Prefect Cloud SaaS License Agreement
Effective Date: January 1, 2020
Prefect provides Internet hosted Software related to workflow management, execution and monitoring. Client desires to subscribe to such Software; and Prefect desires to provide Client access to and use of such Software in accordance with the terms and conditions set forth as part of this Agreement.
Therefore, in consideration of the mutual promises set forth herein, Prefect and Client hereby agree as follows:
As used in this Agreement, the definitions below shall apply. Definitions for other defined terms are set forth elsewhere in this Agreement.
“Affiliate” means, with respect to any Person, any other Person that controls, is controlled by or is under common control with such Person from time to time. For purposes of this definition, “control,” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have the meanings correlative to the foregoing.
“Agreement” means, collectively, this agreement together with any order forms, schedules, exhibits or annexes attached hereto.
“Documentation” means any and all then current Prefect standard documentation relating to the Software provided by Prefect from time to time, if any.
1.4 Force Majeure Event
“Force Majeure Event” has the meaning stated in Section 10.3.
1.5 Hosting Site
“Hosting Site” means the Internet-connected hosting facility from which the System and Software are accessed, as identified in Order Form, as it may be modified by Prefect from time to time.
1.6 Intellectual Property Rights
“Intellectual Property Rights” means, on a worldwide basis, any and all: (i) rights associated with works of authorship, including copyrights, moral rights, database rights and mask-works; (ii) trademarks and Marks; (iii) trade secret rights; (iv) patents, designs, utility models, algorithms, inventions; (v) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (vi) registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing); whether or not any of the foregoing are registered, and whether or not any of the foregoing are owned or licensed.
1.7 New Products
“New Products” means, individually and collectively, any and all works based and/or derived from any Confidential Information of Prefect, the Software, Materials, marks, or any Intellectual Property Rights therein.
1.8 Prefect Content
“Prefect Content” means any and all content, including data, program code, both source and executable, images, text and videos provided by Prefect, if any.
1.9 Prefect Software or Software
“Prefect Software” or “Software” means software identified on Order Form hereto owned and/or licensed by Prefect and/or its Affiliates, as currently existing and as hereafter modified, developed, prepared, customized, purchased, licensed, acquired or otherwise received, conceived, made or suggested, including individually or jointly by Client, Prefect, or its or their Representatives, including all such developments as are originated or conceived during the Term but are completed or reduced to practice thereafter, regardless of whether Client or any Person contributed to the development of or payment therefore. The Software is accessed by Client over its internet connection through communication with the Hosting Site.
1.10 Prefect System or System
“Prefect System” or “System” means the hardware, configuration, systems software, applications software, software utilities, firmware, embedded software, telecommunications equipment and connectivity, Hosting Sites and other facilities that Prefect hosts, maintains and uses to provide Users with access to and use of the Software.
“Service(s)” means the access to the Software that Prefect agrees to provide to Client, as well as the hardware and software infrastructure for providing such access.
“Term” shall mean the duration of the Agreement, commencing on the Effective Date and continuing until terminated in accordance with Section 7.1.
“Users” are employees and agents of Client, or any individuals otherwise authorized by Client, that have been designated or permitted by Client to access the Prefect System on behalf of Client.
2. Prefect Services
Prefect shall provide the Services described in this Agreement and in the Order Form. Prior to providing the Services, Client agrees to upload any required Client Data (as defined below) to the System and for use with the Service in accordance with the implementation procedures set forth on the Order Form.
2.2 Service Levels
Subject to the terms and conditions of this Agreement, and until termination of this Agreement in accordance with its terms, Prefect shall provide the Services to Client, in a timely manner and in accordance with any applicable time or standards expressly set forth in this Agreement (including any Schedules or Order Forms). Client agrees that Prefect may reasonably amend these commitments from time to time on reasonable advanced notice and without further consent from Client.
2.3 System Changes
Prefect will use commercially reasonable efforts to resolve any failure, malfunction, defect, problem, or non-conformity in the Systems identified by Client or otherwise brought to Prefect’s attention. Prefect will not knowingly make any changes to the System that are likely to have a materially adverse impact on Client’s access to or use of the Systems or significantly increase Client’s costs, provided that Prefect may make changes required by any emergency if Prefect is unsuccessful in contacting Client despite reasonable efforts to obtain its approval.
2.4 Security and Access
With regard to the System and those locations where any Client Data is stored under the control of Prefect, Prefect will use commercially reasonable efforts to maintain and enforce safety, as well as physical and digital security procedures that are at least equal to industry standards for such types of service locations. Prefect will use commercially reasonable efforts to secure the System against breach of security measures it deploys and will rectify any such breaches that occur.
3. Client's Undertakings and Acknowledgments
3.1 Compliance; Privacy
3.2 Proprietary Rights
Client acknowledges that the System, Software and accompanying materials, if any, collectively the “Materials”, embody valuable confidential and proprietary information, and constitute the intellectual property of Prefect. Client agrees that the Materials, Prefect Content and all Intellectual Property Rights therein and thereto are the exclusive property of Prefect, or of third parties from whom Prefect has obtained rights to use certain portions contained therein. Prefect and such third parties shall retain all right and title, to the extent of their respective interests, to all proprietary rights in the Materials. Client therefore agrees that (i) it shall not remove or modify any proprietary markings or restrictive legends placed in or generated by the System or Software; (ii) it shall treat and keep the Materials in strict confidence; (iii) it shall not use, copy, create derivative works of the Materials, or disclose the same, nor permit any of its personnel or agents to do so, except as specifically authorized by this Agreement; and (iv) it shall use reasonable care to safeguard the confidentiality of the Materials. Except for the limited rights of use as expressly granted herein, the ownership and all right, title and interest in and to the Materials reside in and with Prefect.
Without limiting any remedies Prefect may be entitled to at law or in equity, Client hereby agrees that in the event of any breach of this paragraph, Client shall promptly disgorge any revenue earned by it or any of its Affiliates arising from the use, development, marketing, sale, implementation or exploitation of any portion of the Materials or the New Products. Client further acknowledges that except as expressly provided herein, this Agreement transfers to Client no right, title or interest in, and Client does not acquire any rights, express or implied in, the Prefect Content, Software, Documentation, marks, New Products or the Intellectual Property Rights therein and will not take any action to oppose or otherwise interfere with the issuance of any patents relating thereto or take any action to challenge the validity of any issued patents relating to any of the foregoing.
Notwithstanding anything set forth in the Agreement and in addition thereto, in the event Prefect believes that its continued association with Client might, in Prefect’s sole judgement, cause reputational harm to Prefect or its Affiliates, including that: (i) Client’s use of the Services would disrupt or pose a security risk to Prefect or to any other customer or vendor of Prefect; (ii) Client has failed to carry out any of its obligations under this Agreement; or (iii) Client is using the Software for fraudulent or illegal activities, Prefect, at any time with or without notice, may monitor, modify any aspect of, limit, suspend or terminate Client’s use of or access to any or all of the Software or, any system, software, content or data accessible through or using the Services.
4. License; Limits on Use
4.1 Limited License to Client
Prefect hereby grants Client a personal, non-exclusive, non-transferable, non-sublicensable, limited, revocable license during the Term of this Agreement, under all of Prefect’s applicable intellectual property, to access and use the System and Services in accordance with the Agreement.
Subject to the terms and conditions of this Agreement, Prefect hereby grants to Client, and Client hereby accepts from Prefect, a limited, non-transferable, non-assignable, non-exclusive, limited, revocable license to the Service and Prefect Content during the Term and in accordance with and subject to this Agreement and the Documentation. License to the Service and Prefect Content conveys only the personal right to use the in the form provided and pursuant to this Agreement. Notwithstanding anything set forth in the Agreement and in addition thereto, Prefect shall have the right to remove any Prefect Content from the Software.
4.2 Limits on Use of System
Client shall not, and shall cause its Users not to:
(a) create or enable the creation of derivative works, modifications, or adaptations of the System or Software, or attempt to recompile, reverse engineer or disassemble the Software;
(b) use any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the Services or portions or content thereof (except as made available by Prefect as features of the Services);
(c) intentionally interfere with the functionality of the Services by
(i) uploading, storing, e-mailing, posting, linking or otherwise transmitting, distributing, publishing or disseminating any material that contains software viruses, Trojan horses, worms, time bombs, or any other computer code, file or program designed to interrupt, destroy or limit the functionality of the System,
(ii) modifying the System or Software, or interfering or attempting to interfere with the proper operation of the Services or the use of the Services by third parties, including through the use of any device, software or routine, or
(iii) using the System to disrupt the servers or networks connected thereto; or
(d) violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, laws regarding the transmission to or receipt from the System of technical data or software exported from the United States, and all local laws and regulations regarding online conduct and acceptable content.
Except as expressly set forth in this Agreement, Client shall not and shall not permit others to (i) copy or use the Software or the Documentation or any Intellectual Property Rights thereto; (ii) access, reverse engineer, disassemble, decompile or recompile the Software; and (iii) sublicense, rent, loan, lease or otherwise distribute the Services or Documentation or use the Services or Documentation in any third-party training, commercial time-sharing or service bureau arrangement. Client shall not remove or alter any of Prefect’s marks or trade names, from the Software or the Documentation.
5. Fees; Taxes; Payments
The fees and payment terms are set forth in the Order Form, which includes Prefect’s right to increase fees annually upon appropriate notice. Prefect reserves the right to deny Client access to the System upon its failure to pay any amount due, which failure persists after the cure period set forth in Section 7.3, except where
(i) there is a bona fide dispute over the amount due; and
(ii) Client has paid all undisputed amounts in full, as due.
Prefect is responsible for payment of all sales, use and all other taxes that are collected through use of the Services, other than taxes imposed on Client’s net income, and Prefect will make reasonable efforts to ensure the accuracy of any such collections.
Payments hereunder from Client to Prefect shall be made without offset or deduction of any kind and shall be made by wire transfer of immediately available funds to the account set forth in the Order Form attached hereto or such other account as Prefect may designate from time to time.
Amounts not received within thirty (30) days when due and not the subject of a bona fide good faith dispute shall be subject to a late charge of the larger of prime plus two (2) percent per month or two (2) percent per month of the delinquent amount, calculated from the due date until paid (“Late Charges”). Prefect shall be entitled to recover from Client the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and reasonable attorney fees). For the avoidance of doubt, any breach of this Paragraph 5 will constitute a material breach of this Agreement
6. Confidentiality; Ownership of System/Client Records
6.1 Prefect System
The System and Software are the exclusive and confidential property of Prefect; Client has no right to use or access the System for any purpose other than utilizing the Software as set forth herein.
6.2 Client Data
All Client records and data in whatever form (the “Client Data”) are the property of Client. Prefect shall have no right to copy, transfer, sell, disclose, license, alter or otherwise use the Client Data for any purpose, except to fulfill its obligations to the Client pursuant to the Agreement or to improve the System, Software and/or Services. Prefect shall treat such Client Data as Confidential Information as contemplated under the Agreement, and will not disclose the Client Data, other than to employees on a need-to-know basis and to its third-party providers (e.g., its Hosting Site) under obligations of confidentiality. Prefect shall use industry standard security measures to maintain the security of the Client Data. Notwithstanding the foregoing, Prefect may disclose the Client Data to a third party, including any government authority, if required by law, regulation, court proceedings or subpoena; provided that, unless prohibited by law, Prefect shall notify Client of the requested disclosure and shall cooperate to assist Client in maintaining the confidentiality of such Client Records.
(a) “Confidential Information” means any information obtained by a receiving party from or on behalf of a disclosing party that relates to the past, present or future business activities of the disclosing party or its subsidiaries or affiliates, or their respective employees, customers or third party suppliers or contractors, including the terms and conditions of this Agreement, information exchanged in the course of negotiations, any Schedule, and any information relating to the applicable entity’s (or person’s) plans, pricing, methods, methodologies, processes, financial data, lists, intellectual property rights and trade secrets, customer information, apparatus, statistics, programs, research, development, or information technology. Confidential Information does not include information that the receiving party can demonstrate:
(i) is currently in the public domain;
(ii) was previously known to the receiving party free from any obligation to keep it confidential;
(iii) was publicly disclosed by or on behalf of the disclosing party at any time;
(iv) was independently developed by the receiving party without any access to or use of Confidential Information of the disclosing party; or
(v) is rightfully obtained by the receiving party from a third party lawfully in possession of the Confidential Information and who is not bound by confidentiality obligations to the disclosing party.
(b) The receiving party will hold all Confidential Information of the disclosing party in trust and confidence for the disclosing party and, except as set forth in this Agreement or as otherwise may be authorized by the disclosing party in writing, the receiving party will not disclose to any person, firm or enterprise, or use for its own benefit, any Confidential Information of the disclosing party. The receiving party will treat all Confidential Information of the disclosing party with the same degree of care that the receiving party treats its own confidential or proprietary information, but in no event less than reasonable care.
(c) The receiving party may disclose Confidential Information of the disclosing party to the receiving party's employees, and to any of the receiving party's contractors who are bound to the receiving party by confidentiality obligations substantially equivalent to those set forth in this Section, solely as required in order for the receiving party to perform under this Agreement, or in the case of Client, in order to access and use materials.
(d) Each party may retain copies of the Confidential Information, as applicable, to the extent required to comply with applicable legal and regulatory requirements. Such Confidential Information, as applicable, will remain subject to the terms and conditions herein. Otherwise, at the request and option of the disclosing party and in the event of termination or expiration of this Agreement (or any part thereof), the receiving party agrees to promptly:
(i) return to the disclosing party the Confidential Information, as applicable; or
(ii) destroy or otherwise permanently erase the Confidential Information from all forms of recordation and, if requested by the disclosing party, acknowledge the completion of such acts in writing.
(e) The Parties acknowledge and agree that any disclosure of Confidential Information will in no way be construed as an assignment, transfer, or conveyance of title to or ownership rights in or to such Confidential Information.
(f) In the event of a breach, threatened breach or attempted breach of the receiving party’s obligations with respect to Confidential Information, the disclosing party may have no adequate remedy in money or damages and, accordingly, may immediately seek an injunction against such breach.
(g) The receiving party may disclose Confidential Information of the disclosing party if required to do so under applicable law, rule or order provided that the receiving party, where reasonably practicable and to the extent legally permissible, provides the disclosing party with prior written notice of the required disclosure so that the disclosing party may seek a protective order or other appropriate remedy, and provided further that the receiving party discloses no more Confidential Information of the disclosing party than is reasonably necessary in order to respond to the required disclosure.
7. Term; Termination; Default; Remedies
This Agreement shall commence on the Effective Date and can be terminated by Client during the implementation period set forth in the Order Form (“Implementation Term”) for any reason. In the event that Client fails to terminate during the Implementation Term, the agreement shall continue in full force and effect for a period set forth in the Order Form following the Effective Date (the “Initial Term”), unless the Agreement is sooner terminated as provided herein. If neither party indicates in writing their intention to modify the agreement prior to a notice window set forth in the Order Form (“Notice Window”) prior to the end of the then-current Term, this agreement will renew for an additional Term (“Renewal Term”). The Implementation Term, Initial Term, Notice Window, and Renewal Term are set forth in the Order Form, attached hereto. The Implementation Term and Initial Term, together with any Renewal Term(s), are referred to herein collectively as set forth above in Section 1.12.
Each of the following shall constitute a default:
(i) Client’s failure to pay any undisputed sum due hereunder;
(ii) a party’s failure to perform any of its obligations hereunder; or
(iii) a party making a representation or warranty that is materially false or misleading when made.
7.3 Termination; Other Remedies
Notwithstanding anything contained in this Agreement to the contrary, (i) with respect to a default under Section 7.2(i), upon Client’s failure to cure such default within ten (10) days after written notice of default, or (ii) with respect to all other defaults, upon the Client’s failure to cure such default within thirty (30) days after written notice of default, Prefect may take any or all of the following actions:
(a) terminate this Agreement and/or access to any of the Services upon written notice,
(b) declare all amounts due to be immediately due and payable, and/or
(c) exercise any of its other rights or remedies hereunder and under applicable law (except to the extent expressly excluded hereunder).
In addition to the foregoing, Prefect may terminate upon written notice to Client in the event that:
(x) Client becomes insolvent;
(y) a receiver or trustee is appointed for all, or substantially all, of the property or assets of Client; or
(z) Client is liquidated or dissolved.
In the event that Client elects to terminate this Agreement prior to the expiration of its then current term, and such termination is not permitted by this Agreement, then Prefect shall not be obligated to refund any portion of the fees already paid by Client for the then-current term. The remedies contained in this Section 7 are cumulative and in addition to all other rights and remedies available hereunder, by operation of law, or otherwise, except as expressly excluded hereunder. The termination of the Agreement for any reason shall not affect or impair any rights, obligations or liabilities of either party that may accrue prior to such termination or that, under the terms of the Agreement, continue after termination.
7.4 Actions Due Upon Termination
Upon termination of the Agreement for any reason:
(i) Client shall immediately pay to Prefect all outstanding amounts due and shall return copies of all Documentation or other Materials; and
(ii) all rights granted by Prefect under this Agreement shall cease and Client shall immediately cease access to the System and any use of the Services;
(iii) no Party hereto shall be relieved from any liability for a breach of this Agreement prior to such expiration or termination;
(iv) Client acknowledges that certain Client Data may remain in storage systems or media that are not easily removed and are subject to reasonable security and agrees that Prefect shall have no obligation to remove or destroy such Client Data during or after any Term, provided however, that Prefect does not use such retained Client Data for any purpose; and
(v) Client shall certify compliance with 7.4(i) and (ii) in writing.
8. Warranties; Limitation of Liability and Disclaimers
8.1 Mutual Warranties
Each of the Parties represents and warrants to the other that:
(i) it is duly constituted, organized and validly existing under the laws of the place of its incorporation or formation;
(ii) it has the legal right and full power and authority to execute and deliver, and to exercise its rights and perform its obligations under, this Agreement and all the documents which are to be executed by it as contemplated by this Agreement;
(iii) nothing contained in this Agreement shall result in a breach of any provision of its organizational documents or result in a breach of any agreement, license or other instrument, order, judgment or decree of any court, governmental agency or regulatory body to which it is bound; and
(iv) in the case of Prefect, the Prefect System, and in the case of Client, the Client systems, software and hardware used by Client in connection with the Software, are designed to be free from and are periodically scanned to detect and eliminate viruses.
8.2 Client Warranty
Client represents and warrants that: (i) Client is trained as to the operation of the Software and Services prior to first use, understands the risks associated therewith, and possess any and all software licenses, approvals, permissions and authorizations necessary to use the Services, (ii) it will maintain an Internet connection with sufficient bandwidth to support communication connections between Prefect and the Hosting Site and (iii) Client owns or otherwise has the valid right, by contract or otherwise to deliver to Prefect the Client Data and Prefect may use the Client Data as contemplated by this Agreement without violating any applicable law, rule or regulation or the proprietary rights of any third party, including patents, copyrights, trade secrets, or any license, sublicense, covenant or contract with any third party.
8.3 Prefect Warranty
Prefect represents and warrants that: (i) the System will contain the functions and perform substantially as described in the Documentation. Prefect’s only liability, and Client’s exclusive remedy, for any breach of the foregoing warranties is that, if reported to Prefect in writing, Prefect will attempt a good faith effort to correct such reported defect.
8.4 Reporting Errors
Client shall advise Prefect in writing of any material error or omission in the Services, System or Materials reasonably promptly after discovery thereof by Client.
8.5 Misuse of Passwords
Client shall maintain the confidentiality of its passwords, regularly change such passwords, take all commercially reasonable efforts to prevent unauthorized misuse or misappropriation and, in the event of such, be responsible therefore and promptly notify Prefect thereof.
8.6 Limitation of Liability; Exclusion of Consequential Damages
EXCEPT FOR A BREACH OF SECTIONS 3.2, 4.2, 6.1 or 6.3, AND REGARDLESS OF THE FORM OF ACTION, IN NO EVENT WILL EITHER PARTY (OR ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS OR AGENTS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF REPUTATION OR COSTS OF SUBSTITUTE SERVICES) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE ARISING OUT OF OR RELATING TO THE SOFTWARE, THE SERVICES, THE SYSTEM, THIS AGREEMENT OR ITS TERMINATION, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. FURTHER, THE SOLE LIABILITY OF PREFECT (AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES AND AGENTS, AND AFFILIATES THEREOF) TO CLIENT FOR DAMAGES FOR ANY CAUSE WHATSOEVER NOTWITHSTANDING THE FORM OF SUCH CLAIMS (INCLUDING NEGLIGENCE) (I) SHALL BE LIMITED TO THE FEES PAID BY CLIENT TO PREFECT IN THE 30 DAYS PRECEDING THE MATTER GIVING RISE TO SUCH DAMAGES; AND (II) SHALL, INCLUDING INDEMNIFICATION PURSUANT TO SECTION 9, BE LIMITED TO AN AMOUNT NOT EXCEEDING $10,000.
8.7 Warranty Disclaimers
EXCEPT AS SPECIFICALLY PROVIDED FOR HEREIN, THE SYSTEM, ITS INTERFACES, ANY RELATED EQUIPMENT, THE SERVICES AND ANY MATERIALS ARE PROVIDED “AS IS”. PREFECT AND ANY THIRD-PARTY PROVIDERS SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, PREFECT MAKES NO REPRESENTATION OR WARRANTY (I) AS TO THE SYSTEM OR THE SERVICES; (II) AS TO THE RESULTS TO BE ATTAINED BY CLIENT OR ANY THIRD PARTY FROM THE SERVICES OR FROM ACCESS TO OR USE OF THE SYSTEM; (III) AS TO THE LIFE OF ANY URL USED IN THE SYSTEM; (IV) THAT ACCESS TO THE HOSTING SITE OR THE SERVICES WILL BE UNINTERRUPTED, SECURE, COMPLETE, ACCURATE OR ERROR-FREE; OR (V) THAT ALL USES THAT CAN BE MADE OF THE SYSTEM OR SERVICES COMPLY WITH APPLICABLE LAW; RATHER, IT IS CLIENT’S RESPONSIBILITY TO CONFORM ITS USE OF THE SYSTEM AND SERVICES WITH THE LAW. CLIENT ACKNOWLEDGES THAT CERTAIN SOFTWARE AND EQUIPMENT USED BY IT MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OF THE SYSTEM. EACH PARTY HERETO HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY THE OTHER EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
9. Injunction; Indemnification
9.1 Injunctive Relief
Client acknowledges that violation by Client of the provisions of this Agreement may cause Prefect and/or its Affiliates irreparable injury not fully compensable by money damages and for which Prefect and/or its Affiliates will not have an adequate remedy at law. Accordingly, Prefect shall be entitled to injunctive relief, specific performance or other equitable relief as may be necessary to enjoin, prevent or curtail any breach thereof, threatened or actual, without the posting of any bond. The foregoing shall be in addition to and not in lieu of and without prejudice to or limitation on any other rights or remedies Prefect may have under this Agreement, at law or in equity, including the right to seek preliminary injunctive relief for violations of provisions of this Agreement other than those listed above.
9.2 Prefect Indemnification of Client
Prefect shall defend, hold harmless and indemnify Client (and any party controlling, controlled by or under common control with Client), and their respective directors, officers and employees (the “Client Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party against Client Indemnified Parties to the extent that it is based on or arising out of a breach of Prefect’s representations and warranties set forth herein.
9.3 Client Indemnification of Prefect
Client agrees to indemnify and hold harmless Prefect, its Affiliates, and its and their respective partners, members, directors, officers, and representatives from any and all claims, judgments, causes of action, liabilities, obligations, damages, losses, deficiencies, costs, penalties, interest and expense (including the reasonable fees and expenses of counsel), in each case as incurred (collectively, “Losses”) arising from or in connection with (i) the Client Data, Client system, processing conducted by Client using the Service and/or Software, or access or use of any of the foregoing, and/or (ii) any breach by Client of this Agreement, excluding to the extent arising from Prefect’s willful misconduct
9.4 Conditions for Indemnification
The party seeking indemnification under this Section 9 (“Indemnified Party”) shall promptly notify the other party (“Indemnifying Party”) of any claim, suit or proceeding for which indemnification may be sought; provided, however, that any failure by the Indemnified Party to provide prompt written notice as required by this Section shall excuse the Indemnifying Party only to the extent that it is prejudiced thereby. The Indemnified Party shall (unless prohibited by law, regulation or a court proceeding) cooperate with the Indemnifying Party with regard to the defense of any suit or threatened suit. The Indemnifying Party shall have full control of any such claim, proceeding or suit and the authority to settle or otherwise dispose of any such suit or threatened suit, and to appeal any adverse judgment that may be entered, except that it may not settle the matter in a manner that imposes any material duty or restriction on the Indemnified Party without its consent, not to be unreasonably withheld. Notwithstanding the foregoing, the Indemnified Party may, at its option and its own expense, hire its own counsel to advise it with respect to any such claim, subpoena or suit.
This Agreement shall be binding upon each party’s successors and permitted assigns. Either party (the “Seller”) may assign its rights hereunder to the purchaser or surviving entity (the “Purchaser”) in any stock, assets, merger or other transaction in which all or substantially all of the business of the Seller (or, in the case of Prefect, substantially all of the assets of the portion of its business relating to the Services) is transferred, regardless of the form such transaction may take, provided that the Purchaser assumes in writing all of the obligations of the Seller hereunder and the Seller remains jointly and severally liable for such obligations. Except as expressly authorized in the preceding portion of this Section, neither this Agreement nor any right or obligation arising under it may be assigned, licensed, sublicensed, sold, mortgaged, pledged or otherwise disposed of (collectively, a “disposition”) by Client without the prior written consent of Prefect, and any attempted disposition shall be null and void.
10.2 Governing Law; Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts to be performed entirely within Delaware. Any action or proceeding to enforce or arising out of this Agreement shall be commenced in the state and federal courts located in Delaware. The parties hereto consent to the exclusive jurisdiction of such courts, agree that venue will be proper in such courts and waive any objections based upon forum non conveniens. The choice of forum set forth in this Section 10.2 will not be deemed to preclude the enforcement of any judgment obtained in such forum or the taking of any action under this Agreement to enforce such judgment in any other jurisdiction.
10.3 Force Majeure
Neither party shall be liable for any failure or delay in the performance of any of their respective obligations (other than the payment of fees) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, such Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third party vendors, Internet slow-downs or failures, equipment failures, computer hackers or other causes that are beyond a party’s reasonable control. Failure to meet due dates or time schedules resulting from a Force Majeure Event shall extend the due dates or time schedules for reasonable periods of time as determined by Prefect in good faith; provided that if any such delay or excuse shall exceed thirty (30) days, the non-affected party may, at its option, terminate this Agreement upon notice to the affected party.
10.4 Export Control Restrictions
Client warrants that its use of the Services and access to the System shall comply with all export control laws and Client agrees to indemnify, defend and hold Prefect harmless from any liability, claim, loss or expense suffered or incurred by Prefect as a result of a breach of this warranty.
10.5 Entire Agreement; Modifications
This Agreement, which includes the order forms, exhibits and schedules attached to these Terms, constitute the entire Agreement of the parties with respect to the subject matter hereof, supersedes any and all existing agreements relating to the subject matter hereof, and may not be modified or amended except by a written instrument signed by both parties. No failure or delay in exercising any right, power or remedy under the Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right.
All notices to be given or otherwise made to a party shall be in writing, delivered by hand in person, by electronic transmission with delivery confirmation, by express overnight courier service, or by facsimile transmission (in each instance with a confirming copy sent by U.S. Mail, registered or certified, return receipt requested), or by registered or certified mail, postage pre-paid return receipt requested, addressed to such party at the address set forth in this Section 10.6. All such notices provided in accordance with this section shall be deemed delivered upon the earlier of actual delivery, or three (3) days after deposit in the mail or with a courier.
If to Prefect:
Prefect Technologies, Inc.
1301 K St NW
Washington DC 20005
If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and this Agreement shall be reformed, construed and enforced to the fullest extent as if any such illegal, invalid or unenforceable provision were not contained herein.
Prefect is permitted to include Client in any lists of customers it makes available, including over the Internet, as well as in any promotional literature or advertising. In addition, Prefect shall have the right to refer to Client as a customer during the Term or any Renewal Term of this Agreement and may make use of Client’s name and logos in marketing. Client further agrees to include in all of its promotional literature and other advertising in which the capabilities of the Software are explicitly or implicitly mentioned or referred to a phrase indicating that the Software is a proprietary product of Prefect. Client is permitted to include the Prefect name and any logos for use in a press release announcing this Agreement or the relationship between the Parties.
Client shall not have any right to use the trademarks, logos or other Intellectual Property Rights of Prefect outside of the rights explicitly granted by way of this Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but together shall constitute one and the same instrument.
10.10 Independent Contractors
This Agreement shall create an independent contractor relationship between Prefect and Client. Neither party shall have any authority to act in any way as a representative or agent of the other, or to bind the other to any third party, except as specifically set forth herein, and the parties shall not be deemed to be partners, joint ventures or the like by virtue of the provisions hereof.
The headings preceding the various paragraphs and subparagraphs of this Agreement are intended solely for the convenience of the parties and shall not be deemed relevant in the construction of this Agreement or its terms.
The obligations under Sections 3, 5, 6, 7.4, 8.6, 8.7, 9, and 10, as well as any other provision that by its nature is intended to survive, shall survive the termination or expiration of this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.