This Master Services & Software License Agreement (this “Agreement”) is a binding agreement between Decisions, LLC, a Virginia limited liability company (“Decisions”), and the entity identified on the Order Form as the licensee of the Software, for itself and all of its Affiliates (the “Licensee” or “You”).
DECISIONS PROVIDES ITS PROFESSIONAL SERVICES AND ITS SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE AND ALL OF ITS AUTHORIZED USERS ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU AND ALL OF YOUR AUTHORIZED USERS ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A LIMITED LIABILITY COMPANY, CORPORATION, PARTNERSHIP, ASSOCIATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND ITS AUTHORIZED USERS AND TO BIND LICENSEE AND SUCH AUTHORIZED USERS TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DECISIONS WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING THE SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF DECISIONS’ SOFTWARE.
The following terms, whenever initially capitalized, shall have the meanings set forth in this Article I or as otherwise defined in this Agreement.
I.1 “Affiliate” means, in relation to an entity, any other entity which directly or indirectly Controls, is directly or indirectly Controlled by or is under direct or indirect common Control with, that entity; where “Control” means the direct or indirect ownership of more than 50 per cent of the voting interest of that person or the legal power to direct or cause the direction of the general management and policies of that person.
I.2 “Agreement” means this Master Services & Software License Agreement, together with all schedules, appendices, attachments, and exhibits appended hereto and all amendments of the same.
I.3 “Applicable Laws” means any and all international, Federal, state and/or local laws, regulations and/or ordinances, including Data Protection Laws, applicable to the Software and the Professional Services provided hereunder and the duties and obligations of the parties hereunder.
I.4 “Authorized Users” mean Licensee’s officers, directors, employees, contractors and agents and any Licensee customers and clients who are authorized by this Agreement and by Licensee to access and use the Software for Licensee’s own business purposes.
I.5 “Cloud Provider” means the Software hosting company identified in the Order Form for the Licensee and any successor thereto.
I.6 “Cloud Services” means the provision of on-demand online access to the Software by the Cloud Provider in accordance with the terms of service referenced herein and in the Order Form.
I.7 “Confidential Information” shall have the meaning set forth in Section 12.1 below.
I.8 “Data Protection Laws” ” means any and all applicable international, Federal, state and/or local laws, regulations and/or ordinances relating to cybersecurity, data security, data privacy or similar issues, including, without limitation, (i) the European Union General Data Protection Regulation (“GDPR”) (Commission Regulation 2016/679 of 27 Apr. 2016); (ii) the UK Data Protection Act of 2018 and the UK General Data Protection Regulation (collectively, the “UK GDPR”); (iii) the California Consumer Privacy Act (“CCPA”) (Cal. Civ. Code §§ 1798.100 to 1798.199) as amended by the California Privacy Rights Act (Prop 24, Nov. 3, 2020); (iii) the Virginia Consumer Data Protection Act (the “VCDPA”) (Va. Code §§59.1-575-585); (iv) the Colorado Privacy Act (“CPA”) (Colo. Rev. Stat. §§ 6-1-1301-1313); (v) the Connecticut Data Privacy Act (“CDPA”) (Conn. Gen. Stat. §§42-515-525); (vi) the Utah Consumer Privacy Act (“UCPA”) (Utah Code §§13-61-101-404); (vii) the Federal Trade Commission Act (15 U.S.C. §§41-58); (viii) the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (Pub. L. 104-191, 110 Stat. 1936 (1996)) and the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH Act”) (Pub. L. 111-5, §13001, 123 Stat. 227 (2009)); (ix) the New York DFS Regulation (“23 NYCRR Part 500”) and (x) any similar law or regulation applicable to the actions or omissions of the parties hereunder, each as amended or supplemented by other laws, regulations or ordinances at any time.
I.9 “Data Processing Addendum” is the supplemental agreement incorporated herein that relates to the collection, processing and use of personal data and personal information under applicable International Data Protection Laws, an electronic link to which is included in Exhibit B hereto, as amended from time to time.
I.10 “Designated System” shall mean the computer server(s) meeting the System Requirements on which Licensee intends to install and operate the Software, as represented by Licensee on the relevant Order Form.
I.11 “Documentation” shall mean, in digital or printed form, the user guides and reference manuals that set out, in English, descriptions of the Software, components, functions or requirements of the Software, including instructions for installing, configuring, and operating the Software.
I.12 “Effective Date” shall mean the date set forth in the Order Form.
I.13 “Fees” mean, collectively, the Professional Fees and the License Fee due and owing to Decisions hereunder.
I.14 “International Data Protection Laws” mean GDPR, UK GDPR and any other non-U.S. data protection laws, regulations or ordinances.
I.15 “License Fee” shall mean the annual subscription fees set forth in the Order Form and payable by Licensee in consideration of the Software License granted hereunder.
I.16 “Maintenance Services” shall mean the services provided by Decisions as more fully described in Article VI.
I.17 “Order Form” shall mean a written document (regardless of name) signed by Licensee and Decisions that references this Agreement and sets forth the price, quantity, terms and specifications of the Professional Services and/or Software license ordered by Licensee hereunder.
I.18 “Professional Services Fees” mean the compensation, fees, payments, expenses and other costs, including third party compensation, due to Decisions in consideration of its or any third party’s Professional Services provided to Licensee hereunder,
I.19 “Professional Services” mean, exclusive of Maintenance Services, any Software configuration, implementation, installation or custom development services associated with Licensee’s and Authorized Users’ access to and use of the Software.
I.20 “Services” shall mean the Maintenance Services and Support Services.
I.21 “Software” shall mean the latest distributed SaaS version of the executable form of the software programs, tools and applications described in the Product Description attached as Exhibit A hereto, including all Updates and modifications thereto made available by Decisions hereunder.
I.22 “Source Code” shall mean the eye-readable embodiment of the programmatic instructions that were converted to the object code form of the Software.
I.23 “Subscription-as-a-Service” or “SaaS” means a method of software delivery and licensing in which software is accessed online from a centrally-hosted location via a subscription rather than purchased and installed on individual computers.
I.24 “Support Request” shall mean any request by Licensee for guidance, assistance, clarification or instruction relating to the operation, configuration, maintenance, or installation of the Software.
I.25 “Support Services” shall mean the services provided by Decisions as more fully described in Article V.
I.26 “System Requirements” shall mean the minimum system requirements for use of the Software as described on Decisions Website (https://documentation.decisions.com/installation- requirements-self-hosted-environment/ and https://documentation.decisions.com/deployment- configuration-options/), as may be amended from time to time.
I.27 “Term” shall mean the Initial Term and all Renewal Terms.
I.28 “Update” shall mean all versions of the Software, in object code form, that succeed the latest version of the Software made generally available by Decisions during the Term hereof to licensees of the Software by electronic download from Decisions’ commercial website.
I.30 “Production” shall refer to instances or servers running the Software that are running operational workloads supporting ongoing business operations.
I.31 “Non-Production” shall refer to instances or servers running the Software that Licensee is using for application development, test, quality assurance or staging prior to deployment to Production, or as backup to Production instances or servers to be operated with Production workloads only if the backed up Production instance or server fails (i.e. “disaster recovery”). Non-Production instances or servers used for disaster recovery shall not be operated with Production workloads concurrently with Production instances or servers.
ARTICLE II – PROFESSIONAL SERVICES
II.1 “Professional Services Decisions will perform and provide the Professional Services, and associated work product and deliverables, ordered by Licensee and described in one or more statements of work, Order Forms or other documents that reference this Agreement and are mutually agreed in writing. Upon such execution, the applicable Order Form shall be automatically incorporated herein. No Order Form will be deemed binding upon the parties until signed by authorized representatives of each party. Any provision of this Agreement may be expressly superseded by an Order Form; provided, that such superseding terms will only apply to the products or services covered by such Order Form and not to prior or later Order Forms or this Agreement unless and except to the extent expressly so provided. Except as so expressly modified, this Agreement governs all Order Forms and any and all conflicts or inconsistencies therewith.
II.2 Decisions Work Product
(a) Work Product License Rights. Upon and subject to Decisions’ receipt of all Professional Fees due for the Professional Services performed hereunder, Decisions hereby grants to Licensee a fully-paid, non-exclusive, non-transferable and perpetual license to use any Decisions Work Product (as defined below) delivered to Licensee in the manner and for the purposes so provided, but with no right to modify, translate, transfer, reverse engineer, de-compile, disassemble, redevelop or derive the Decisions Work Product to any other person or for any other use or purpose (the “Decisions Work Product License”). Except for such license, ownership and all intellectual property rights in and to the Decisions Work Product are and shall be retained by Decisions.
(b) Work Product Defined. As used herein, the term “Decisions Work Product” means any writings, documents, materials, documentation, technical information, reports, data, charts, text and/or other information created, made or delivered as part of or together with any Professional Services, excluding any Software or Documentation and excluding any third party products, documents or materials.
III.1 Software License Rights Granted
(a) License Grant. Subject to and conditioned upon Licensee’s timely payment of all License Fees due hereunder and compliance with all other terms of this Agreement, Decisions hereby grants to Licensee a non-exclusive, non-transferable, terminable and limited license (the “Software License”) to install, access and use the Software and Documentation on a Subscription-as-a-Service (“SaaS”) basis during the Term of this Agreement on the terms and conditions hereof. Licensee may use the Software solely for Licensee’s own software development operations on the Designated System or on a backup system if the Designated Systems is inoperative, consistent with applicable licensed use limitations. Licensee may not exceed the limit on the number of Designated Systems. Licensee may make one copy of the Software and the Documentation for backup or archival purposes only, so long as Decisions’ copyright notices are reproduced on each copy. Notwithstanding the preceding, any reproduction or distribution of the Software or the Documentation other than in accordance with the express terms of this Agreement is prohibited.
(b) Other Software Rights. The Software License includes Licensee’s right during the Term of this Agreement to use (i) all copyrighted materials contained in the Documentation and Software (including but not limited to screenshots from the Documentation and Software), and (ii) all trademarks associated with the Documentation and Software (A) in promoting the licensed use of the Documentation and/or Software by Authorized Users, and (B) in printed publications, audiovisual materials, and websites for the purposes of training and assisting Authorized Users of the Documentation and/or Software. Licensee may incorporate the Software into Licensee’s products and services and deliver the combined product or service to Licensee’s customers solely during the Term hereof for such customers’ internal use; provided that (1) Licensee requires its customers to agree to the restrictions and confidentiality provisions contained herein; (2) Licensee is solely responsible for providing support to its customers; (3) Licensee does not represent itself as an agent of Decisions or commit Decisions to any obligation or liability or make any representations, warranties or guarantees relating to Decisions or the Software, and (4) Licensee is and remains solely liable for any and all use of the Software by its customers and for all acts and omissions of Licensee’s customers. Except as expressly state above, Licensee is not permitted to market, distribute, license or otherwise make available the Software to third parties. For the avoidance of doubt, access to the software and all functionalities thereof will terminate upon expiration or termination of this Agreement, whether or not the software is incorporated into any Licensee Products or Services.
III.2 Form of Software Hosting. The Software, as delivered and licensed to Licensee, may be (i) Self-Hosted by Licensee on Designated Servers that are owned, managed, operated and supported by Licensee in Licensee’s own facilities, which hereby relieves Decisions from any obligations relating to those hardware support, security and operational functions (“Self-Hosting”), or (ii) hosted by Decisions in its own facilities (the “Decisions Cloud”) or by and through a Cloud Provider providing Cloud Services to Decisions for its clients pursuant to an account held by Decisions. The hosting elements of the Software to be acquired by Licensee hereunder shall be set forth in the Order Form.
III.3 Acknowledgement of Contract. Licensee acknowledges that this Agreement constitutes a contract between Licensee and Decisions, even though it may be electronic and not physically signed by Licensee and Decisions, and that this Agreement governs Licensee’s access to and use of the Software and supersedes any other agreements between Licensee and Decisions, including but not limited to any terms or conditions on any form or agreement previously agreed between the parties or provided by Licensee to Decisions but not agreed by Decisions in writing, which are hereby rejected. For the avoidance of doubt, all Software License rights, privileges and interests granted to Licensee under this Agreement or otherwise are limited in scope to the cumulative Software installations on the Designated Systems described in the Order Form(s) executed between the parties in connection herewith.
III.4 Changes to Software or Cloud Provider. Decisions reserves the right, in its sole discretion, to make any changes to the design, functions and capabilities of Software that it deems necessary or useful, including the applicable Cloud Provider. Any such changes or Updates added to or augmenting the Software or the hosting thereof are and shall be automatically subject to the terms and conditions of this Agreement.
III.5 Software License Restrictions
(a) Title. Except for the Software License granted during the Term hereof, no right, title or other interest in the Software is hereby transferred to Licensee. All rights, title and interest in and to the Software and its components, including all related intellectual property rights, patents, copyrights, trade secrets and other proprietary rights will remain with and belong exclusively to Decisions and its third-party vendors.
(b) Source Code Prohibition. Licensee shall not, and shall not cause or permit any other person or entity to access or use the Software except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, Licensee shall not itself or permit any third party to reverse engineer, disassemble, decompile or otherwise attempt to access, determine, derive or gain access to the Source Code or to any designs or protocols of the Software.
(c) Further Software Restrictions. Without prejudice to the foregoing restrictions, Licensee shall not (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available to any third party except as expressly permitted by this Agreement; (b) use the Software to process data on behalf of any third party except as expressly permitted hereunder, (c) modify or adapt the Software to falsely imply any sponsorship or association with Decisions or otherwise attempt to gain unauthorized access to the Software; (d) use the Software in any unlawful manner, including but not limited to violation of any person’s data privacy rights, to infringe any person’s intellectual property or other proprietary rights or to send spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Software; (f) use the Software for any purpose that is to Decisions’ detriment or commercial disadvantage; or (g) use the Software or Documentation other than an expressly permitted by this Agreement.
III.6 Delivery and Acceptance
(a) Software Delivery. Decisions’ delivery obligations with respect to the Software and Documentation, regardless of the form of Software hosting, shall be fully performed and discharged when Decisions makes available to Licensee, by electronic download from Decisions’ commercial website, or by other reasonable means, (i) a copy of the Software and Documentation, and (ii) a license key for the Software and Documentation, allowing Licensee to activate the Software for use in each Designated System ordered in the relevant Order Form and access the Documentation. Licensee is solely responsible for installation of the Software on Licensee’s Designated System.
(b) Acceptance or Deemed Acceptance of Software. Licensee shall have thirty (30) days following the latter of the Effective Date or actual delivery of the Software to assess whether the Software operates in conformity with the Order Form and Documentation (“Acceptance Period”). If Licensee fails to deliver written notice to Decisions prior to expiration of the Acceptance Period describing any claimed nonconformity of the Software to applicable specifications, Licensee will be deemed to have irrevocably accepted the Software and waived any and all claims of nonconformity.
(c) System Requirements. Licensee is solely responsible for ensuring that the Designated System meets the System Requirements. Licensee is responsible for obtaining, installing and maintaining all internet connections, hardware, software, interfaces and such other system and network requirements to properly install, download, run, use and access the Software.
III.7 Decisions Cloud Hosting Services.
(a) Decisions Cloud Service Level Agreement. If the Software License provides for hosting of the Software in the Decisions Cloud, then Licensee will have the rights set forth below relating to the provision of such hosting services. This Section 3.7(a) provides Licensee’s sole and exclusive remedy for failure to provide the Decisions Cloud hosting services or meet the Decisions Cloud Uptime Commitment. All standards and commitments are subject to the limitations and exclusions set forth herein.
(b) Uptime Commitment. Subject to the terms and conditions of this Agreement, Decisions will use commercially reasonable efforts to make the Decisions Cloud hosting services available for customers at least 99.5% of the time (Enterprise Production Clusters at least 99.9% of the time) as measured over the course of each calendar month during the Term, excluding unavailability as a result of an Exception (as defined below) (each as applicable, the “Uptime Commitment”). As used herein, “available” means that the hosting services are available for access and use by Licensee over the Internet and operating in material accordance with the Documentation. For purposes of calculating the Uptime Commitment, the following are “Exceptions” to such requirement and hosting services will not be considered unavailable nor will any failure to meet the Uptime Commitment be deemed to have occurred in connection with any failure to meet the Uptime Commitment or impaired ability of Licensee to access or use the hosting services that is due, in whole or in part, to any (a) act or omission of Licensee; (b) access to or use of the hosting services that does not strictly comply with this Agreement; (c) force majeure event, or other event beyond the reasonable control of Decisions; (d) failure, interruption, outage or other problem with any software, hardware, network, facility or other matter not supplied by Decisions pursuant to this Agreement; (e) Scheduled Downtime (as defined below); (f) disabling, suspension or termination of the hosting services by Decisions as permitted in this Agreement; (g) failure of Licensee to meet its obligations under this Agreement; or (h) configuration errors made by, or on behalf of, Licensee.
(i) In the event of a material failure of the Decisions Cloud hosting services to meet the Uptime Commitment, Decisions shall credit the Licensee the equivalent of 1 (one) day of the Annual Subscription Fee (calculated as 1/365 of the Annual Subscription Fee) for each 1%, or part thereof, of the Uptime Commitment that is not met during a calendar month.
(ii) In the event Licensee is not current in its payment obligations when the Uptime Commitment is not met, the foregoing remedies will accrue, but Decisions may, in its sole discretion, withhold any service credits until Licensee becomes current in its payment obligations or apply such service credits to Licensee’s outstanding balance.
(iii) To receive service credits, Licensee must submit a written request to email@example.com, within 30 days after the end of the month in which the Decisions Services failed to meet the Uptime Commitment, or Licensee’s right to receive service credits with respect to such unavailability will be and is hereby waived.
(d) Scheduled Downtime. Decisions will use commercially reasonable efforts to schedule downtime for routine maintenance of the Decisions Cloud hosting services from 1:00 a.m. – 5:00 a.m. server time on the first Saturday (Production) and third Saturday (Non-Production) of each month, and give Licensee at least 48 hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”).
(e) Non-Production Upgrades. Requests will be scheduled weekly on Tuesday and Thursday during the hours of 1:30 a.m. – 9:30 a.m. ET, as well as Wednesday from 10:00 a.m. – 4:00 p.m. ET.
III.8 Third Party Cloud Services.
(a) Licensee hereby acknowledges and agrees that the Cloud Services provided for any cloud-based version of the Software may be and are made available by and through a license by Decisions with a nationally recognized Cloud Provider, either Amazon Web Services (“AWS”), Microsoft Azure (“Azure”), Google Cloud Platform (“GCP”) or equivalent (as applicable hereunder, the “Cloud Provider”). All such Cloud Services are subject in all respects to the Cloud Provider terms and conditions, including disclaimers and limitations, as in existence during the Term hereof and as amended from time to time. All Cloud Provider terms and conditions shall flow down and apply to Licensee in the same manner as if Licensee rather than Decisions was the direct customer of such Cloud Provider for such Cloud Services. As of the Effective Date hereof, the Cloud Provider terms and conditions are as referenced below and include any and all other Cloud Provider terms applicable to the Cloud Services:
Amazon Web Services
AWS Customer Agreement: https://aws.amazon.com/agreement/
AWS Service Terms: https://aws.amazon.com/service-terms/
AWS Service Level Agreements: https://aws.amazon.com/legal/service-level-agreements/
AWS Privacy Notice: https://aws.amazon.com/privacy/
MS Online Subscription Ag: https://azure.microsoft.com/en-us/support/legal/subscription-agreement/
MS Licensing Documents: https://www.microsoft.com/licensing/docs
MS Service Level Agreement for Online Services: https://wwlpdocumentsearch.blob.core.windows.net/prodv2/OnlineSvcsConsolidatedSLA(WW)(English)(November2020)(CR).docx?sv=2020-08-04&se=2123-02-07T17:01:26Z&sr=b&sp=r&sig=tw88ghrwMFGVAahMB40Qi%2F3GKKGMI4gJ%2B2OP81qVFac%3D
Google Cloud Platform
Google Cloud Security & Identity: https://cloud.google.com/products/security-and-identity
Google Terms of Service: https://policies.google.com/terms
(b) Third Party Cloud Services Acknowledgement. The Licensee hereby acknowledges and agrees that the foregoing Cloud Services terms and conditions, and the terms and conditions of any substitute Cloud Provider used at any time hereunder by Decisions, restrict, limit and disclaim certain rights, obligations, damages and liabilities of or available to Decisions (as the Cloud Provider customer) and to Licensee as the actual recipient of such Cloud Services through Decisions. Licensee further acknowledges and agrees that (a) nothing in this Agreement is intended to nor shall be deemed to create any duty, obligation or liability of, by or in favor of Licensee against Decisions regarding the Cloud Services that are excluded, disclaimed, restricted or otherwise limited by Cloud Provider against recovery by Decisions against such Cloud Provider, (b) that the foregoing Cloud Provider terms and conditions shall govern any conflicting terms thereof with any term or condition of this Agreement, and (c) that LICENSEE HEREBY AGREES TO LOOK SOLELY TO THE CLOUD PROVIDER (AND TO WAIVE AND RELEASE DECISIONS FROM) ANY AND ALL DUTIES, RESPONSIBILITIES, DAMAGES AND LIABILITIES ARISING OR RESULTING FROM ANY FAILURE OR DEFECT IN THE CLOUD SERVICES WITHIN THE CLOUD PROVIDER’S CONTROL OR RESPONSIBILITY AND OUTSIDE DECISIONS’ CONTROL OR RESPONSIBILITY.
IV.1 Signed Verification. Upon Decisions’ written request, not more frequently than annually, Licensee shall promptly provide to Decisions written certification, signed by an authorized representative of Licensee, verifying that the Software is being used in compliance with the provisions of this Agreement and applicable Order Forms.
IV.2 Audit. During the Term of this Agreement and for a period of two (2) years after the expiration or termination of this Agreement, Decisions shall have the right to audit Licensee’s use of the Software upon thirty (30) days written notice to Licensee. Decisions may exercise this right only once every 12 months unless Decisions has a reasonable basis to believe that Licensee is not in compliance with this Agreement. Any such audit shall be conducted during regular business hours at Licensee’s facilities. Such audits, if any, shall be performed by Decisions’ employees or by an independent accountant or assessment firm (collectively, “Assessor”) and in a manner so as not to unreasonably interfere with Licensee’s operations. Any Assessor conducting an audit shall first agree in writing with Licensee to hold all information obtained from such audit in confidence and not to disclose any such information to any third party other than to Decisions, to Decisions’ legal counsel and/or to any governmental authority. Decisions shall pay the costs of conducting such audit unless the audit discloses that Licensee’s underpayment of Fees exceeds ten percent (10%) of the Fees paid. If underpayment exceeds ten percent (10%) of the Fees paid, Licensee will pay the reasonable costs incurred by the audit. Licensee must also pay Decisions for any unauthorized copies of the Software being used by Licensee at Decisions’ then-current list price.
Subject to and conditioned upon Licensee’s payment of the Subscription Fees and compliance with the terms of this Agreement, Decisions shall provide the following Support Services to Licensee commencing on the Effective Date and ending upon the earlier of the expiration or termination:
V.1 Support Staff. Decisions shall maintain support personnel appropriately trained to respond to licensed Licensees’ issues and questions arising from the use of the Software and shall implement and periodically review a standard support process reasonably designed to achieve the support targets set forth herein.
V.2 Support Request Channels. Decisions shall establish and maintain a communication protocol reasonably calculated to make available to Licensee on a 24 x 7 basis, via at least one of the following channels for the purpose of submitting new Support Requests, modifying existing Support Requests, appending additional information to existing Support Requests, or cancelling Support Requests.
(a) Email or Website-based Support Channel. Decisions shall establish and maintain an aliased support email address to which Licensee may direct its Support Requests. Alternatively, Decisions, in its sole discretion, may establish, maintain, and provide Licensee access and use instructions to a web-based program reasonably designed to store and make available for retrieval by Decisions, Support Requests ad related information, submitted by Licensee in electronic form.The Parties expressly acknowledge the adequacy of Decisions’ establishment and maintenance of an email or web-based support channel as fulfillment of the 24 x 7 availability requirement under this Section 5.2.
(b) Telephone Support Channel. Licensee may submit Support Requests to Decisions by telephone during Decisions’ regular business hours.
V.3 Availability Limitation. Any interruption to any Support Request channel caused by events, acts, or omissions not directly attributable to Decisions shall not constitute breach of the availability provisions set forth in Section 5.2. Decisions shall use all commercially reasonable means to prevent, remedy and repair any such interruption.
V.4 Support Request Content. Licensee shall include with the submission of any Support Request to Decisions, all information reasonably ascertainable by Licensee that is material and relevant to an investigation of the cause or resolution of the issue being reported. If available and ascertainable, such information shall include, without limitation, the following:
(a) Issue Description. A reasonably detailed description of the Software error or failure, including descriptions of the expected behavior and observed behavior;
(b) Software Details. The name and version number of the Software to which the Support Request pertains;
(c) Operating Environment. A description of the hardware/operating system environment in which the Software produced the reported error or failure, including version numbers where applicable and relevant;
(d) Integrated Software. Name, version number, and configuration details of any third-party technology (including software and hardware) with which the Software interacts where such third-party technology may rationally be related to the issue being reported or where Decisions support personnel expressly request such information;
(e) Diagnostics. All diagnostic information produced or recorded by the Software where such information is rationally related to the issue being reported or where Decisions support personnel expressly request such information. Diagnostic information, as referenced herein, shall include without limitation, descriptions or screen captures of any error messages displayed by the Software, and log files created or updated by the Software; and
(f) Requested Information. All information reasonably requested by Decisions support personnel for the purpose of investigating, diagnosing, or otherwise pursuing a resolution to the reported issue.
V.5 Support Request Initial Response. Decisions’ minimum initial response to each Licensee Support Request shall include:
(a) Review of the Support Request by Decisions support personnel; and
(b) Confirmation of review by Decisions, transmitted to Licensee via email; or through a designated web-based support program. The confirmation shall include one or more of the following:
(i) Instructions or guidance in the installation, configuration, operation, or use of the Software, reasonably calculated to resolve the reported issue;
(ii) Instructions for electronically downloading a file or files that are reasonably calculated to resolve the reported issue upon installation by Licensee;
(iii) Requests for additional information reasonably believed by Decisions support personnel to be necessary for accurate or efficient diagnosis or resolution of the reported issue;
(iv) Requests by Decisions support personnel for Licensee to undertake an action or series of actions reasonably calculated to resolve the reported issue or to produce diagnostic or other information necessary or helpful in diagnosing or resolving the reported issue;
(v) An advisement that Decisions support or development personnel are engaged or will engage in diagnosing the root cause of the reported issue, or are engaged or will engage in developing a resolution to the reported issue that may include creation of new computer program code to be made available to Licensee upon completion and an estimated timeline for completion; or
(vi) An advisement that the Support Request calls for enhanced functionality or new functionality not within the scope of the operational features of the Software as Licensed by Licensee. Any further action undertaken in response to such Support Requests shall be undertaken, if at all, at the sole discretion of Decisions.
V.6 Support Request Initial Response Schedule. Decisions shall make its initial response to all Support Requests according to the schedule set forth in Table 5.6.1
Support Request Severity
Initial Response Time
A critical error or failure by the Software is causing extreme, severe and unreasonable difficulty to Licensee, depriving Licensee of all or virtually all production value and use of the Software
Three (3) hours
A non-critical error or failure by the Software that does not deprive Licensee of all or virtually all production value and use of the Software; or a request for behavior that is not currently intended in the version of the Software giving rise to the reported issue
One (1) business day
Licensee seeks brief assistance, not requiring the physical presence of Decisions staff on Licensee site, regarding Software best practices or configuration
One (1) business day
V.7 Support Request Resolution Schedule. As to all Support Requests not resolved by Decisions’ initial response as set forth in Sections 5.5 and 5.6 above, Decisions shall pursue final resolution according to the prescribed actions set forth in table 5.7.1.
Support Request Severity
1. Upon receipt of the Support Request, Decisions support personnel shall immediately report the general nature of the reported issue to a senior developer or senior support engineer.
2. Decisions shall, in light of the totality of circumstances, dedicate an appropriate number of personnel to actively pursue resolution of the reported issue by all commercially reasonable means.
3. Dedicated staff shall maintain active pursuit of resolution UNTIL
a. Decisions provides to Licensee, a final resolution, accepted by Licensee; or
b. Decisions provides to Licensee, a temporary resolution, accepted by Licensee and accompanied by a plan to provide a permanent resolution within a reasonable time; or
c. Decisions and Licensee mutually agree to a resolution plan
1. Decisions shall cooperate with Licensee to formulate, schedule, and execute a mutually agreeable resolution plan that is reasonable in light of all relevant factors.
2. Resolution may include, without limitation, release of modified or added Software functionality in subsequent Updates, release of modified or added Software functionality made available only to Licensee, or any other mutually agreeable and reasonable means.
Decisions shall cooperate with Licensee to provide a mutually agreeable resolution within a reasonable amount of time.
Subject to and conditioned upon Licensee’s payment of the Subscription Fees and compliance with all terms of this Agreement, Decisions shall provide the following Maintenance Services to Licensee commencing on the Effective Date and ending upon the earlier to occur of expiration or termination:
VI.1 Updates. Decisions shall make available to Licensee all Updates released by Decisions on or after the Effective Date.
(a) ANY UPDATES INSTALLED BY LICENSEE SHALL BE DEEMED PART OF THE SOFTWARE AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
(b) Delivery. Updates shall be made available to Licensee by download from Decisions’ commercial website, or as otherwise agreed by the Parties on a case-by-case basis. Decisions shall give written notice to Licensee when any Update is made available to Licensee.
VII.1 Warranty Restrictions and Limitations
(a) External Sites. The Software may contain links to, or otherwise may allow Licensee to connect to and use certain third-party products, services or software under separate terms and conditions (collectively, “Other Services”) associated with Licensee’s use of the Software. If Licensee chooses to access and use such Other Services, this use will be governed solely by the terms and conditions of such Other Services, and Decisions does not assume, endorse, is not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Licensee Data. Decisions is not liable for any damage or loss caused or alleged to be caused by or in connection with Licensee’s access or use of any such Other Services, or reliance on the privacy practices or other terms or policies of such Other Services.
(b) Integration. The Software may contain features that enable various Other Services (such as social media services like Facebook and Twitter) to be directly integrated into the Software. To take advantage of these features, Licensee will be required to register for or log into such Other Services on their respective websites. By enabling third party services within the Software, Licensee does hereby authorize Decisions to pass Licensee’s user log-in information to these Other Services for this purpose.
VII.2 Disclaimer. THE SOFTWARE, DOCUMENTATION AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND DECISIONS MAKES NO WARRANTIES WITH RESPECT THERETO. DECISIONS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSEE MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEMS OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. NO INFORMATION OR ADVICE OBTAINED BY LICENSEE FROM DECISIONS OR THROUGH THE SOFTWARE OR PROFESSIONAL SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
VIII.1 Orders. In the event that payment and delivery terms set forth in relevant Order Forms conflict with the payment and delivery terms and obligations set forth in this Agreement, the terms of the Order Form will prevail, provided that Order Forms containing such terms are duly executed by both parties.
VIII.2 Professional Services and Software License Fees. Licensee shall pay to Decisions the Professional Services Fees and License Fees as set forth herein and the relevant Order Form. License Fees are payable in advance for the applicable subscription term. Any changes to License Fees or the subscription or hosting type which Decisions makes will not apply to Licensee with respect to any fully paid Term – any such changes will become effective as of the next Renewal Terms. All License Fees are non-refundable, even if Licensee terminates this Agreement in advance of expiration of the then-current Term.
VIII.3 Fee Payment Terms. All payments shall be due and payable by Licensee to Decisions net thirty (30) days from the date of the invoice applicable thereto. Any undisputed amounts payable by Licensee which remain unpaid after the due date shall be subject to a late charge equal to 1.5% per month from the due date until such amount is paid or the highest amount allowed by Applicable Law. All invoice disputes must be submitted by Licensee to Decisions in writing within fifteen (15) days of the date of Licensee’s receipt of an invoice.
VIII.4 Invoice Dispatch. Unless otherwise agreed in writing by the Parties, Decisions will submit invoices to Licensee via email directed to the email address of the Licensee contact set forth in the relevant Order Form.
(a) U.S. Taxes. Licensee agrees to pay all sales, use, VAT and other consumption taxes, personal property taxes and other taxes (other than those based on Decisions’ net income and any employment taxes, payroll taxes, social security taxes, FICA, unemployment and disability taxes, FUTA, Medicare, self-employment taxes, estimated taxes, and other applicable withholdings) unless Licensee provides valid written proof of an exemption therefrom.
(b) Foreign Taxes. Use or installation of the Software outside the United States may subject Licensee to tax liability by a taxing authority other than and in addition to any United States taxing authority. Licensee shall remit to Decisions the actual amounts owed to Decisions without withholding taxes or other assessments by authorities in any non-United States location, which withholding taxes or assessments Licensee agrees to pay. Licensee shall promptly furnish Decisions with certificates evidencing payment of such amounts.
IX.1 Term. The initial term of the Software License granted pursuant to this Agreement shall be for one (1) year commencing on the latter of the Effective Date or the date of Decisions’ delivery of a license key for the Software (the “Initial Term”). Thereafter, the License will automatically renew for successive one (1) year terms (each a “Renewal Term”), subject to Licensee’s payment of the License Fee, unless either party provides at least thirty (30) days written notice prior to the end of the then-current term of its intent not to renew the Software License.
IX.2 Termination by Material Breach. Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of written notice thereof from the nonbreaching party. Without limitation, the following events shall constitute a material breach: (a) violation by Licensee of the terms of the Software License; (b) failure by Licensee to pay any amount owed to Decisions when due; (c) breach of any warranty set forth in Section 7 of this Agreement; or (d) violation by either party of the confidentiality duties set forth in Section 12.1 (Confidential Information) of this Agreement.
IX.3 Termination by Financial Distress. Either party may terminate this Agreement immediately, without written notice if the other party (1) becomes insolvent, (2) becomes the subject of any voluntary or involuntary proceeding under the U.S. Bankruptcy Code or state insolvency proceeding and such proceeding is not terminated within thirty (30) days of its commencement, (3) obtains appointment by any court of competent jurisdiction of a temporary or permanent receiver, custodian, trustee or other officer having similar powers for the party or the party’s business who is not removed within thirty (30) days, (4) or ceases to be actively engaged in business. Upon the occurrence of any of the above-listed events, the party in financial distress shall immediately notify the other party in writing. Failure to do so shall constitute a material breach of this Agreement, and shall result in automatic termination of this Agreement.
IX.4 Effect of Expiration or Termination. Upon expiration or termination of this Agreement, the provisions of this Section 9.4 will take immediate effect:
(a) Immediate Surrender of Rights. Licensee shall immediately cease access to and use of the Software and Documentation, return all copies thereof to Decisions, and surrender all rights, licenses and privileges granted under this Agreement with regard thereto.
(b) Payment Obligations. Licensee shall promptly pay to Decisions all undisputed amounts due and owing. No termination of this Agreement shall release Licensee from any obligation to pay to Decisions any amount that has accrued or will accrue or become payable prior to or on the date of expiration or termination.
(c) Tangible Property. Each party shall immediately cease using and accessing and return all property in its possession belonging to the other party, including without limitation all copies and tangible embodiments of Confidential Information.
(d) No Obligation to Provide Services. Decisions shall have no further obligation to provide any the Services (or Professional Services) to Licensee. In no way limiting the foregoing, Licensee shall immediately cease submitting Support Requests, all pending Support Requests shall be automatically terminated, regardless of whether or not resolved or remedied, Decisions shall have no further obligation with respect to any Support Request, and Decisions shall have no further obligation to provide or make available Updates to Licensee.
IX.5 Survival of Terms. The following provisions survive expiration or termination of this Agreement: Section 2.2 (Decisions Work Product), Section 3.5 (Software License Restrictions), Section 4.2 (Audit), Article VII (Warranties and Disclaimers), Article VIII (Software License Fees and Payment Provisions), Section 9.4 (Effective of Expiration or Termination), Section 9.5 (Survival of Terms), Article X (Data Protection), Article XI (Indemnification) and Article XII (General Terms).
X.1 Licensee Responsibility for Licensee Data. Licensee has and will retain sole responsibility for: (a) all Licensee data, information, messages and other materials, in any form or format (collectively, “Licensee Data”), including its content, development and use; (b) all information, instructions and materials provided by or for the Licensee in connection with the Software or Professional Services; (c) Licensee’s information technology infrastructure, including computers, software, databases, electronic systems (including data base management systems), and networks, whether operated directly by Licensee or through the use of third party systems (collectively, “Licensee Systems”); (d) the security and use of Licensee’s and its users’ log-in credentials (“Licensee Credentials”) for all Licensee accounts and for all access to the Software; and (e) all access to and use of the Software and Documentation directly or indirectly by or through the Licensee, Licensee Systems or its users’ Access Credentials, with or without Licensee’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
X.2 Protection of Licensee Data, Systems, and Credentials. Licensee shall employ and maintain throughout the Term all necessary physical, administrative and technical controls and security safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Software; and (b) control the content and use of Licensee Data, including the uploading or transfer of Licensee Data.
X.3 Data Security. Licensee shall implement and maintain an information security program that includes administrative, electronic, technical, physical and other security measures and safeguards reasonably designed, at a minimum, to: (a) ensure the confidentiality, integrity and availability of all Licensee Confidential Information and Licensee Data; (b) protect against any unauthorized access to or use of such Licensee Confidential Information and Licensee Data; (c) protect against any anticipated threats or hazards to the security or integrity of Licensee Confidential Information and Licensee Data; (d) limit access to Licensee Confidential Information and Licensee Data to only Licensee personnel who have a reasonable need for such information; (e) instruct all persons who have access to Licensee Confidential Information and Licensee Data of the obligation to maintain the confidentiality thereof; and (f) ensure the proper, secure and lawful disposal of Licensee Confidential Information and Licensee Data as required or appropriate.
X.4 Security Breach. Licensee shall: (a) provide Decisions with the name and contact information of a person qualified to serve as Decisions’ primary security contact for Licensee with regard to Licensee’s obligations relating to a Security Breach (as defined below); (b) notify Decisions of a Security Breach affecting Licensee Systems, Licensee Data and/or Licensee Credentials as soon as practicable, but no later than seventy two (72) hours after Licensee determines that a Security Breach has occurred; and (c) regularly update Decisions as to the progress toward and status of Licensee’s remediation of any Security Breach. Immediately following Licensee’s notification to Decisions of a Security Breach, the parties shall coordinate with each other to investigate and remediate the Security Breach and prevent any further Security Breach at Licensee’s expense in accordance with applicable Laws. As used herein, “Security Breach” means any unauthorized access to or use, disclosure, alteration, or destruction of Licensee Confidential Information and/or Licensee Data.
X.5 Compliance with Data Protection Laws
(a) Mutual Compliance. Each party represents and warrants that (i) it will duly perform and fully comply with all terms and conditions of this Agreement, the Data Processing Addendum and all Applicable Laws, including all Data Protections Laws, as applicable to such party, and that (ii) its collection, use and transfer of all personal data hereunder is lawful and authorized under all Applicable Laws.
(b) International Data Protection Laws. In furtherance of each party’s duties and obligations with regard to the collection, use and processing of personal data under applicable International Data Protection Laws, each party does hereby agree to execute and fully perform, in physical or electronic click-wrap form (at Decisions’ option), the Data Processing Addendum incorporated herein as Exhibit B and posted by electronic link at https://decisions.com/wp-content/uploads/2023/02/DECISIONS-International-Data-Processing-Addendum-GDPR-UK-02-07-23.pdf, together with any and all Standard Contractual Clauses applicable to cross-border transfers of personal data thereunder. The parties agree to amend and revise the Data Processing Addendum as necessary due to changes in Data Protection Laws or adoption or amendment of the EU-US Data Privacy Framework or changes in the data handling and processing activities of the parties. For purposes of GDPR and the UK GDPR, Decisions shall be considered the “processor,” the Cloud Provider shall be considered the “sub-processor” of Decisions and the Licensee shall be considered the “controller” of all “personal data” (including Licensee Data) used, collected and/or uploaded with or into the Software by the Licensee or otherwise shared or made available to Decisions hereunder (as each such italicized term is defined in Applicable Laws).
(c) U.S. Data Protection Laws. For purposes of all U.S. Data Protection Laws, including but not limited to CCPA, Decisions shall be considered a “service provider” or “contractor” (as defined in CCPA) or a “processor” (as defined in other U.S. Data Protection Laws) to the Licensee and the Licensee shall be considered the “business” (as defined in CCPA) or the “controller” (as defined in other U.S. Data Protection Laws) of all “personal information” (including Licensee Data) used, collected and/or uploaded with or into the Software by the Licensee or otherwise shared or made available to Decisions hereunder (as each such italicized term is defined in Applicable Laws). In addition, in its role as a service provider, contractor or processor under Applicable Laws, Decisions does hereby agree and represent to the Licensee that Decisions:
(i) will process the personal information provided or made available to Decisions solely for the business purpose of performing the Professional Services and providing to Licensee the benefits of the Software and for no other commercial purpose except as permitted by Applicable Laws;
(ii) will not sell or share the personal information in violation of Applicable Laws or in excess of the authorization provided by Licensee thereunder and will honor any and all affirmative consent, opt-in or opt-out requirements as required under Applicable Laws;
(iii) will not retain, use or disclose the personal information outside of the business relationship between the parties; provided that, Decisions may use the personal information internally to improve the quality of its services or to prevent, detect or investigate data security incidents or protect against malicious, deceptive or illegal activity but may not use it to perform services on behalf of any other person or entity;
(iv) will not combine the personal information received from Licensee with personal information which it receives from another person or collects from its own interaction with the applicable Data Subjects except as permitted by Applicable Laws;
(v) will notify the Licensee if Decisions engages another person to assist it in processing personal information for a business purpose for the Licensee and its contract with such other person shall impose the same restrictions thereon as required for service providers, contractors or sub-processors hereunder or under Applicable Laws;
(vi) will notify the Licensee if Decisions determines that it can no longer meet its obligations under Applicable Laws; and
(vii) will carry out Licensee’s requests and instructions with regard to Data Subject requests, regulator audits, security incident or Security Breach investigations and audits and otherwise in good faith in accordance with a reasonable interpretation of all Applicable Laws.
XI.1 Indemnification by Decisions. Decisions will indemnify and hold Licensee harmless , from and against any and all claims, actions or demands, including, without limitation, reasonable legal fees, by a third party against Licensee alleging that the Software, Documentation or Service infringes upon a valid U.S. patent or copyright, or misappropriates a third party’s intellectual property (such claims, collectively, “Claim”). Decisions shall, at its expense, defend such Claim and pay damages finally awarded against Licensee in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Decisions for such defense; provided that (i) the Licensee promptly notified Decisions of the threat or notice of such Claim, (ii) Decisions will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) Licensee shall fully cooperate with Decisions in connection therewith. If Licensee’s use of the Software or Documentation has become, or in Decisions’ opinion is likely to become, the subject of any such Claim, Decisions may at its option and expense (a) procure for Licensee the right to continue using the Software and Documentation as set forth hereunder; (b) replace or modify the Software or Documentation to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement. Decisions will have no liability or obligation under this Section 11.1 with respect to any Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by Licensee; (ii) modification of the Software by anyone other than Decisions; or (iii) the combination, operation or use of the Software with other hardware or software where the Software would not by itself be infringing.
The provisions of this Section 11.1 state the sole, exclusive and entire liability of Decisions to Licensee and constitute Licensee’s sole remedy with respect to a Claim.
XI.2 Indemnification by Licensee. Licensee agrees to defend, indemnify, and hold harmless Decisions from and against any claims, actions or demands, including, without limitation, reasonable legal fees, arising or resulting from Licensee’s breach of this Agreement, or Licensees’ and Licensees’ end users’ access to, use, misuse or illegal use of the Software or Licensee’s violation of Applicable Laws. Decisions will provide Licensee notice of any such claim, suit, or proceeding. Decisions reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Licensee agrees to cooperate with any reasonable requests to assist Decisions’ defense of such matter.
XI.31 Limitation of Liability.
(a) NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE OR SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
(b) LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DECISIONS’ (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THIS AGREEMENT CLAIMED BY LICENSEE OR BY ANY THIRD PARTY ARISING FROM THE USE OF THE SOFTWARE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) THE AGGREGATE OF ALL SOFTWARE LICENSE FEES PAID TO DECISIONS DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.3 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF DECISIONS WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
(c) Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE STATES, DECISIONS’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
(d) THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITED LIABILITY PROVISION SHALL OPERATE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY FINDING THAT ANY OR ALL REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT FAIL IN THEIR ESSENTIAL PURPOSE.
XII.1 Confidential Information. The parties understand and acknowledge that each of them (and their respective employees, agents, consultants and subcontractors) may have disclosed to it, in connection with the rendition of services and performance of their obligations of this Agreement, Confidential Information of the other party. Each party shall take all reasonably necessary and prudent precautions to safeguard the Confidential Information of the other party against disclosure to any unauthorized person or entity, including unauthorized agents and employees in the party’s own employment except to the extent required by law or for the purpose of implementation of this Agreement. As used herein, “Confidential Information” means: (a) any nonpublic information disclosed by either party (the “Discloser”) to the other party (the “Recipient”) in any form, including written, electronic, photographic or other tangible form, or information provided orally or visually, and (b) notes and other records made from or about such information. Confidential Information disclosed in a tangible or electronic form may be marked or otherwise identified by Discloser with a legend as being confidential or proprietary, but the absence of such mark or identification will not affect Recipient’s obligations to treat such information as Confidential Information. A party’s Confidential Information shall not include information that is or becomes a part of the public domain through no act or omission of the other party; was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; is lawfully disclosed to the other party by a third party without restriction on disclosure; or is independently developed by the other party.
XII.2 Intellectual Property Rights. Each party shall maintain all rights, title and interest in and to all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). Decisions shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Software or otherwise use any suggestions, enhancement requests, recommendations or other feedback Decisions receives from Licensee. Decisions, and Decisions’ other product and service names, and logos used or displayed on the Software are registered or unregistered trademarks of Decisions (collectively, “Marks”), and Licensee may only use such Marks for identification as a Decisions customer and user of the Software; provided Licensee does not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Decisions, its services or products.
XII.3 Governing Law. This Agreement and all claims, controversies, and causes of action arising out of or relating to this Agreement, shall be governed by the laws of the Commonwealth of Virginia, United States excluding its choice of law rules. The Uniform Computer Information Transactions Act shall not apply. Licensee hereby express agrees to submit to the exclusive personal jurisdiction of the federal and state courts of the Commonwealth of Virginia, for the purpose of resolving any dispute relating to this Agreement or Licensee’s access to or use of the Software.
XII.4 Jurisdiction and Venue. Any legal action or proceeding relating to this Agreement shall be instituted exclusively in the state or federal court whose jurisdiction encompasses Virginia Beach, Virginia, United States. Decisions and Licensee agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
XII.5 Dispute Resolution and Attorneys’ Fees. All disputes between the parties that arise out of or in connection with this Agreement or its interpretation, operation, breach, termination or cancellation shall be settled by means of negotiation between the parties. If the parties cannot amicably settle any such dispute, then such dispute shall be resolved through the courts. Either party may exercise any legal right and remedy available to it, whether at law or in equity, to enforce any provision of the Agreement. In the event either party commences legal action to enforce any term of the Agreement, the prevailing party in such proceeding will be entitled, in addition to any other rights and remedies it may have, to recover its reasonable costs, expenses, and attorneys’ fees incurred in such proceeding from the other party.
XII.6 Notices. All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and shall be deemed to have been duly given when: (a) delivered by hand with a signed acknowledgement of receipt or confirmed facsimile transmission; (b) when delivered by electronic mail, twenty-four (24) hours after the time and date the electronic mail was sent; (c) one (1) day after delivery by overnight delivery as evidenced by a delivery receipt; or (d) three (3) days after being mailed by commercial courier service, certified or registered mail, return receipt requested, with postage prepaid to the Party at the address and to the person designated below, as may be changed from time to time with written Notice to the other party:
If to Licensee: address listed on the Order Form
If to Decisions: Decisions, LLC
4588 Virginia Beach Blvd., Suite 104
Virginia Beach, VA 23462
XII.7 Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.
XII.8 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach of the same or any other term of the Agreement.
XII.9 Export Administration. Licensee agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to assure that neither the Software nor any direct product thereof are (1) exported, directly or indirectly, in violation of Export Laws; or (2) are intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
XII.10 Interpretation. The parties acknowledge that they have participated jointly in the negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Unless the context requires otherwise, all words used in this Agreement in the singular shall extend to and include the plural, all words in the plural shall extend to and include the singular and all words in any gender shall extend to and include all genders.
XII.11 Captions and Headings. The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.
XII.12 Succession. The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of each party.
XII.13 Entire Agreement. This Agreement, together with the agreements and forms referenced herein, constitute the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement.
XII.14 Successors and Assigns. Decisions shall have the right to subcontract, delegate or assign its rights or obligations under the Agreement to any other person without the prior written consent of Licensee.
XII.15 No Joint Venture, Partnership or Alter Ego. Nothing contained in the Agreement, any document executed in connection herewith or any other agreement with any other party shall be construed as making Decisions and Licensee partners, agents, joint ventures or alter egos of each other. Decisions shall not obligate Licensee for any debts or liabilities, except those expressly assumed by Licensee hereunder. Decisions may not represent that Decisions has authority to legally bind Licensee.
XII.16 Federal Government End Use Provisions. If Licensee is a U.S. federal government end user, the Software is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Software is licensed to Licensee with only those rights as provided under the terms and conditions of this Agreement.
XII.17 Non-Solicitation. During the term of this Agreement and for a period of one (1) year after the termination of this Agreement (whether the Agreement expires or is terminated for any reason whatsoever and regardless of which party terminates the Agreement), Licensee shall not hire, employ, recruit, solicit for employment, or assist in soliciting or hiring any person employed by Decisions within the six (6) month period immediately preceding Licensee’s hiring, employment, recruitment or solicitation of such person and who provided any services to Licensee while employed by Decisions. Licensee acknowledges and agrees that, if it violates this provision, Decisions will suffer significant harm as a result of the loss of the employee’s services, the costs and resources expended in replacing the employee, and the loss of revenue associated with the employee’s services rendered on behalf of Decisions. Therefore, in the event that Licensee breaches this provision, Licensee shall pay to Decisions the greater of an amount equal to fifty percent (50%) of the annual salary paid by Decisions to the employee hired by Licensee or $50,005. Notwithstanding any other provision of this Agreement, nothing shall restrict the right of Licensee to hire a Decisions employee pursuant to written authorization from Decisions.
The Decisions Automation Platform provides a complete set of tools for building software applications. Every element of the Platform is reusable, streamlining application development. The Platform includes a full featured graphical workflow designer and business rule engine for modeling and automating business process. An easy to use drag-and- drop forms designer allows for the collection of data from end users. All data that is collected through the process, end user interaction, and integrations with external data sources is leveraged by the Decisions Reporting and Dashboard Engine.
The main functional areas of the Decisions Platform include:
– Flow Execution Engine
– Business Rule Engine
– Forms Designer
– Reports and Dashboard Engine
– Role and Scope Based Security Model
– Integrations with Web Service and Database Providers
– Real-time and Schedule Based Notifications
The Decisions High Availability product includes two Decisions Platform Servers and the ability to configure these servers in a failover or clustered model.
Data Processing Addendum