This Agreement is entered into as of the earliest of the date that Customer accepts the terms and conditions herein, the date set forth on an Order, or the date on which Customer downloads, installs, activates or uses the Software.
- “Acceptable Use Policy” means CC+I’s Acceptable Use Policy located per CC+I standard policy.
- “Affiliate” means any entity controlling, controlled by or under common control with Customer, where “control” means (i) a general partnership interest in a partnership; or (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors.
- “Documentation” means the written and/or electronic release notes, implementation guides, or other published technical documentation about the applicable SaaS Product that is provided by CC+I to Customer together with access to the SaaS Product.
- “License Term” means the term of the access rights granted for the SaaS Product, as identified in the relevant Order, starting when CC+I delivers to Customer the relevant credentials to access and use the SaaS Product.
- “Order” means any purchase order, product schedule or ordering document between Customer and authorized reseller or between Customer and CC+I (if purchasing directly) that identifies the products and/or services licensed or sold and any applicable licensing parameters (e.g.,the number of licenses).
- “SaaS Product” means the mobile enterprise management services made available by access to and use of software hosted by CC+I to which Customer has purchased a license under the relevant Order. References in this Agreement to the SaaS Product shall include the Software.
- “Software” means the object code version of CC+I proprietary computer programs made available by CC+I for download by Customer for use in connection with any SaaS Product, including any Documentation and Updates.
- “Updates” means any correction, update, upgrade, patch, or other modification or addition made by CC+I to specific Software.
- Rights of Access and Use
- Access and Use. Subject to the terms and conditions of this Agreement, during the applicable License Term, CC+I hereby grants to Customer (i) a non-exclusive, non-transferable and non-sublicensable license for Customer to access and use the SaaS Product and to copy, and install the Software, in each case, solely for Customer’s internal use with Customer’s ordinary business operations and in accordance with the applicable Documentation, and (ii) the right to maintain a reasonable number of copies of the Software on its systems for backup and recovery purposes. Customer may provide access to the SaaS Product to its and its Affiliates’ employees, contractors, and other individual users to access and use the SaaS Products on its behalf and for its internal business purposes in compliance with this Agreement, provided Customer is responsible for all such users’ actions that violate the terms of this Agreement, any breach by any such user is a breach by Customer, and no such user is an employee or contractor of a CC+I Competitor (defined below). Customer agrees that its purchase of the Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by CC+I with respect to future functionality or features.
- Trial License. This Agreement applies to trial copies of the SaaS Product (“Trial Product”), except for the following different or additional terms: (i) the License Term for Trial Product is thirty (30) days, which CC+I may extend upon written consent; (ii) the trial period shall commence on the date that CC+I first provides Customer credentials to access the Trial Product; (iii) Trial Product is provided “AS IS” without warranty of any kind, and CC+I disclaims all warranties, indemnities, and all other liabilities for Trial Product; (iv) Customer is not entitled to any support and maintenance services or any Updates for Trial Product; and (v) either party may terminate the license for Trial Product upon five (5) days’ written notice to the other party.
- Installation and Supply of hardware. Should the SaaS installation include hardware and installation services that were supplied as part of an overall package, the minimum duration of the SaaS agreement should be 5 years from the time of activation of the License by the Customer or the first use in Customer’s normal operations. Should the Customer cancel this agreement before the end of the terms the remaining price of such hardware and installation becomes due immediately upon cancellation. The price of such hardware and software shall be the current rate at the time of cancellation.
- Use Restrictions; Customer Obligations. As a condition of the license granted in Section 2, Customer shall not itself and shall not authorize or permit any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the SaaS Product (except and only to the extent any foregoing restriction is prohibited by applicable law); (b) modify, adapt, or create any derivative works based on the SaaS Product; (c) distribute, sell, license, lease, transfer, or otherwise provide any SaaS Product to third parties except as expressly provided in this Agreement; (d) provide the SaaS Product as a service to unaffiliated third parties, including but not limited to on a service bureau, SaaS, or time-sharing basis; (e) unbundle any component of any SaaS Product; or (f) use the Documentation except for supporting Customer’s authorized use of the SaaS Product; or (g) violate the Acceptable Use Policy; or (h) employ or authorize a CC+I Competitor to use or view the SaaS Product or Documentation, or to provide management, hosting, support or similar services with regard to the SaaS Product without the prior written consent of CC+I. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of any SaaS Product and notify CC+I promptly of any such unauthorized access or use.
- Payment; Additional Licenses; Reporting. Customer shall pay the fees for CC+I products and/or services as set forth in the applicable Order. If Customer is purchasing through a reseller, payment terms will be determined by Customer and the reseller. If Customer is purchasing directly from CC+I, all fees shall be paid in U.S. dollars and are due within thirty (30) days of the invoice. Customer shall pay all applicable fees, insurance costs, and taxes, excluding taxes on CC+I’s net income. If the actual number of registered devices or users (as applicable) exceed the number of licenses purchased by Customer in the applicable Order, then Customer shall (a) immediately cease such excess usage or (b) purchase additional licenses to cover the excess usage. Fees for excess usage shall be based on CC+I’s then-current price list or specified in the Order. Customer acknowledges that CC+I’s delivery and support infrastructure may enable CC+I to access the device or user count for the SaaS Product. Upon written notice by CC+I, Customer shall certify in writing the number and type of registered devices or users.
- Definition. “Confidential Information” means non-public information provided by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that (i) is or becomes public through no fault of the Recipient, (ii) was known to Recipient before the disclosure, (iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions, or (iv) is independently developed by the Recipient without access to or use of the Discloser’s information. CC+I Confidential Information includes but is not limited to all SaaS Products (and any derivatives, performance data, benchmark results, security assessments, product roadmaps and any other technical information relating to the SaaS Products), Documentation and its derivatives, and CC+I’s pricing. The terms and conditions of this Agreement are the Confidential Information of both parties.
- Non-disclosure and Non-Use. The Recipient shall (i) only use the Confidential Information of the Discloser to exercise its rights and/or to perform under this Agreement, (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its own confidential information, but in no event less than reasonable care, and (iii) with respect to employees, contractors, or agents of Recipient, limit access to the Discloser’s Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section 5. The Recipient may disclose the Discloser’s Confidential Information to the extent required by any court, governmental body, or law or regulation, provided that, if legally permissible, Recipient shall provide prompt written notice to the Discloser of such disclosure. Upon written request of the Discloser, the Recipient shall return or destroy, at Discloser’s option, the Discloser’s Confidential Information.
- Ownership. CC+I and its suppliers own and retain all right, title, and (except as expressly licensed in this Agreement) interest in and to the SaaS Product and its derivative works. Customer is not obligated to provide CC+I with any suggestions or feedback about the products or services (“Feedback”). To the extent Customer does provide Feedback to CC+I, Customer assigns ownership of such Feedback to CC+I and CC+I may use and modify such Feedback without any restriction or payment.
- Indemnification by CC+I. CC+I shall at its cost and expense (i) defend or settle any claim brought against Customer and its directors, officers and employees (“Customer Indemnitee(s)”) by an unaffiliated third party alleging that Customer’s use of the SaaS Product infringes or violates that third party’s intellectual property right(s), and (ii) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
- Remedies. If a claim under Section 7.a occurs or in CC+I’s opinion is reasonably likely to occur, CC+I may at its expense and sole discretion: (i) procure the right to allow Customer to continue using the applicable SaaS Product, (ii) modify or replace the applicable SaaS Product to become non-infringing, or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license to the affected portion of applicable SaaS Product and refund a portion of the pre-paid, unused license fees paid by Customer corresponding to such SaaS Product.
- Exclusions. CC+I shall have no obligations under this Section 7 if the claim is based upon or arises out of: (i) any modification to the applicable SaaS Product not made by or at the direction of CC+I, (ii) any combination or use of the applicable SaaS Product with any third party equipment, products or systems, to the extent that such claim is based on such combination or use, (iii) Customer’s continued use of the allegedly infringing technology after being notified of the infringement claim, (iv) Customer’s failure to use Updates made available by CC+I, (v) Customer’s failure to use the SaaS Product in accordance with the applicable Documentation, and/or (vi) use of the SaaS Product outside the scope of the license granted under this Agreement. This Section 7 constitutes Customer’s sole and exclusive remedies, and CC+I’s entire liability, with respect to infringement of third party intellectual property rights.
- Indemnification by Customer. Customer shall at its cost and expense (i) defend or settle any claim brought against CC+I and its directors, officers and employees (“CC+I Indemnitee(s)”) by an unaffiliated third party alleging that the Customer Data infringes or violates a third party’s intellectual property or privacy right(s), and (ii) pay, indemnify and hold CC+I Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim. “Customer Data” means any data originated by Customer or Customer Representatives that Customer or Customer Represntatives submit to the SaaS Product.
- Procedures. Each indemnitor’s indemnification obligation is conditioned on the indemnitee: (i) giving the indemnitor prompt written notice of such claim, (ii) permitting the indemnitor to solely control and direct the defense or settlement of such claim, provided the indemnitor shall not settle any claim in a manner that requires the indemnitee to admit liability or pay money without the indemnitee’s prior written consent, and (iii) providing the indemnitor all reasonable assistance in connection with the defense or settlement of such claim, at the indemnitor’s cost and expense.
- Support and Maintenance Services, Hardware, and Resale Products.
- Support and Maintenance Services. Support and maintenance services shall be provided in accordance with the support and maintenance terms and conditions specified in Schedule B, attached hereto.
- Hardware. Customer may order CC+I-branded hardware from CC+I. Hardware shall be sold provided under the hardware terms and conditions specified in Schedule C, attached hereto.
- Resale Product Terms. As a convenience to Customer, CC+I resells certain products (“Resale Products”) that are owned by third parties or are licensed to CC+I by such third parties. Resale Products are not included as part of the SaaS Product and are not required or necessary for use of the SaaS Product. Resale Products may be subject to separate terms with the applicable third party licensors, which are available separately agreed upon by such third party licensor and Customer. If support and maintenance is offered for a specific Resale Product and Customer purchases directly from CC+I, CC+I shall distribute the applicable Resale Product error correction, update, upgrade and other release provided to CC+I by the third party licensor. To the extent that a third party licensor provides CC+I with any indemnities or warranties for pass-through to customers in connection with the applicable Resale Product, CC+I will pass such indemnities or warranties through to Customer. EXCEPT FOR THE WARRANTIES EXPRESSLY SPECIFIED IN THIS SECTION 8.c, RESALE PRODUCTS ARE PROVIDED “AS IS,” AND CC+I PROVIDES NO OTHER WARRANTIES OF ANY KIND RELATING TO THEM. CC+I DISCLAIMS ALL OTHER WARRANTIES, INCLUDING FOR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES CAUSED BY SUCH RESALE PRODUCT. IN NO EVENT WILL CC+I’S LIABILITY ARISING OUT OF IN CONNECTION WITH ANY RESALE PRODUCT (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) EXCEED THE AMOUNTS RECEIVED BY CC+I FOR (a) SUCH RESALE PRODUCT DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY OR (b) ASSOCIATED SUPPORT AND MAINTENANCE SERVICES IN THE THEN-CURRENT TERM.
- Third Party Services. The Software may contain features designed to interface with applications or services provided or made available by third parties (“Third Party Services”). In order to use a feature in connection with a Third Party Service, Customer must have a license from the provider of the relevant Third Party Service. If the Third Party Services are no longer available or if the applicable third party provider no longer allows the Third Party Services to interface with the Software, then such features will no longer be available or function in the Software. CC+I and the provider of the applicable Third Party Service disclaim all warranties, indemnities, obligations, and other liabilities in connection with any interface or integration with the Third Party Service. Further, CC+I disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third Party Service.
- SaaS Product. CC+I represents and warrants to Customer that the SaaS Product materially conforms to the specifications specified in the relevant Documentation. Customer must notify CC+I of any warranty deficiencies within thirty (30) days from the provision of the deficient SaaS Product. Customer’s sole and exclusive remedy and the entire liability of CC+I for CC+I’s breach of this warranty will be for CC+I, at its option, to (i) repair such SaaS Product (and/or deliver new applicable Software) or (ii) terminate the applicable License Term and refund any prepaid, unused subscription fees paid to CC+I for the unused period of any such terminated License Term.
- Professional Services. Customer may order CC+I professional services from any authorized reseller or directly from CC+I. Such professional services shall be subject to the terms and conditions of this Agreement and mutually agreed-upon statement of work (if any). For ninety (90) days following the date of delivery of any professional service by CC+I to Customer, CC+I represents and warrants that such professional services shall be professional, workman-like and performed in a manner conforming to generally accepted industry standards and practices for similar services. Customer’s sole and exclusive remedy and the entire liability of CC+I for CC+I’s breach of this warranty will be for CC+I, at its option, to re-perform the non-conforming services or refund the fees paid for such non-conforming professional services.
- Hardware. If Customer purchases hardware, the hardware warranty is specified in Schedule C, attached hereto.
- Exclusions. The express warranties do not apply if the applicable SaaS Product or hardware (i) has been modified, except by or at the direction of CC+I, (ii) has not been installed, used, or maintained in accordance with this Agreement and Documentation, (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, and/or (iv) is used with equipment, products or systems not specified in the Documentation. Additionally, these warranties only apply if notice of a warranty claim is provided within the applicable warranty period.
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 9, THE SAAS PRODUCT, HARDWARE, AND SERVICES ARE PROVIDED “AS IS,” AND CC+I PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CC+I SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
- Term and Termination. The access rights granted herein with respect to the SaaS Product shall remain effective until the License Term for the relevant SaaS Product expires or the license for the relevant SaaS Product is terminated. This Agreement shall remain effective until the earliest of termination in accordance with this Section 10, or expiration of the applicable License Term. If CC+I agrees to reinstate a lapsed subscription license, then the terms of this Agreement shall apply. Either party may terminate this Agreement: (a) upon thirty (30) days’ written notice of a material breach by the other party (or three (3) business days in the case of a failure to pay), unless the breach is cured within the notice period, or (b) immediately, if the other party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. In addition, the parties may terminate this Agreement by mutual written consent. All other licenses terminate upon expiration or termination of this Agreement. In addition, Sections 1, 3-7, and 9-12, and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason. For ninety (90) days after the expiration or termination of this Agreement, upon Customer’s request, CC+I shall permit Customer to access the SaaS Product solely to the extent necessary for Customer to retrieve applications uploaded to such SaaS Product by Customer. After such 90-day period, CC+I may delete all Customer Data in CC+I’s possession or control.
- Limitation of Liabilities. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 3 (RESTRICTIONS), 5 (CONFIDENTIALITY) OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR: (a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, OR (b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAYABLE TO CC+I FOR THE RELEVANT SAAS PRODUCT, HARDWARE, OR SERVICE DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11.
- Export/Import. The SaaS Product and Documentation may be subject to U.S. and foreign import and export control laws and regulations. Customer agrees to comply with all such regulations applicable to Customer, including obtaining applicable import licenses.
- U.S. Government End Users. The SaaS Product and Documentation are “commercial items,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “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 227.729204, the SaaS Product and Documentation are being licensed to U.S. Government end users only as “commercial items” and with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
- In-Licensed Materials and Open Source. The SaaS Product may contain or may operate with software services or other technology that is not owned by CC+I but has been licensed to CC+I by a third party and is necessary for the normal operation of the Software (“In-Licensed Materials”) or that is available under open source or free software licenses. The In-Licensed Materials may be subject to additional terms and conditions, as identified on http://www.CC+I.com/legal/thirdpartyterms or as otherwise made available to Customer. Such terms and conditions are incorporated by reference herein. To the extent CC+I uses open source software in the Software, the terms and restrictions set forth herein shall not prevent or restrict Customer from exercising additional or different rights to such open source software in accordance with the applicable open source licenses.
- Governing Law and Jurisdiction. Except as otherwise provided in Schedule A (if applicable), this Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of California, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Santa Clara County, California, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply.
- Assignment. Neither party may assign this Agreement without prior written consent of the other party, provided however either party may do so to a successor-in-interest pursuant to a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section 12.e shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
- Data Communications. CC+I shall only collect, access, use, store, safeguard, disclose and transfer (“Process”) Personal Information (i) for the purposes of this Agreement, including without limitation, to implement and deliver the SaaS Product and its features and associated services, provide Customer support, and help Customer prevent or address service or technical problems, (ii) as otherwise expressly permitted by Customer in writing, or (iii) as compelled by law. Customer shall make such disclosures, obtain such consents, and provide such access, choices and other applicable rights to individual users with regard to the Processing of Personal Information as are required under applicable law, rules or regulations. “Personal Information” means any information relating to an identified or identifiable individual user that is obtained by or communicated to CC+I by Customer in performance by CC+I of its obligations under this Agreement. CC+I collects, analyzes, and uses aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata and/or mobile application usage) to facilitate market research, product development/improvement and to provide support and maintenance services. CC+I may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual.
- Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting CC+I’s or its suppliers’ intellectual property rights in the SaaS Product or either party’s Confidential Information may cause irreparable injury to such party for which monetary damages would be an inadequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.
- Publicity. CC+I may publicly disclose that Customer is a customer of CC+I and a licensee of the SaaS Product, including in a list of CC+I customers and other promotional materials.
- Independent Contractor. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
- Customer Affiliates. An Affiliate may purchase CC+I products and/or services either by executing a participation agreement with CC+I or through CC+I’s acceptance of an Order issued by such Affiliate or Authorized Reseller (as applicable). Upon execution of a participation agreement by Affiliate or, if the Affiliate issues a purchase order referring to this Section 12.j, that is accepted by CC+I, such Affiliate shall be deemed to have purchased such products and/or services hereunder, and such Affiliate shall be bound by and shall comply with the terms and conditions of this Agreement as a “Customer” under the Agreement.
- Waiver & Severability; Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
- Notices. Except as otherwise provided in this Agreement, all legal notices to Customer will be given in writing to any Customer address listed on the applicable Order. All legal notices to CC+I will be given in writing to: CC+I, Inc., 415 East Middlefield Road, Mountain View, CA 94043, U.S.A., Fax: 650-963-3307, Attention: General Counsel. Such notices will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier or by fax, or (c) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, purchase orders, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with CC+I and Customer’s standard ordering procedures.
- Entire Agreement. This Agreement consists of these terms and conditions, and the attached schedule(s), which are incorporated by reference. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and cancels all prior agreements, representations, communications, and understandings of the parties, written or oral, relating to such subject matter, and is not intended to confer upon any person other than the signatories below any rights or remedies. This Agreement prevails over any conflicting, or additional terms of any ordering document, acknowledgment, confirmation or other document issued by Customer before or after the execution of this Agreement unless such conflicting or additional terms have been introduced via an amendment and accepted in writing by both parties. The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement.
Schedule A: Dispute Resolution outside North America
If Customer’s principal office is located outside North America as indicated on the cover sheet, the terms and conditions of this Schedule shall apply to all disputes arising out of or relating to this Agreement (excluding disputes regarding the actual or alleged violation of CC+I’s intellectual property rights or the collection of overdue invoices, which shall be governed by California law).
- For ALL principal offices outside North America:
- Choice of Law. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced with the laws of the State of New York, excluding its conflicts-of-law principles. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply.
- Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence, breach, termination, enforcement, interpretation or validity of the Agreement, including the determination of the scope or applicability of this agreement to arbitrate, (each, a “Dispute”) shall be referred to and finally resolved by arbitration under the rules and at the location identified below. The arbitral panel shall consist of three (3) arbitrators, selected as follows: each party shall appoint one (1) arbitrator; and those two (2) arbitrators shall discuss and select third arbitrator. If the two party-appointed arbitrators are unable to agree on a third arbitrator, the third arbitrator shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be independent of each of the parties and shall have suitable experience and knowledge in the subject matter of the Dispute. The arbitrators shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrators may determine. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, either party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The language to be used in the arbitral proceedings shall be English.
- For ONLY principal offices within Europe, the Middle East or Africa : Any Dispute shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules (which Rules are deemed to be incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of arbitration shall be London, England.
- For ONLY principal offices within Asia Pacific, Australia & New Zealand : Any Dispute shall be referred to and finally resolved by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce in force on the date when the notice of arbitration is submitted in accordance with such Rules (which Rules are deemed to be incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of arbitration shall be Singapore.
- For ONLY principal offices within the Americas, excluding North America : Any Dispute shall be referred to and finally resolved by arbitration under International Dispute Resolution Procedures of the American Arbitration Association in force on the date when the notice of arbitration is submitted in accordance with such Procedures (which Procedures are deemed to be incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of arbitration shall be New York, New York, USA.
Schedule B: Support & Maintenance Agreement
If Customer has paid fees to obtain support and maintenance services directly from CC+I, this Support and Maintenance Agreement (“SMA”) applies to such support and maintenance services. If Customer has paid fees to obtain support and maintenance services directly from an authorized reseller, the terms regarding support in this SMA shall not apply and shall instead be determined between Customer and the relevant authorized reseller; however, the terms regarding maintenance as set forth in Section 3 below shall continue to apply.
- “Designated Support Contact” means any Customer employee appointed by Customer who has been trained and certified by CC+I to be a primary Customer contact with CC+I for support services.
- “Direct Support Case Pack” means a direct support package that limits the number of Incidents for which the Customer is able to obtain direct support from CC+I.
- “Incident” means when the SaaS Product does not seem to materially perform in accordance with the specifications specified in the relevant Documentation.
- “Response” means when CC+I support personnel have (i) triaged the Incident, (ii) contacted Customer, and (iii) begun initial troubleshooting on the Incident.
- Support Services.
- Support and Trouble Tickets. During the License Term, CC+I shall use commercially reasonable efforts to provide support services to Customer, as described below. The Designated Support Contact may report Incidents to CC+I support telephone helpline, and thereafter, the parties may cooperate to address the Incidents via email, telephone or the Support Portal.
- Limitations. CC+I shall have no obligations under this Section 2: (i) if the Incident cannot be reproduced by CC+I, (ii) if the SaaS Product has been modified or repaired, except by or at the direction of CC+I, (iii) if the SaaS Product has not been installed, used or maintained in accordance with the Documentation, (iv) the SaaS Product is used on hardware, software or other equipment that deviates from CC+I’s recommendations made in the then current Documentation, (v) Customer does not permit CC+I timely access to the logs or to perform remote troubleshooting sessions on the affected server or component, as reasonably requested by CC+I, and/or (vi) for information or data contained in, stored on or integrated, with any SaaS Product. CC+I’s obligations to provide maintenance for software installed on Customer’s premise (e.g., Sentry or Connector) shall apply only to the current shipping release of the Software and any prior release for one (1) year after such prior release has been superseded by a subsequent shipping release.
- Maintenance Services. During the License Term, CC+I (or authorized reseller, if applicable) shall make available to Customer all Updates to the extent generally released to other CC+I customers that purchased the same maintenance services. Such maintenance services shall apply only to the current shipping release of the SaaS Product and, for security fixes only, the immediately prior release.
- General. CC+I may revise the terms of this SMA, provided that: (a) such revision is made to its standard SMA terms made generally available to other customers, (b) CC+I provides written/email notice of such revision at least sixty (60) days prior to the expiration of the then-current Support & Maintenance Term, (c) such revisions only apply to renewal terms, and (d) renewal is subject to mutual agreement. Any delay or failure in the performance by CC+I (including in SaaS Product availability) shall be excused if and to the extent caused by a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of CC+I, including but not limited to acts of God (including but not limited to fire, flood, earthquake, storm, hurricane or other natural disaster), war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilization, requisition or embargo, rebellion, revolution, insurrection, military or usurped power, civil war, acts or threats of terrorism, riots, strikes or labor disputes (excluding by CC+I employees) (“Force Majeure”).
Schedule C: Hardware
- Hardware Delivery. CC+I shall deliver all purchased hardware to Customer EXW (Incoterms 2010) through a carrier agent designated by CC+I (unless a different carrier agent is designated by Customer and accepted by CC+I). Title and risk of loss shall pass from CC+I to Customer upon delivery of the hardware to such carrier agent. Customer shall pay all freight, insurance, and other shipping-related expenses associated with purchases of hardware.
- Hardware Warranty. For the applicable warranty period identified in the applicable price list (or twelve (12) months if not identified in such price list) as measured from the date of CC+I’s shipment of the hardware (as provided on the packaging material in which such hardware is shipped), CC+I represents and warrants to Customer that such hardware shall be free from defects in material and workmanship under normal use. Customer’s sole and exclusive remedy and the entire liability of CC+I for CC+I’s breach of this warranty will be for CC+I, at its option, to repair or replace such hardware, provided Customer complies with the RMA Procedures (defined below). Any hardware or replacement parts used may be new or reconditioned/refurbished.
- Return Material Authorization Procedures (“RMA Procedures”). Customer shall report suspected defects in the hardware to CC+I through CC+I’s support. CC+I shall issue Customer a RMA number, (b) Customer shall ship such hardware to the address specified by CC+I, freight prepaid, at CC+I’s cost and expense, (c) and CC+I shall ship Customer repaired or replacement hardware, freight prepaid, at CC+I’s cost and expense. For the avoidance of doubt, in order for CC+I to ship replacement hardware, Customer must report the suspected defect, CC+I must confirm that the hardware has failed to meet the warranty, and CC+I must issue Customer a RMA number. If Customer fails to return the defective hardware to CC+I within thirty (30) days of the date CC+I issues Customer a RMA number, CC+I may invoice Customer for the replacement hardware at CC+I’s then-current list price. Any returned defective hardware shall be CC+I’s property once CC+I delivers replacement hardware to Customer.