FieldConnect Software License Agreement Terms and Conditions

  1. AGREEMENT STRUCTURE

These FieldConnect Software License Agreement Terms and Conditions (“Software Terms and Conditions”) govern the FieldConnect Software License Agreement entered between the Parties and are deemed incorporated into it.  Capitalized terms shall have the meaning set forth in the FieldConnect Software License Agreement and these Software Terms and Conditions, including those definitions set forth in Section 17 below.  References to “Agreement” include both the FieldConnect  Software License Agreement and these Software Terms and Conditions.

This Agreement governs Customer’s access to and use of the Software and Services.

THE AGREEMENT IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN FIELDCONNECT AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING THE AGREEMENT, CLICKING “ACCEPT,” INSTALLING THE SOFTWARE, OR ACCESSING OR USING ANY FIELDCONNECT SOFTWARE OR SERVICES. BY SIGNING THE AGREEMENT, OR ACCESSING OR INSTALLING ANY FIELDCONNECT SOFTWARE OR SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. CUSTOMER AGREES THAT ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE IN A PURCHASE ORDER OR OTHERWISE ARE NOT BINDING ON FIELDCONNECT IN ANY WAY.

2) OWNERSHIP OF SOFTWARE AND SERVICES & CUSTOMER DATA

2.1 Ownership of the Software and Services. The Software and Services are the property of FieldConnect, and are protected by copyright, patent, trade secret and other intellectual property laws. Except for the license rights specifically set forth in this Agreement, FieldConnect and its licensors retain any and all rights, title and interest in and to the Software and Services (including, without limitation, all Intellectual Property Rights), including all copies, modifications, updates, upgrades, extensions and derivative works thereof. Customer’s right to use the Software and Services is limited to the rights expressly granted in this Agreement. As between Customer and FieldConnect, FieldConnect will retain all ownership rights in and to all Software, copyrightable works, deliverables, designs, inventions, know-how,  techniques, trade secrets, work product and other materials created for Customer (either alone or jointly with Customer or others) and any derivative works thereof, excluding any incorporated Customer Confidential Information.  All rights not expressly granted to Customer are reserved and retained by FieldConnect and its licensors.

2.2 Ownership of Customer Data. As between Customer and FieldConnect, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof.

3) GRANT OF LICENSE

Subject to Customer’s compliance with the terms  and conditions of this Agreement, including on-time payment of the applicable license Fees, FieldConnect hereby grants to Customer the non-exclusive, non-transferable (except as specified in Section 16.2 (Assignment)), worldwide right to install and use the Software, in the version available as of the Effective Date, solely:  (a) in machine-readable, object or executable code form; (b) as specified in the Agreement for Customer’s internal business purposes; (c) with Customer’s devices or networks specifically equipped with and designed to work with the Software, and (d) on the number of machines and for the number of users authorized by the Agreement.

4) USE OF SOFTWARE AND SERVICES

4.1 Customer Responsible for User Accounts. Customer is responsible for all activity occurring under Customer’s license, and must comply with all applicable laws and regulations in connection with using the Software and Services. Customer also must (a) notify FieldConnect promptly upon becoming aware of any unauthorized use of the Software and Services(or any other breach of security of the Software or Services), and (b) notify FieldConnect promptly upon becoming aware of, and stop, any unauthorized copying, distribution or other misuse of any aspect of the Software or Services.

4.2 Use Restrictions. Customer shall use the Software and Services solely for its internal business purposes and shall not, without FieldConnect’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Software or Services, except to the extent expressly permitted by this Agreement; (b) creation of any modifications or derivative works of the Software or Services; (c) reverse engineering of the Software or Services; (d) gaining of unauthorized access to the Software or Services or their related systems or networks; (e) interference with or disruption of the integrity or performance of the Software or Services or the data contained therein; (f) sending, storing or use of any Customer Data in connection with the Software or Services for which Customer lacks sufficient ownership or other rights; (g) sending of spam or otherwise duplicative or unsolicited messages in violation of applicable law; (h) sending or storing of infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material (including, without limitation, any material harmful to children or violative of third party privacy rights); or (i) sending or storing of any material containing any viruses, worms, trojan horses or other malicious or harmful computer code, files, scripts, agents or programs.

4.3  Hardware.  Customer is solely responsible at its own cost and expense for obtaining, installing and maintaining suitable equipment, hardware, mobile devices and associated software which are or may become necessary to access and use the Software and Services. Customer is solely responsible to comply with any minimum systems requirements that apply to the use of the Services at its own cost and expense.

4.4 Audit Right.  FieldConnect or its authorized representative may monitor Customer’s use of the Software and Services in order to verify compliance with this Agreement.  Additionally, within 5 business days of request by FieldConnect, Customer shall make its systems fully available for inspection by FieldConnect, or its designated representatives, to verify compliance with this Agreement.

4.5 Additional Licenses.  Customer may add additional licenses for the Software by completing a Field Connect Additional License Order (an “Order”) which is attached to the FieldConnect Software License Agreement.  Such Order shall become effective when it is signed by FieldConnect.

4.6 Use of Software in Safe Manner.  Customer agrees that it shall not allow the Software or Services to be used in any unsafe manner, including without limitation, using the Services while driving or engaged in any other hazardous activity.

5) SUPPORT

For as long as Customer is entitled to receive support under this Agreement through the purchase of an applicable Support Plan, FieldConnect will provide technical support for the Services, upgrades and new version releases in accordance with the terms of the FieldConnect Support Terms and Conditions (“Support Terms”)  which may be found at www.fieldconnect.com/support.  Customer understands and agrees that the Support Terms may be modified by FieldConnect from time to time.  FieldConnect will notify Customer of changes to the Support Terms.  Customer may object to such changes by providing written notice to FieldConnect within 10 days of FieldConnect’s notice.  If Customer does not object to the modified terms of the Support Terms within that time, the modified Support Terms shall be binding on the Parties.  If Customer timely objects to the modified terms of the Support Terms, the most recent version of the Support Terms to which Customer has not objected shall remain binding on the Parties.

6) TERM & TERMINATION

6.1 Term of Agreement. Provided Customer is in full compliance with the terms of this Agreement, the license term granted for the Software shall be perpetual unless terminated in accordance with Section 6.4.

6.2 Termination of Agreement. Neither Party will have the right to terminate this Agreement for convenience. Each Party may terminate this Agreement only by terminating in accordance with Section 6.4.  In the event Customer terminates this Agreement for any reason other than for cause as set forth in Section 6.4, or FieldConnect terminates for cause, Customer shall be responsible to pay for all license Fees and all Service fees set forth in this Agreement.

6.3 Effect of Expiration or Termination of AgreementSections 1, 2, 4, 6.3, 8, 11, 12.3, 13, 14, 15, 16 and 17 of this Agreement will survive any expiration or termination of this Agreement. Regardless of the basis for expiration or termination of this Agreement, FieldConnect will not be obligated to retain any Customer Data for longer than thirty (30) days after any such expiration or termination.

6.4 Termination of Agreement. Subject to any exclusive remedy provisions in this Agreement, either Party may terminate the Agreement for cause upon written notice if the other Party fails to cure any material breach thereof within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach.

6.5 Support Plan Auto-Renewal.  Any Support Plan purchased by Customer shall renew for additional one-year terms unless Customer or Fieldconnect provides notice of non-renewal at least 30 days prior to the end of the then current Support Plan term.

7) PURCHASE ORDERS AND UPGRADES

7.1 Purchase Orders. If Customer requires that a purchase order (“PO”) be issued before making payment under this Agreement, Customer must provide to FieldConnect such valid PO conforming to this Agreement in time for Customer to meet its payment obligations. The terms and conditions of any PO (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) will have no effect on the rights or obligations of the Parties, regardless of any failure to object to such terms and conditions.

7.2. Upgrades. Except as provided in the Support Plan purchased by Customer, the licenses granted in this Agreement do not include the right to any upgrades to the Software or rights to any new releases of the Software.  Without an applicable Support Plan, licenses to upgrades or new releases may be purchased through a separate license agreement.

8) FEES & PAYMENT

8.1 Payment Details. Customer must pay all fees and charges in accordance with this Agreement (collectively “Fees”). Except to the extent otherwise expressly stated in this Agreement:

  1. all obligations to pay Fees are non-cancelable and all payments are non-refundable;
  2. Customer must make all payments without setoffs, withholdings or deductions of any kind;
  3. unless stated otherwise or specifically provided in the Agreement, Customer must pay all Fees due on receipt of each invoice (invoices are deemed received when FieldConnect emails them to Customer’s designated billing contact); and
  4. all payments must be in U.S. dollars.

Except to the extent otherwise expressly stated therein, if the Agreement provides for payment via credit card or electronic money transfer (e.g., ACH), FieldConnect is permitted to process such payment on the date of FieldConnect’s invoice.

Unless otherwise stated in the Agreement, FieldConnect charges and collects in advance Fees for use of the Software or Services. Customer will pay applicable additional Fees immediately upon invoice if Customer’s use of the Software exceeds the number of authorized users specified in the Agreement. FieldConnect will invoice Customer for any recurring Fees thirty (30) days prior to the start of each applicable period; such fees must be paid by Customer prior to the start of the applicable period.

8.2 Out of Pocket Expenses.  FieldConnect will invoice Customer for out of pocket expenses incurred by FieldConnect in the performance of the Services. Any such expense shall be approved in writing by Customer in advance of any expenditure and shall be payable upon receipt of FieldConnect’s invoice.

8.3 Fees for Additional Services.  In the event that additional Services are required beyond the scope of the Services agreed upon or are requested after-hours,  FieldConnect’s then current hourly rates shall apply.  “After-hours” is considered time spent on weekends or holidays and normal business days outside of 8:00 a.m. to 5:00 p.m. Pacific Time.

8.4 Taxes. FieldConnect’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities in connection with the Agreement. Customer is responsible for paying all such taxes, levies, or duties, excluding only taxes based solely on FieldConnect’s income. If FieldConnect has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides FieldConnect a valid tax exemption certificate authorized by the appropriate taxing authority.

8.5 Customer Contact Information. Customer agrees to provide FieldConnect accurate billing and other advisable contact information at all times during the Term, including the name of Customer’s applicable legal entity, and the street address, e-mail address, name and telephone number of an authorized billing contact. Customer shall update this information within thirty (30) days after any changes, via email to FieldConnect’s Accounts Receivable team at ar@fieldConnect.com for billing contact information. Customer shall also maintain, at all times during the Term, at least one person who is a current employee and is authorized to administer Customer’s use of the Software and Services (e.g., by creating accounts, installing the Software and resetting passwords).

8.6 Consequences of Non-Payment. If Customer fails to make any payments required under the Agreement, then in addition to any other rights FieldConnect may have under this Agreement or applicable law:

1        Customer will owe FieldConnect interest of one and one-half percent (1.5{42a0dc7213930a193e40357c2de9508e8cd1a912e958f6eaaa0ce096d4105494}) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less);

2        FieldConnect will be entitled to recover its reasonable attorneys’ fees, other legal expenses (including expert witness fees and expenses on appeal) and other reasonable costs to collect such amounts; and

3        FieldConnect reserves the right to temporarily suspend Customer’s access to any Support Plan for the Services and suspend such Support Plan if Customer’s account remains delinquent for thirty (30) days after receipt of a delinquency notice from FieldConnect (which may be provided via email to Customer’s billing contact). Customer will continue to incur and owe all applicable Fees irrespective of any such suspension due to Customer’s delinquency.

9) NON-PRODUCTION USAGE

From time to time, to the extent applicable, Customer may use the Software for evaluation, demonstration, testing or other purposes where such use is outside a Production Tenant (e.g., by using an API Sandbox Tenant or another Non-Production Tenant or similar non-production service environment). By using the Services on such a non-production basis, Customer accepts the Software on an “as is” basis and acknowledges FieldConnect provides no express or implied warranties, indemnities or security-related commitments, and FieldConnect will have no liability, in connection with such use.

10) THIRD PARTY INTERACTIONS

To the extent use of the Software or Services requires use of any third party products or services (e.g., Oracle, Java, Adobe Acrobat, and/or a Web browser), such products and services may require Customer to agree to separate terms. Similarly, in connection with using the Software or Services, Customer may enter into correspondence with, purchase products and/or services from, and/or participate in promotions of third parties. Any such third-party activities, products and services, and any terms associated therewith, are solely between Customer and the relevant third parties. FieldConnect does not support, or endorse or make any representations or warranties regarding, any such third-party products or services, and in no event will FieldConnect have any liability whatsoever in connection therewith.

11) CUSTOMER COOPERATION

Customer shall provide all information, access, and full, good faith cooperation reasonably necessary for the delivery and provisioning of the Services. In the event Customer fails to comply with the foregoing, FieldConnect shall be relieved of its obligations hereunder to the extent such obligations are dependent on Customer’s cooperation. In such an event, Customer’s payment obligations are still in full force and effect.  Customer is not permitted to give any competitor of FieldConnect access to the Software or Services without FieldConnect’s prior written consent.

12) WARRANTIES & DISCLAIMERS

12.1 Mutual Warranties. Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms.

12.2 Additional FieldConnect Commitments. FieldConnect further represents and warrants that the Software will perform according its specifications for 90 days from the date of installation and that the Services will be performed in a professional manner consistent with standard industry practices.  If FieldConnect breaches any warranties in this Agreement, Customer’s exclusive remedy and FieldConnect’s sole obligation will be for FieldConnect to make commercially reasonable efforts to correct the non-conformity or the breach, and, if FieldConnect is unable to correct the non-conformity or breach within ninety (90) days after receipt of Customer’s written notice, for Customer to terminate the Agreement and receive a refund, on a pro rata basis, of any Fees prepaid under the Agreement that are unused as of the termination effective date.

12.3 Warranty Disclaimers. EXCEPT TO THE EXTENT EXPRESSLY STATED IN THIS AGREEMENT: (A) FIELDCONNECT AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SOFTWARE OR SERVICES, OR ANY MATTER WHATSOEVER; AND (B) FIELDCONNECT AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE OR SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. FIELDCONNECT AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY FIELDCONNECT.

THE SOFTWARE AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF CUSTOMERS COMPUTER NETWORK, THE INTERNET OR ELECTRONIC COMMUNICATIONS. FIELDCONNECT IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY FIELDCONNECT.

Customer agrees that its subscription to and use of the Software and Services, and Fees due or paid under this Agreement, are neither contingent on the delivery of any future functionality or features, nor based on any oral or written comments regarding any future functionality or features.

13) INDEMNIFICATION

13.1 By FieldConnect. FieldConnect will defend Customer, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on an allegation that use of the Software or Services in accordance with this Agreement infringe a third party’s Intellectual Property Rights (collectively, “Claims”). FieldConnect will also indemnify Customer and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) finally awarded by a court of competent jurisdiction, or agreed in a written settlement agreement signed by FieldConnect, arising out of such Claims.

If (a) any aspect of the Software or Services is found by a court or, in FieldConnect’s reasonable opinion is likely to be found by a court, to infringe upon a third party Intellectual Property Right, or (b) the continued use of the Software or Services is enjoined, FieldConnect will promptly and at its own expense: (i) obtain for Customer the right to continue using the Software or Services in accordance with this Agreement; (ii) modify the items in question to no longer be infringing; or (iii) replace such items with a non-infringing functional equivalent. If, after all commercially reasonable efforts, FieldConnect determines in good faith that options (i), (ii) and (iii) are not feasible, FieldConnect will remove the infringing item from the Software or Services and refund to Customer on a pro rata basis any Fees paid by Customer for such infringing element(s) that are unused as of the removal date.

FieldConnect will have no obligation or liability for any claim under this section to the extent arising from: (x) the combination, operation or use of the Software or Services with any product, device, software or service not supplied by FieldConnect to the extent the combination creates the infringement; (y) the unauthorized alteration or modification by Customer of the Software or Services, or (z) FieldConnect’s compliance with Customer’s designs, specifications, requests, or instructions in providing the Software or Services to the extent the claim is based on such compliance.

13.2 By Customer. Customer will defend FieldConnect, its Affiliates, officers, shareholders, members, directors, representatives and employees from and against any claims asserted by a third party based on (a) a breach by Customer of this Agreement, (b) the processing of Customer Data in accordance with this Agreement, or (c) the violation by Customer of any applicable law. Customer will also indemnify FieldConnect and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs), arising out of the third party claims described in this section.

13.3 Requirements for Indemnification.

Each Party’s respective defense and indemnity obligations under Sections 13.1 and

13.2 are contingent upon the other Party: (a) promptly giving notice of the third party claim to the defending/indemnifying Party once the claim is known; (b) giving the defending/indemnifying Party sole control of the defense and settlement of the claim and not compromising or settling the claim without the defending/indemnifying Party’s approval (though the defending/indemnifying Party must not settle such claim unless the settlement unconditionally releases the other Party of all liability and does not adversely affect the other Party’s business or service in a material manner); and (c) making a reasonable effort to provide appropriate information and cooperation to the defending/indemnifying Party in connection with the claim.

THE FOREGOING ARE THE DEFENDING/INDEMNIFYING PARTY’S SOLE OBLIGATIONS, AND THE OTHER PARTY’S EXCLUSIVE REMEDIES, IN CONNECTION WITH THIS AGREEMENT WITH RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 13.

14) LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

14.1 EXCEPT FOR SUMS DUE FIELDCONNECT UNDER THE AGREEMENT, AND EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), AND 13 (INDEMNIFICATION), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT WILL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, EVEN IF SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE;

14.2 EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), AND 13 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS PREVIOUSLY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND

14.3 THE TERMS OF THIS SECTION 14 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.

THE PROVISIONS OF THIS SECTION 14 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND FIELDCONNECT, AND THE FEES CHARGED FOR THE SOFTWARE LICNESES AND SERVICES REFLECT THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.

15) CONFIDENTIALITY

15.1 Definition. As used in this Agreement, “Confidential Information” means information and materials provided by the disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, the Customer Data and Customer’s non-public business plans, and FieldConnect’s Confidential Information includes, without limitation, all pricing terms offered to Customer under this Agreement, FieldConnect’s non-public business plans, all non-public aspects of the FieldConnect Technology, and the results of any evaluation of the Software or Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

15.2 Purpose. Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the “Purpose”).

15.3 Permitted Disclosures and Obligations. Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors and consultants who (a) need to know such information in order to fulfill the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’ and consultants’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Further, neither Party may disclose publicly the existence or nature of any negotiations, discussions or consultations in progress between the Parties without the prior written consent of the other Party. Recipient and its Affiliates, contractors and consultants who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, Software or other tangible objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure.

15.4 Exclusions. Recipient’s obligations under Section 15 will not apply to any Discloser Confidential Information that Recipient can prove: (a) is or becomes part of in the public domain through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; (c) was independently developed by Recipient without use of any Discloser Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of any confidentiality obligation. A disclosure by Recipient of any Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.

15.5 Ownership and Destruction of Confidential Information. As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, commercially reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such Confidential Information is retained.

15.6 Export. Exchange of Confidential Information under this Agreement is subject to all applicable export laws and regulations. Except to the extent permitted by a separate agreement, the Parties will not disclose any information requiring an authorization to be exported.

15.7 Confidentiality Period. Recipient’s obligations with respect to Discloser’s Confidential Information under Section 15will remain in effect for the term of this Agreement and for three (3) years after any expiration or termination of this Agreement.

16) GENERAL

16.1 Governing Law. This Agreement is governed by California law and controlling United States federal law, without regard to conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or relating to this Agreement or the Services will be subject to the sole and exclusive jurisdiction of the state and federal courts located in Orange County, California, USA. The Software and Services are a service, not a good, and are not subject to the Uniform Commercial Code, the Uniform Computer Information Transactions Act, or the United Nations Convention on the International Sale of Goods.

16.2 Assignment. Customer may not assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of its rights or obligations under this Agreement, to any third party without FieldConnect’s prior written consent.  Any purported assignment or other transfer by Customer in violation of this section is void.  Subject to the terms of this section, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and transferees.

16.3 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting period of delay or inability to perform.

16.4 Marketing. FieldConnect is permitted to identify Customer as a FieldConnect customer on FieldConnect’s website and marketing materials. Within thirty (30) days after Customer goes live on the Services, (a) Customer and FieldConnect will issue a mutually agreed joint public announcement, and (b) Customer will also reasonably consider serving as a reference for FieldConnect. Customer further agrees that “Powered by FieldConnect” or a similar FieldConnect mark may appear in invoices, quotes, hosted payment pages, hosted checkout pages, and similar outputs generated through Customer’s use of the Software and Services.

16.5 Independent Contractors. The Parties are independent contracting parties. Neither Party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.

16.6 Notices. Any notice of termination of this Agreement or notice of an alleged material breach required under this Agreement must be delivered to the other Party in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified U.S. mail (requiring signature) to the other Party’s address listed in this Agreement or its corporate headquarters, Attention: Legal Department. With respect to all other notices (including without limitation notices pertaining to changes by FieldConnect to the Terms and Conditions or Support Terms), Customer may email FieldConnect at notices@FieldConnect.com, and FieldConnect may email Customer’s contact identified in this Agreement or use any other Normal Communication Channel. Either Party may change its notice address by giving written notice to the other Party.

16.7 Anti-Corruption. Customer acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any FieldConnect employee, representative or agent in connection with this Agreement. Customer will use reasonable efforts to promptly notify FieldConnect at legal@FieldConnect.com if Customer becomes aware of any circumstances that are contrary to this acknowledgment.

16.8 Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Software and Services constitute software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.

16.9 Execution. This Agreement may be signed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.  Signatures sent electronically or via facsimile shall be as binding as original signatures.

16.10 Entire Agreement. This Agreement, comprises the entire agreement between Customer and FieldConnect regarding the subject matter of this Agreement, supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives of both Parties.

16.11 Modifications to Terms and Conditions.  These Terms and Conditions may be modified by FieldConnect from time to time.  FieldConnect will notify Customer of changes to the Terms and Conditions.  Customer may object to such changes by providing written notice to FieldConnect within 10 days of FieldConnect’s notice.  If Customer does not object to the modified terms of the Terms and Conditions within that time, the modified Terms and Conditions shall be binding on the Parties.  If Customer objects to the modified terms of the Terms and Conditions, the most recent version of the Terms and Conditions to which Customer has not objected shall remain binding on the Parties.

16.12  Arbitration of Disputes.  Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Orange County, California before one arbitrator who is a retired judge of the California Superior Court or higher court, or of a Federal Court located in California. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures.  Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.  In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.

17) DEFINITIONS

As used in the Agreement:

 

“Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50{42a0dc7213930a193e40357c2de9508e8cd1a912e958f6eaaa0ce096d4105494}) of the voting interests of the subject entity;

Customer Data” means any personally identifying information received by the Services about Customer’s users in the course of accessing or using the Services;

Intellectual Property Rights” means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide;

Normal Communication Channels” means the online channels through which FieldConnect normally communicates important information to its customers, including the email address(es) provided by Customer.;

 

FieldConnect Technology” means all of FieldConnect’s and its licensors’ proprietary technology that FieldConnect makes available to Customer as part of or in connection with the Services, including, without limitation, any and all software (source code and object code), upgrades, modifications, extensions, derivative works, hardware, products, processes, tools, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information.