Upon UAM’s acceptance of Subscriber’s order and for the duration of the Services term defined in the ordering document, Subscriber have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for Subscriber’s internal business operations and subject to the terms of the agreement. Subscriber may allow Subscriber’s Users to use the Services for this purpose and Subscriber is responsible for Subscriber’s Users’ compliance with the agreement.
Subscriber acknowledges that UAM has no software delivery obligation and will not ship software copies of the UAM Programs to Subscriber as part of the Services. Subscriber agrees that Subscriber does not acquire under the agreement any license to use the UAM Programs specified on the cover page in excess of the scope and/or duration of the Services. Upon the end of the agreement or the Services thereunder, Subscriber’s right to access or use the UAM Programs specified herein and the Services shall terminate. Subscriber will return the hardware including test equipment, at their cost, to UAM US support office.
D. Ownership and Restrictions
Subscriber will retain all ownership and intellectual property rights in and to Subscriber Data. UAM retains all ownership and intellectual property rights to the Services and UAM Programs. UAM retains all ownership and intellectual property rights to anything developed and delivered under the agreement.To the extent that the parties agree to any additional development of the UAM Programs, or any accessory software therefor, such development shall only be conducted pursuant to a written statement of work, which shall be separately executed by the parties and appended as part of this Agreement as an Exhibit.
Third party technology that may be appropriate or necessary for use with some UAM Programs is specified in the program documentation or ordering document as applicable. Subscriber’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by UAM and not under the agreement.
Subscriber may not:
•remove or modify any program markings or any notice of UAM’s or its licensors’ proprietary rights;
•make the UAM Programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific UAM Program license or materials from the Services Subscriber have acquired);
•modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by UAM Programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to UAM;
•disclose results of any Services or program benchmark tests without UAM’s prior written consent; and
•license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or Service bureau use, or otherwise commercially exploit or make the Services, UAM Programs or materials available, to any third party other than, as expressly permitted under the terms of the agreement.
The rights granted to Subscriber under the agreement are also conditioned on the following:
•the rights of any User licensed to use the Services (e.g., on a “Named User” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized User, in which case the prior authorized User shall no longer have any right to access or use the license);
•except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
•Subscriber agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
E. Warranties, Disclaimers and Exclusive Remedies
UAM warrants that the Services will perform in all material respects in accordance with the Services policies referenced in the Program Documentation and this Agreement. If the Services provided to Subscriber for any given month during the Services term are not performed as warranted, Subscriber must provide written notice to UAM no later than five business days after the last day of that particular month or within such other period stated in the ordering document.
UAM DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT UAM WILL CORRECT ALL SERVICES ERRORS. SUBSCRIBER ACKNOWLEDGES THAT UAM 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. UAM 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.
F. Trial Use of the Services
If specified on the cover sheet, Subscriber may order certain Services for trial, nonproduction purposes subject to the terms and conditions of the agreement. Services acquired for trial purposes are provided “as is” and UAM does not offer any warranties for such Services.
If a third party makes a claim against either Subscriber or UAM (“Recipient” which may refer to Subscriber or UAM depending upon which party received the Material), that any information, design, specification, instruction, software, Service, data, or material (“Material”) furnished by either Subscriber or UAM (“Provider” which may refer to Subscriber or UAM 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:
•notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
•gives the Provider sole control of the defense and any settlement negotiations; and
•gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
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 UAM’s ability to meet its obligations under the relevant order, then UAM 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 Subscriber within or from the Service (e.g., a third party Web page accessed via a hyperlink). UAM will not indemnify Subscriber to the extent that an infringement claim is based upon the combination of any Material with any products or Services not provided by UAM. UAM will not indemnify Subscriber for infringement caused by Subscriber’s actions against any third party if the Services as delivered to Subscriber and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. UAM will not indemnify Subscriber for any infringement claim that is based on: (1) a patent that Subscriber were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) Subscriber’s actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
H. Support and Service Level
During the Term, and so long as all fees are paid:
UAM will use commercially reasonable efforts to supply code corrections to remedy substantial UAM Program deviations from specifications in the Program Documentation (other than an Outage, which is addressed separately), provided the UAM Program has not been modified by a person other than UAM.UAM will use commercially reasonable efforts to provide workarounds or patches for reproducible problems within five (5) business days after receipt of output or other documentation of such deviation. UAM will also use commercially reasonable efforts to include a remedy for the error in the next release of the UAM Programs. UAM will take all commercially reasonable steps to answer questions concerning the UAM Programs in a timely manner.
Upon UAM’s request, Subscriber agrees to assist UAM, without compensation for such assistance, in identifying and documenting the nature of any deviation or problem, as well as in testing any correction, workaround or patch.
UAM will provide Subscriber with new releases of the UAM Programs at no charge, which will contain remedies, improvements and other changes that UAM makes available generally to all licensees. Licensor will provide support services for the then‑current release only.
UAM shall provide technical support for the Services through its email helpdesk service, addressed as firstname.lastname@example.org . Technical assistance may, but is not guaranteed to be available by telephone during the following business hours, Monday to Thursday, 1p.m. to 5 p.m. CST or CDT as the case may be.
I. End of Agreement
Services provided under this Agreement shall be provided for the period defined on the cover sheet unless earlier terminated in accordance with the agreement. The term of the Services and any renewal years are collectively defined as the “Term.” “Term” will automatically renew 30 days prior to expiry of current term for additional 3 years. At the end of the Services term, all rights to access or use the Services, including the UAM Programs listed in the ordering document, shall end.
If party 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 Agreement. If UAM terminates as specified in the preceding sentence, Subscriber 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 UAM ends the Services pursuant to the Indemnification section, Subscriber 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. Subscriber agrees that if Subscriber is in default under the agreement, Subscriber may not use the Services ordered.
In addition, UAM may immediately suspend Subscriber’s password, account, and access to or use of the Services (i) if Subscriber fail to pay UAM as required under the Agreement and does not cure within the first ten days of the 30 day cure period, or (ii) if Subscriber violates any provision within sections C, D, N or R of this Agreement. UAM may terminate the Services hereunder if any of the foregoing is not cured within 30 days after UAM’s initial notice thereof. Any suspension by UAM of the Services under this paragraph shall not excuse Subscriber from Subscriber’s obligation to make payment(s) under the agreement.
At Subscriber’s request, and for a period of up to 60 days after the termination of the applicable ordering document, UAM may permit Subscriber to access the Services solely to the extent necessary for Subscriber to retrieve a file of Subscriber Data then in the Services environment.
Subscriber agrees and acknowledges that UAM has no obligation to retain Subscriber Data and that all Subscriber Data may be irretrievably deleted after 60 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.
J. Fees and Taxes
Subscriber agrees 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. Subscriber agrees to pay any sales, value-added or other similar taxes imposed by applicable law that UAM must pay based on the Services Subscriber ordered, except for taxes based on UAM’s income. Subscriber will reimburse UAM 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.
Subscriber agrees to reimburse UAM for all damage to Test Equipment, normal wear and tear excluded.
Subscriber agrees that Subscriber has not relied on the future availability of any Services, programs or updates in entering into the payment obligations; however, the preceding does not relieve UAM of its obligation to deliver Services that Subscriber 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”). The parties agree, subject to specific exclusions, 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, the Subscriber 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.
Subscriber agrees to UAM using non client identifying test data for research and statistical purposes. Aggregate data from this research may be used to enhance quality of product and pole profiles and/or for industry research purposes.
The parties agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, each party agrees 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 the receiving party treats its own confidential information. UAM will exert commercially reasonable efforts to protect the confidentiality of Subscriber Data residing in the Services environment. 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.
L. Entire Agreement
Subscriber agrees that the agreement (including the information which is incorporated into the Agreement by written reference, is the complete agreement for the Services, 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, shall supersede the terms in any purchase order or other non-UAM document and no terms included in any such purchase order or other non-UAM 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 by authorized representatives of Subscriber and of UAM.
M. 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. UAM’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SERVICE AGREEMENT OR SUBSCRIBER’S ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO UAM 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 SUBSCRIBER’S FAVOR AGAINST UAM SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY SUBSCRIBER 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 apply to the Services. Subscriber agrees that such export control laws govern Subscriber’s use of the Services (including technical data) and any Services provided under this agreement, and Subscriber agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Subscriber agrees 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. UAM is an independent contractor and no partnership, joint venture, or agency relationship exists between the parties. Each will be responsible for paying its own employees, including employment related taxes and insurance.
2. Subscriber shall obtain at Subscriber’s sole expense any rights and consents from third parties necessary for UAM and its subcontractors to perform the Services under the agreement.
3. The agreement is governed by the substantive and procedural laws of the State of Colorado and Subscriber and UAM agree to submit to the exclusive jurisdiction of, and venue in, the courts in Denver, Colorado in any dispute arising out of or relating to the agreement.
4. If Subscriber has a dispute with UAM or if Subscriber wishes to provide a notice under the Indemnification section of this Service agreement, or if Subscriber become subject to insolvency or other similar legal proceedings, Subscriber will promptly send written notice to the address shown on the cover page.
UAM may give notice applicable to UAM’s customer base by means of a general notice on the UAM portal for the Services, and notices specific to Subscriber by electronic mail to Subscriber’s e-mail address on record in UAM’s account information or by written communication sent by first class mail or pre-paid post to Subscriber’s address on record in UAM’s account information.
5. Subscriber may not assign the agreement or give or transfer the Services or an interest in them to another individual or entity. If Subscriber grants a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables.
6. Except for actions for nonpayment or breach of UAM’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. UAM may audit Subscriber’s use of the Services. Subscriber agrees to cooperate with UAM’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Subscriber’s normal business operations. Subscriber agrees to pay within 30 days of written notification any fees applicable to Subscriber’s use of the Services in excess of Subscriber’s rights. If Subscriber does not pay, UAM can end Subscriber’s Services and/or the agreement. Subscriber agrees that UAM shall not be responsible for any of Subscriber’s costs incurred in cooperating with the audit.
8. The Uniform Computer Information Transactions Act does not apply to this Service agreement or orders placed under it. Subscriber understand that UAM’s business partners, including any third party firms retained by Subscriber to provide computer consulting Services, are independent of UAM and are not UAM’s agents. UAM is not liable for nor bound by any acts of any such business partner, unless the business partner is providing Services as a UAM subcontractor on an engagement ordered under this Service agreement.
P. Force Majeure
Neither party 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. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party 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 Subscriber’s obligation to pay for the Services.
Q. Subscriber’s Data
UAM reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide.
Subscriber agrees to provide any notices and obtain any consents related to Subscriber’s use of the Services and UAM’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Subscriber Data.
R. Restrictions on Use of the Services
Subscriber agrees 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 UAM under the agreement, UAM reserves the right to remove or disable access to any material that violates the foregoing restrictions. UAM shall have no liability to Subscriber in the event that UAM takes such action. Subscriber agrees to defend and indemnify UAM against any claim arising out of a violation of Subscriber’s obligations under this section.
S. Services Tools
UAM may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve Subscriber’s service requests. The Tools will not collect, report or store any Subscriber 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 may also be used to assist in managing UAM’s product and Service portfolio and for license management. Subscriber agrees that (a) except as set forth in the following paragraph, Subscriber may not access or use the Tools, and (b) Subscriber will not use or restore the Tools from any backup at any time following termination of the agreement.
If UAM provides Subscriber with access to or use of any Tools in connection with the Services, Subscriber’s right to use such Tools is governed by the license terms that UAM specifies for such Tools; however, if UAM does not specify license terms for such Tools, Subscriber shall have a non-transferable, non-exclusive, limited right to use such Tools solely to facilitate Subscriber’s administration and monitoring of Subscriber’s Services environment, subject to the terms of the agreement. Any such Tools are provided by UAM on an “as is” basis and UAM does not provide technical support or offer any warranties for such Tools. Subscriber’s right to use such tools will terminate upon the earlier of UAM’s notice, the end of the Term, or the date that the license to use such Tools ends under the license terms specified for such Tools.
T. Statistical Information
UAM may compile statistical and aggregate information and data related to test data compiled and use of the Services and may make such information publicly available, including, without limitation, for a fee, provided that such information does not directly identify the Subscriber and/or identify Subscriber’s confidential information or include Subscriber’s company’s name. UAM retains all intellectual property rights in such information.
U. Third Party Web Sites, Content, Products and Services
The Services may enable Subscriber 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. UAM is not responsible for any third party Web sites or third party content provided on or through the Services and Subscriber bears all risks associated with the access and use of such Web sites and third party content, products and Services.
V. Customer Reference
Subscriber agrees (i) that UAM may identify Subscriber as a recipient of Services and use Subscriber’s logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by UAM for promotional purposes.