WELL DATA LABS, INC.
ONLINE SERVICES AGREEMENT
Updated: March 20, 2020
This Online Services Agreement (this “Agreement”) governs the terms applicable to certain products and services to be provided by Well Data Labs, Inc., (“Company”) to the customer (“Customer”) identified in a proposal, order, statement of work, or similar document incorporating by reference this Agreement (the “Order”). In the event of a conflict between the terms of this Agreement and the terms of the Order, the terms of this Agreement shall control unless the conflicting term of the Order expressly states otherwise. THE PROVISION OF SERVICES AND SOFTWARE UNDER AN ORDER IS EXPRESSLY MADE CONDITIONAL ON CUSTOMER’S ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND COMPANY AGREES TO PROVIDE THE SERVICES AND SOFTWARE DESCRIBED IN THE ORDER ONLY UPON THESE TERMS AND CONDITIONS.
IN THE EVENT THAT CUSTOMER AND COMPANY ARE PARTY TO A SEPARATE WRITTEN AGREEMENT GOVERNING THE LICENSED SOFTWARE AND SOFTWARE SERVICE (“SERVICES AGREEMENT”), THE TERMS OF THE SERVICES AGREEMENT WILL APPLY IN PLACE OF THIS AGREEMENT AND THIS AGREEMENT WILL BE OF NO FORCE OR EFFECT.
Company and Customer agree as follows:
1.1 “Confidential Information” means the terms and conditions of this Agreement and all information related to a party’s business, financial affairs or operations, including but not limited to information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods, which is either marked or identified as confidential or which the receiving party knew or reasonably should have known, under the circumstances, was confidential.
1.2 “Documentation” means the documentation published by Company and provided to Customer for the Licensed Software or the Software Service, as applicable.
1.3 “Effective Date” means the date of the applicable Order.
1.4 “Licensed Software” means a software product which Company makes available to Customer to be downloaded by Customer and used in conjunction with the Software Service.
1.5 “Professional Services” means those configuration, customization, analysis, consulting, professional and other services and assistance to be provided by Company to Customer pursuant to an Order, but specifically excluding the Software Service.
1.6 “Services” means the Professional Services and/or Software Service described in an Order.
1.7 “Software Service” means the provision of access over the Internet to the functionality of Company’s software products described in an applicable Order.
1.8 “Warranty Period” means, with respect to Licensed Software, sixty (60) days from the delivery of the Licensed Software to Customer and, with respect to the Software Service, the Term of this Agreement.
2. SERVICES; LICENSED SOFTWARE.
2.1 Software Service Subscription. Subject to the terms and conditions of this Agreement and the Order, Company grants to Customer, during the Term, a non-exclusive, non-transferable right to remotely access and use the Software Service, solely for the performance of Customer’s internal business purposes and strictly in accordance with this Agreement and the applicable Order.
2.2 Licensed Software. If an Order includes Licensed Software, then subject to the terms of this Agreement and the applicable Order, Company grants to Customer, for the Term (unless a shorter term is specified in the Order), a non-exclusive, non-transferable, non-sublicensable license to install and use the Licensed Software described in the Order in object code form only on Customer’s or its authorized service provider’s servers and workstations, solely in connection with the use of the Software Service in accordance with this Agreement.
2.3 Professional Services; Support. Company will perform the Professional Services agreed to in, and in accordance with, an applicable Order. Company may, in its discretion, provide Customer with certain support and consultation concerning the Software Service and Licensed Software. If Customer wishes to obtain additional support or consulting services concerning the Software Service or Licensed Software, such services shall be provided on a time and materials basis at Company’s then-current rates, or as otherwise agreed by the parties in an applicable Order.
2.4 Customer Data. Customer acknowledges and agrees that Company requires access to certain data and content from Customer in order to provide the Services (“Customer Data”). Customer hereby grants to Company a non-exclusive, non-transferable right and license to use the Customer Data during the Term solely for the limited purpose of performing Company’s obligations hereunder for the benefit of Customer. Company shall have no liability under this Agreement for any loss, delay, or failures to perform resulting from Customer’s failure to provide the necessary Customer Data. Subject to the rights granted in this Agreement, Customer retains all right, title and interest in and to the Customer Data, and Company acknowledges that it neither owns nor acquires any additional rights in and to the Customer Data not expressly granted by this Agreement. Customer acknowledges that Company may collect, compile, synthesize, and modify certain non-personally identifiable data and content made available to it in the course of providing the Services (“Usage Data”), and may use such Usage Data during and after the Term in order to improve, modify, promote, and validate the Services, and otherwise for its own internal business purposes; provided that such Usage Data does not in any way identify Customer or any User.
2.5 Third Party Products. The Licensed Software is intended to operate in conjunction with certain third party products (“Third Party Products”). Customer understands and agrees that Company makes no representation, warranty, or claim related in any way to any Third Party Products. Customer further understands and agrees that any updates, upgrades, or other modifications to Third Party Products, whether by Customer or any other party, may cause disruption in the functionality of the Licensed Software and Customer’s use thereof, and Company is not responsible for any such disruption.
2.6 Delivery, Acceptance and Installation. Company will deliver the Licensed Software to Customer as mutually agreed to by the parties. Without limiting the warranties in this Agreement, the Licensed Software will be deemed accepted upon delivery. Customer is responsible for installing and integrating the Licensed Software on its computers and with its systems in accordance with the Documentation and any instructions provided by Company.
3.1 Access and Users. Customer shall be responsible for the acts and omissions of each person authorized by Customer to access or use the Software Service and, if applicable, the Licensed Software (each a “User”). Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software Service and Licensed Software, and notify Company promptly of any such unauthorized use. Customer is responsible for maintaining the confidentiality of all Users’ usernames and passwords, and is solely responsible for all activities that occur under these usernames. Customer agrees (a) not to allow an unauthorized third party to use its account, usernames or passwords at any time; and (b) to notify Company promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement by Customer or any User. Company reserves the right to terminate any username and password which Company reasonably determines may have been used in violation of this Agreement, or by an unauthorized third party, or by any User or individual other than the User to whom such username and password was originally assigned.
4. FEES AND PAYMENT.
4.1 Fees. Customer will pay to Company the fees set forth in the applicable Order (“Fees”) for the Services and, if applicable, the Licensed Software. Company may increase the Fees following the Initial Term by providing Customer with at least sixty (60) days prior written notice.
4.2 Payment Terms. Company will invoice Customer for Fees pursuant to the Order and Customer will pay all Fees hereunder within thirty (30) days after receipt of the applicable invoice. Upon ten (10) days prior written notice and Customer’s failure to cure, Company reserves the right (in addition to any other rights or remedies Company may have) to discontinue the Services and suspend all User’s access to the Software Service if any Fees are more than thirty (30) days overdue until such amounts are paid in full. All payments must be made in U.S. dollars. Outstanding balances shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Company’s reasonable costs of collection. All Fees due hereunder are exclusive of, and Customer shall pay, all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon Company’s net income.
4.3 Credit Cards. If Customers chooses to pay Fees by credit card, Customer will provide Company with accurate and complete billing information including legal name, address, telephone number, and credit card or debit card billing information. If such information is false or fraudulent, Company reserves the right to terminate this Agreement immediately in addition to seeking any other legal remedies. Company is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by Company. Each charge will be considered valid unless disputed by Customer in writing within thirty (30) days after the billing date. No adjustments will be made for disputed charges made more than thirty (30) days after the billing date.
5. TERM; TERMINATION.
5.1 Term; Termination. The initial term of this Agreement will begin on the Effective Date and will continue for a period of time as set forth in the Order (“Initial Term”). Thereafter, this Agreement will automatically renew for additional periods equal to the length of the Initial Term (each, a “Renewal Term”) unless a party provides notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Term (as applicable). The Initial Term and each Renewal Term are referred to collectively as the “Term”. Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach within ten (10) business days after receiving written notice thereof.
5.2 Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to Company under this Agreement before such termination or expiration will be immediately due and payable, all rights granted by Company to Customer in this Agreement will immediately cease to exist, Customer must discontinue all use of the Software Service and Licensed Software, and Customer must erase all copies of the Licensed Software from Customer’s computers or systems, and return to Company or destroy all copies of the Licensed Software. In addition, both parties must return to the other party or destroy all copies of the other’s Confidential Information in that party’s possession or control. Sections 1, 5, 6.2, 7, 8, 9, 10, and 11 together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.
6. WARRANTY; DISCLAIMER.
6.1 Performance. Company warrants that the Software Service and, if applicable, the Licensed Software, when used as permitted by Company and in accordance with the Documentation, will operate as described in the Documentation in all material respects. Company does not warrant Customer’s use of the Software Service or Licensed Software will be error-free or uninterrupted. For any breach of this warranty, Company will, at its own expense and as its sole obligation and Customer’s sole remedy, use commercially reasonable efforts to correct any reproducible error in the Software Service or Licensed Software reported to Company by Customer in writing during the applicable Warranty Period. In the event that Company is unable to correct the Software Services or Licensed Software to conform to this warranty, Customer’s sole remedy is to terminate this Agreement.
6.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, COMPANY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE SERVICE AND LICENSED SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
7.1 Protection. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
7.2 Exceptions. The Receiving Party’s obligations under Section 7.1 above with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
7.3 Return of Information. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, and permanently erase all electronic copies of such Confidential Information, promptly upon the written request of the Disclosing Party; provided that Receiving Party shall not be required to destroy electronic records or files that have been created pursuant to Receiving Party’s automatic archiving and back-up procedures and the removal of which is not technically practical.
7.4 Injunctive Relief. Each party acknowledges that a breach or threatened breach of this Section 7 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 7 by the other party or any of its employees or agents.
8. PROPRIETARY RIGHTS; RESTRICTIONS ON USE. The Software Service and Licensed Software (including any updates or enhancements thereto), the look and feel and layout of any deliverables generated in connection with the Software Service, and all worldwide intellectual property rights therein, are the exclusive property of Company and its licensors. All rights in and to the Software Service and Licensed Software not expressly granted to Customer in this Agreement are reserved by Company. Subject to Customer’s ownership of Customer Data, Company shall retain all right, title, and interest in and to any intellectual property rights developed by, or on behalf of, Company in the course of performing its obligations under this Agreement Except as expressly permitted in this Agreement or as otherwise authorized by Company in writing, Customer will not, and will not permit any User to (a) modify, adapt, alter, translate, or create derivative works from the Software Service or Licensed Software; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Software Service or Licensed Software to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software Service or Licensed Software; (d) interfere in any manner with the operation of the Software Service or Licensed Software; (e) remove, alter, or obscure any proprietary notices (including copyright notices) of Company or its licensors displayed in connection with the Software Service or Licensed Software; or (f) otherwise use the Software Service or Licensed Software except as expressly allowed under this Agreement.
9. LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF SECTION 8 OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
10. INDEMNIFICATION. Company will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Licensed Software or Software Service infringes any U.S. patents or any copyrights or misappropriates any trade secrets of a third party, and Company will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer (a) notifying Company promptly in writing of such action; (b) giving Company sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Company’s request and expense, assisting in such defense. If the Licensed Software or Software Service becomes, or in Company’s opinion is likely to become, the subject of an infringement claim, Company may, at its option and expense, either (i) procure for Customer the right to continue using the Licensed Software or Software Service, (ii) replace or modify the Licensed Software or Software Service so that it becomes non-infringing, or (iii) terminate this Agreement upon written notice to Customer and refund Customer fees paid Fees paid for the Licensed Software and Software Service for the period following beyond the effective date of such termination. Notwithstanding the foregoing, Company will have no obligation under this Section 10 or otherwise with respect to any infringement claim based upon (A) any use of the Licensed Software or Software Service not in accordance with this Agreement or the specifications published by Company, (B) any use of the Licensed Software or Software Service in combination with other products, equipment or software not provided or recommended by Company, (C) any Customer Data, or (D) any modification of the Licensed Software or Software Service by any person other than Company or its authorized agents or subcontractors. Customer will defend, indemnify, and hold Company harmless from and against any claim, action, or demand suffered by Company arising in connection with the Customer Data or the modification or misuse of the Software Service or Licensed Software by Customer or any User. THIS SECTION 10 STATES COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
11.1 Non-Exclusive. This Agreement shall not be construed to limit or prohibit Company in any manner or fashion in providing products and/or services of any type or nature, including those identical to the Services, to any other customer in its sole discretion.
11.2 Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including the license rights granted to Customer to access the Software Service) to any third party without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may, without the other party’s consent, assign its rights and obligations under this Agreement to a parent, affiliate, or subsidiary, or to a successor in connection with a merger, acquisition, or sale of all or substantially all of its assets to which this Agreement relates. Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void.
11.3 Publicity. Customer agrees that Company may use its name and logos in Company’s promotional materials and client lists.
11.4 Relationship of Parties. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
11.5 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.
All notices, consents, and approvals under this Agreement may be delivered by Company to Customer to the email address provided by Customer. All notices, consents, and approvals under this Agreement must be delivered by Customer to Company to firstname.lastname@example.org
. Either party may change its email address for notice by giving notice of the new email address to the other party.
11.7 Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of Colorado, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.8 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.9 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
11.10 Modifications. The terms of this Online Services Agreement may be updated from time to time. Notwithstanding any such update, the terms in place as of the Effective Date of an applicable Order shall continue to govern the provision of Services under the applicable Order unless otherwise agreed by the parties in writing.
11.11 Entire Agreement. This Agreement and the applicable Order constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral regarding such subject matter.