TransitionManager End User License Agreement (EULA)
The services set forth in the “Product Description” are provided by Transitional Data Services, Inc, (“TDS”) subject to the following Terms and Conditions. The Product Description, the Price Section (defined below) and the following Terms and Conditions, are collectively referred to as, the “Agreement.” Acceptance of the Agreement by an employee of a legal entity (e.g. corporation, limited liability company) or by an individual person or persons (e.g. business operated as a d/b/a, a sole proprietorship) by electronic means by virtue of a click or “I Accept” shall constitute acceptance by such entity or such person(s), respectively (the “Purchaser”), and such employee and individual person(s) acknowledges and agrees that Purchaser has read and understands the Agreement, that the provisions, disclosures and disclaimers set forth in the Agreement are fair and reasonable and that Purchaser’s agreement to follow and be bound by the Agreement is voluntary and not the result of fraud, duress or undue influence exercised upon Purchaser by any person or entity.
TERMS AND CONDITIONS
1. Services; Licenses. For a period of the longer of the duration of the services set forth in the Product Description (the “Services”) and ninety (90) days (the “Term”), TDS hereby grants to Purchaser:
(i) a non-exclusive, non-transferable, right to remotely access and use and have Authorized Users (defined below) access and use the TransitionManager SaaS (defined below) remotely as described in the Product Description only for the maximum number of OS Instances (defined below) set forth in the Product Description; and
(ii) a non-exclusive, non-transferable right and license to have Authorized Users download an executable file containing and install TransitionManager Desktop (defined below) on a maximum of three (3) Purchaser-owned or operated desktop devices (the “TMD Devices”), and to access and use and have Authorized Users access and use TransitionManager Desktop from such TMD Devices (the “TMD License”); and
(iii) a non-exclusive, non-transferable, right to remotely access and use and have Authorized Users access and use CloudEndure software remotely as a service (the “TDS Supplied Third Party SaaS”);
in each case solely for purposes of the Services and for no other purpose. Purchaser shall not re-grant or distribute to any third party the rights it receives under Section 1.
2. Purchaser Obligations.
2.1 Purchaser agrees to (i) take such actions and make available such personnel as are required for the performance of the Services and provision of the Licenses (defined below), (ii) provide equipment (e.g. personal computer or device), software (e.g. browser) and ancillary services (e.g. Internet services) necessary for Purchaser and Authorized Users to access and use the TransitionManager SaaS, (iii) provide the TMD Devices with the minimum system requirements for the installation of TransitionManager Desktop, as determined by TDS (the “System Requirements”), and (iv) provide the third party migration tool(s), configuration management databases (CMDBs), other databases, file systems, and assessment, monitoring, sizing, application scoring and other similar tools (other than the TDS Supplied Third Party SaaS) with which the TransitionManager SaaS or TransitionManager Desktop will communicate (collectively, subsection 2.1(ii), 2.1(iii) and 2.1(iv) to be referred to herein as, the “Purchaser Supplied Software and Hardware”). Any failure by TDS to perform or any delay in the performance by TDS of its obligations under this Agreement caused by a failure of Purchaser to perform as required in this Agreement shall not constitute a breach of this Agreement by TDS.
2.2 Purchaser shall also be responsible for maintaining the security of the Purchaser Supplied Software and Hardware, any account information or passwords provided in connection with the access and use of the TransitionManager SaaS, TransitionManager Desktop and TDS Supplied Third-Party SaaS, including but not limited to administrative and user passwords (collectively, the “Purchaser Account Information”), and for all uses of the Purchaser Account Information by parties other than by TDS and persons over which TDS has control.
3. Fees; Payments.
3.1 In consideration for the performance of the Services and the Licenses, Purchaser agrees to pay TDS the price set forth in the section entitled “Price” (the “Price Section”) (collectively, the “Fees”). Purchaser agrees to pay all Fees and Expenses in US Dollars within sixty (60) days of the date of invoice from TDS, unless otherwise agreed to by TDS.
3.2 Purchaser and TDS agree that after TDS has completed each project milestone included in the Project Description (a “Project Milestone”), TDS shall submit to Purchaser an acceptance form in a form agreed to by the parties (an “Milestone Completion Form”), and Purchaser shall review and (a) accept the Project Milestone as in conformance with the acceptance criteria contained in the Project Description (the “Acceptance Criteria”) and sign the Milestone Completion Form or (b) reject the Project Milestone as not in compliance with the Acceptance Criteria within two (2) business days (the “Acceptance Time Period”). In the event Purchaser elects to reject a Project Milestone, Purchaser shall notify TDS in writing within the Acceptance Time Period after receipt of the Project Milestone Completion Form indicating the reason the Project Milestone failed to meet the applicable Acceptance Criteria (a “Failure”). TDS shall diagnose and correct all identified Failures and provide Purchaser with a re-performance of the Project Milestone for review and acceptance within the Acceptance Time Period after receipt of the Failure notice. Purchaser shall then re-review the Project Milestone to confirm such correction within the Acceptance Time Period. TDS’s efforts to correct Failures to the extent caused by TDS shall be at no additional cost to Purchaser. If Purchaser does not respond in writing to any Milestone Completion Form within the Acceptance Time Period, the Project Milestone will be deemed accepted by Purchaser. Upon receipt of a signed Milestone Completion Form indicating Purchaser’s acceptance of the applicable Milestone or a deemed acceptance, TDS shall invoice Purchaser for the Services which are the subject of the Milestone Completion Form. The parties agree that notices related to acceptance and rejection under this Section 3.2 may be sent via electronic mail.
4. Representations and Warranties.
4.1 Each party represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, (ii) it has the rights and licenses to grant the rights and licenses granted by it in this Agreement, and (iii) it will comply with all applicable laws, rules, and regulations and with agreements to which it is a party. TDS warrants that it will perform the Services and provide the Licenses consistent with the Agreement.
5. Intellectual Property.
(a) “Authorized User” means any individual employee or individual contractor of Purchaser.
(b) “OS Instances” means the count of all physical and virtual servers which are defined and managed within the TransitionManager SaaS.
(c) “TransitionManager” means the TransitionManager software (in object and source form), including TransitionManager software made available by TDS remotely as a services (“TransitionManager SaaS”) and the TransitionManager application software licensed in object code only for installation on a TMD Device (“TransitionManager Desktop”), and all underlying algorithms, user interfaces and network and database designs and schemas, architecture, class libraries, and objects, all runbooks, recipes, the unique expressions of the selection, organization and presentation of user visible functions, all TDS Forms (defined below), all TDS-Owned Materials (defined below), all training materials and documentation (both printed and electronic), all processes, analyses and methodologies, all know-how, and all trade secrets used by TDS to perform the Services, provide the Licenses or otherwise provided under this Agreement, and all interfaces, corrections, fixes, modifications, enhancements, updates, upgrades, and customizations thereto and derivative works thereof developed solely by TDS, or by or with the input of another party and all underlying Intellectual Property Rights throughout the world (whether owned or licensed from a third party).
(d) “CloudEndure” means the CloudEndure software (in object and source form) made available by TDS remotely as a services and all underlying algorithms, user interfaces and network and database designs and schemas, architecture, class libraries, and objects, all runbooks, recipes, the unique expressions of the selection, organization and presentation of user visible functions, all training materials and documentation (both printed and electronic), all processes, analyses and methodologies, all know-how, and all trade secrets represented thereby and all interfaces, corrections, fixes, modifications, enhancements, updates, upgrades, and customizations thereto and derivative works and all underlying Intellectual Property Rights throughout the world (whether owned or licensed from a third party).
(e) “Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights; (v) intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, not otherwise described in Section 5.1(e)(i), (ii), (iii), (iv) or (vi); and (vi) registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
(f) “TDS Forms” means all report and data templates and the methods of presenting data, information and recommendations provided by TDS as part of the Services or generated through the access or license and use of TransitionManager under this Agreement.
(g) “TDS-Owned Materials” means data, information and recommendations arising from the performance of the Services or generated through the access or license and use of TransitionManager under this Agreement to the extent that they are not unique to Purchaser and do not contain Purchaser Confidential Information (defined below).
5.2 All data, information and recommendations arising from the performance of the Services or generated through the access or license and use of TransitionManager under this Agreement to the extent they (i) are unique to Purchaser, or (ii) contain Purchaser Confidential Information (collectively, the “Purchaser-Owned Materials”), shall be the sole and exclusive property of Purchaser. As between the parties, Purchaser retains all right, title and interest in and to the Purchaser Supplied Software and Hardware.
5.3 TDS hereby grants to Purchaser a perpetual, non-exclusive, non-transferable, royalty-free, license to use the (i) TDS-Owned Materials and (ii) the TDS Forms, if any, in which TDS-Owned Materials and/or Purchaser-Owned Materials are delivered (e.g. printed or electronic copy form), each solely in connection with the use of the TDS-Owned Materials and Purchaser-Owned Materials, for Purchaser’s own internal business purposes and for no other purpose (the “TDS Forms and Materials License”); provided that after the Term, the TDS Forms and Materials License shall not include a continued right to use the TDS Forms or the TDS-Owned Materials as part of the TransitionManager SaaS or TransitionManager Desktop.
5.4 As between the parties, TDS retains all right, title and interest in and to TransitionManager and the TDS Supplied Third-Party SaaS and their underlying Intellectual Property Rights which shall be included in the definition of TDS Confidential Information. Except for the rights expressly granted in this Agreement, this Agreement does not transfer to Purchaser all or any portion of TransitionManager or TDS Supplied Third-Party SaaS. No work-for-hire or joint development is contemplated by this Agreement. In the event that TDS is engaged to develop any software or other copyrightable material for Purchaser, the parties agree to execute a separate development agreement.
5.5 The rights granted in this Agreement are restricted as follows: Purchaser shall not, and shall not allow others to, (i) reverse engineer, disassemble, decompile, or attempt to reconstruct, identify or discover or otherwise derive the source code, underlying ideas, underlying user interface techniques or algorithms of, or modify, port, translate, localize, or create derivative works based on TransitionManager or the TDS Supplied Third-Party SaaS by any means whatsoever or disclose any of the foregoing; (ii) copy, sell, lease, license, sublicense, market, or distribute TransitionManager or the TDS Supplied Third-Party SaaS or use TransitionManager or the TDS Supplied Third-Party SaaS in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party, except as specifically permitted herein, (iii) take any action that would cause any of TransitionManager or the TDS Supplied Third-Party SaaS to be placed in the public domain or to be disclosed to a third party without TDS’s consent; or (iv) remove, modify or alter any TDS or third party copyright notice from any part of TransitionManager or the TDS Supplied Third-Party SaaS, including but not limited to any such notices contained in the physical or electronic media or documentation or in any web presence or web-enabled notices, code, or other embodiments originally contained in or dynamically or otherwise created by TransitionManager or the TDS Supplied Third-Party SaaS.
5.6 Purchaser may not remove or export from the United States or allow the export or re-export of the Services, TransitionManager or the TDS Supplied Third-Party SaaS in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. The software included as part of TransitionManager or the TDS Supplied Third-Party SaaS and the related Services are commercial items, as defined in FAR 2.101. Such software is “commercial computer software,” and its related documentation is “commercial computer software documentation,” as described in FAR 12.212. Consistent with FAR 12.212, the Purchaser’s access to and use of such software will be governed by this Agreement.
6. Confidential Information. Each of TDS and Purchaser acknowledge that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to, non-public information relating to the customers of either party, and the terms and conditions and existence of this Agreement. TDS and Purchaser each agree that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party any of the other party’s Confidential Information (except as required by law or to that party’s attorneys, accountants and other advisors (its “Representatives”) (subject to Section 1) as reasonably necessary to perform under this Agreement, provided that each party shall make all Representatives, and the case of Purchaser, all Authorized Users) aware of the provisions of this Agreement as applicable to such Representatives and Authorized User’s use of the Confidential Information of the other party. A breach of this Agreement by a party’s Representatives, and in the case of Purchaser, an Authorized User shall constitute a breach of this Agreement by such party. Further, each party shall take all reasonable precautions to protect the confidentiality of the other party’s Confidential Information, which precautions, in any event, will be at least as stringent as it takes to protect its own Confidential Information. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt of it from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that, unless restricted by order of a governmental agency or otherwise restricted by law, the receiving party provides reasonable notice to the other party of the required disclosure so as to permit the other party to respond to such request for disclosure. Notwithstanding the foregoing, Purchaser agrees that Purchaser Confidential Information collected manually by TDS and automatically by TransitionManager and/or the TDS Supplied Third-Party SaaS from Purchaser and/or Purchaser Supplier Software and Hardware and subsequently disclosure by TransitionManager and/or the TDS Supplied Third-Party SaaS to the Purchaser Supplied Software and Hardware, shall be permitted under this Section 6 and Purchaser shall look to the terms and conditions applicable to the Purchaser Supplied Software and Hardware, and not the Agreement, for a description of the use of such Purchaser Confidential Information by such Purchaser Supplied Software and Hardware.
7. Indemnification; Limitations.
7.1 Each of TDS and Purchaser (the “Indemnifying Party”) agree to defend, indemnify and hold the other party and its directors, officers, and employees (collectively, the “Indemnified Party”) harmless from and against any and all costs, liabilities, fees, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) to the extent resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against the Indemnified Party alleging; (i) any breach by the Indemnifying Party of any of its representations, warranties or covenants contained in this Agreement, and (ii) the infringement or misappropriation of any Intellectual Property Right relating to intellectual property of the Indemnifying Party which in the case of TDS, will include the Services, TransitionManager, the TDS Supplied Third-Party SaaS and the Purchaser-Owned Materials, and in the case of Purchaser will include the Purchaser Supplied Software and Hardware.
7.2 An Indemnifying Party’s indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any Action or Loss from the Indemnified Party; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the Indemnified Party to participate in the defense of any Action; and (iv) receiving the full cooperation of the Indemnified Party in the defense thereof. Notwithstanding the foregoing, an Indemnifying Party will not be responsible for any settlement it does not approve in writing. The obligations in subsection 7.1(ii) will not apply with respect to any Intellectual Property Right (i) not supplied by the Indemnifying Party, (ii) that is modified after delivery by the Indemnified Party, (iii) is combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where the Indemnified Party continues allegedly infringing activity after being notified thereof and provided with a modification by the Indemnifying Party that would have avoided the alleged infringement, or (v) in the case of Purchaser, where Purchaser’s use of the Services, the Licenses or the TDS Supplied Third-Party SaaS is not strictly in accordance with this Agreement.
7.3 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 4, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND EXCEPT AS OTHERWISE STATED HEREIN, EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY MAKES NO WARRANTY THAT THE SERVICES AND LICENSES WILL BE ACCESSIBLE WITHOUT INTERRUPTION.
7.4 (A) THE LIABILITY OF TDS AND PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR LOSSES ON ACCOUNT OF ALL CLAIMS OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT OR RELATING TO THE SERVICES OR LICENSES IN THE AGGREGATE, WHETHER ARISING IN TORT OR CONTRACT OR OTHERWISE, WILL NOT BE GREATER THAN THE PAYMENTS PURCHASER PAID TDS UNDER THIS AGREEMENT. (B) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT.
7.5 PURCHASER SHALL BE RESPONSIBLE FOR BACKING UP AND SECURING ALL DATA, FIRMWARE AND SOFTWARE STORED IN OR ON ANY HARDWARE POSSESSION OF WHICH PURCHASER GIVES TO TDS AS PART OF THE SERVICES AND ANY PURCHASER SUPPLIED SOFTWARE AND HARDWARE. TDS ASSUMES NO LIABILITY FOR ANY DAMAGE TO, OR LOSS OF, ANY SUCH DATA, FIRMWARE OR SOFTWARE. TO THE EXTENT TDS IS LIABLE FOR ANY DAMAGE TO, OR LOSS OF, HARDWARE POSSESSION OF WHICH PURCHASER GIVES TO TDS AS PART OF THE SERVICES FOR ANY REASON, SUCH LIABILITY WILL BE LIMITED SOLELY TO THE THEN-CURRENT CASH VALUE OF THE PURCHASER HARDWARE, EXCLUDING LOST DATA, FIRMWARE AND SOFTWARE AND SUCH PAYMENT SHALL NOT BE LIMITED TO THE LIMITATION SET FORTH IN SECTION 7.4(A).
7.6 The parties acknowledge that TDS has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
8. Term; Termination.
8.1 Either TDS or Purchaser may terminate this Agreement: (i) if the other party breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within ten (10) days after receipt of written notice from TDS; (ii) immediately, if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
8.2 Upon the effective date of termination of this Agreement, TDS will immediately cease providing the Service(s) and all Licenses shall cease (provided that Purchaser’s rights under Section 5.3 shall survive unless Purchaser is the breaching party) and any and all Fees payable by Purchaser under this Agreement for Services and Licenses provided through the date of termination will immediately become due, subject to Section 3.2 with respect to Milestone Services. Within thirty (30) days of such termination, and subject to Section 5.3, if applicable, each party will return all Confidential Information and Intellectual Property of the other party in its possession and will not make or retain any copies of such Confidential Information or Intellectual Property. Upon any termination, TDS will make all Purchaser-Owned Materials and TDS-Owned Materials available to Purchaser for electronic retrieval for a period of thirty (30) days, but thereafter TDS may, but is not obligated to, delete stored Purchaser-Owned Materials and TDS-Owned Materials.
9. Insurance. TDS and Purchaser shall each keep in full force and effect during the Term: (i) comprehensive general liability insurance in an amount not less than $1,000,000 million per occurrence, and (ii) workers’ compensation insurance in an amount not less than that required by applicable law.
10. Miscellaneous Provisions.
10.1 Except for the obligation to pay all Fees, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, pandemic or epidemic, labor shortage or dispute, governmental act or failure of telecommunications, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.)
10.2 This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts without reference to its choice of law rules as applied to contracts between Massachusetts residents. The state and Federal courts in the Commonwealth of Massachusetts shall have exclusive jurisdiction over matters arising under or associated with this Agreement. Each of the parties consents to the exclusive jurisdiction and venue of such courts and irrevocably waive any objections thereto.
10.3 TDS, and Purchaser agree that there shall be no third-party beneficiaries to this Agreement, including but not limited to the insurance providers for either party.
10.4 In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
10.5 Either Purchaser or TDS may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Purchaser may not otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of TDS, and any attempted assignment or delegation without such consent will be void. TDS may delegate the performance of certain Services to third parties, provided TDS controls the delivery of such Services to Purchaser and remains responsible to Purchaser for the delivery of such Services. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
10.6 Unless otherwise specifically, stated herein, any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.
10.7 Each of TDS and Purchaser is an independent contractor and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between TDS and Purchaser. Neither TDS nor Purchaser will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
10.8 This Agreement constitutes the complete and exclusive Agreement between Purchaser and TDS with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Any additional or different terms in any marketing materials or any purchase orders or invoice payment by Purchaser shall be deemed objected to by TDS without need of further notice of objection, and shall be of no effect or in any way binding upon TDS. This Agreement may be changed only by a written document signed by authorized representatives of TDS and Purchaser in accordance with this Section 10.10.
10.9 Sections 5, 6, 7, 8.2 and 10 of this Agreement shall survive the termination of this Agreement for any reason.