Software as a Service (SaaS) Agreement
September 15, 2021
This Software as a Service (SaaS) Agreement (“Agreement”) is between EPSoft Technologies LLC, a Texas corporation, and Affiliates (“EPSoft”) with a principal place of business at 2727 LBJ Freeway, Suite 930, Farmers Branch, TX 75234, and the customer (“Customer”) that has purchased a subscription to the Service (as defined below). “EPSoft” means the EPSoft affiliate designated on the applicable Order Form (as defined below). If you are an individual using the Service on behalf of a corporation, partnership, or other entity, then that entity will be the Customer, and you represent and warrant that you are authorized to enter into this Agreement on behalf of such entity and bind such entity to the terms and conditions of this Agreement. Each of EPSoft and Customer is a “Party” and together they are the “Parties.”
This Agreement applies only to the Service listed in the applicable Order Form or any amendment thereto. EPSoft reserves the right to make other EPSoft software or Service available under separate agreements. This Agreement includes any attachments and referenced policies, including without limitation the applicable EPSoft Support Policy and Order Form entered into between the Parties.
Customers are responsible for maintaining active licenses and complying with all applicable agreements for all Connected Service (as defined below).
From time to time, EPSoft may modify this Agreement. Unless otherwise specified by EPSoft, changes become effective for existing subscription Customers upon renewal of the then-current Subscription Term. Customer may be required to click to accept the modified Agreement before using the EPSoft Service in a Renewal Subscription Term, and in any event, continued use of the Service during the Renewal Subscription Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the Renewal Subscription Term begins.
IMPORTANT: IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT CONNECT, ACCESS OR USE THE SERVICE IN ANY MANNER. BY CHECKING THE ACCEPTANCE BOX OR INSTALLING OR USING ANY PORTION OF THE SERVICE, CUSTOMER IS ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
EPSoft has developed and owns EZFlow®, an intelligent process automation digital platform that provides tools like process intelligence, BPMN, low and no-code RPA, analytics, orchestration, machine learning, and AI that stand alone but also easily integrate with other RPA providers for a single pane view. Such tools are provided to customers on a Software as a Service (SaaS) license basis and this Agreement governs the Parties’ relation in connection with Customer’s subscription, as well as its End User’s (as defined below), access to, and usage of the Service
Affiliates means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Agreement means this Software as a Service Agreement, together with the Order Form and applicable Service.
Connected Service means any cloud service or external application that is called by the Service using an EPSoft Connector.
Customer means the entity or person listed on the Order Form who has purchased the right to use the Service (that was sold, licensed or distributed pursuant to this Agreement) for its internal business purposes and who has accepted or signed, as required, an applicable and EPSoft-approved SaaS Agreement for the Service.
Documentation means EPSoft’s or its licensors’ user manuals and other published protocols, standards and technical specifications for use with the Service and as updated from time to time.
End User means a person or entity (Licensee) that has been granted authority by the Customer to have access to the Service.
Harmful Code means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms,time bombs and Trojan horses.
Intellectual Property Rights means current and future worldwide rights under patent, copyright, trade secret, trademark, tradename, moral rights, mask works and other similar rights, whether or not specifically recognized or perfected, honored or enforceable under any applicable laws anywhere in the world.
Order Form means the Order Form in the name of and executed by Customer or its Affiliate and accepted by EPSoft which specifies the EPSoft Service and/or other applications or services to be provided by EPSoft or renewal notification subject to the terms included or incorporated therein and the terms of this Agreement.
Service means the professional services, education services and Support services offered by EPSoft or its authorized service providers in connection with the Service by Customer pursuant to the Order Form(s) and made available by EPSoft subject to this Agreement.
Subscription Term means the set term designated herein or in the applicable Order Form.
Support means the maintenance and support services EPSoft provides directly to End Users per the terms of its then current Support policy (available at https://www.epsoftinc.com/productsupport/terms) for the products and services purchased by Customer pursuant to the Order Form(s) and made available by EPSoft subject to this Agreement
Support Documentation means any documentation provided by EPSoft that is incorporated in or associated with Support.
Workflow means a series of workflow actions which include a manual or automated start and a termination or end.
Workflow Agent means software installed on Customer’s designated on-premises server that receives the automation instructions from the platform based on user-designed process automation and executes the process automation.
2. Service Subscription
2.1 Provision of Service. The Service is provided by EPSoft on a subscription basis for a set term designated herein or in the applicable Order Form. The Service may be delivered to Customer: (a) as an online service, or (b) as an online service with Workflow Agents to be installed on Customer’s designated on-premises server. The Service delivery method will be indicated on Customer’s Order Form.
2.2 Trial Access. If EPSoft has made available to Customer free, trial, or evaluation access to the Service (“Trial Access”), such access is limited to evaluating the Service to determine whether to purchase a subscription from EPSoft. Customer may not use Trial Access for any other purposes, including but not limited to competitive analysis, commercial, professional, or for-profit purposes. EPSoft has the right to terminate Trial Access at any time. Unless Customer purchases a subscription for the Service, upon any such termination or expiration, Customer’s Trial Access will cease. If Customer purchases a subscription to the Service, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Service. NOTWITHSTANDING ANYTHING IN THIS AGREMEENT TO THE CONTRARY, EPSOFT WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL ACCESS.
2.3 License to Use the Service. EPSoft owns all rights, title and interest in and to the Service. EPSoft hereby grants Customer a non-exclusive, non-transferable, right to access and use the Service, solely for Customer’s own internal business purposes during the Subscription Term, subject to the terms and conditions of this Agreement and any restrictions and limitations designated in the applicable Order Form. Subject to the limited rights expressly granted hereunder, EPSoft reserves all right, title, and interest in and to the Service, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
2.4 Support. EPSoft will provide support services to Customer based on the plan selected on the Order Form and will maintain the EPSoft Service with Updates during the Subscription Term. EPSoft support terms are available at https://www.epsoftinc.com/productsupport/terms.
2.5 Beta Services. From time to time, EPSoft may invite customers to try beta services at no charge. Customer may accept or decline any such trial in Customer’s sole discretion. Beta services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta services are for evaluation purposes and not for production use, are not considered EPSoft Service under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any beta services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the beta services becomes generally available. EPSoft may discontinue beta services at any time in its sole discretion and may never make them generally available. EPSoft makes no representations or warranties with respect to any beta services and shall not have any responsibility or liability for any harm or damage arising out of or in connection with a beta service.
3. Use of The Service
3.1. EPSoft SaaS License. EPSoft grants Customer a non-exclusive, non-transferable, non-sublicensable annual (or such term as stated in the Order Form) limited right subscription license to access and use the EPSoft Service for internal use only during the Subscription Period, and in accordance with the usage terms set forth herein and in the applicable Order Form. Customer will use the Service solely for Customer’s internal business purposes and not for the benefit of any third parties. Customer will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality, appropriateness, and legality of any Customer data or other business information (“Customer Content”) used in the Service, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify EPSoft promptly of any such unauthorized access or use, and (d) use the Service only in accordance with the terms of this Agreement and applicable laws and government regulations. Customer is the sole and exclusive owner of all Customer Content. Customer grants EPSoft a worldwide, non-exclusive, royalty-free right and license to host, transfer, display, perform, reproduce, modify, and distribute Customer Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) but only for the sole purpose of providing the Service to Customer and addressing any service or technical problems.
3.2 Service provided to Customer subject to the limitations set forth in the Order Form. Customer may increase the processes automated at any time during the term of the Agreement. If Customer’s usage is in excess of what is defined in the applicable Order Form, EPSoft will notify and work with the Customer to true-up such usage. If Customer’s usage of the Service continues to exceed what is defined in the applicable Order Form at the end of the thirty (30) day period after Customer is notified of the excess usage, EPSoft may: (a) suspend Customer’s access to the Service, and/or (b) require Customer execute an updated Order Form to purchase additional quantities based on the excess usage price set forth in the applicable Order Form or EPSoft’s add-on pricing schedule, as applicable (each, an “Overage Order Form”). Each Overage Order Form will have a subscription term coterminous with the applicable Initial or Renewal Subscription Term.
3.3. EPSoft Service Access and Delivery. The EPSoft Service shall be deemed delivered when access to the EPSoft Service is provided to Customer electronically. All Updates will be installed and maintained by EPSoft.
(a) Customer will not
(1) copy, modify or create any derivative works of the EPSoft Service (or any portion thereof);
(2) disassemble, reverse assemble, decompile, reverse engineer or otherwise attempt to derive the source code, the underlying ideas, algorithms, structure or organization of the EPSoft Service;
(3) (i) use the Service for purposes other than the purposes for which it is intended as defined in this Agreement and/or the applicable Order Form; (ii) rent, lease, lend, sell, sublicense, assign, distribute, or transfer in whole or in part the right to use the Service or any part thereof; (iii) bypass or breach any security device or protection used by the Service; (iv) input, upload, transmit, store or otherwise provide to or through the Service any information or materials that are unlawful or injurious, or that contain, transmit, or activate any harmful code; (v) use the Service in any illegal manner or in any way that infringes the right of any third party or use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights. In addition, in the event the Order Form limits the usage to a certain number of End Users, Customer shall ensure that the quantity of End Users who may access and use the Service in any given calendar month, will not exceed the quantity set forth in the Order Form. assign, transfer, lease, provide services to third parties using the EPSoft Service, rent or redistribute the EPSoft Service;
(4) (i) frame or mirror any content forming part of the Service, other than on Customer’s own intranet for Customer’s internal business purposes as permitted in this Agreement; (ii) interfere with or disrupt the integrity or performance of the Service; (iii) attempt to gain unauthorized access to the Service or its related systems or networks (iv) access the Service in order to build any commercially available product or Service or otherwise commercially exploit the Service; or
(5) authorize or permit any other third party to do any of the foregoing.
(b) There are no implied licenses. There is no license to source code. All rights not granted to Customer are reserved solely to EPSoft.
(c) Customer will not remove, alter, cover or obfuscate any copyright, trademark or other proprietary rights notices placed or embedded by EPSoft on or in any EPSoft Service.
(d) Nothing in this Agreement permits Customer to sublicense, distribute, or resell EPSoft products, or provide any portion of EPSoft Service to any other third party.
3.5 Feedback. EPSoft may, at its discretion and for any purpose, freely use, modify, and incorporate into its Service any feedback, comments, or suggestions provided by Customer or End Users (other than Customer Content), if any, without any additional obligation of EPSoft to Customer or the applicable End Users.
3.6. Customer Responsibilities. Customer (a) is solely responsible for users’ compliance with this Agreement, (b) is responsible for the accuracy, quality and legality of the Customer Data and the means by which Customer acquired Customer Data and provides it to EPSoft, (c) shall use commercially reasonable efforts to prevent unauthorized access to or use of EPSoft Services, and notify EPSoft promptly of any such unauthorized access or use, (d) shall use the Service only in accordance with applicable laws and government regulations, (e) shall obtain the authorizations, licenses and consents, if and as required by any applicable law, to make the Service available to the End Users, (f) shall obtain all consents and authorizations as may be required by any applicable law, for the collection, storage and processing of information and/or sensitive information by EPSoft according to Customer’s instructions, and (g) comply with terms of service of non-EPSoft applications with which Customer uses the EPSoft Service.
3.7. Open Source Software. A portion of the EPSoft Service may contain or consist of Open Source Software. The Open Source Software is not distributed or conveyed to Customer.
3.8 Third-Party Content. Customer may direct EPSoft via the Service to retrieve certain information maintained online by a third-party service or software providers with which Customer has a customer relationship or maintains an account (“Third- Party Content”). Customer agrees to provide its username, password and other log-in information and credentials necessary to access Customer’s account with such providers (“Third-Party Access”), and hereby grants EPSoft permission to use the Third-Party Content and Third-Party Access for the purposes contemplated by the Serv ice and this Agreement.
By using the Service and providing Customer’s Third-Party Access, Customer expressly authorizes EPSoft to access and use Customer’s Third-Party Content maintained by identified third parties on Customer’s behalf as Customer’s agent. Customer hereby authorizes EPSoft to use Customer’s Third-Party Access to accomplish the foregoing and to configure the Service so that it is compatible or integrated with the related Third-Party Content. CUSTOMER AND AUTHORIZED USERS ACKNOWLEDGE AND AGREE THAT WHEN EPSOFT ACCESSES AND RETRIEVES ACCOUNT INFORMATION FROM THIRD-PARTY SITES, EPSOFT IS ACTING AS CUSTOMER’S AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. Customer and its Authorized Users acknowledge and agree that the Service may not be sponsored or endorsed by the third-party services accessible through the Service. Customer represents and warrants that neither the foregoing (or anything else in the Agreement) nor its or its Authorized Users use of the Service will violate any agreement or terms to which Customer is subject, including without limitation, those with respect to any third-party site. EPSoft does not guarantee that any such third-party services will continue to be made available within the Service, and such services may be removed or disabled by EPSoft at any time without notice to Customer or its Authorized Users.
3.9. Export Restrictions. Customer will comply with all export and re-export restrictions and regulations of the U.S. Commerce Department and other U.S. agencies and authorities. Customer agrees and expressly warrants it will not directly or indirectly sell, export, re-export download, divert or otherwise dispose of the EPSoft Service in violation of any export laws of the United States or download or transfer (or authorize anyone to download or transfer) the EPSoft Service to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
3.10. Customer Infrastructure. Customer is responsible for all telecommunications, network infrastructure, hardware, software and equipment to access the software from the internet as outlined in EPSoft’s “Minimum System Requirements” section on the EPSoft website. Customer shall backup all data used with the EPSoft Service and Customer is responsible for restoration of any lost data. All hardware, maintenance, and responsibility for maintaining those servers including the OS will be the responsibility of the Customer.
3.11 Customer Content. Customer hereby grants to EPSoft and its Affiliates a limited, non-exclusive, nontransferable (except in connection with the permitted assignment of this Agreement), and royalty-free license to use the Customer Content solely for the purpose of providing the Service to Customer pursuant to this Agreement and the applicable Order Form
3.12 Customer’s Responsibilities. In addition to any other undertaking or responsibility of Customer as set forth in this Agreement, any applicable Order Form, SOW or an exhibit hereto or thereto, Customer shall be solely responsible and liable for: (i) the manner in which Customer and the End Users use the Service (ii) Customer Content, including without limitation Customer’s rights to use such Content in connection with the Service; (iii) information, data or other Content provided by End Users; and/or (iv) compliance by Customer with any and all applicable laws and with third parties’ rights in connection with the foregoing.
3.13 Logo Permission. Customer grants EPSoft permission to display Customer’s logo on EPSoft’s website and in customer lists. EPSoft will not reveal specific use cases, share quotes, or generate case studies, or any other marketing material with Customer’s name and / or logo without Customer’s written approval which shall not be unreasonably denied. Customer may only use the EPSoft and EZFlow marks or logos in a manner permitted by EPSoft Brand Guidelines, provided Customer does not attempt now or in the future, to claim any rights in the EPSoft Marks, degrade the distinctiveness of the EPSoft Marks, or use the EPSoft Marks to disparage or misrepresent EPSoft or the Service.
4. EPSoft Responsibilities
The Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. EPSoft is not responsible for any delays, delivery failures, or other damage resulting from such problems.
5. Fees and Payment
5.1 Fees. Customer must pay all fees specified in all Order Forms (the “Fees”). Except as otherwise stated in an Order Form, all Fees are quoted and payable in U.S. dollars and are based on Service rights acquired. Except as otherwise stated in an Order Form or as provided herein, payments must be made on an annual basis in advance.
5.2 Non-Cancelable And Non-Refundable. All payment obligations under any and all Order Forms are noncancelable and all payments made are non-refundable. The license rights set forth on any respective Order Form cannot be decreased during the Subscription Term.
5.3 Invoicing and Payment. Fees for the Service will be invoiced in accordance with the relevant Order Form. The first year’s Fees, as specified in each Order Form, are due and payable upon Customer’s execution of such Order Form. All other Fees due hereunder (except fees subject to good faith dispute) will be due and payable within thirty (30) days of invoice date, NET 30. Customer will provide EPSoft with complete and accurate billing and contact information.
5.4 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at EPSoft’s discretion, late charges at the rate of 1.5% of the outstanding balance compounded monthly, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.5 Non-Payment and Suspension of Service. If Customer’s account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, EPSoft reserves the right to suspend the Service upon ten (10) days written notice, without liability to Customer, until such amounts are paid in full.
5.6 Taxes. Except as otherwise stated in an Order Form, EPSoft’s Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including valueadded, excise, use, or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its acquisitions hereunder, this Agreement, and the Service, excluding U.S. income taxes on EPSoft. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer will gross up the payments so that EPSoft receives the amount actually quoted and invoiced. If EPSoft has a legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides EPSoft with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, in connection with this Service, that is designated as confidential or that reasonably should be understood by the Receiving Party to be confidential whether or not noted as confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation: (a) nonpublic information relating to the disclosing party's technology, prices, Intellectual Property Rights, specifications, manuals, business plans, product roadmaps, results of benchmark tests, promotional and marketing activities, finances and other business affairs; (b) End User data and third-party information that the disclosing party is obligated to keep confidential; (c) the discussions, negotiations and proposals between the parties leading to this Agreement and any order documents; and (d) the Agreement and order documents. Confidential Information does not include information that: (i) is or becomes publicly available without breach of the Agreement; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) is independently developed by receiving party after disclosure without breach of the Agreement; or (iv) is obtained by the receiving party from a third-party without any confidentiality obligation. Software and application programs contained in the Service are not deemed to be placed in the public domain by EPSoft.
6.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6.4 No Intellectual Property Rights. THE RECEIVING PARTY ACQUIRES NO INTELLECTUAL PROPERTY RIGHTS FROM THE DISCLOSING PARTY UNDER THIS AGREEMENT, except for the restricted right to use disclosing Party’s Confidential Information for the express, limited purposes described above.
6.5. Term of Nondisclosure Obligations. The parties’ obligations in this Section 7 will survive termination of this Agreement, and will bind the receiving party’s representatives, successors and permitted assigns, if any.
7. Limitation of Liability
7.1 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, EPSOFT PROVIDES THE SERVICE "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EPSOFT MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT, SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICE.
7.2 IN NO EVENT SHALL EPSOFT’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE SERVICE AND/OR THIS AGREEMENT AND/OR ANY OTHER AGREEMENT BETWEEN THE CUSTOMER AND EPSOFT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO EPSOFT TO USE THE SERVICE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE CLAIM. IN NO EVENT SHALL EPSOFT BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OR COSTS OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, GOODWILL, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS.
8. Mutual Indemnification
8.1 Indemnification by EPSoft. EPSoft will defend, indemnify and hold Customer harmless against any loss, damage, or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided, however, that Customer: (a) promptly gives written notice of the Claim to EPSoft; (b) gives EPSoft sole control of the defense and settlement of the Claim (provided that EPSoft may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) provides to EPSoft, at EPSoft’s cost, all reasonable assistance. EPSoft will not be required to indemnify Customer in the event of: (w) modification of the Service by Customer, or Users in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (x) use of the Service in a manner inconsistent with the Documentation; (y) use of the Service in combination with any other product or Service not provided by EPSoft; or (z) use of the Service in a manner not otherwise contemplated by this Agreement. If Customer is enjoined from using the Service or EPSoft reasonably believes it will be enjoined, EPSoft will have the right, at its sole option, to obtain for Customer the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to EPSoft, then use of the Service may be terminated at the option of EPSoft and EPSoft’s sole liability will be to refund any prepaid, but unused, Subscription Fees paid by Customer for such Service. Total claims shall not exceed the total of subscription fees paid by Customer.
8.2 Indemnification by Customer. Customer will defend, indemnify, and hold EPSoft harmless from any Claims made or brought by a third party: (i) based upon breach of this Agreement by Customer, its employees and Users resulting in the unauthorized disclosure of Confidential Information; (ii) alleging that the Customer data or business information infringes the rights of, or has caused harm to a third party; or (iii) in connection with a claim arising from use of the Service in breach of this Agreement by Customer or Users; provided, however, that EPSoft: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases EPSoft of all liability); and (c) provides to Customer, at Customer cost, all reasonable assistance.
9. Usage Certifications and Audit Rights
9.1 Usage Certifications. Upon written request, Customer shall furnish to EPSoft a signed certification certifying
that Customer is using the Service pursuant to the terms of this Agreement and the applicable Order Form. If
the Customer has deployed the Service as software on premises, no more frequently than once in any threemonth period, Customer will run a script provided by EPSoft which will collect certain usage data from Customer’s
on-premises deployment (collectively “Usage Data”). EPSoft shall provide this Usage Data to Customer upon
Customer’s written request.
9.2 EPSoft Audit Rights. With reasonable prior notice of at least ten (10) days, EPSoft may audit Customer’s use
of the Service to ensure compliance with the terms of this Agreement and the applicable Order Form. All such
audits shall be conducted during regular business hours and no more frequently than twice in any twelve (12)
month period and in a manner that does not unreasonably interfere with Customer’s business operations.
Customer shall make available all such books, records, equipment, information and personnel, and provide all
such cooperation and assistance, as may reasonably be requested by or on behalf of EPSoft with respect to such
audit. Customer shall be responsible for all additional fees and the reasonable costs of the audit in the event the
audit reveals that Customer’s use of the Service exceeded any of Purchased Volumes set forth in the applicable
10. Term and Termination
10.1 Term. This Agreement will commence on the Effective Date and continue as defined in the applicable Order
Form. (the “Initial Subscription Term”) and will automatically renew at the end of the Initial Subscription Term (or
any renewal term) for a period of one-year (each, a “Renewal Subscription Term” and, together with the Initial
Subscription Term, the “Subscription Term”) unless either Party provides written notice to the other of non-renewal at least thirty (30) days before the end of the Initial Subscription Term or any Renewal Subscription Term.
Any such renewal will be at the list price in effect at the time of such renewal.
10.2 Termination. Either Party may terminate this Agreement: (a) upon thirty (30) days prior written notice to the
other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice
period; or (b) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any
other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
10.3 Effect of Termination. Upon any termination of this Agreement, Customer must, as of the date of such
termination, immediately cease accessing or otherwise utilizing the Service and EPSoft Confidential Information.
Termination for any reason will not relieve Customer of the obligation to pay any fees accrued or due and payable
to EPSoft prior to the effective date of termination. Upon termination for cause by EPSoft, all future amounts due
under all Order Forms will be accelerated and become due and payable immediately.
11. General Provisions
11.1 Export Compliance. The Service and other technology EPSoft makes available, and derivatives thereof, may
be subject to export control and economic sanctions laws and regulations of the United States and the import
laws and regulations of foreign governments. Each party represents that it is not named on any U.S. government
denied-party list. Customer agrees that: (a) all use, exports, and imports related to this Agreement will be in
compliance with these laws and regulations and (b) Customer shall not allow any third party to export, re-export,
or transfer any part of the Service in violation of these laws and regulations. The foregoing obligations include
but are not limited to Customer or a third party exporting, transferring, or importing the Service to: (i) any country
subject to export control embargo or economic sanctions implemented by any agency of the U.S. or foreign
governments; (ii) any person or entity on any of the U.S. Government’s Lists of Parties of Concern
(http://www.bis.doc.gov/index.php/policyguidance/lists-of-parties-ofconcern) or applicable international
specially-designated parties or economic sanctions programs; (iii) any end-user or for any known end-use related
to the proliferation of nuclear, chemical or biological weapons or missiles, without first obtaining any export
license or other approval that may be required by any U.S. Government agency having jurisdiction with respect
to the transaction; or (iv) otherwise in violation of any export or import laws, regulations or requirements of any
United States or foreign agency or authority.
11.2 Entire Agreement. This Agreement along with the Order Form(s) constitute the entire agreement between
Customer and EPSoft regarding the Service and supersede all prior and contemporaneous agreements,
proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or
waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom
the modification, amendment or waiver is to be asserted. No provision of any purchase order or other business
form employed by Customer, including any electronic invoicing portals and vendor registration processes, will
supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall
be for administrative purposes only and shall have no legal effect. EPSoft, at its sole discretion, has the right to
change this agreement without notice.
11.3 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of
law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided,
however, either party may assign this Agreement in its entirety (including all Order Forms), without the other
Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all
or substantially all of its assets, in which case the assignee must be capable of performing the obligations under
this Agreement and must agree to be bound by the terms and conditions of this Agreement. Notwithstanding the
foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor
of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written
notice. In the event of such a termination, EPSoft will refund to Customer any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the
Parties, their respective successors and permitted assigns.
11.4 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a
partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
11.5 Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver
of that right.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary
to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in
11.7 Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement
(other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s
reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of
God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those
involving EPSoft or Customer employees, respectively), computer attacks or harmful acts, such as attacks on or
through the Internet, any Internet service provider, telecommunications or hosting facility (collectively a “Force
Majeure Event”) which renders the party’s performance impossible. A party seeking to delay its performance
because of a Force Majeure Event must give the other party written notice of the Force Majeure Event within 15
days after the discovery and use good faith efforts to cure the non-performance or breach caused by the Force
Majeure Event. The parties agree that the Force Majeure provisions of this paragraph are not applicable to the
payment of any amounts owed when due.
11.8 GOVERNING LAW. This Agreement will be governed by the laws of the State of Texas, U.S.A., without regard
to its conflicts of law principles. Both parties’ consent to the exclusive jurisdiction and venue of the state and
federal courts for Dallas County, Texas U.S.A., and expressly waive any objections or defense based upon lack of
personal jurisdiction or venue. Each party waives the right to jury trial for any legal action, in law or equity. The
United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information
Transaction Act, as adopted by any state or governing body, does not apply to this Agreement.