iRely Software License
and Services Agreement
1. CERTAIN DEFINITIONS
As used in this Agreement, the following terms have the following meanings:
means, with respect to a specified Person, any Person which directly or
indirectly controls, is controlled by, or is under common control with the
specified Person as of the date of this Agreement, for as long
as such relationship remains in effect.
1.2 "Authorized User"
means, with respect to a Customer electing SaaS Services under the Proposal,
Customer’s account administrator or employees, representatives, consultants, contractors, agents and any third
party to whom the Customer gives permission to access the SaaS
Services via user identification and password combination or any method requiring authentication
of an individual’s identity.
1.3 "Confidential Information"
means all business information disclosed by one party to the other in
connection with this Agreement unless it is or later becomes publicly available
through no fault of the other party or it was or later
is rightfully developed or obtained by the other party from independent sources
free from any duty of confidentiality. Without limiting the generality of the
foregoing, Confidential Information will include Customer's data and the details of Customer's
computer operations and will also include Proprietary Items of iRely. Confidential
Information will also include the terms of this Agreement and the Proposals,
but not the fact that this Agreement has been signed, the identity
of the parties hereto or the identity of the products licensed or
services provided under this Agreement.
means iRely’s written specifications for the Software, in the form provided by
iRely to Customer.
1.5 "Hosting Services"
means, for a Customer electing iRely-Hosted Software services under the Proposal, the
hosting services by which iRely provides access to and use of the
Software from a hosting network, as may be further described in the
means including but not limited to.
means any individual, sole proprietorship, joint venture, partnership, corporation, company, firm, association,
cooperative, trust, estate, government, governmental agency, regulatory authority or other entity of
1.8 "Professional Services"
means, collectively, the support and professional services provided by iRely under this
Agreement, including all installation, training, consulting, custom modification programming, support relating to
custom modification programming and other professional services, as applicable, specified in applicable
Proposals and otherwise as provided under this Agreement.
means, collectively, the initial Proposal from iRely to Customer, as executed by
iRely and Customer and as such describes the type of service (Customer-Installed
Software, iRely-Hosted Software, or SaaS services) provided to Customer; all other mutually
agreeable written quotes, proposals and statements of work issued under this Agreement;
and all other Customer requests for Professional Services, whether oral or written,
to the extent such are accepted by iRely.
1.10 "Proprietary Items"
means, collectively, the Software and Documentation, all deliverables provided as a result
of or in connection with this Agreement, the object code and the
source code for the Software, the visual expressions, screen formats, report formats
and other design features of the Software, all development tools and methodologies
used in connection with the Software, SaaS Services and Professional Services, as
applicable, all ideas, methods, algorithms, formulae and concepts used in developing and/or
incorporated into the Software, Documentation or deliverables provided as a result of
or in connection with this Agreement, all future modifications, revisions, updates, releases,
refinements, improvements and enhancements of the Software, Documentation or deliverables provided as
a result of or in connection with this Agreement, all derivative works
(as such term is used in the U.S. copyright laws) based upon
any of the foregoing and all copies of the foregoing.
1.11 "SaaS Services"
means, for a Customer electing SaaS Services under the Proposal the services
by which iRely provides access to and use of the Software from
a hosting network, as may be further described in the Proposal.
means, collectively, the iRely software identified in the Proposal, including all applicable
interfaces supplied by iRely hereunder, and all applicable additional iRely and third-party
software identified in the Proposal and made available by iRely hereunder, such
additional software subject to the terms of this Agreement and applicable written
software license agreement(s) third-party vendors, as the case may be.
2. LICENSE AND SOFTWARE SERVICES
2.1 Grant of License.
If Customer will have elected under the Proposal the Customer-Installed Software
or iRely-Hosted Software options, as applicable, iRely hereby grants to Customer a
personal, non-transferable (except as provided herein), non-exclusive, limited-scope license to use, in
accordance with this Agreement, one (1) copy of the Software on one
(1) server, and to create one (1) copy of the Software solely
for archival purposes, as the Software may be periodically modified, revised and
updated in accordance with this Agreement. Customer may use the Software and
Documentation only in the ordinary course of its business operations and for
its own business purposes. The Software will be installed and used only
at Customer’s location(s) and by the number of users specified in the
Proposal. If Customer will previously have been issued by iRely a license
for the Software and has requested the iRely-Hosted Software service option under
the Proposal, the license granted hereunder will replace the previously granted license.
2.2 Hosting Services.
If Customer will have elected the iRely-Hosted Software services option under the
Proposal, in addition to the license granted by iRely under Section 2.1,
iRely hereby grants Customer a subscription to receive the Hosting Services in
accordance with the terms and conditions of this Agreement.
2.3 SaaS Services.
If Customer will have elected the SaaS Services option under the Proposal,
iRely hereby grants Customer a subscription to receive the SaaS Services in
accordance with the terms and conditions of this Agreement. Customer may
use the SaaS Services only in the ordinary course of its business
operations and for its own business purposes.
2.4 Authorized Users.
Customer is responsible for the compliance by all Authorized Users with this
Agreement and for all use of Authorized User accounts and confidentiality of
passwords. Customer will promptly notify iRely in the event that an Authorized
User’s password has been lost, stolen or otherwise compromised. Customer will
use commercially reasonable efforts to prevent unauthorized access to or use of
the Hosting Services or SaaS Services, as applicable, and will notify iRely
promptly of any such unauthorized access or use. The numbers and
location of Authorized Users may be limited in the applicable Proposals.
3. DELIVERY, SUPPORT AND PROFESSIONAL SERVICES
If Customer will have elected the Customer-Installed Software option under the Proposal,
iRely will deliver to Customer a copy of the Software and Documentation
on or before the date specified in the Proposal, or if no
specific date is provided in the Proposal, within a commercially reasonable time.
3.2 Maintenance and Support Services.
If Customer will have elected, as applicable, the Customer-Installed Software or iRely-Hosted
Software service options under the Proposal, iRely will provide to Customer the
Software maintenance and support Services set forth in the Proposal. Such
Services will relate to the then current version of the Software and
the two (2) releases immediately preceding such current release. iRely will
use commercially reasonable efforts to support other older Software release at iRely’s
then current time and materials rates and otherwise on the terms set
forth in this Agreement. If Customer will have elected the SaaS
Services option under the Proposal, iRely shall use commercially reasonable efforts to
investigate problems with the SaaS Services reported by Customer. If iRely determines
that the SaaS Services problem is the result of a material reproducible
error, defect, or malfunction in the SaaS Services, and such problem represents
a material nonconformance with iRely’s specifications for the SaaS Services, iRely will
make commercially reasonable efforts to correct the problem. An iRely representative will
provide Customer with a correction, a report/determination that further research is required,
or confirmation that the SaaS Services work in accordance with iRely specifications.
Maintenance and SaaS services will be adjusted annually for yearly escalation
of costs. The yearly annual increase will typically be about 2.5%
per year, but this may fluctuate depending on economic factors.
3.3 Professional Services.
In addition to iRely’s Services under Section 3.2, at Customer's reasonable request,
iRely will provide installation, training, consulting, custom modification programming, support relating to
custom modifications and other Professional Services, as and when described in applicable
Proposals and at the fees and on the other terms and conditions
set forth in such Proposals. All such Proposals will be subject
to the terms and conditions of this Agreement. Service rates may
increase yearly based on market conditions and the cost/value of billable time.
Applicable Software deliverables under all Proposals will be accepted by Customer when
the acceptance criteria, if any, specified in applicable Proposals have been met.
Where no Software acceptance criteria are specified, such deliverables will be
deemed accepted upon the earlier of: (a) thirty (30) days after
delivery to Customer, provided that Customer does not notify iRely of any
material defects in such deliverables; or (b) the date upon which such
deliverables are used in production by Customer. SaaS Services and Hosting
Services will be deemed accepted upon use in production by Customer.
3.5 Other Terms of Services.
All subsequent Proposals will include the following items: (a) a description
of the Professional Services and other services to be performed; (b) any
deliverables and/or milestones; (c) the tasks and resources Customer will provide; and
(d) pricing and payment terms. Customer will not engage or use
any non-iRely personnel in connection with any Professional Services, other than Customer
personnel reasonably required in connection with such Professional Services, without the prior
written consent of iRely.
4. CUSTOMER'S OTHER OBLIGATIONS
Customer will cooperate with iRely as reasonably necessary for iRely to perform its obligations under this Agreement. Customer will devote all equipment, facilities, personnel and other resources identified in the Proposals or otherwise reasonably required to install, implement and use the Customer-Installed Software and to implement and use the iRely-Hosted Software services. iRely will not be responsible for any delays or additional fees and costs associated with Customer’s failure to timely perform its obligations under this Section 4.
5.1 Fees Specified in the Proposals.
Customer will pay to iRely, as applicable, the Software license fees, Hosting
Services subscription fees, SaaS Services subscription fees, Professional Services fees and other
fees as set forth in applicable Proposals and as and when specified
in Section 5.4.
5.2 Additional Fees.
Unless otherwise expressly provided in applicable Proposals, Professional Services fees will be
billable to Customer at iRely’s then current standard time and materials rates.
Customer will promptly reimburse iRely for all reasonable travel, lodging and
per diem expenses incurred by iRely personnel in connection with their performance
of the Professional Services.
The fees and other amounts payable by Customer to iRely under this
Agreement do not include any taxes of any jurisdiction that may be
assessed or imposed in connection with the services provided hereunder and, as
applicable, upon the copies of the Software and Documentation delivered to Customer,
the license granted under this Agreement and the services provided hereunder, or
any taxes otherwise assessed or imposed in connection with the transactions contemplated
by this Agreement, including sales, use, excise, value added, personal property, export,
import and withholding taxes, excluding only taxes based upon iRely's net income.
Customer will directly pay any such taxes assessed against it, and
Customer will promptly reimburse iRely for any such taxes payable or collectable
5.4 Payment Terms.
All fees will be invoiced by iRely as and when incurred.
All invoices will be sent to Customer's address stated on the first
page of this Agreement, unless otherwise agreed by the parties. Payments will
be made by automated clearing house (ACH) electronic funds transfer in accordance
with ACH instructions provided in writing by iRely. Interest at the rate
of eighteen percent (18%) per annum (or, if lower, the maximum rate
permitted by applicable law) will accrue on any amount not paid by
Customer to iRely when due under this Agreement, and will be payable
by Customer to iRely on demand. All fees and other amounts paid
by Customer under this Agreement are non-refundable.
iRely or its representatives may inspect and audit Customer’s servers and facilities
to determine Customer’s compliance with the Software license and Authorized Users limitations
set forth inSection 2 and otherwise provided in this Agreement. If
iRely determines that a noncompliance has occurred, in addition to iRely’s other
remedies, Customer will promptly pay iRely, as applicable, all additional software
license and service fees due iRely, together with all reasonable out-of-pocket costs
and expenses of such audit.
5.6 Certain Remedies for
Nonpayment. If Customer fails to pay to iRely, within ten (10)
days after iRely makes written demand therefor, any past-due amount payable under
this Agreement (including interest thereon) that is not the subject of a
good faith dispute, in addition to all other rights and remedies which
iRely may have at law or in equity, iRely may, in its
sole discretion and without further notice to Customer, immediately suspend all applicable
SaaS Services, Hosting Services, Professional Services and the performance of any
or all of its other obligations under this Agreement, and iRely will
have no liability with respect to Customer’s use of the applicable Software,
SaaS Services, Hosting Services, Professional Services or other iRely services hereunder until
all past due amounts are settled. iRely reserves the right to
impose a reconnection fee in the event Customer’s access to the SaaS
Services is suspended and thereafter Customer requests renewed access to the SaaS
Services. For the purposes of this Agreement, a “good faith dispute” means
a good faith dispute by Customer of certain amounts invoiced under this
Agreement. A good faith dispute will be deemed to exist only
if (a) Customer has given written notice of the dispute to iRely
promptly after receiving the invoice and (b) the notice explains Customer's position
in reasonable detail. A good faith dispute will not exist as
to an invoice in its entirety merely because certain amounts on the
invoice have been disputed.
5.7 Marketing Material.
Our overall pricing has been discounted with the assumption that customers will
allow use of their name on various announcements and marketing materials for
iRely. If Customer does not allow this activity, built-in price discount
will be considered null and void and overall pricing will be higher.
6. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS
6.1 Force Majeure.
Neither party will be liable for, nor will either party be considered
in breach of this Agreement due to, any failure to perform its
obligations under this Agreement (other than its payment obligations) as a result
of a cause beyond its control, including any act of God or
a public enemy or terrorist, act of any military, civil or regulatory
authority, change in any law or regulation, fire, flood, earthquake, storm or
other like event, disruption or outage of communications (including the Internet or
other networked environment), power or other utility, labor problem, unavailability of supplies,
extraordinary conditions or any other cause, whether similar or dissimilar to any
of the foregoing, which could not have been prevented by the non-performing
party with reasonable care.
THE SOFTWARE, HOSTING SERVICES, SAAS SERVICES, PROFESSIONAL SERVICES AND OTHER GOODS AND
SERVICES PROVIDED TO CUSTOMER HEREUNDER ARE “AS IS”, AND iRELY MAKES NO
REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE
OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, QUALITY OF INFORMATION, QUIET
ENJOYMENT OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE, HOSTING SERVICES,
SAAS SERVICES, PROFESSIONAL SERVICES AND OTHER GOODS AND SERVICES PROVIDED TO CUSTOMER
HEREUNDER OR WITH RESPECT TO ANY OTHER MATTER PERTAINING TO THIS AGREEMENT.
CUSTOMER’S USE OF THE SOFTWARE, HOSTING SERVICES, SAAS SERVICES, PROFESSIONAL SERVICES AND
OTHER GOODS AND SERVICES PROVIDED TO CUSTOMER HEREUNDER WILL NOT BE DEEMED
LEGAL, TAX OR INVESTMENT ADVICE.
iRELY'S TOTAL LIABILITY UNDER THIS AGREEMENT WILL UNDER NO CIRCUMSTANCES EXCEED THE
AMOUNT ACTUALLY PAID BY CUSTOMER TO iRELY UNDER THIS AGREEMENT DURING THE
THREE (3) MONTHS PRIOR TO THE EVENT OF LIABILITY, LESS ALL AMOUNTS
PAID BY iRELY TO CUSTOMER UNDER OR IN CONNECTION WITH THIS AGREEMENT.
6.4 Consequential Damage Exclusion.
UNDER NO CIRCUMSTANCES WILL iRELY (OR ANY iRELY AFFILIATES PROVIDING SOFTWARE, HOSTING
SERVICES, SAAS SERVICES, PROFESSIONAL SERVICES AND OTHER GOODS AND SERVICES PROVIDED TO
CUSTOMER HEREUNDER) BE LIABLE TO CUSTOMER, ANY AUTHORIZED USER OR ANY OTHER
PERSON FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, TRADING LOSSES, OR
ANY INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND,
INCLUDING SUCH DAMAGES ARISING FROM ANY BREACH OF THIS AGREEMENT OR ANY
TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS
OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE AND WHETHER
OR NOT FORESEEABLE, EVEN IF iRELY HAS BEEN ADVISED OR WAS AWARE
OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
6.5 Interruptions and Delays.
Customer acknowledges that the Hosting Services and SaaS Services may be subject
to limitations, delays, and other problems inherent in the use of the
internet and electronic communications. iRely is not responsible for any delays, delivery
failures, improper delivery, service interruptions or other damage resulting from such problems,
including interruptions and delays due to planned and unscheduled maintenance.
6.6 Open Negotiation.
Customer and iRely have freely and openly negotiated this Agreement and all
Proposals, including the pricing, with the knowledge that the liability of iRely
is to be limited in accordance with the provisions of this Agreement.
6.7 Freedom to Develop.
Customer acknowledges that iRely is engaged in the development of software for
clients other than Customer, and that iRely can and will develop software
and provide services for its other customers and will utilize and market
Proprietary Items, including those developed under this Agreement, without any restrictions hereunder.6.8
Other Limitations. In addition to the other limitations
and exclusions under this Agreement, iRely will have no liability to Customer
under the following circumstances: Customer fails to follow iRely’s instructions relating
to, as applicable, the Software, Hosting Services or SaaS Services; and/or the
Software, Hosting Services or SaaS Services, as applicable, are used in violation
of this Agreement; as applicable, the Software is configured, customized, installed or
maintained by anyone other than iRely; as applicable, Customer modifies any Software
without the prior written consent of iRely; and/or the Software, Hosting Services
or SaaS Services are used in conjunction with any hardware, software, products
or interfaces not specified by iRely. The obligations of iRely under
this Agreement run only to Customer and not to its Affiliates, Authorized
Users or any other Persons. Under no circumstances will any Affiliate, Authorized
User or client of Customer or any other Person be considered a
third-party beneficiary of this Agreement or otherwise entitled to any rights or
remedies under this Agreement, even if such Affiliates, Authorized Users, clients or
other Persons are provided access to any Hosting Services, SaaS Services or
Professional Services. Customer will have no rights or remedies against iRely
except as specifically provided in this Agreement. No action or claim of
any type relating to this Agreement may be brought or made by
Customer more than one (1) year after Customer first has knowledge of
the basis for the action or claim.
7. CONFIDENTIALITY AND OWNERSHIP
7.1 Confidential Information.
During the term of this Agreement and in perpetuity thereafter, each party
will keep in confidence all of the Confidential Information of the other
party, and will not use such Confidential Information of the other party
without such other party’s prior written consent. No party will disclose
the Confidential Information of any other party to any Person, except to
its own employees, agents and independent contractors to whom it is necessary
to disclose the Confidential Information for the sole purpose of performing their
duties and/or exercising their rights under this Agreement, and who have agreed
to receive it under terms at least as restrictive as those specified
in this Agreement. Each party will maintain the confidentiality of the
Confidential Information, with not less than the standard of care that an
ordinarily prudent business would exercise to maintain the secrecy of its own
most confidential information. Each party will immediately give notice to the other
party of any unauthorized use or disclosure of any Confidential Information.
Each party agrees to assist the other party in remedying such unauthorized
use or disclosure of Confidential Information. Upon either party’s request, the
other party will return all copies of Confidential Information and proprietary materials
or information, and all copies and notes made thereof, received from hereunder,
or destroy all Confidential Information and copies and notes made thereof, and
provide a certification in writing to such effect.
7.2 Proprietary Items and Ownership.
The Proprietary Items are trade secrets and proprietary property of iRely, having
great commercial value to iRely. All Proprietary Items provided to Customer
under this Agreement are being provided on a strictly confidential and limited
use basis. Customer will not, directly or indirectly, communicate, publish, display, loan,
give or otherwise disclose any Proprietary Item to any Person, or permit
any Person to have access to or possession of any Proprietary Item.
Title to all Proprietary Items and all related patent, copyright, trademark,
trade secret, intellectual property and other ownership rights will be and remain
exclusively with iRely, even with respect to such items that were created
by iRely specifically for or on behalf of Customer. This Agreement is
not an agreement of sale, and no title, patent, copyright, trademark, trade
secret, intellectual property or other ownership rights to any Proprietary Items are
transferred to Customer by virtue of this Agreement. All copies of
Proprietary Items in Customer's possession will remain the exclusive property of iRely
and will be deemed to be on loan to Customer during the
term of this Agreement.
7.3 Use Restrictions.
Customer will not do, attempt to do, nor permit any other Person
to do, any of the following: (a) use any Proprietary Item
for any purpose, at any location or in any manner not specifically
authorized by this Agreement; (b) make or retain any copy of any
Proprietary Item except as specifically authorized by this Agreement; (c) create or
recreate the source code for the Software, or re-engineer, reverse engineer, decompile
or disassemble the Software; (d) modify, adapt, translate or create derivative works
based upon the Software or Documentation, or combine or merge any part
of the Software or Documentation with or into any other software or
documentation; (e) refer to or otherwise use any Proprietary Item as part
of any effort either to develop a program having any functional attributes,
visual expressions or other features similar to those of the Software or
to compete with iRely or its Affiliates; (f) remove, erase or tamper
with any copyright or other proprietary notice printed or stamped on, affixed
to, or encoded or recorded in any Proprietary Item, or fail to
preserve all copyright and other proprietary notices in any copy of any
Proprietary Item made by Customer; or (g) sell, market, license, sublicense, distribute
or otherwise grant to any Person, including any outsourcer, vendor, consultant or
partner, any right to use any Proprietary Item, whether on Customer's behalf
7.4 Notice and Remedy of Breaches.
Each party will promptly give written notice to the other of any
actual or suspected breach by it of any of the provisions of
this Section 7, whether or not intentional, and the breaching party will,
at its expense, take all steps reasonably requested by the other party
to prevent or remedy the breach.
Each party acknowledges that the restrictions in this Agreement are reasonable and
necessary to protect the other's legitimate business interests. Each party acknowledges
that any breach of any of the provisions of this Section 7
will result in irreparable injury to the other for which money damages
could not adequately compensate. If there is a breach, then the
injured party will be entitled, in addition to all other rights and
remedies which it may have at law or in equity, to have
a decree of specific performance or an injunction issued by any competent
court, requiring the breach to be cured or enjoining all Persons involved
from continuing the breach. The existence of any claim or cause
of action that a party or any other Person may have against
the other party will not constitute a defense or bar to the
enforcement of any of the provisions of this Section 7.
8. TERM AND TERMINATION
This Agreement, and Customer’s subscription to the Hosting Services or SaaS Services,
as applicable, begins on the date set forth on the first page
hereof and continues for the term specified in the initial Proposal.
Upon expiration of such initial term, the term and Customer’s subscription for
the Hosting Services or SaaS Services will renew for successive one (1)
year renewal terms, unless either party delivers to the other written notice
of termination at least ninety (90) days before expiration of the then
current term. If Customer will have elected the Customer-Installed Software or iRely-Hosted
Software options, as applicable, Customer’s Software license hereunder continues until terminated in
accordance with this Agreement. Either party may terminate this Agreement at
any time in accordance with Sections 8.2 or 8.3, as the case
may be. The term of subsequent Proposals (i.e., Proposals other than
the initial Proposal) continues until the Professional Services under such Proposals are
deemed complete by iRely or until such Proposals are sooner terminated in
accordance with Sections 8.2 or 8.3, as the case may be.
8.2 Termination by Customer.
Customer may terminate any Professional Services under Proposals entered into after the
date of this Agreement (i.e., Proposals other than the initial Proposal) for
any reason upon thirty (30) days’ prior written notice to iRely.
Customer may immediately terminate this Agreement by giving written notice of
termination to iRely, upon the occurrence of any of the following events:
(a) iRely breaches any of its material obligations under this Agreement
and does not cure the breach within sixty (60) days (provided that
the breach is susceptible to cure) after Customer gives written notice to
iRely describing the breach in reasonable detail; or (b) iRely dissolves or
liquidates or otherwise discontinues all or a significant part of its business
8.3 Termination by iRely.
iRely may terminate any Professional Services under Proposals entered into after the
date of this Agreement (i.e., Proposals other than the initial Proposal) for
any reason upon thirty (30) days’ prior written notice to Customer.
iRely may immediately terminate this Agreement by giving written notice of
termination to Customer, upon the occurrence of any of the following events:
(a) Customer fails to pay to iRely, within ten (10) days after
iRely makes written demand therefor, any past-due amount payable under this Agreement
(including interest thereon) that is not the subject of a good faith
dispute; (b) Customer breaches any of its other material obligations under this
Agreement and does not cure the breach within thirty (30) days (provided
that the breach is susceptible to cure) after iRely gives written notice
to Customer describing the breach in reasonable detail; or (c) Customer dissolves
or liquidates or otherwise discontinues all or a significant part of its
8.4 Effect of Termination.
Upon a termination of this Agreement, whether under this Section 8 or
otherwise, Customer will: (a) discontinue all use of all Software, Documentation
Hosting Services, SaaS Services and Professional Services, as applicable; (b) promptly return
to iRely all copies of the Software and Documentation, as applicable, and
all other Proprietary Items then in Customer's possession; and (c) give written
notice to iRely certifying that all copies of the Software and Documentation,
as applicable, have been permanently deleted from Customer’s computers. Customer will remain
liable for all payments due to iRely with respect to the period
ending on the date of termination. Customer acknowledges and agrees that
iRely has no obligation to retain Customer data after termination, and that
such Customer data may be irretrievably deleted thirty (30) days after termination
of this Agreement. The provisions of Sections 5, 6, 7, 8.4
and 9 will survive any termination of this Agreement, whether under this
Section 8 or otherwise.
9. OTHER PROVISIONS
All notices, consents and other communications under or regarding this Agreement will
be in writing and will be deemed to have been received on
the earlier of the date of actual receipt, the third business day
after being mailed by first class certified air mail or the first
business day after being sent by a reputable overnight delivery service.
Any notice may be given by facsimile, provided that a signed written
original is sent by one of the foregoing methods within twenty-four (24)
hours thereafter. Customer's address for notices is stated on the first
page of this Agreement. iRely's address for notices is 4242 Flagstaff
Cove, Fort Wayne, IN 46815 USA, Attention: Contract Administration. In the
case of (a) any notice by Customer alleging a breach of this
Agreement by iRely or (b) a termination of this Agreement, Customer will
also send a copy to iRely, attention: COO. Either party may
change its address for notices by giving written notice of the new
address to the other party in accordance with this Section 9.1.
9.2 Parties in Interest.
This Agreement will bind, benefit and be enforceable by and against iRely
and Customer and, to the extent permitted hereby, their respective successors and
assigns. Customer will not assign this Agreement or any of its
rights hereunder, nor delegate any of its obligations hereunder, without iRely’s prior
written consent, except that such consent will not be required in the
case of an assignment to (a) a purchaser of or successor to
substantially all of Customer's business (unless such purchaser or successor is a
software, data processing or computer services vendor that is a competitor of
iRely or any of its Affiliates) or (b) an Affiliate of Customer,
provided that the scope of the license granted under this Agreement, as
applicable, does not change and Customer guarantees to iRely in writing the
obligations of the assignee. Any assignment by Customer in breach of this
Section 9.2 will be void. Any express assignment of this Agreement,
any change in control of Customer, any acquisition of additional business by
Customer (by asset acquisition, merger or otherwise by operation of law) and
any assignment by merger or otherwise by operation of law, will constitute
an assignment of this Agreement by Customer for purposes of this Section
The relationship between the parties created by this Agreement is that of
independent contractors and not partners, joint venturers or agents.
9.4 Entire Understanding; Counterparts.
This Agreement, which includes and incorporates the Proposals and any other addenda
hereto, states the entire understanding between the parties with respect to its
subject matter, and supersedes all prior proposals, marketing materials, negotiations and other
written or oral communications between the parties with respect to the subject
matter of this Agreement. This Agreement may be executed in one
or more counterparts, each of which will be deemed an original and
all of which together will constitute one and the same instrument. If
this Agreement is executed via facsimile, each party hereto will provide the
other party with an original executed signature page within five (5) days
following the execution of this Agreement.
9.5 Modification, Waiver and Conflicts.
No modification of this Agreement, and no waiver of any breach of
this Agreement, will be effective unless in writing and signed by an
authorized representative of the party against whom enforcement is sought. This
Agreement may not be modified or amended by electronic means without written
agreement of the parties with respect to formats and protocols. No
waiver of any breach of this Agreement, and no course of dealing
between the parties, will be construed as a waiver of any subsequent
breach of this Agreement. In the event of any conflict between this
Agreement and the Proposals, the terms of this Agreement will govern.
A determination that any provision of this Agreement is invalid or unenforceable
will not affect the other provisions of this Agreement.
Section headings are for convenience of reference only and will not affect
the interpretation of this Agreement.
9.8 Negotiated Terms.
The parties agree that the terms and conditions of this Agreement are
the result of negotiations between the parties and that this Agreement will
not be construed in favor of or against any party by reason
of the extent to which any party or its professional advisors participated
in the preparation of this Agreement.
Customer will not, directly or through one or more Customer Affiliates, hire
or offer to hire any programmer, trainer or member of a data
processing or customer support team of iRely at any time when such
Person is employed or engaged by iRely or during the twelve (12)
months after such employment or engagement ends. For purposes of this
provision, “hire” means to employ as an employee or to engage as
an independent contractor, whether on a full-time, part-time or temporary basis.
This provision will remain in effect during the term of this Agreement
and for a period of one (1) year after expiration or termination
of this Agreement.
9.10 Governing Law; Arbitration; Exclusive Jurisdiction.
This Agreement, for all purposes, shall be construed in accordance with the substantive laws of the State
of Indiana, without regard to conflicts-of-law principles. The parties agree that any dispute, controversy or claim arising out of or related to this Agreement,
including without limitation the formation or validity of the Agreement or this arbitration provision, or any breach of this Agreement, shall be submitted to
and decided by binding arbitration in Fort Wayne, Indiana, administered by the American Arbitration Association. Any arbitral award determination shall be
final and binding upon the parties and may be entered as a judgment in a court of competent jurisdiction. Nothing in this arbitration provision shall limit
the right of either party to invoke the jurisdiction of an appropriate court to seek and to obtain injunctive or other emergency relief enforcing this
Agreement, or to seek an order compelling arbitration or enforcing an arbitration award. Any action or proceeding by either party with respect to this
Agreement shall be brought only in the state courts located in the State of Indiana, Allen County or the United States District Court for the Northern
District of Indiana. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum
to the maintenance of any such action or proceeding in such venue.
9.11 Export Laws; Restricted Rights.
Customer will comply with all applicable United States export laws and regulations.
Customer will not export or re-export directly or indirectly (including via
remote access) any part of the Software or Documentation, as applicable, or
any Proprietary Items or Confidential Information to any jurisdiction outside the United
States. If Customer is an agency of the U.S. Government, the
Software, Hosting Services and SaaS Services, as applicable, are provided with “Restricted
Rights” and that their use, duplication or disclosure is governed by DFARS
252.227-7103 (c)(1)(ii) or FAR 52.227-19m, as applicable.
10. EVALUATION AGREEMENT
10.1 iRely Evaluation Offering.
iRely grants you a nonexclusive, nontransferable, revocable, time-limited
license to use the software product(s) ("Software"), in object code format, and any included documentation, free of charge for the
Evaluation Term for the sole and limited purpose of evaluating the Software.
10.2 Evaluation Term.
The evaluation right and license terminates as of the date agreed to in the
proposal or other form of written documentation, but terminates no later than one year from the date of first access. Upon or prior
to termination, user agrees to either: (a) Purchase a full license for the Software or purchase a SaaS offering pursuant to the
terms in this Customer Master Agreement; or (b) Return any access information provided; or upon request by iRely, destroy the
access information of Software and all copies of any accompanying documentation and certify in writing that it has been destroyed.
At the end of the Evaluation Term, iRely will terminate access to the environment if a SaaS offering. iRely may immediately terminate
this Agreement upon written notice if breach of any terms or conditions of this Agreement occurs. In such event, user will cease
using the service or return or destroy the access information and software, as specified above.
10.3 Ownership; Confidentiality.
The Software and SaaS Offering is owned and copyrighted by Vendor. All right, title,
and interest, including all intellectual property, are and shall remain the sole property of Vendor. Other than as specified in this Agreement, user
obtains no right in and to the Software. User agrees not to remove from view ay copyright legend, trademark or confiedentiality notice appearing on
the Software or SaaS offering. User further agrees not to reverse engineer, reverse compile, translate the Software or make any attempt to discover
the source code of teh Software, now will user permit any third party to do the same. The iRely Software and SaaS Offering are confidential
information of iRely and user agrees not to disclose the Software or SaaS Offering or the results of any performance or functional
evaluation or test of the Software or SaaS Offering to any third party without the prior written approval of iRely.
User assumes sole responsibility for acquiring any authorization(s) necessary for interfaces and hypertext
links to third party systems or websites and the accuracy of materials published via iRely's Software and SaaS Offering, including without limitation, user's content,
descriptive claims, warranties, guarantees, nature of business and the address of where business is conducted. User assumes sole responsibility that the content
uploaded and published via iRely's Software and SaaS Offering does not infringe upon or violate any third party rights or includes the intellectual property of
a third party without the prior written consent of such third party. In no event shall iRely or its licensors be responsible for any content, products, or other
materials on or available from third-party sites which is not provided by iRely. Notwithstanding the foregoing, iRely reserves the right, in its sole discretion,
to exclude or remove from the iRely Software and SaaS Offering any interfaces or hypertext links to third party systems, websites, any content or other content not
supplied by iRely which, in iRely’s sole reasonable discretion, may violate or infringe any law or third party rights, provided that such right shall not place an
obligation on iRely to monitor or exert editorial control over the iRely Software and SaaS Offering. iRely does not own any data, information or material that you
submit to and publish via iRely's Software and SaaS Offering in the course of using the iRely Software and SaaS Offering. You shall have sole responsibility for
the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all your content, and iRely shall
not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any content. iRely reserves the right to withhold, remove
and/or discard content without notice for any breach, including, without limitation, non-payment. Upon termination for cause, your right to access or use content
immediately ceases, and iRely shall have no obligation to maintain or forward any your content.
User may not assign or otherwise transfer, by operation of law or otherwise, any rights under this Agreement without iRely's
prior written consent. This Agreement constitutes the entire understanding between the parties regarding the subject matter hereof and supersedes any prior agreements or understandings,
whether written or oral. This Agreement shall be governed by the laws of the State of Indiana without regard to conflicts of law provisions and both parties submit to the exclusive
jurisdiction of courts of the State of Indiana.