ASCENTCORE TECHNOLOGY
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
Last Updated: April 16th 2024
PLEASE READ THIS MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY AS IT FORMS A BINDING AGREEMENT BETWEEN ASCENTCORE TECHNOLOGY, SA. (“ASCENTCORE”) AND THE ENTITY NAMED AS THE CLIENT WHEN REGISTERING FOR AN ACCOUNT OR SIGNING AN ORDER FORM (“CLIENT”) (EACH OF ASCENTCORE AND CLIENT, A “PARTY”). BY CLICKING ON THE “I ACCEPT” BUTTON, EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT, AND/OR COMPLETING THE ACCOUNT REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ASCENTCORE; (3) YOU ARE NOT BARRED FROM USING ASCENTCORE’S OFFERINGS THE UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION; AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT, AND THE INFORMATION PROVIDED IS TRUE AND ACCURATE. IF CLIENT DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CLIENT MAY NOT ACCESS OR USE ASCENTCORE’S OFFERINGS. THIS AGREEMENT WILL BECOME EFFECTIVE ON THE DATE WHEN YOU ACCEPT THEM (AS DESCRIBED ABOVE) (THE “EFFECTIVE DATE”).
1 DEFINITIONS.
1.1 “Addendum” means any Supplemental Terms appended to this Agreement in the form of an addendum.
1.2 “Authorized Systems” shall mean computer systems, storage devices and networks owned, operated and under the direct supervision and control of Client, which computer systems are physically located within the United States of America.
1.3 “Confidential Information” means any material or information relating to a Party’s research, development, products, product plans, services, clients, client lists, markets, software, developments, inventions, processes, formulas, technologies, designs, drawings, marketing, finances, or other business information or trade secrets that such disclosing Party treats as proprietary or confidential. Without limiting the foregoing, the software and any databases (including any data models, structures, non-Client specific data and aggregated statistical data contained therein) of AscentCore shall constitute Confidential Information of AscentCore.
1.4 “Development Model” means a Model that is used for research and development purposes and is not a Production Model.
1.5 “Documentation” shall mean AscentCore’s standard user manuals and/or related documentation generally made available to Clients of the Licensed Application.
1.6 “Initial Term” means the period of time indicated as the “Initial Term” on the applicable Order Form.
1.7 “License Term” shall have the meaning set forth in the applicable Order Form for the ordered Licensed Application; if no term is specified in an Order Form then the License Term shall be for one (1) year.
1.8 “Licensed Application” shall mean, collectively, the executable, object code version(s) of AscentCore’s proprietary application software product(s) and associated Production Models ordered and paid for by Client pursuant to an Order Form.
1.9 “Model(s)” means an algorithm or software program that is trained on a specific set of data to find patterns and make predictions or generate content.
1.10 “Order Form” shall mean AscentCore’s standard order form, executed by both Parties, or a Client order form that references this Agreement and sets forth the Licensed Application and the License Term for the Licensed Application.
1.11 “Production Model” means a Model that is used in a production environment or for the delivery of services to Client.
1.12 “Software Error” shall mean any material nonconformity of the Licensed Application with the Documentation.
1.13 “Technical Assistance” shall mean the provision of responses by AscentCore personnel to questions from Eligible Support Recipients related to use of the Licensed Application, including basic instruction or tutorial assistance regarding the features and functions of the Licensed Application.
1.14 “Term” means the period during which this Agreement remains in force and effect in accordance with Section 1.
2 LICENSE AND USAGE OF SOFTWARE.
2.1 Software License. Subject to the terms and conditions of this Agreement, AscentCore hereby grants to Client a non-exclusive, non-transferable, non-sublicensable right and license during the License Term (i) to install and operate the Licensed Application and identified Production Models on Authorized Systems; (ii) to permit Authorized Users to access the features and functions of the Licensed Application through such Authorized Systems for Client’s internal business purposes; and (iii) to make a reasonable number of copies of the Licensed Application solely for non-productive, archival purposes.
2.2 Authorized Users. For purposes of this Agreement, the term “Authorized Users” shall mean, collectively (i) any individual employees, agents or contractors of Client accessing or using the Licensed Application solely on behalf and for the benefit of Client in the operation of Client’s business. Client acknowledges and agrees that, as between Client and AscentCore, Client shall be responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User which, if undertaken by Client, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Client. Client shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User’s use of the Licensed Application, and shall cause Authorized Users to comply with such provisions.
2.3 Documentation License. Subject to the terms and conditions of this Agreement, AscentCore hereby grants to Client a non-exclusive, non-transferable, non-sublicensable right and license during the License Term to make copies of the Documentation provided by AscentCore, solely for Client’s internal use by Authorized Users. Client acknowledges that no right is granted to modify, adapt, translate, publicly display, publish, create derivative works or distribute the Documentation.
2.4 Open Source. The Licensed Application and/or Models may contain certain open-source software, the licenses for which can be found at AscentCore’s Website at: ascentcore.com/OpenSource
3 OWNERSHIP.
Client acknowledges that AscentCore and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”) in and to the Licensed Application and Production and Development Models (including all components thereof), and AscentCore expressly reserves all rights not expressly granted to Client in this Agreement. Client shall not engage in any act or omission that would impair AscentCore’s and/or its licensors’ Intellectual Property Rights in the Licensed Application and any other materials, information, processes or subject matter proprietary to AscentCore.
4 ASCENTCORE OBLIGATIONS.
4.1 Delivery of Client Copies. As soon as commercially practicable after the Effective Date and an Order Form is signed by both Parties, AscentCore shall make available the Licensed Application(s) for download by Client. Notwithstanding any provision under a separate Addendum which may require AscentCore to perform certain services in the nature of installation of the Licensed Application or configuration of Client’s computers, networks or other systems, delivery shall be deemed complete upon delivery of an access key to Client allowing Client to download the Licensed Application (the “Delivery Date”).
4.2 Professional Services. Client may request that AscentCore provide certain professional services related to Client’s use of the Licensed Application, including, by way of example, installation, configuration or customization of the Licensed Application, training of Client personnel regarding use of the Licensed Application and/or maintenance or support of the Licensed Application. However, unless otherwise set forth in this Agreement or otherwise agreed between the Parties in a separate Addendum to this Agreement or in a separate written agreement, AscentCore shall have no obligation to provide or perform any such services for or on behalf of Client. Services provided under a separate Independent Contractor Agreement, executed March of 2020, between the Parties are not covered by this Agreement.
5 GENERAL USAGE RESTRICTIONS.
5.1 Prohibited Uses. Client will not use the Licensed Application, Models or Documentation for any purposes beyond the scope of the licenses granted in this Agreement. Without limiting the generality of the foregoing, Client will not (i) authorize or permit use of the Licensed Application or Documentation by persons other than Authorized Users; (ii) distribute any copies of the Licensed Application or the Documentation; (iii) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Client’s rights under the licenses granted in Sections 1 and 2.3; (iv) modify or create any derivative works of the Licensed Application (or any component thereof), Models, or Documentation, except with the prior written consent of AscentCore; (v) use the Licensed Application to provide services to third parties; or (vi) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Licensed Application is compiled or interpreted, and Client hereby acknowledges that nothing in this Agreement shall be construed to grant Client any right to obtain or use such source code.
5.2 Compliance with Laws. Client shall undertake all measures necessary to ensure that its use of the Licensed Application, Models and the Documentation complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the Parties, the Licensed Application or the Documentation. Client acknowledges that AscentCore makes no representation or warranty that the Licensed Application may be exported without appropriate licenses or permits under applicable law, or that any such license or permit has been, will be or can be obtained.
5.3 Proprietary Notices. Client shall duplicate all proprietary notices and legends of AscentCore and its suppliers or licensors upon any and all copies of the Licensed Application and Documentation made by Client. Client shall not remove, alter or obscure any such proprietary notice or legend.
5.4 Compliance Records; Auditing Rights.
(a) Client shall create and maintain complete and accurate records of all copies of the Licensed Application, Models and/or Documentation made by or on behalf of Client and the number of Authorized Users, including the date such copies are made and the locations of Authorized Systems where such copies are installed. Client shall promptly provide a copy of such records upon request by AscentCore.
(b) Throughout the License Term, AscentCore will have the right, at its own expense, upon reasonable prior notice, periodically to inspect and audit Client’s use of the Licensed Application and Documentation for purposes of determining Client’s compliance with the terms and conditions herein. Client agrees to cooperate with AscentCore in the performance of any such audit, and shall provide to AscentCore such access to Client’s relevant records, data, information, personnel and/or facilities as AscentCore may reasonably request for such limited purposes.
6 FEES AND PAYMENTS.
6.1 Fees Payable. In consideration for the licenses granted to Client and the performance of AscentCore’s obligations under this Agreement, Client shall pay to AscentCore, without offset or deduction, certain fees, in such amounts as may be determined by reference to an Order Form or Addenda executed by both Parties. Unless otherwise provided in such Order Form or Addenda, all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by AscentCore with respect thereto.
6.2 Disputed Charges. Client must notify AscentCore in writing of any dispute or disagreement with invoiced charges within thirty (30) days after the date of invoice. Absent such notice, Client shall be deemed to have agreed to the charges as invoiced after the expiration of such time period.
6.3 Late Charges. AscentCore reserves the right to charge, and Client agrees to pay, a late charge equal to one percent (1%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance.
6.4 Taxes. All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Client will be responsible for payment of all such taxes (other than taxes based on AscentCore’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services. Client will make all payments required hereunder to AscentCore free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on any payments hereunder to AscentCore will be Client’s sole responsibility, and Client will, upon AscentCore’s request, provide AscentCore with official receipts issued by the appropriate taxing authority, or such other evidence as AscentCore may reasonably request, to establish that such taxes have been paid.
7 WARRANTIES AND LIMITATIONS.
7.1 Limited AscentCore Warranties. AscentCore hereby warrants, for the benefit of Client only, that the Licensed Application will conform in all material respects to the Documentation for a period of thirty (30) days after the Delivery Date, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (i) any use of the Licensed Application other than in accordance with the Documentation, (ii) modification of the Licensed Application by Client or any third party or (iii) any combination of the Licensed Application with software, hardware or other technology not provided by AscentCore under this Agreement.
7.2 No Other Warranties. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 1 OF THIS AGREEMENT, THE LICENSED APPLICATION, AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY ASCENTCORE ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND ASCENTCORE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY ASCENTCORE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. ASCENTCORE DOES NOT WARRANT THAT THE LICENSED APPLICATION ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CLIENT ACKNOWLEDGES THAT ASCENTCORE’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CLIENT ONLY.
8 LIMITATION OF LIABILITY.
8.1 Limitations. IN NO EVENT SHALL ASCENTCORE BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ASCENTCORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF ASCENTCORE TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES THEN-PAID TO ASCENTCORE BY CLIENT UNDER SECTION 6.1 DURING THE TWENTY-FOUR (24)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
9 CONFIDENTIALITY.
9.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party.
9.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
9.2 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 9.1 and 9.2 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
10 INDEMNIFICATION.
10.1 Indemnification by AscentCore.
(a) AscentCore shall defend, indemnify, and hold Client harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party (or agreed to in a settlement with a third party by AscentCore) to the extent arising out of any claim by a third party that any use of, or access to, the Licensed Application by Client as expressly authorized under this Agreement infringes or misappropriates, as applicable, any U.S. patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States, provided that Client gives AscentCore (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as AscentCore may reasonably request, at AscentCore’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, AscentCore shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Licensed Application with products, services, information, materials, technologies, business methods or processes not furnished by AscentCore; (2) modifications to the Licensed Application, which modifications are not made by AscentCore; (3) use of the Licensed Application to analyze and/or audit any third party software; (4) failure to use updates to the Licensed Application provided by AscentCore; or (5) use of the Licensed Application except in accordance with any applicable user Documentation or specifications (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Client Indemnity Responsibilities”).
(b) Upon the occurrence of any claim for which indemnity is or may be due under this Section 10, or in the event that AscentCore believes that such a claim is likely, AscentCore may, at its option (i) appropriately modify the Licensed Application so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party Intellectual Property Rights; or (iii) terminate this Agreement on written notice to Client and refund to Client any unused license fees under the then current License Term(s). The obligations set forth in this Section 10 shall constitute AscentCore’s entire liability and Client’s sole remedy for any actual or alleged infringement or misappropriation.
10.2 Indemnification by Client. Client shall indemnify, hold harmless, and, at AscentCore’s option, defend AscentCore from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Client Indemnity Responsibilities. AscentCore agrees to give Client (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Client may reasonably request, at Client’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Client shall not settle any third-party claim against AscentCore unless such settlement completely and forever releases AscentCore with respect thereto or unless AscentCore provides its prior written consent to such settlement. In any action for which Client provides defense on behalf of AscentCore, AscentCore may participate in such defense at its own expense by counsel of its choice.
11 TERM AND TERMINATION
11.1 Agreement. This Agreement shall become effective upon the Effective Date and shall have an initial term equal to the Initial Term indicated on the applicable Order Form, and shall automatically renew for successive one (1)-year terms, unless either Party provides written notice of its desire not to renew at least sixty (60) days prior to the expiration of the then-current term (the Initial Term, together with any renewal terms, collectively, the “Term”) unless earlier terminated in accordance with this Section 11; provided, however, that this Agreement shall remain in full force and effect until the expiration or termination of any and all Addenda executed prior to the end of the Term, as well as any License Term for any applicable Licensed Application.
11.2 Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches this Agreement and thereafter (i) in the case of material breach resulting from non-payment of amounts due hereunder, has failed to pay such amounts within ten (10) days after receiving written notice thereof; or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
11.3 Termination Upon Bankruptcy, Insolvency, Etc. Either Party may terminate this Agreement immediately upon written notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other Party, which proceeding or petition has not been dismissed, vacated, or stayed within thirty (30) days.
11.4 Termination of Individual Addenda. In addition to each Party’s rights under Sections 2 and 11.3, each Party may terminate any particular Addendum according to any provision therein permitting such termination, provided that this Agreement shall remain in full force and effect in accordance with their respective terms.
11.5 Accrued Obligations. Termination of this Agreement and/or any particular Addendum shall not release the Parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement and/or any applicable Addendum to survive termination. Notwithstanding the foregoing, the Party terminating this Agreement or any Addenda as permitted by any provision in this Section 11 shall incur no additional liability merely by virtue of such termination.
11.6 Cumulative Remedies. Termination of this Agreement and/or any applicable Addendum, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby. Except as otherwise expressly stated in this Agreement, all remedies specified in this Agreement are cumulative with any other remedies that may be available at law or in equity.
11.7 Effect of Termination. Upon any termination of this Agreement, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) delete the other Party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; (iii) shall return to the other Party or, at the other Party’s option, destroy, all copies of such other Party’s Confidential Information then in its possession; and (iv) shall promptly pay all amounts due and remaining payable hereunder.
11.8 Survival of Obligations. The provisions of Sections 3, 6, 7, 8, 9, 10, 5, 11.6, 11.7, 11.8, 12, 13, as well as Client’s obligations to pay any amounts due and outstanding hereunder, shall survive termination or expiration of this Agreement.
12 DISPUTES
12.1 Resolution of Disputes. The Parties agree that any dispute arising out of the terms and conditions of this Agreement (each a “Dispute”) shall be submitted to the senior management of Client and AscentCore for resolution. Senior management shall discuss the problem and negotiate in good faith in an effort to resolve the Dispute without necessity of any formal proceeding relating thereto. If senior management are unable to amicably resolve the Dispute within fifteen (15) days of their initial communication, the Parties shall immediately submit the Dispute to arbitration as set forth in Section 2below.
12.2 Arbitration of Disputes. Any unresolved Dispute, claim or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in the Washington, D.C. metropolitan area, before a sole arbitrator, in accordance with the laws of the Commonwealth of Virginia for agreements made in and to be performed in that Commonwealth. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures which are currently found at https://www.jamsadr.com/rules-streamlined-arbitration. Judgment on the award may be entered in any court having jurisdiction in the Commonwealth of Virginia (the “Award”). The arbitrator shall, in the Award, allocate all of the costs of the arbitration (and the mediation, if applicable), including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing Party, against the Party who did not prevail. Any recourse by a Party to a court for interim or provisional relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The obligation to arbitrate shall not include Disputes related to Intellectual Property Rights.
13 MISCELLANEOUS
13.1 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT GIVING EFFECT TO ITS RULES REGARDING CONFLICTS OF LAWS. CLIENT AGREES THAT ANY AND ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN THE COMMONWEALTH OF VIRGINIA.
13.2 Force Majeure. AscentCore shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of AscentCore. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
13.3 All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed, if to Client, as set forth on the Order Form, or if to AscentCore, as follows:
AscentCore Technology SA
Aviator Badescu Nr. 38
Cluj Napoca, Romania
With a copy to:
Cooley:
Reston Town Center
11951 Freedom Drive, 14th Floor
Reston, VA 20190-5656
or addressed to such other address as that Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices shall be effective on the date indicated in such confirmation. In the event that either Party delivers any notice hereunder by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
13.4 Assignment. Client shall not assign its rights or delegate its obligations under this Agreement (or under any Addenda) without AscentCore’s prior written consent, and, absent such consent, any purported assignment or delegation by Client shall be null, void and of no effect. This Agreement shall be binding upon and inure to the benefit of AscentCore and Client and their successors and permitted assigns.
13.5 Independent Contractors. Client and AscentCore acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
13.6 Amendment. No amendment to this Agreement or any Addendum shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
13.7 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right.
13.8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
13.9 Export Controls. Client will comply with all applicable export and import control laws and regulations in its use of the Licensed Application including regulations of the United States Bureau of Industry and Security and other applicable agencies. Client will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of any Licensed Application to any country for which approval is required under the laws of the United States or any other country unless the appropriate export license or approval has first been obtained.
13.10 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
13.11 U.S. Government End-Users. Each of the components that constitute the Licensed Application is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Application with only those rights set forth herein.
13.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.
13.13 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
13.14 Entire Agreement. This Agreement (together with any Addenda) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein.
[End of Master Software License and Services Agreement]
ASCENTCORE TECHNOLOGY
MAINTENANCE AND SUPPORT SERVICES ADDENDUM
This MAINTENANCE AND SUPPORT SERVICES ADDENDUM (the “Addendum”) is an addendum to, and is hereby incorporated into, the AscentCore Master Software License and Services Agreement (the “AscentCore Master Agreement”) between AscentCore and Client, including any other Addenda incorporated therein.
1 ADDITIONAL DEFINITIONS. Capitalized terms used in this Addendum that are not otherwise defined in this Addendum have the meaning set forth in the AscentCore Master Agreement.
1.1 “Custom Components” shall mean any part of the Licensed Application created as a custom component for Client by AscentCore (if any) under a separate Independent Contractor Agreement, executed March of 2020, between the Parties.
1.2 “Framework Components” shall mean any and all generic parts of the Licensed Application created by AscentCore to be available to multiple customers without extensive modification.
1.3 “General Support Services” shall mean the support package provided by AscentCore for an annual fee listed in the Order Form. General Support Services include only Framework Components in the Supported Components.
1.4 “Premier Support Services” shall mean the support package provided by AscentCore for fees as set forth in a separate premier support Statement of Work. Premier Support Services include all Framework Components as well as Custom Components described in the applicable Statement of Work as Supported Components.
1.5 “Supported Components” shall refer to those components supported by AscentCore depending on the support level paid for by Client. General Support Services include all Framework Components as Supported Components. Premier Support Services include all Framework Components and Custom Components described in the applicable Statement of Work as Supported Components.
1.6 “Technology Update” shall mean any version of the Licensed Application, developed subsequent to the Addendum Effective Date, which implements minor improvements or augmentations, or which corrects failures of the Licensed Application materially to conform to the Documentation. Technology Updates may be labeled v.1.1, v.1.2, v.1.3, etc. or v.1.1.1, v.1.1.2, 1.1.3, etc.
1.7 “Technology Upgrade” shall mean any version of the Licensed Application, developed subsequent to the Addendum Effective Date, which implements additional features or functions, or which produces substantial and material improvements with respect to the utility and efficiency of the Licensed Application, but which does not constitute merely a Technology Update, and which is not marketed and/or distributed by AscentCore as a separate and independent product or module. Technology Upgrades may be labeled v.1, v.2, v.3, etc.
2 TECHNICAL SUPPORT.
2.1 Scope of Technical Assistance. Subject to the terms and conditions of this Addendum including the payment of the applicable fees, AscentCore shall, during the period of time for which support fees have been paid to AscentCore, exercise commercially reasonable efforts to provide Technical Assistance for all Supported Components to Eligible Support Recipients during AscentCore’s ordinary and customary business hours in accordance with its standard policies and procedures.
2.2 Issuance of Statements of Work for Premier Support Services. The Client may request that AscentCore perform Premier Support Services. AscentCore shall prepare a draft statement of work as an exhibit to this Addendum (each, a “Statement of Work”). Such Statement of Work shall describe the fees, costs and expenses payable by the Client to AscentCore in connection with the performance of Premier Support Services. Until the mutual execution of a Statement of Work, AscentCore shall have no obligation to perform the proposed Premier Support Services, provided that this Addendum shall remain in full force and effect in accordance with Section 4.
2.3 Eligible Support Recipients. AscentCore shall have no obligation to provide Technical Assistance, by any means, to any entity or individual other than Eligible Support Recipients. Client can designate up to two (2) persons, which designees shall be eligible to receive Technical Assistance from AscentCore (“Eligible Support Recipients”). Such designees may be changed at any time by written notice.
2.4 Client Access. As a condition of AscentCore’s obligations under Section 1, Client shall provide such information and/or access to Client resources as AscentCore may reasonably require in order to provide Technical Assistance under this Addendum. AscentCore shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to Client’s failure to perform its obligations under this Section 2.4.
2.5 Means of Access to Technical Assistance. Eligible Support Recipients shall be permitted to request Technical Assistance (i) by telephoning AscentCore at such telephone number as AscentCore may specify for such purposes from time to time; or (ii) by directing electronic mail requests therefore to AscentCore at the electronic mail address as AscentCore may specify for such purposes from time to time. Unless otherwise agreed by the Parties, AscentCore shall have no obligation hereunder to provide on-site Technical Assistance at Client’s facilities or at any other location. To the extent the Parties hereafter agree that AscentCore shall provide on-site Technical Assistance of any kind whatsoever, Client shall be obligated to pay a fee to AscentCore, in an amount determined by AscentCore’s then-standard hourly rates for such support, and Client shall further reimburse AscentCore for expenses related to travel and/or living expenses incurred by AscentCore personnel in the provision of such on-site support.
2.5 Limitations on Technical Assistance.
(a) Unless otherwise agreed by the Parties, AscentCore shall have no obligation to provide Technical Assistance with respect to any Software Error resulting from (i) use of the Licensed Application other than strictly according to the terms of this Addendum; (ii) modification of the Licensed Application by Client or any third party; or (iii) any combination or integration of the Licensed Application with hardware, software and/or technology not provided by AscentCore.
(b) Unless otherwise agreed by the Parties, AscentCore shall not be required to provide Technical Assistance regarding use of any version of the Licensed Application other than a version incorporating the most recently released Technology Update or Technology Upgrade. AscentCore shall not be required to provide Technical Assistance regarding use of any components of the Licensed Application other than the Supported Components.
3 APPLICATION MAINTENANCE.
3.1 Error Corrections. Subject to Client’s payment of all fees and other amounts payable under this Addendum, AscentCore shall use commercially reasonable efforts to adapt, re-configure or re-program the Supported Components in order to correct in a timely fashion any Software Errors in reported by Eligible Support Recipients by any means set forth in Section 4, provided that if AscentCore determines in good faith that such Software Error is the result of errors or misstatements in the Documentation, AscentCore may correct such nonconformity solely by amending the Documentation, as necessary, and further provided that any failure or inability by AscentCore to correct any such Software Error, or failure or inability to do so in a timely fashion, shall in no event be deemed a breach of AscentCore’s obligations hereunder.
3.2 Procedural Workarounds. Subject to Client’s payment of all fees and other amounts payable under this Addendum, in the event that AscentCore fails or is unable to correct any Software Error, as required by Section 6(a), AscentCore shall use commercially reasonable efforts to develop, in a timely fashion, procedures or routines, for use by end users of the Supported Components, which, when employed in the regular operation of the Supported Components, will avoid or diminish the practical adverse effects of the relevant Software Error, provided that any failure or inability by AscentCore to develop any such procedure or routine, or failure or inability to do so in a timely fashion, shall in no event be deemed a breach of AscentCore’s obligations hereunder.
3.3 Software Updates; Software Upgrades. From time to time AscentCore may, in its discretion, develop Technology Updates and/or Technology Upgrades. Subject to Client’s payment of all fees and other amounts payable under this Addendum, AscentCore shall, during the Term of this Addendum, make such Technology Updates and/or Technology Upgrades, when and if developed, available to Client at no additional cost. Except as provided in the foregoing sentence, any such Technology Updates and/or Technology Upgrades provided under this Addendum shall be deemed to constitute part of the Licensed Application and shall be subject to all terms and provisions set forth in this Addendum, otherwise applicable to the Licensed Application, including, without limitation, terms and provisions related to licenses, use restrictions, ownership and distribution of the Licensed Application.
4 FEES AND PAYMENTS.
4.1 (a) Fees for General Support Services. In consideration for General Support Services provided under this Addendum, Client shall pay to AscentCore, without offset or deduction, an annual fee in an amount determined by reference to the Order Form for the Licensed Application (the “Annual Support Fee”), which fee shall be payable annually in advance on the anniversary of the Effective Date, provided that the first such Annual Support Fee shall be due upon execution of the applicable Order Form and shall be pro-rated on the basis of the number of calendar days remaining from and after the Addendum Effective Date until the next anniversary of the Agreement’s Effective Date. Accrued payment obligations shall survive termination of this Addendum.
4.2 (b) Fees for Premier Support Services. In consideration for the performance of Premier Support Services under this Addendum, Client shall pay to AscentCore such fees as required by the applicable Statement of Work. Additionally, Client will reimburse AscentCore for (a) reasonable travel and living expenses incurred by AscentCore’s employees and contractors for travel from AscentCore’s offices in connection with the performance of the Maintenance and Support Services; (b) international telephone charges (if applicable); and (c) any other expenses for which reimbursement is contemplated in the applicable Statement of Work. Except as provided above, each Party will be responsible for its own expenses incurred in rendering performance under this Addendum and each applicable Statement of Work. Unless otherwise contemplated in a particular Statement of Work, AscentCore will issue invoices to Client on a monthly basis for amounts due under this Addendum, and payment of such amounts shall be due within ten (10) days of the date of invoice.
5 PROPRIETARY RIGHTS.
Unless otherwise expressly agreed in any particular Statement of Work, except to the extent that the same constitutes or embodies Client’s Confidential Information, ownership of all work product, developments, inventions, technology or materials provided under this Addendum shall be solely owned by AscentCore, subject to the usage rights granted to Client under the relevant Statement of Work.
6 LIMITATION OF WARRANTIES AND LIABILITY.
AscentCore makes no representations or warranties under this Addendum, and Client acknowledges that this Addendum is subject to all disclaimers and limitations or liability set forth in the AscentCore Master Agreement.
7 TERM; TERMINATION.
7.1 Term. This Addendum shall commence on the date of execution by both Parties (the “Addendum Effective Date”) and shall remain in effect for a period of one (1) year, unless earlier terminated in accordance with this Section 7. Thereafter, the Addendum will renew automatically for successive one (1)-year periods, unless either Party provides notice of its desire not to renew not less than ninety (90) days prior to the end of the initial one (1)-year term or then-current renewal term, as applicable.
7.2 Termination for Breach. Either Party may, at its option, terminate this Addendum in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Addendum shall terminate in the event that such cure is not made within such thirty (30)-day period. Without limiting the foregoing, AscentCore may immediately terminate this Addendum upon written notice in the event that Client becomes insolvent or enters bankruptcy during the term of this Addendum.
7.3 Termination of Individual Statements of Work. Either Party may, at its sole option and for its own convenience, terminate any or all Statements of Work in effect upon fifteen (15) days prior written notice. Upon such termination, the Parties shall inform each other of the extent to which performance has been completed through such date, and collect and deliver all work in process. In the event of termination, the Parties agree to wind up their work in a commercially reasonable manner and to preserve and deliver items of value created prior to termination. AscentCore shall be paid for all work performed and expenses incurred through the date of termination.
7.4 Effect of Termination. In the event of termination or expiration of this Addendum, Client shall promptly pay to AscentCore all amounts due and outstanding.
7.5 Survival. The provisions of Sections 4, 5, 6, 7.4 and 7.5 will survive the termination of this Addendum.
[End of Maintenance and Support Services Addendum]
