVE or exemplary damages OR LOST PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL OR DAMAGE TO REPUTATION arising out of or related to THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, WHETHER CAUSED BY BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION, EVEN IF Unify Square IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. If the local laws in any jurisdiction do not allow for the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply.
(b) Cap on Liability. Under no circumstances will Unify Square’s total liability of all kinds arising out of or related to this Agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the total amount paid by Customer to RESELLER for the relevant SERVICES pursuant to the Order Form under which the liability arose, during the TWELVE (12) months immediately preceding the claim (determined as of the date of the event giving rise to the claim).
(c) Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the Parties. This allocation is reflected in the pricing negotiated by Unify Square and Customer. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
(d) Limitation. Any action against Unify Square or Customer must be brought within twelve (12) months after the date of the event giving rise to the cause of action.
12. Infringement and Indemnification
(a) Infringement Defense. Unify Square will defend Customer from any actual or threatened third party claim that the PowerSuite Software infringes or misappropriate any intellectual property rights of any third party during the term of this Agreement if (i) Customer gives Unify Square prompt written notice of the claim; (ii) Unify Square has full and complete control over the defense and settlement of the claim; (iii) Customer provides reasonable assistance in connection with the defense and settlement of the claim as Unify Square may reasonably request; and (iv) Customer complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
(b) Infringement Indemnification. Unify Square will indemnify Customer against: (i) all damages, costs, and attorneys’ fees finally awarded against Customer in any proceeding as specified in this Section 12; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Unify Square’s consent after Unify Square has accepted defense of such claim); and (iii) if any proceeding arising as specified in Section 12(a) is settled, Unify Square will pay any amounts to any third party agreed to by Unify Square in settlement of any such claims.
(c) Exclusions. Unify Square will have no obligation for any infringement to the extent that it arises out of or is based upon:
(i) the combination, operation, or use of the PowerSuite Software with third party software or services if such infringement would have been avoided but for such combination, operation, or use;
(ii) designs, requirements, or specifications for the PowerSuite Software required by or provided by Customer, if the alleged infringement would not have occurred but for such designs, requirements, or specifications;
(iii) use of the PowerSuite Software outside of the scope of the license or other rights granted to Customer;
(iv) Customer’s failure to use the latest release of the PowerSuite Software made available to Customer under this Agreement or to comply with instructions provided by Unify Square, if the alleged infringement would not have occurred but for such failure;
(v) any modification of the PowerSuite Software not made by Unify Square where such infringement would not have occurred absent such modification;
(vi) Customer Data; or
(vii) unauthorized use of the PowerSuite Software.
Customer hereby agrees that it will reimburse Unify Square for any costs or damages that result from these actions.
(d) Mitigation of Infringement Action. If Customer’s use of the PowerSuite Software is, or in Unify Square’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 12(a), then Unify Square will either: (i) procure Customer’s continuing right to use the PowerSuite Software; (ii) replace or modify the PowerSuite Software in a functionally equivalent manner so that it no longer infringes; or if, despite Unify Square’s commercially reasonable efforts, Unify Square is unable to do either (i) or (ii), Unify Square will (iii) terminate the licenses with respect to the PowerSuite Software subject to the infringement claim and ensure that Reseller refunds to Customer all unused subscription fees for the PowerSuite Software that Customer pre-paid.
(e) Exclusive Remedy. This Section 12 states Unify Square’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the PowerSuite Software.
13. Customer Indemnification
(a) Defense. Customer will defend Unify Square from any actual or threatened third party claim arising out of or based upon Customer’s use of the Services (excluding those claims for which Unify Square indemnifies Customer under Section 12), a third party’s use of the Services, any Customer Data or third party software, specifications, content or other Customer-provided materials provided or made available to Unify Square, or Customer’s breach of any of the provisions of this Agreement. Unify Square will: (i) give Customer prompt written notice of the claim; (ii) grant Customer full and complete control over the defense and settlement of the claim; (iii) reasonably assist Customer with the defense and settlement of the claim as Customer may reasonably request and at Customer’s expense; and (iv) comply with any settlement or court order made in connection with the claim.
(b) Indemnification. Customer will indemnify Unify Square against (i) all damages, costs, and attorneys’ fees finally awarded against Unify Square in any proceeding as specified in this Section 13; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Unify Square in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such claim); and (iii) if any proceeding arising as specified in Section 13(a) is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims.
(a) Assignability. Customer may not assign its right, duties, and obligations under this Agreement without Unify Square’s prior written consent, except that Customer may assign this Agreement without Unify Square’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of Customer’s obligations under this Agreement. Unify Square may assign this Agreement to a successor to all or substantially all of Unify Square’s business to which this Agreement relates upon written notice to Customer and Reseller.
(b) Subcontractors. Unify Square may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Unify Square enters into a contract with the subcontractor or other third party that provides for the confidentiality of Customer Data and Unify Square remains responsible for all of its obligations under this Agreement and for breach of this Agreement by any such subcontractor or other third party. Unify Square will require such subcontractors or third parties to perform, or will use subcontractors or third parties who have a policy of performing, appropriate background checks on their employees who will have access to Customer Data.
(c) Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given upon personal delivery, five (5) days after being mailed by registered or certified mail, return receipt requested, or one (1) business day after being sent by nationally recognized overnight courier. Notices shall be addressed to the Customer at its address set out in an Order Form. Notice to Unify Square shall be sent to: Unify Square, Inc., 777 108th Avenue NE, Suite 2020, Bellevue, WA 98004, USA, Attention: Legal. Either Party may change its address for receipt of notice by giving written notice to the other Party in accordance with this Section 14(c). Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, on the day of faxing, or on the day of emailing (provided that delivery via the follow-up method is made within five (5) business days afterwards).
(d) Force Majeure. Neither Customer nor Unify Square shall be liable for any delays to its performance hereunder resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, threatened acts of terrorism, pestilence or epidemic, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority (but excluding orders or requirements pertaining to tax liability).
(e) Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the province of the State of Washington, without reference to any conflict of laws principles. The 1980 U.N. Convention on Contracts for the International Sale of Goods is expressly excluded.
(f) Informal Dispute Resolution. The Parties agree to attempt in good faith to settle any dispute, controversy or claim, whether based on contract, tort, statute or other legal or equitable theory, arising out of or related to this Agreement (collectively, a “Claim”) by way of consultations between the Parties, which consultations shall be initiated upon written notice by either Party to the other. The Parties’ representatives shall meet within five (5) business days of a dispute to attempt to resolve the Claim. If the Claim cannot be resolved within ten (10) business days thereafter, either Party may proceed with arbitration pursuant to Section 14(g).
(g) Arbitration. Except for the right of a Party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute arising out of or related to this Agreement will be settled by binding arbitration in King County, Washington, under the Rules of the International Chamber of Commerce by three arbitrators appointed in accordance with the Rules. If there is a conflict between the Rules and the terms of this Agreement, the terms of this Agreement will prevail. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing Party will be entitled to receive from the other Party its attorneys’ fees and costs incurred in connection with any arbitration.
(h) Waiver. No failure on the part of either Party hereto to exercise, and no delay in exercising, any right, remedy, or power under this Agreement shall operate as a waiver thereof. Nor shall any single or partial exercise of any such right, remedy or power preclude any other or further exercise of any other right, remedy, or power. No waiver shall be valid unless it is in writing and signed by the Party to be bound thereby.
(i) Non-Solicitation of Employees. Customer shall not, during the term of this Agreement and for two (2) years after its termination or expiration, solicit for hire as an employee, any of Unify Square’s personnel who have had direct involvement with the Services, without Unify Square’s express written consent, unless such restrictions are not allowed by local laws.
(j) U.S. Government Use. If the Services are licensed under a United States government contract, Customer acknowledges that the Services are a “commercial item” as defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. Customer also acknowledges that the Services are “commercial computer software” as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract shall have only those rights, and shall be subject to all restrictions, set forth in this Agreement.
(k) Export Compliance. Each Party shall comply with United States and foreign export control laws and regulations. Customer acknowledges that the Services and Documentation are subject to the U.S. Export Administration Regulations (the “EAR”) and that Customer shall comply with the EAR. Without limiting the foregoing, (i) Unify Square and Customer each respectively represent that: (A) it is not located in any country that is subject to U.S. export restrictions (currently including, but not necessarily limited to, the Crimea Region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria) (“Restricted Countries”); and (B) it is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; (ii) Customer represents that it shall not use the Services and Documentation from any Restricted Country or in the design, development or production of nuclear, chemical or biological weapons, rocket systems, space launch vehicles, sounding rockets or unmanned air vehicle systems; and (iii) Unify Square represents that it shall not provide the Services and Documentation from any Restricted Country. In addition, Customer is responsible for complying with any local laws which may impact Customer’s right to import, export or use the Services and Documentation.
(l) Mitigation. Each Party must mitigate the impact of any damage arising out of or related to this Agreement.
(m) Severability. If any term or provision of this Agreement shall be held to be invalid, void or unenforceable, the remainder of this Agreement shall not be affected, impaired or invalidated, and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Services will immediately terminate.
(n) Independent Contractor. Unify Square is performing the Services as an independent contractor and not as an employee of Customer and none of Unify Square’s personnel shall be entitled to receive any compensation, benefits or other incidents of employment from Customer. Nothing in this Agreement shall be deemed to constitute a partnership, joint venture, or fiduciary relationship between Customer and Unify Square, nor shall anything in this Agreement be deemed to create an agency relationship between Unify Square and Customer. Neither Unify Square nor Customer shall be or become liable or bound by any representation, act or omission whatsoever of the other.
(o) Entire Agreement. This Agreement, including the Service Description and SLA, is the final and complete expression of the Agreement between the Parties. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of Unify Square has any authority to bind Unify Square with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Unify Square will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Unify Square specifically agrees to such provision in writing and signed by an authorized agent of Unify Square.
(p) Amendments. Customer also acknowledges that Unify Square provides services to its customers on the basis of standard service offerings, and as such acknowledges and agrees that Unify Square may amend this Agreement, the Service Description and the SLA from time-to-time by posting the amended version at the applicable website location; provided, however, that no such amendment will materially decrease the level of service offered to Customer during the term of an Order Form without Customer’s prior written consent. Customer’s continued use of the Services following the posting of any such changes constitutes acceptance of and agreement to be bound by those changes.