LogiKlu Inc. SOFTWARE AS A SERVICE Agreement
A. Agreement Definitions
"You" and "your" refers to the individual or entity that has ordered software as a service from LogiKlu Inc., Inc. ("LogiKlu Inc.") by executing the subscription form that accompanies and incorporates this LogiKlu Inc. software as a service agreement (collectively, the "agreement"). This Software as a service consists of system administration, system management, and system monitoring activities that LogiKlu Inc. performs for the LogiKlu program, and includes the right to use the LogiKlu program, support services for such LogiKlu program, as well as any other related services provided by LogiKlu Inc. (collectively, the "services"). The term "LogiKlu" refers to a software product owned or distributed by LogiKlu Inc. to which LogiKlu Inc. grants you access as part of the services, including program documentation, and any program updates provided as part of the services. The term "users" shall mean those individuals authorized by you or on your behalf to use the services, as defined in the ordering document. The term "your data" refers to the data provided by you that resides in your services environment. The term "ordering document" refers to the ordering form and/or document signed / accepted by the parties that accompanies and incorporates this software as a service agreement, including the services policies and any other document referenced or incorporated into the ordering document.
B. Applicability of Agreement
This software as a service agreement is valid for online subscription form which this agreement accompanies or any ordering document associated with it.
C. Rights Granted
Upon LogiKlu Inc.'s acceptance of your order and for the duration of the services term defined in the ordering document, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of the agreement. You may allow your registered users to use the services for this purpose and you are responsible for your users' compliance with the agreement. The services are provided as described in, and subject to, the services policies referenced in the ordering document.
You acknowledge that LogiKlu Inc. has no delivery obligation and will not ship copies of the LogiKlu program to you as part of the services. You agree that you do not acquire under the agreement any license to use the LogiKlu program specified in the ordering form / document in excess of the scope and/or duration of the services. Upon the end of the agreement or the services thereunder, your right to access or use the LogiKlu program specified in the ordering document and the services shall terminate.
D. Ownership and Restrictions
You retain all ownership and intellectual property rights in and to your data. LogiKlu Inc. or its licensors retain all ownership and intellectual property rights to the services and the LogiKlu program. LogiKlu Inc. retains all ownership and intellectual property rights to anything developed and delivered under the agreement.
Third party technology that may be appropriate or necessary for use with some LogiKlu program is specified in the program documentation or ordering document as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by LogiKlu Inc. and not under the agreement.
You may not:
The rights granted to you under the agreement are also conditioned on the following:
E. Warranties, Disclaimers and Exclusive Remedies
LogiKlu Inc. warrants that the services will perform in all material respects in accordance with the services policies referenced in the ordering document. If the services provided to you for any given month during the services term were not performed as warranted, you must provide written notice to LogiKlu Inc. as specified in the ordering document no later than five business days after the last day of that particular month or within such other period stated in the ordering document.
LogiKlu Inc. DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT LogiKlu Inc. WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT LogiKlu Inc. DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. LogiKlu Inc. IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
If a third party makes a claim against either you or LogiKlu Inc. ("Recipient" which may refer to you or LogiKlu Inc. depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material ("Material") furnished by either you or LogiKlu Inc. ("Provider" which may refer to you or LogiKlu Inc. depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
If the Provider believes or it is determined that any of the Material may have violated a third party's intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects LogiKlu Inc.'s ability to meet its obligations under the relevant order, then LogiKlu Inc. may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider's user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink). LogiKlu Inc. will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by LogiKlu Inc.. LogiKlu Inc. will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. LogiKlu Inc. will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties' exclusive remedy for any infringement claims or damages.
G. End of Agreement
Services provided under this software as a service agreement shall be provided for the period defined in the ordering document unless terminated earlier in accordance with the agreement. The term of the services and any renewal years are collectively defined as the "services term." At the end of the services term, all rights to access or use the services, including the LogiKlu program listed in the ordering document, shall end.
If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable ordering document under which the breach occurred. If LogiKlu Inc. ends the ordering document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related taxes and expenses. If LogiKlu Inc. ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the agreement, you may not use the services ordered.
In addition, LogiKlu Inc. may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay LogiKlu Inc. as required under the agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within sections C, D, L or P of this software as a service agreement. LogiKlu Inc. may terminate the services hereunder if any of the foregoing is not cured within 30 days after LogiKlu Inc.'s initial notice thereof. Any suspension by LogiKlu Inc. of the services under this paragraph shall not excuse you from your obligation to make payment(s) under the agreement.
At your request, and for a period of up to 7 days after the termination of the applicable ordering document, LogiKlu Inc. may permit you to access the services solely to the extent necessary for you to retrieve a file of your data then in the services environment or make such data available to you, as applicable.
You agree and acknowledge that LogiKlu Inc. has no obligation to retain your data and that your data may be irretrievably deleted after 30 days following the termination of the ordering document.
Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
H. Fees and Taxes
You agree to pay for all services ordered as set forth in the applicable ordering document. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that LogiKlu Inc. must pay based on the services you ordered, except for taxes based on LogiKlu Inc.'s income. You will reimburse LogiKlu Inc. for reasonable expenses related to providing any on-site portion of the services. Fees for services listed in an ordering document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the ordering document; however, the preceding does not relieve LogiKlu Inc. of its obligation to deliver services that you have ordered per the terms of the agreement.
By virtue of the agreement, the parties may have access to information that is confidential to one another ("confidential information"). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
A party's confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other's confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. LogiKlu Inc. will protect the confidentiality of your data residing in the services environment in accordance with the LogiKlu Inc. security practices specified in the services policies referenced in the ordering document. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.
J. Entire Agreement
You agree that the agreement (including the information which is incorporated into the agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement, including any LogiKlu Inc. ordering document, shall supersede the terms in any purchase order or other non-LogiKlu Inc. document and no terms included in any such purchase order or other non-LogiKlu Inc. document shall apply to the services ordered. The agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the LogiKlu Inc. Store by authorized representatives of you and of LogiKlu Inc.
K. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. LogiKlu Inc.'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO LogiKlu Inc. FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST LogiKlu Inc. SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE
LIMITATION OF LIABILITY.
Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the services. You agree that such export control laws govern your use of the services (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
1.LogiKlu Inc. is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us.
2.You shall obtain at your sole expense any rights and consents from third parties necessary for LogiKlu Inc. and its subcontractors to perform the services under the agreement.
3.The agreement is governed by the substantive and procedural laws of California and you and LogiKlu Inc. agree to submit to the exclusive jurisdiction of, and venue in, the courts in Santa Clara County in California in any dispute arising out of or relating to the agreement.
4.If you have a dispute with LogiKlu Inc. or if you wish to provide a notice under the Indemnification section of this software as a service agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: LogiKlu Inc., 900 Lafayette Street, Suite 704, Santa Clara, California 95050, USA, Attention: LogiKlu Management Administration. LogiKlu Inc. may give notice applicable to LogiKlu Inc.'s software as a service customer base by means of a general notice on the LogiKlu Inc. portal for the services, and notices specific to you by electronic mail to your e-mail address on record in LogiKlu Inc.'s account information or by written communication sent by first class mail or pre-paid post to your address on record in LogiKlu Inc.'s account information.
5.You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity.
6.Except for actions for nonpayment or breach of LogiKlu Inc.'s proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
7.LogiKlu Inc. may audit your use of the services. You agree to cooperate with LogiKlu Inc.'s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, LogiKlu Inc. can end your services and/or the agreement. You agree that LogiKlu Inc. shall not be responsible for any of your costs incurred in cooperating with the audit.
8.The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it. You understand that LogiKlu Inc.'s business partners, including any third party firms retained by you to provide computer consulting services, are independent of LogiKlu Inc. and are not LogiKlu Inc.'s agents. LogiKlu Inc. is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a LogiKlu Inc. subcontractor on an engagement ordered under this software as a service agreement.
N. Force Majeure
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
O. Your Data
LogiKlu Inc. reserves the right to provide the services from locations, and/or through use of subcontractors, worldwide.
If so applicable, you agree to provide any notices and obtain any consents related to your use of the services and LogiKlu Inc.'s provision of the services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.
P. Restrictions on Use of the Services
You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to LogiKlu Inc. under the agreement, LogiKlu Inc. reserves the right to remove or disable access to any material that violates the foregoing restrictions. LogiKlu Inc. shall have no liability to you in the event that LogiKlu Inc. takes such action. You agree to defend and indemnify LogiKlu Inc. against any claim arising out of a violation of your obligations under this section.
Q. Services Tools
LogiKlu Inc. may use tools, scripts, software, and utilities (collectively, the "tools") to monitor and administer the services and to help resolve your LogiKlu Inc. service requests. The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing LogiKlu Inc.'s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the agreement.
If LogiKlu Inc. provides you with access to or use of any tools in connection with the services, your right to use such tools is governed by the license terms that LogiKlu Inc. specifies for such tools; however, if LogiKlu Inc. does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of the agreement. Any such tools are provided by LogiKlu Inc. on an "as is" basis and LogiKlu Inc. does not provide technical support or offer any warranties for such tools. Your right to use such tools will terminate upon the earlier of LogiKlu Inc.'s notice to you (which may be through posting on www.LogiKlu.com or such other URL designated by LogiKlu Inc. or email communication or other forms of communication), the end of the services term, or the date that the license to use such tools ends under the license terms specified for such tools.
R. Statistical Information
LogiKlu Inc. may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company's name without your approval. LogiKlu Inc. retains all intellectual property rights in such information.
S. Third Party Web Sites, Content, Products and Services
The services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. LogiKlu Inc. is not responsible for any third party Web sites or third party content (including your website) provided on or through the services and you bear all risks associated with the access and use of such Web sites and third party content, products and services. If you have utilized LogiKlu Inc. services to create a website, then such website will be governed by the agreement that you have entered with LogiKlu Inc. for the purposes of the website.
T. Customer Reference
You agree (i) that LogiKlu Inc. may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by LogiKlu Inc. on LogiKlu Inc..com for promotional purposes.