These Master Services Agreement Terms of Service (“Terms of Service”) govern the provision of services by Eventus Systems, Inc. (“Eventus”) to its customer (“Customer”). These Terms of Service, the Eventus Orders signed by the Customer, and any policies or other documents incorporated by reference herein or therein are collectively referred to as the “Agreement”. The Agreement will be effective as of the Customer’s signature on the Order (“Effective Date”). If Customer signs and returns an Order but does not complete the date of signature, Eventus may fill in the date of signature with the date it receives the signed Order Form. Capitalized terms used in these Terms of Service will have the definitions specified in Section 1 (Definitions), or as otherwise set forth herein.
TERMS AND CONDITIONS
1.1 “Affiliate” means any entity (a) controlled, directly or indirectly, by, under common control with, or controlling a party to this Agreement, and specifically includes subsidiaries, partnerships, joint ventures, and other entities or operations for which the party has operational or management control, where “control” means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract or otherwise and, (b) in any event and without limitation of the previous sentence, owning the majority of the voting stock, shares, securities or assets of another entity, but in each case only for so long as such ownership or control will continue.
1.2 “Authorized User” means Customer employee or contractor users who are uniquely identified as users of the Services. Customer may permanently (i.e., not for a predefined temporary period) replace one Authorized User with another if the original Authorized User no longer has access to the Services.
1.3 “Customer Data” means Customer’s data and materials of any kind submitted by Customer to or through the Services including market data, position data, any data input into the Services by Customer’s Authorized Users or data from third party sources provided by Customer.
1.4 “Data” means, collectively, Customer Data and Third Party Market Data.
1.5 “Effective Date” means the effective date of this Agreement as set forth in the preamble to this Agreement.
1.6 “Order” means the order schedule pursuant to which from time to time Customer orders Services and Implementation Services (as defined below).
1.7 “Services” means the online, web-based service made available to Customer by Eventus as set forth in the Order and the Documentation (as defined below), including any updates and upgrades thereto provided or made available to Customer by Eventus under this Agreement.
1.8 “Subscription Period” means the period set forth in an Order during which Customer may use the Services.
1.9 “Support Services” means the technical support for the Services described in Schedule A.
1.10 “Third Party Market Data” means market data and related information obtained from third party data sources, including exchanges, by Eventus on Customer’s behalf and made available to Customer only for use in connection with the Services.
1.11 “Unit” means an item, in addition to Authorized Users, described in the applicable Order upon which the fees set forth in the Order are calculated.
2.1 Professional Services. In connection with the setup and provision of the Services, Eventus will provide certain implementation services (“Implementation Services”) and may provide other professional services (together, referred to as “Professional Services”) each as set forth in the Order or in a separate Scope of Work (“SOW”).
2.2 Services. Eventus will provide Customer with access to the Services during the Subscription Period solely for Customer’s internal use in accordance with Eventus’ applicable user documentation (“Documentation”) for the number of Authorized Users and other Units set forth in the applicable Order. “Internal use” includes the: (a) provision of risk management and investment management services to Customer’s clients, if applicable; and (b) producing documentation and/or responding to government, regulatory and/or similar inquires and requests. Customer will be responsible for providing and maintaining its own accounting and data systems, network connectivity, electric power, and the hardware and software infrastructure necessary to access the Services through the Internet (collectively, the “Customer Infrastructure”), and Eventus will not be liable in any way for any failures arising from or relating to the Customer Infrastructure.
2.3 Support Services. Subject to payment of the Support Services fees set forth in the applicable Order, Eventus will provide Customer with the designated Support Services during the applicable Subscription Period. Eventus may modify or otherwise change its Support Services, but will not take any such action during a Subscription Period that would materially reduce or degrade the applicable Support Services. Support services will terminate upon expiration or termination of the Subscription Period. Any customization, Professional Services, or any other support not included in the Support Services will be subject to a separate agreement and additional fees.
2.4 Service Level Commitment. Eventus will use commercially reasonable efforts to respond to all technical support requests in a timely manner, consistent with the response times set forth in the Service Request Severity Levels and Response Times matrix set forth in the Support Services policy. As of the Effective Date, Eventus uses Amazon Web Services (“AWS”) as its hosting services provider for the Services and Data. Eventus will extend to Customer the same service level commitments as are extended to Eventus by AWS, details of which will be provided to Customer upon request.
2.5 Security. Eventus will operate an information security program designed to protect Customer Data and utilizing industry standard policies and technologies.
3. ORDERS; PAYMENT
3.1 Orders. The parties have entered into an initial Order referencing these Terms of Service. Subsequent purchases of additional Services will be made by mutual execution of additional Orders and will also be subject to these Terms of Service. Any contractual terms and conditions, preprinted or otherwise, set forth in a Customer-issued purchase order, will be of no force and effect. Any such purchase order will be solely for the purpose of fulfilling Customer’s internal accounting processes and requirements.
3.2 Affiliate Orders. Customer may allow its Affiliates to use the Services made available to Customer hereunder for the benefit of Customer and its Affiliates, provided that Customer will be responsible for the acts and omissions of its Affiliates as if such acts and omissions were those of Customer. Customer Affiliates may also order Services under this Agreement by either of the following methods: (a) pursuant to an Order executed by Customer and Eventus, in which case Customer will be responsible for such Affiliate’s compliance with the terms and conditions of this Agreement, including payment obligations, or (b) pursuant to an Order executed by such Affiliate and Eventus under which such Affiliate agrees to the terms and conditions of this Agreement and will be “Customer” for all purposes under this Agreement with respect to such Order only. With respect to any such Order signed by an Affiliate, the relevant Affiliate will be solely liable for its own compliance with the terms and conditions of this Agreement, including payment obligations.
3.3 Fees; Payment Terms. Customer will pay Eventus the amounts set forth in the Order and any Scope of Work for Services and Professional Services in accordance with the payment schedule set forth therein. Unless otherwise set forth in the Order, payment from Customer is due within 30 days from the date of invoice. In Eventus’ sole discretion, Customer may be charged a late fee of 1.5 % per month (or the maximum rate allowed by applicable law if it is less) on any undisputed amount not paid when due. Except as expressly set forth in this Agreement, all fees are non-refundable and non-cancellable.
3.4 Reservation of Rights. Eventus reserves the right to change the Support Services fees from time to time on each anniversary date of the Subscription Period, provided that it will not increase such fees more than up to an amount equal to the greater of five percent or the percentage increase in the published Consumer Price Index (all urban consumers) for all metropolitan areas over the preceding year.
3.5 Travel and Incidental Expenses. Customer will reimburse Eventus for any reasonable out-of-pocket expenses incurred by Eventus in connection with performing any pre-approved on-site Professional Services at Customer’s location.
3.6 Taxes. Eventus’ fees do not include any local, state, federal or foreign taxes, levies, or duties of any nature (collectively, “Taxes”). Customer is responsible for timely paying all applicable Taxes arising from the performance of this Agreement, excluding only taxes based on Eventus’ income. If Eventus has the 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 Eventus with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will make all payments under this Agreement without withholding or deduction of, or in respect of, any Tax unless required by law. If any such withholding or deduction is required, Customer will, when making the payment to which the withholding or deduction relates, pay to Eventus such additional amount as will ensure that Eventus receives the same total amount that it would have received if no such withholding or deduction had been required.
4. CUSTOMER OBLIGATIONS
4.1 Services Use Guidelines. Customer will use the Services solely as contemplated by this Agreement and will not, and will not authorize any third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party other than Customer’s Affiliates; (b) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any of the software or systems comprising the Services; (c) copy any portion of the Services except as expressly provided herein; (d) modify, alter or create any derivative works of the Services or Documentation provided or made available by Eventus hereunder; (e) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (f) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (g) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (h) interfere with or disrupt the integrity or performance of the Services or the Data contained therein; (i) use the Services in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations); (j) use the Services to directly or indirectly engage, or participate, in any business or enterprise in competition with, the Services; or (k) attempt to gain unauthorized access to the Services or related systems or networks.
4.2 Account Activity. Customer will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; and (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services. Customer is responsible for Authorized Users’ and its Affiliates’ compliance with this Agreement. Customer will immediately notify Eventus of any: (i) unauthorized account access or use or other suspected security breach of which Customer is aware; and/or (ii) unusual performance of the Services observed by Customer.
4.3 System Administrator. Customer will provide Eventus contact information for Customer’s system administrator, who is authorized to provide the information required to configure and manage the Services.
4.4 Account Correspondence. Customer agrees that Eventus may rely on all information provided to Eventus by the Customer from the Customer designated e-mail addresses. Eventus may provide all notices, statements, and other communications arising under this Agreement (other than legal notices) to Customer through either e-mail or other method mutually agreed by the parties from time to time.
5. TERM; TERMINATION
5.1 Term of Agreement. This Agreement will become effective on the Effective Date and will continue thereafter until there have not been any Subscription Periods in effect for a period of one year (“Term”), unless terminated earlier in accordance with the terms of this Agreement.
5.2 Subscription Period. Each Subscription Period will commence on the Order Effective Date (as defined in each Order) and continue for the period set forth in the applicable Order, unless terminated earlier in accordance with the terms of this Agreement. The Subscription Period will automatically renew for additional one year terms, at the then-current terms and conditions (except fees as set forth below), unless either party provides written notice of the intent not to renew at least 90 days before the end of the then-current Subscription Period. At the end of each Subscription Period, the applicable fees may increase by up to an amount equal to the greater of five percent or the percentage increase in the published Consumer Price Index (all urban consumers) for all metropolitan areas over the preceding year.
5.3 Termination. This Agreement may be terminated:
(a) by either party, if the initial Order is not executed on or before 60 days after the Effective Date of this Agreement, unless the parties have mutually agreed in writing (email is acceptable) to extend such time period;
(b) by either party in any breach of this Agreement by the other party and such breach has continued uncured for a period of 30 days after the breaching party is given written notice of such breach; or
(c) by either party, effective immediately, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or similar proceedings pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors applies for or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, is wound up or liquidated, or ceases its business activities.
5.4 Effect of Termination. Upon termination of this Agreement, (a) Eventus will immediately cease providing any applicable Professional Services, and deactivate and terminate access to the Services, (b) Customer will within 30 days promptly pay to Eventus any and all unpaid amounts due under this Agreement, and (c) pursuant to Section 6.4, each party will promptly return or destroy, at the Disclosing Party’s direction, all Confidential Information of the Disclosing Party, and all copies thereof, and upon request confirm compliance with the foregoing provisions of this subsection (c). The provisions of Sections 1, 3.2, 3.3, 3.4, 3.5, 3.6, 4.1, 5.4, 6, 7, 8.5, 9, 10 and 11 will survive any termination or expiration of this Agreement.
5.5 Suspension of Service. Eventus may suspend Customer’s access to and use of the Services: (a) if Eventus deems it necessary to prevent or terminate any prohibited use, or (b) upon notice to Customer if Customer commits a material breach of this Agreement including failure to pay fees when due. Eventus will provide Customer with notice and an opportunity to remedy such violation or threat (including 15 days written notice if Customer is in default of its payment obligations hereunder) before any such suspension unless Eventus reasonably concludes that Customer’s use of the Services is causing an immediate, material and ongoing harm to the security, integrity or availability of the Services. Eventus will promptly remove such suspension to the applicable Services once the applicable violation or threat has been resolved. Suspension of Services will not constitute a termination of the Agreement nor will it relieve Customer of any of Customer’s obligations or liabilities under the Agreement.
6.1 Confidential Information. The term “Confidential Information” includes all information, software and data furnished by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether in oral, written, graphic or machine-readable form, and materials, documentation, designs, improvements, formulae, discoveries, inventions, networks, concepts, ideas, technical information and procedures, legal, financial or business affairs, markets, products, key personnel, suppliers, policies or operational methods, plans for future developments for the business of the Disclosing Party, and all other information disclosed to the Receiving Party by the Disclosing Party that is not readily available to the public, and all copies of the foregoing, that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential. Notwithstanding the foregoing, this Agreement, all Documentation related to the Services and all information regarding the performance of the Services (including availability, uptime, and performance benchmarks) will be deemed to be the Confidential Information of Eventus regardless of whether they are so marked. In addition, all information provided by Customer to Eventus, including financial and customer information, will be deemed to be the Confidential Information of Customer regardless of whether they are so marked.
6.2 Non-Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) has entered the public domain through no action or failure to act by the Receiving Party; (b) before disclosure hereunder was already lawfully in Receiving Party’s possession without any obligation of confidentiality; (c) subsequent to disclosure hereunder is obtained by the Receiving Party on a non-confidential basis from a third party who has the right to disclose such information to the Receiving Party; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
6.3 Obligation of Non-Disclosure. The Receiving Party agrees (a) not to disclose the Confidential Information of the Disclosing Party to any third parties (except for its subcontractors or professional advisors who are bound by an obligation of confidentiality no less restrictive than this provision), and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Receiving Party will safeguard the Confidential Information of the Disclosing Party with at least the same degree of care that it utilizes to safeguard its own Confidential Information, but in any event not less than a reasonable degree of care. The Receiving Party will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by Disclosing Party.
6.4 Return of Confidential Information. Each Receiving Party will destroy or return to Disclosing Party all Confidential Information of the Disclosing Party that the Receiving Party possesses upon the expiration or termination of this Agreement; provided, however, that to the extent that copies of Confidential Information are contained in the Receiving Party’s off-site backup data storage archives and are not readily accessible for deletion, the Receiving Party will not be obligated to delete such copies so long as it does not willfully attempt to access such Confidential Information and continues to comply with the confidentiality restrictions set forth herein.
6.5 Authorized Disclosure. If the Receiving Party is compelled by law, regulation, or a court of competent jurisdiction to disclose any of the Disclosing Party’s Confidential Information, to the extent permitted by law, the Receiving Party will promptly notify the Disclosing Party so that it may seek a protective order or other appropriate remedy. The Receiving Party agrees to cooperate at the Disclosing Party’s expense in seeking such order or other remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment and continue to treat such Confidential Information in accordance with its obligations under this Section. Each party may disclose the terms and conditions of this Agreement: (a) on a confidential basis to legal or financial advisors; (b) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (c) on a confidential basis in connection with any financing transaction or due diligence inquiry.
6.6 Injunctive Relief. Each party acknowledges that the Disclosing Party would be irreparably harmed if Receiving Party’s obligations under this Agreement are not specifically enforced and that Disclosing Party would not have an adequate remedy at law in the event of an actual or threatened breach hereof. Accordingly, the Disclosing Party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
7. PROPRIETARY RIGHTS
7.1 Ownership. As between Eventus and Customer, Eventus owns all right, title, and interest in and to the Services and the hardware and software used to provide the Services (including any customizations, modifications, adaptations, interfaces or derivative works that may be developed as a result of the Professional Services set forth in any Order or SOW unless otherwise set forth in such Order or SOW), the Documentation for the Services, Eventus’ Confidential Information, and all intellectual property rights related thereto (“Eventus IP”). As between Customer and Eventus, Customer owns all right, title, and interest in and to the Customer Data, Customer’s Confidential Information, and all intellectual property rights related thereto. This Agreement does not grant any right or license to any intellectual property except as expressly provided in this Agreement, and no other right or license is to be implied by or inferred from any provision of this Agreement or by the conduct of the parties.
7.2 Personal Data. Processing of personally identifiable data (“Personal Data”) is not necessary in order for Eventus to provide the Services. In the event Customer desires to provide Personal Data as part of the Customer Data, the parties will expressly agree in an Order to the specific types of Personal Data to be processed by Eventus. In the event the parties do not expressly agree in an Order to the provision of Personal Data by Customer, and such data is provided in any event, notwithstanding anything to the contrary in this Agreement, Customer will be responsible for any penalties, fines, notifications or other out of pocket costs incurred by Eventus or Customer associated with the disclosure of such Personal Data in violation of law unless caused by the gross negligence or willful misconduct of Eventus. All Personal Data will be considered the exclusive property of Customer, and Eventus will not use such Personal Data during the Term except in connection with the Services to be rendered hereunder, for outreach to Authorized Users and appropriate Customer personnel concerning product roadmap, product updates, new products and the like, or at Customer’s request, in each case, in compliance with this Agreement and all applicable laws and regulations. Eventus will comply with all data protection and privacy laws applicable to its processing of Personal Data, including the California Consumer Privacy Act and the General Data Protection Regulation (Regulation (EU) 2016/679).
7.3 Customer Data. Customer hereby grants to Eventus a limited, nonexclusive, royalty-free, license to access and use the Customer Data to (i) provide, perform, improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Eventus offerings and (ii) disclose such data solely in aggregate and anonymized form in connection with the provision and marketing of the Services. Under no circumstances will any such data be capable of being re-identified unless it is otherwise public information. Customer is solely responsible for maintaining backups and copies of all Customer Data input into the Services and has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. No other rights or licenses are granted by Customer except as expressly set forth herein.
7.4 Third Party Market Data. In the event Eventus acquires Third Party Market Data on Customer’s behalf pursuant to an Order, Customer acknowledges that all intellectual property rights subsisting in the Third Party Market Data are and will remain vested in the party or parties from whom Eventus obtained the Third Party Market Data (each, a “Data Source”). The Third Party Market Data constitutes valuable information, copyrighted materials, and proprietary rights of the Data Source. Customer acknowledges and agrees that Customer’s use of the Third Party Market Data and the data included therein will be subject to the terms and conditions, restrictions, or limitations, and any other requirements established by the Data Source from time to time, set forth in the terms and conditions pursuant to which the Data Source provided the Third Party Market Data to Eventus, which are available for review by Customer upon request. The Customer will use the Third Party Market Data solely for its own internal purposes and will not reproduce, publish, distribute, disseminate, or communicate the Third Party Market Data to any third party. The foregoing restrictions will include copying of any part of the Third Party Market Data electronically, or otherwise and/or distributing or disseminating any part of the Third Party Market Data via any server or network to any third party. Customer acknowledges that Eventus has no control over or responsibility for the scope, timing, content, method of delivery or any other aspect of any Third Party Market Data provided by a Data Source and that a Data Source may, at any time and without prior notice, amend or limit the scope, timing, content, and method of delivery of such Third Party Market Data and that Eventus has no responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any Third Party Market Data. Eventus does not assume any duty or obligation to correct or modify any Third Party Market Data.
7.5 Suggestions. To the extent that Customer submits to Eventus any suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (“Suggestions”), Customer hereby grants Eventus a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to freely use, disclose, and otherwise exploit such Suggestions, including by incorporating the Suggestions into future versions of the Services.
7.6 No Exclusivity. Customer acknowledges that Eventus is in the business of providing development and other services to other customers, and that Eventus will have the right to provide to third parties services which are the same as or similar to the Services and Professional Services provided to Customer pursuant to this Agreement or a SOW, and to use or otherwise exploit any Eventus IP in providing such services. In addition, Customer acknowledges that Eventus will be free to use and employ its general skills, know-how, and expertise, and to use and employ any generalized ideas, concepts, know-how, or expertise gained during the provision of Professional Services hereunder, so long as Eventus acquires and applies such items without disclosure of any Customer Confidential Information.
8.1 Mutual Warranties. Each party represents and warrants to the other party that (a) it has the right to enter into this Agreement and to perform its obligations hereunder, and (b) the execution, delivery and performance of this Agreement does not conflict in any material respect with or constitute a material breach or default of any organizational document, agreement or other writing to which it is a party.
8.2 Performance Warranty. Eventus warrants that the Services will substantially perform the functions described in the then current Documentation for the Services. This warranty does not apply if the Services are not administered in accordance with the applicable instructions and training provided by Eventus. If the Services fail to operate as warranted in this Section 8.2 and Customer notifies Eventus in writing of the nature of the non-conformance (“Notice”), Eventus will make commercially reasonable efforts to promptly repair or replace the non-conforming Services without charge. If, after a reasonable opportunity to cure, Eventus does not remedy the non-conformance, Customer may no later than 60 days after giving the Notice terminate the Agreement and receive a refund of the prepaid Services fees for the period following the date of termination. The foregoing provides Customer’s exclusive remedy, and Eventus’ exclusive obligation and liability, for breach of the warranty in this Section 8.2.
8.3 Professional Services Warranty. Eventus will perform the Professional Services in a professional and workmanlike manner, and Eventus’ personnel will have sufficient skill, knowledge, and training to perform the Professional Services. Customer’s exclusive remedy, and Eventus’ exclusive obligation and liability, for Eventus’ breach of the warranty in this Section 8.3 will be Eventus’ reasonable commercial efforts, at no additional charge, to remedy any Professional Services performed in a manner that is substantially less than workmanlike or to replace personnel with insufficient skill, knowledge, and training with qualified personnel for performance of the Professional Services.
8.4 Customer Representations and Warranties. Customer represents and warrants that (a) Customer has the right to furnish all Customer Data to Eventus; and (b) Customer will comply with all laws and regulations applicable to Customer’s use of the Services and provision of the Customer Data to Eventus.
8.5 Disclaimer of Implied Warranties. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR CUSTOMER’S USE OF THE SERVICES. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, EVENTUS MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, THE PROFESSIONAL SERVICES, THE SUPPORT SERVICES, OR THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Services rely on Data, and Eventus is not liable for the content of the Data or results generated from the Data. Customer acknowledges and agrees that neither Eventus nor its suppliers operates or controls the Internet and that: (a) viruses, worms, Trojan horses, or other undesirable data or software exist; and (b) unauthorized users (e.g., hackers) may attempt to obtain access to Customer Data, web site, computers, or networks. Eventus uses reasonable efforts (including firewalls) consistent with industry standards to protect the Services from such unauthorized use, but subject to the foregoing, Eventus is not responsible for issues related to acts or omissions of third parties.
9.1 Eventus Indemnity. Eventus will defend any action brought against Customer to the extent that it is based upon a third party claim (a) that the Services, as provided by Eventus to Customer under this Agreement and used within the scope of this Agreement, infringe or misappropriate any patent, copyright or trade secret or violates any other intellectual property right of a third party, and/or (b) arising from the willful misconduct or fraud of Eventus, and Eventus will indemnify Customer from the costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer or agreed upon by Eventus in settlement.
9.2 Injunction. If Customer’s use of any of the Services hereunder is, or in Eventus’ opinion is likely to be, enjoined due to the type of infringement specified in Section 9.1 above, or if a claim is brought against Customer due to the type of infringement specified in Section 9.1 above, then Eventus may, at its sole option and expense: (a) procure for Customer the right to continue using such Services under the terms of this Agreement; (b) replace or modify such Services so that they are non-infringing and substantially equivalent or better in function to the enjoined Services; or (c) if options (a) and (b) above cannot be accomplished despite Eventus’ commercially reasonable efforts, then Eventus may terminate Customer’s rights and Eventus’ obligations hereunder with respect to such Services and remit to Customer any pre-paid Services Fees for the remainder of the Term after the termination.
9.3 Exclusions. Notwithstanding the terms of Section 9.1 above, Eventus will have no liability for any infringement or misappropriation claim of any kind to the extent it results from: (a) information, design, specification, instruction, software, data, or material furnished by or on behalf of Customer; (b) modification or alteration of the Services or Third Party Market Data not made by or for Eventus, if infringement would have been avoided by the absence of the modifications; (c) the combination, operation or use of the Services with equipment, devices, software or data (including Customer Data) not supplied by Eventus, if infringement would not have occurred but for such combination, operation or use; (d) use of the Services in violation of the applicable Documentation; (e) Customer’s continuing such allegedly infringing activity after being informed by Eventus and provided, at no additional charge, with modifications that would have avoided the alleged infringement and reasonable time to implement such modifications; or (f) Customer’s or an Authorized User’s use of the Services or Third Party Market Data in breach of this Agreement. Sections 9.1 – 9.3 set forth Eventus’ exclusive obligations and liabilities, and Customer’s exclusive remedies, with respect to infringement of intellectual property rights under or in connection with this Agreement.
9.4 Customer Indemnity. Customer will defend any action brought against Eventus to the extent that it is based upon a claim (a) that the Customer Data, as provided by Customer to Eventus under this Agreement and used within the scope of this Agreement, infringes or misappropriates any patent, copyright or trade secret or violates any other intellectual property or other right of a third party or violates applicable law and/or (b) arising from the willful misconduct or fraud of Customer, and Customer will indemnify Eventus from the costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Eventus or agreed upon by Customer in settlement.
9.5 Process. The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 9 will not relieve the indemnifying party of its obligations under this Section 9, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such claim. The indemnifying party will have control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of an action effected without its written consent, which consent will not be unreasonably withheld or delayed. The indemnifying party will not settle any claim without the indemnified party’s prior written consent, which consent will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability. The indemnified party may engage counsel of its choice at its own expense.
10. LIMITATIONS ON LIABILITY
10.1 EXCEPT FOR A GROSSLY NEGLIGENT, RECKLESS, OR WILFUL BREACH BY A PARTY, IN NO EVENT WILL SUCH PARTY BE LIABLE FOR (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA (INCLUDING ANY CUSTOMER DATA) OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFIT, LOSS OF BUSINESS OR LOSS OF GOODWILL INCURRED BY A PARTY; OR (C) FOR ANY FORCE MAJEURE EVENTS WHICH ARE BEYOND A PARTY’S REASONABLE CONTROL EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES, THE PROFESSIONAL SERVICES, THE SUPPORT SERVICES, OR THIS AGREEMENT.
10.2 EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, OR FOR A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES, THE PROFESSIONAL SERVICES, THE SUPPORT SERVICES OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO EVENTUS FOR THE SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM UNDER THIS AGREEMENT, EXCEPT THAT EVENTUS’ LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION, ARISING OUT OF A BREACH OF CONFIDENTIALITY OR A BREACH OF SECURITY OBLIGATIONS HEREUNDER (INCLUDING ANY INDEMNIFICATION OBLIGATIONS THEREFOR) WILL BE LIMITED TO THE MAXIMUM AMOUNT AVAILABLE UNDER EVENTUS’ INSURANCE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. NOTHING IN THIS AGREEMENT WILL LIMIT A PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’S NEGLIGENCE OR A PARTY’S LIABILITY FOR FRAUD. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 10 REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.
11.1 Force Majeure. Neither party will be liable under this Agreement for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure event, including natural catastrophe, fire, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, epidemic, pandemic, government acts, orders, or regulation, equipment failure, or any cause or matter whatsoever not within the reasonable control of such party. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement. If the force majeure event continues for more than 60 calendar days, then either party may terminate the Agreement upon written notice to the other party.
11.2 Changes. Eventus reserves the right, in its discretion, to change, modify, add to, or remove portions of these Terms of Service (collectively, “Changes”), at any time. The date that Changes were last made are indicated at the top of the page and such revisions are effective as of the “Last Updated” date. Eventus will notify Customer of Changes by posting a revised version of these Terms of Service incorporating the Changes to Eventus’ website page setting forth these Terms of Service. Customer’s continued purchase, use of or access to the Services following the posting of Terms of Service incorporating the Changes will mean that Customer accepts and agrees to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the applicable Eventus webpage.
11.3 Publicity. Eventus may identify Customer as a customer on its website using Customer’s name and logo.
11.4 Promotion and Press Release: Customer or Eventus may each issue one press release on or before 30 days after an Order Effective Date (as defined in each Order). In either case, the press release will be mutually approved before release and such approval will not be unreasonably withheld, conditioned or delayed.
11.5 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver by a party of any provision of this Agreement in any one instance will not be deemed or construed to be a waiver of such provision for any similar instance in the future or of any subsequent breach.
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 effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.
11.7 Assignment. This Agreement will be binding upon and be enforceable by and against the parties hereto and, to the extent permitted hereby, their respective successors and assigns. This Agreement is not transferable or assignable by either party, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld. Provided, however, either party may, without the other party’s consent, assign or transfer all or part of this Agreement to any Affiliate or to any successor-in-interest to all or substantially all the business or assets of the assigning party pertaining to the subject matter hereof, whether voluntarily or by merger, reorganization, asset sale, or otherwise. Any attempted assignment in violation of this Section will be null and void.
11.8 Independent Contractors. The relationship between the parties created by this Agreement is that of independent contractors and neither party will have any authority to create any obligation on behalf of the other.
11.9 Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without reference to conflict of laws principles. Each party irrevocably submits to venue and exclusive personal jurisdiction in the federal and state courts in Austin, Travis County, Texas, for any disputes or claims arising out of this Agreement, and waives all objections to jurisdiction and venue of such courts; provided that nothing in this Section will restrict either party from seeking injunctive relief in a forum of its choice. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.10 Anti-Corruption Laws. Each party is subject to various anti-bribery statutes in the U.S. and around the globe, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Each party represents and warrants in connection with its performance under this Agreement that it (a) has not done and will not do anything to violate these laws and other related laws in the applicable jurisdictions, and (b) has implemented its own anti-corruption policy and will take appropriate, risk-based procedures to abide by its anti-corruption policy for the term of this Agreement
11.11 Compliance with Laws. Each of Eventus and Customer will comply with all applicable export laws, restrictions, and regulations of the United States or foreign agency or authority. Customer will not use the Services or Data, or allow the transfer, transmission, export, or re-export of the Services and Data or portion thereof, in violation of any export control laws or regulations administered by the U.S. Department of Commerce, OFAC, or any other government agency or authority. Customer will obtain and bear all expenses relating to any necessary licenses or exemptions with respect to the export from the U.S. of the Services and Data to any location so as to be in compliance with all applicable laws and regulations. Customer confirms that Customer is not a resident or citizen of any country currently embargoed by the U.S. and that Customer is not otherwise prohibited from receiving the Services and Data.
11.12 Language. This Agreement is in the English language only, which language will be controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto.
11.13 Notice. Notice to either party will be sent to the address shown on the first page of this Agreement. All notices will be sent by certified mail or nationally recognized overnight courier service.
11.14 Construction. The headings of Sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. The terms “include,” “including,” “includes” and similar terms mean “including, without limitation.” Each party represents that it has had the opportunity to participate in the preparation of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement. Unless otherwise expressly stated to the contrary herein, all remedies are cumulative and the exercise of any express remedy by either party does not by itself waive such party’s right to exercise its other rights and remedies available at law or in equity.
11.15 Counterparts. The Order referencing these Terms of Service may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the parties. The signed Order or counterparts may be exchanged electronically or stored electronically as a photocopy (such as in .pdf format). The parties agree that electronically exchanged or stored copies will be enforceable as original documents and consent to the use of electronic and/or digital signatures for the execution of the Order and further agree the use of electronic and/or digital signatures will be binding, enforceable and admissible into evidence in any dispute regarding this Agreement.
11.16 Order of Precedence. To the extent there is a conflict between the terms in the main text of this Agreement and any terms in the Order and the other referenced documents, then the following precedence will apply: (1) the Order; (2) the main text of the Agreement; and (3) the other referenced documents.
11.17 Entire Agreement. This Agreement (together with the Orders, the SOWs and any policies or other documents referenced herein) contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all previous and contemporaneous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof. All amendments and modifications to, or waivers of any provisions of, this Agreement must be in writing, signed by the duly authorized officers of both parties.
1. Support Term.
1.1 Initial Support Term. Subscription Period for the applicable Services.
1.2 Support Hours. Standard Support hours are 7:00am – 5:00pm central time on business days (i.e., Monday – Friday excluding U.S. federal holidays) (“Local Business Hours”). There will be an emergency 24/7 support number for Severity Level 1 issues provided for off-hours emergency issue resolution.
2. Support Response Times.
2.1 Ticketing. All service requests logged with Eventus support are assigned a severity level from 1 to 4 based on the impact on Customer’s business (each a “Ticket”). Customer determines the initial severity level when placing a request for assistance. Severity levels may be changed after initial contact and assessment of the issue from an Eventus support engineer. The Initial Response time will begin when the contact is made and the Ticket is generated.
2.2 Severity Levels. The following table defines the Severity Levels and the targeted initial response time for Support Services.
3. Functionality Impact. Customer agrees to notify Eventus of all changes that would impact the functionality of the Services promptly upon approving for Customer’s own internal development in order for Eventus to better provide its Support Services.
Critical business impact: Customer’s production use of Services on a primary business service, major application or mission-critical system is stopped or so severely impacted that Customer cannot reasonably continue work.
For Severity Level 1 problems, Eventus will begin work on the problem within one hour of notification and handle as the highest priority until the Customer is given a fix or workaround. Customer resources must be made available in Severity Level 1 situations and Customer must reasonably cooperate to help resolve the issue.
Severity Level 1 problems could have the following characteristics:
● System hangs or crash situations
● Data loss or data corruption
● Critical functionality not available
Within 1 hour
Eventus will commence incident resolution within the Initial Response time window and assign its employees to resolution of the issue on a 24X7 basis until the incident has been resolved or an acceptable “workaround” has been found
Eventus will designate points of contact for this issue who will be available to Customer for the duration of the resolution process on a 24X7 basis.
Significant Business Impact: Important product features are unavailable with no acceptable workaround. Customer’s implementation or production use of the Services in a primary business service, major applications or mission critical systems are functioning with limited capabilities or are unstable with periodic interruptions. The Services may be operating but are severely restricted.
Severity Level 2 problems could have the following characteristics:
● Product error or failure forcing a restart or recovery
● Severely degraded performance
● Functionality unavailable but the system is able to operate in a restricted fashion.
Within 2 business hours
Eventus will commence incident resolution within the Initial Response time window and assign its employees to resolution of the issue during normal business hours until the incident has been resolved or an acceptable “workaround” has been found.
Eventus will designate points of contact for this issue who will be available to Customer for the duration of the resolution process during normal business hours.
Minimal Business Impact: Services features are unavailable but a workaround exists and the majority of software functions are still useable. Minor function/feature failure that the Customer can easily circumvent or avoid. Customer’s work has minor loss of operational functionality.
Severity Level 3 problems could have the following characteristics:
● Error message with workaround
● Minimal performance degradation
● Incorrect product behavior with minor impact
● Questions on product functionality or configuration during implementation
Within 1 business day
Eventus will commence incident resolution within the Initial Response time window and assign its employees to resolution of the issue during normal business hours on an as-available basis until has been resolved or an acceptable “workaround” has been found.
Eventus will update Customer on the resolution process during normal business hours not less than once per week.
Nominal Business Impact: Minor problem or question that does not affect the software function. There is no impact to product usage or Customer’s operations.
Severity Level 4 problems could have the following characteristics:
● General requests for advice on product usage
● Clarification on product documentation or release notes
● Product enhancement request
Within 2 business days
These incidents will be resolved during regular software development as part of the next maintenance release.