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Onymos Fabric

Enterprise Software License and Services Agreement

 

This Onymos Fabric Enterprise Software License and Services Agreement (together with all Schedules attached hereto, this “Agreement”) is entered into between Onymos Inc. (“Onymos”), a Delaware corporation, and the party identified as “Customer” on the Order Form referencing this Agreement.

WHEREAS, Onymos has developed the Licensed Software (as defined below) and makes the Licensed Software available to its customers for the creation of mobile applications by such customers;

WHEREAS, Onymos performs certain Services (as defined below) for its customers in connection with their use of the Licensed Software;

WHEREAS, Customer desires to license the Licensed Software and to obtain Services from Onymos on a non-exclusive basis; and

WHEREAS, Customer and Onymos (the “Parties” and each, a “Party”) desire to set forth the terms and conditions pursuant to which Customer may license the Licensed Software and utilize the Services;

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

 

  1. DEFINITIONS.  For purposes of this Agreement, the following terms shall have the meanings set forth below.

1.1. “Affiliate” means, with respect to any Person, any other Person controlling, controlled by, or under common control with, such Person, where “control” shall be deemed to include without limitation the ownership or control of more than fifty percent (50%) of the voting securities of any entity or the ability to direct the management or affairs of any entity, whether through ownership, contractual rights, or otherwise.

1.2. “App Hosting Services“ means Onymos’s hosting of the Customer App Data for Customer’s benefit, if specified in an Order Form, as well as any Updates to such services made available by Onymos from time to time.

1.3 “App Hosting Term“ means, with respect to any particular Customer App identified in an Order Form, the period of time during which Onymos is providing App Hosting Services.

1.4 “Service Allocation“ means the usage restrictions applicable to the App Hosting Services specified in an applicable Order Form, including without limitation usage restrictions relating to the number of Customer App End Users, Customer App Data storage, and realtime storage.

1.5 “Confidential Information“ means any information (whether oral, electronic, or written) of a secret, proprietary, or confidential nature, concerning either Party and disclosed by either Party to the other Party in the course of performance of this Agreement, that is either clearly labeled or identified as such or reasonably should be understood to be confidential or proprietary, including without limitation: (a) business plans, marketing plans, financial data, employee data, technical information, and know-how, (b) the Licensed Materials, which shall be deemed to be the Confidential Information of Onymos, (c) Customer App Data and any Customer Apps (except for the Onymos Components), which shall be deemed to be the Confidential Information of Customer, and (d) the terms of this Agreement, including pricing, which terms shall be deemed to be the Confidential Information of both Parties. Information shall not be, or shall cease being, as the case may be, Confidential Information from and after the date that it: (i) was generally known to the public prior to a Party receiving such information hereunder; (ii) becomes generally known to the public without breach of this Agreement; or (iii) becomes rightfully known to the receiving Party without obligation of confidentiality as a result of disclosure from a third party not under an obligation of confidentiality.

1.6 “Customer App“ means a mobile application developed by or on behalf of Customer using the Licensed Software and that incorporates the Onymos Components.

1.7 “Customer App End User“ means an end user of a Customer App who is using such Customer App for his or her own use and not for purposes of distribution or resale to others.

1.8 “Customer App Data“ means the data of Customer or its applicable Customer App End Users collected or generated in connection with use of an applicable Customer App.

1.9 “Customization“ means any modification, personalization, or other customized version of the Licensed Software, App Hosting Services, or Documentation developed by Onymos for Customer as a result of any Professional Services or otherwise.

1.10 “Defect“ means a source code bug in the Licensed Software or App Hosting Services that causes the Licensed Software or App Hosting Services to operate in a manner substantially inconsistent with the Documentation.

1.11 “Deployment Prerequisites“ means the information technology requirements that Customer is required to implement at Customer’s own cost in order to utilize the Licensed Software as further described at https://onymos.com/developers/start, as may be updated by Onymos from time to time.

1.12 “Disabling Device“ means software, hardware, or other technology or means used by Onymos to disable Customer’s, or any Users’ or Customer App End Users’ access to or use of the Licensed Software or App Hosting Services.

1.13 “Documentation“ means the user manual or similar documentation relating to the Licensed Software and Services made available by Onymos to Customer at https://onymos.com/developers, as may be updated by Onymos from time to time.

1.14 “EULA“ means an end user license agreement used by Customer describing the terms that Customer App End Users must agree to in order to use a Customer App.

1.15 “Fee“ means License Fees, Maintenance Fees, App Hosting Services fees, Professional Services fees, fees for other Services, and any other fees payable to Onymos under this Agreement.

1.16 “Force Majeure“ means any circumstances beyond the reasonable control of either Party, including without limitation any act of God, act of government, flood, fire, earthquake, landslide, volcanic eruption, act of terror, war, strike, other labor problem, riot, or epidemic.

1.17 “Law“ means any domestic or foreign statute, ordinance, regulation, rule, or order, or any international treaty.

1.18 “License Fees“ means the fees payable by Customer to license the Licensed Software.

1.19 “License Term“ means, with respect to any particular Customer App identified in an Order Form, the period of time during which the Customer is licensed to develop, distribute, and use such Customer App using the Licensed Software and to make such Customer App available to Customer App End Users, in each case pursuant to the terms of this Agreement.

1.20 “Licensed Materials“ means the Licensed Software, Documentation, and Onymos Components, along with any other materials that may be provided by Onymos to Customer in connection with this Agreement.

1.21 “Licensed Software“ means that particular Onymos software specified in an Order Form, as well as any Updates to or Customizations of such software made available by Onymos from time to time.

1.22 “Maintenance and Support Services“ means the handling of routine requests for instructions on accessing and using any Documentation, Licensed Software, or App Hosting Services, and the development and installation of bug-fixes to resolve Defects by or on behalf of Onymos. For the avoidance of doubt, Maintenance and Support Services exclude any Professional Services or any services involving Customizations or modifications to any Licensed Materials or App Hosting Services, integration services, training, or assistance with administrative functions.

1.23 “Maintenance Fees“ means the fees payable by Customer for the Maintenance and Support Services.

1.24 “Maintenance Term“ means, with respect to any particular Licensed Software identified in an Order Form, the period of time during which the Customer is committing to subscribe to Maintenance and Support Services, provided that the Maintenance Term may be earlier terminated as provided herein.

1.25 “Onymos Components“ means the Onymos-proprietary components of a Customer App that are incorporated into a Customer App by the Licensed Software.

1.26 “Order Form“ means a valid and effective ordering document signed by both Parties representing the initial or any subsequent ordering of the particular Licensed Software or Services set forth therein that is subject to the terms of this Agreement.

1.27 “Person“ means any individual or entity.

1.28 “Professional Services“ means services provided by Onymos involving training on use of the Licensed Software or App Hosting Services, assistance with development of the Customer App, and services of a similar nature.

1.29 “Services“ means Professional Services, App Hosting Services, Maintenance and Support Services, and any other services Onymos agrees to perform for Customer pursuant to an Order Form.

1.30 “Third Party Materials“ means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, or components of the Services that are not proprietary to Onymos.

1.31 “Update“ means a revision to, or modification of, any Licensed Software or App Hosting Services made available by Onymos as an Update hereunder, in Onymos’s sole discretion. Such modifications or revisions may: (i) repair or alter existing features of, and operations within, the Licensed Software or App Hosting Services; (ii) modify the Licensed Software or App Hosting Services to comply with applicable Law, industry standards, or market practice; or (iii) improve or add enhanced functionality to the Licensed Software or App Hosting Services.

1.32 “User“ means any Customer employee who is authorized by the Customer’s system administrator to access and use any Licensed Materials or Services for Customer’s internal business purposes with a unique username and password.

 

  1. LICENCE GRANT 

2.1 License Grant. Conditioned upon Customer’s compliance with the terms and conditions of this Agreement, and subject to the restrictions and exclusions contained in this Agreement, Onymos hereby grants to Customer:

(a) a limited, personal, worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable license to use, and allow Users to access, the Licensed Software specified on each Order Form, solely for the development of the number of Customer Apps specified in the Order Form, along with the applicable Documentation, during the applicable License Term solely for Customer’s own internal business purposes; and

(b) a limited, worldwide, non-exclusive, non-transferable (except in connection with a permitted assigned of this Agreement), non-sublicensable license during the applicable License Term under Onymos’s rights in the Licensed Materials to grant Customer App End Users a non-exclusive, worldwide, non-sublicensable, non-transferable license, only subject to the EULA as approved by Onymos pursuant to Section 2.2, solely to use the Onymos Components during the applicable License Term as such Onymos Components are incorporated into the Customer App by the Licensed Software. The total number of Customer App End Users for a Customer App may not exceed the number specified in the applicable Order Form for such Customer App.

2.2 EULA. Customer may only distribute Customer Apps to Customer App End Users subject to a EULA approved in writing in advance for each such Customer App by Onymos. Prior to distributing any Customer App, Customer shall provide the applicable EULA for such Customer App for Onymos’s review and approval. Customer shall include in the EULA any terms requested by Onymos to protect Onymos’s rights in a manner consistent with this Agreement, including without limitation terms intended to protect Onymos’s rights in the Licensed Software and Onymos Components, limit Onymos’s liability, and allow Onymos to enforce its rights against Customer App End Users.

2.3 Third Party Materials. The Licensed Materials include Third Party Materials. Customer’s use of the Third Party Materials is governed by, and subject to, the terms and conditions required by the licensor of such Third Party Materials, in addition to the terms and conditions of this Agreement.

2.4 Reserved Rights. Except for the limited right to use the Licensed Materials and Services expressly granted herein, no other right, title, or interest in the Licensed Materials, Services, or other technology or intellectual property rights of Onymos is granted and all such rights are hereby expressly reserved. There are no implied rights.

2.5. Delivery and Deployment. Onymos shall make available a copy of the Licensed Software available for download and installation by Customer within three (3) business days of full execution of an Order Form (unless Customer has already downloaded the Licensed Software). Onymos shall provide Customer with installation keys for each applicable Customer App for which Customer is licensed within three (3) business days of full execution of each applicable Order Form. Customer acknowledges that it shall be solely responsible for acquiring and maintaining the Deployment Prerequisites necessary to use the Licensed Software.

2.6 Suspension of Licensed Software. Onymos may, directly or indirectly, by use of a Disabling Device or other lawful means, suspend, terminate, disable, or otherwise deny Customer’s or Users’ access to or use of all or any part of the Licensed Software, without incurring any resulting obligation or liability, if: (a) Customer’s rights to access and use the Licensed Software has ceased in accordance with this Agreement; (b) Onymos receives a judicial or other governmental demand or order, subpoena, or law enforcement request that in Onymos’s sole discretion requires Onymos to do so; or (c) Onymos believes, in its sole discretion, that Customer or any User: (i) has failed to comply with any applicable term of this Agreement; (ii) has used the Licensed Software beyond the scope of the rights granted or for an unauthorized purpose, or in any manner that does not comply with any instruction or requirement in the Documentation; or (iii) is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities. This Section does not limit any of Onymos’s other rights or remedies, whether at Law, in equity, or under this Agreement.

2.7 Updates. Updates to the Licensed Software, if any, will be provided to Customer at Onymos’s sole discretion. Onymos reserves the right to determine how and when to develop and apply any Updates to the Licensed Software. Customer may, in its discretion, choose not to apply the Updates to the Licensed Software used by Customer. If Customer chooses not to apply such Updates, Onymos shall only be obligated to provide Maintenance and Support Services for Onymos’s then-current version of the Licensed Software, provided that Onymos shall use commercially reasonable efforts to provide Maintenance and Support Services for versions of the Licensed Software released by Onymos during the two (2) years prior to the then-current date. Onymos retains the sole and exclusive discretion to provide new functionality as an Update to the existing Licensed Software or as separate, stand-alone software (for which Onymos may charge additional fees).

 

  1. SERVICES

3.1 Service Management. Each Party shall maintain within its organization a service manager to serve as such Party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the provision of Services under this Agreement. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such Party under this Agreement. Each Party shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. Each Party’s service manager shall be identified in the applicable Order Form and may be updated by written notice to the other Party.

3.2 Customer Assistance. Customer shall provide Onymos with all information, cooperation, and assistance reasonably requested by Onymos in connection with the performance of the Services. Customer also shall provide Onymos with access to Customer’s facilities, Customer Data, equipment, software, systems, and all other materials necessary or appropriate for Onymos to provide the Services. Customer is solely responsible for obtaining any licenses or other rights to any third party software used by Customer in connection with any Licensed Materials or Services or to any other third party technology necessary to enable Onymos to perform the Services. Customer acknowledges that Onymos’s ability to perform the Services or other obligations in this Agreement will depend upon Customer’s compliance with this Section.

3.3 Maintenance and Support Services. Onymos shall provide Maintenance and Support Services during the Maintenance Term in accordance with Schedule 1 and the other terms of this Agreement. Onymos only provides Maintenance and Support Services related to the Licensed Materials and App Hosting Services. Onymos does not provide any Maintenance and Support Services for any software application or other products or services of Customer or any third Person.

3.4 App Hosting. If specified in an applicable Order Form, Onymos shall provide App Hosting Services described in such Order Form in accordance with the terms of Schedule 2 and the other terms of this Agreement.

3.5 Other Services. If specified in an applicable Order Form, Onymos shall provide Professional Services and other services described in such Order Form in accordance with the terms of this Agreement.

3.6 Change Orders. Onymos shall not be required to perform any Services that are not set forth in an Order Form and shall not be required to cease or modify any Services unless expressly agreed upon in an Order Form.

 

  1. RESTRICTION ON USE

4.1 Security. Customer shall, and shall ensure that all Users, take all steps necessary to preserve the confidentiality and security of any password or other form of authentication involved in obtaining access to any aspect of the Licensed Materials. Customer shall not: (i) transmit or share usernames or passwords to Persons other than Users; (ii) permit usernames or passwords to be cached in proxy servers and accessed by Persons who are not Users; or (iii) permit access to any aspect of the Licensed Materials or Services through a single username or password being made available to multiple Users on a network. Customer shall notify Onymos immediately if Customer becomes aware that any password or other form of authentication is lost, stolen, or improperly disclosed to any Person, or that the security or integrity of the Licensed Materials has been or may be compromised in any way. Customer shall also ensure that Customer App End Users comply with like obligations with respect to any Customer App End Users’ use of or access to any Licensed Materials or App Hosting Services.

4.2 Export Control. Customer acknowledges that the Licensed Materials and App Hosting Services are subject to export and re-export control Laws that prohibit export or diversion of certain products and technologies to certain countries or Persons. Customer shall in all respects comply with all applicable export control Laws. Customer shall not provide or allow access to the Licensed Materials or App Hosting Services to any Person (including without limitation any Customer App End Users) if there is reason to believe that such Person intends to export or re-export or otherwise use any portion of the Licensed Materials or App Hosting Services in violation of applicable export control Laws of the United States or any other jurisdiction. Without limiting the generality of the foregoing, Customer will not provide or allow access to any portion of the Licensed Materials or App Hosting Services to: (i) any Person in any U.S. embargoed countries; (ii) any Person on the U.S. Treasury Department’s list of Specially Designated Nationals; or (iii) any Person on the U.S. Department of Commerce’s Denied Persons List or Denied Entity List. Customer represents and warrants that neither Customer nor any User or Customer App End User is located in any such country or on any such list.

4.3 Government Use. Customer acknowledges that the Licensed Software, App Hosting Services, and Documentation are each “Commercial Items” as that term is defined in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable, the Licensed Software, App Hosting Services, and Documentation are licensed to U.S. Government users (i) only as Commercial Items and (2) only with those rights granted under this Agreement. Unpublished rights are reserved under the copyrights of the United States.

4.4 Customer Responsibilities. Customer is solely responsible for (i) monitoring and controlling the activity of each User and Customer App End User; (ii) ensuring User and Customer App End User compliance with this Agreement; (iii) ensuring that there is no unauthorized access to the Licensed Materials or Services; (iv) the reliability, accuracy, timeliness, quality, integrity, completeness, and legality of all Customer App Data and the means by which Customer acquires and uses Customer App Data; and (v) ensuring that any use of the Licensed Materials is in compliance with all applicable Laws. Customer shall be solely responsible and liable for the acts and omissions of each User and Customer App End User.

4.5 Restrictions. As conditions to the grant of rights hereunder, and except as expressly permitted by Onymos in writing, Customer shall not, and shall not permit any other Person to:

4.5.1 Use the Licensed Materials or Services in a manner other than as authorized by the Documentation or other written instruction of Onymos;

4.5.2 Commercially exploit any aspect of the Licensed Materials by licensing, sub-licensing, selling, re-selling, renting, leasing, lending, transferring, distributing, time sharing, or making any aspect of the Licensed Materials available to others, whether in the manner of a service bureau or otherwise, except for Customer’s development and use of Customer Apps in accordance with this Agreement;

4.5.3 Modify, adapt, translate, enhance, improve, or otherwise create derivative works based on any aspect of the Licensed Materials, except for Customer’s development and use of Customer Apps in accordance with this Agreement;

4.5.4 Bypass or breach a Disabling Device or any security device or protection used for or contained in any Licensed Materials;

4.5.5 Remove, delete, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, symbols, marks, or other notices relating to any warranties, disclaimers, intellectual property rights, or proprietary rights on or relating to any copy of any Licensed Materials;

4.5.6 Disassemble, reverse engineer, decode, or decompile any aspect of the Licensed Materials, or otherwise attempt to derive or gain access to the source code of any portion of the Licensed Materials;

4.5.7 Access all or any part of the Licensed Materials in order to build a product or service that competes with any aspect thereof or that copies the “look and feel” of or any other aspect of the Licensed Materials;

4.5.8 Send, store, or run software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs on or through any Licensed Materials;

4.5.9 Upload, post, reproduce, or distribute any information, content, software, or other material protected by copyright or any other intellectual property right (including the right of publicity and/or privacy) in connection with any Licensed Materials without first obtaining the permission of the owner of such rights; or

4.5.10 Upload, post, reproduce, or distribute any information, content, software, or other material that in any manner is prohibited by applicable Law.

4.6 No Hazardous Environments. Customer acknowledges that the Licensed Materials and any Customer Apps developed using the Licensed Materials are not intended for use in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Licensed Materials or Customer Apps could lead to personal injury or physical or property damage. Customer agrees not to make any such use of any Licensed Materials and Customer Apps.

 

  1. ORDERS AND PAYMENT 

5.1 Order Forms. From time to time Onymos and Customer may agree upon particular Licensed Materials and Services to be provided under this Agreement by executing an Order Form setting forth, among other things: the Licensed Software or other Licensed Materials to be licensed, the License Term, the License Fees payable with respect to such Licensed Software, the App Hosting Term, the fees payable with respect to such App Hosting Services, the Maintenance Term during which Maintenance and Support Services will be provided, the Maintenance Fees payable with respect to the Maintenance and Support Services, any other limitations on Customer’s use of any Licensed Materials (such as Service Allocations), any other Services associated with such Licensed Software or otherwise to be performed by Onymos, any Fees for such Services, and any other terms and conditions relating to such Licensed Materials and Services as the Parties shall mutually agree upon. Onymos may accept or reject any proposed Order Form in its sole discretion and shall have no obligation to provide any Licensed Materials or Services except as expressly provided in an Order Form.

5.2 Invoicing and Payment. Except as set forth on the applicable Order Form, any Fees shall be due and payable within thirty (30) days of the date of the applicable invoice. Except as set forth on the applicable Order Form, all one-time or recurring license Fees are payable in advance. All time and materials charges shall be payable when incurred. All payment obligations are non-cancellable and all amounts paid are non-refundable except as expressly stated herein. All Fees are quoted and invoiced in US dollars. An interest fee shall be charged on all past due invoices equal to the lower of one percent (1%) per month or the highest rate permitted by applicable Law. Customer may not withhold or setoff any Fees for any reason. Customer shall reimburse Onymos for all costs incurred by Onymos in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees.

5.3 Expenses. Unless otherwise expressly agreed in an Order Form, Customer shall be responsible for all out-of-pocket travel costs (e.g., transportation, meals, and lodging) incurred by Onymos or its personnel in connection with any Services. Customer agrees to pay on demand to, or reimburse Onymos for, any such costs.

5.4 Tax. All payments required by this Agreement are exclusive of federal, state, local, and foreign taxes, duties, tariffs, levies, and similar assessments and Customer agrees to bear and be responsible for the payment of all such applicable charges imposed on the use by Customer of any Licensed Materials or Services, excluding taxes based upon Onymos’s income.  If Customer is a tax-exempt Person, Customer shall provide a certificate of exemption upon execution of this Agreement and Onymos will not charge Customer any taxes from which it is exempt. If Customer is required to withhold any withholding taxes from amounts payable to Onymos under this Agreement, Customer shall advise Onymos of such requirement at the time of signing this Agreement, shall timely remit such withholding taxes to the appropriate taxing authority, and shall deliver to Onymos proof of each such remittance (in a form acceptable to the U.S. Internal Revenue Service so that Onymos can claim applicable U.S. federal tax credits) within sixty (60) days of such remittance. Without limiting the foregoing, unless otherwise stated in the applicable Order Form, all references to payments made in this Agreement are exclusive of any VAT charges and where such payments are to be made under this Agreement, such VAT shall be added to the amount at the rate applicable, if any, and paid in addition thereto subject to production of a valid and properly numbered VAT invoice.

 

  1. CONFIDENTIALITY

6.1 Non-Disclosure and Non-Use. Each Party agrees to hold the other Party’s Confidential Information in the strictest confidence in accordance with this clause and not to use the other Party’s Confidential Information except as necessary in order to perform its respective obligations under this Agreement. Each Party shall preserve the confidentiality of such Confidential Information with at least the same degree of care that it uses to protect its own most confidential business information, and such level of care shall be no less than reasonable. Except as expressly set forth herein, neither Party shall sell, transfer, publish, disclose, display, or otherwise make available to any third party the other Party’s Confidential Information without the prior written consent of the other Party. Each Party may only disclose the Confidential Information of the other Party to advisors, employees, or subcontractors who need to know such Confidential Information for purposes of this Agreement and who are bound by obligations of confidentiality and non-disclosure at least as protective as those set forth herein. Each Party hereby guarantees the performance of this Section 6 by any Person who obtains the Confidential Information of the other Party from such Party, except for any Person receiving Confidential Information from such Party pursuant to Section 6.2 below.

6.2 Required Disclosure. In the event of any lawful court order or other Law compelling disclosure of any Confidential Information of the other Party, or in the event disclosure of any Confidential Information is reasonably necessary for a Party to enforce or defend its rights hereunder, the Party required to make such disclosure shall provide the other Party with prompt written notice thereof prior to any such disclosure, and shall reasonably cooperate with the other Party to seek confidential or other protective treatment of such Confidential Information. If it is not possible to provide the other Party with prior notice of such disclosure, the Party required to make such disclosure shall use reasonable best efforts to obtain confidential or protective treatment of such Confidential Information. If the Party required to make such disclosure complies with this Section 6.2, then the making of such required disclosure shall not constitute a breach of this Section 6.

6.3 Disclosure Limitations. The Parties agree that they do not desire to receive any Confidential Information from the other Party that is not reasonably necessary or appropriate to the performance of this Agreement or that is not otherwise requested by the other Party. Each Party agrees to use reasonable efforts to avoid disclosures of Confidential Information to the other Party that are not reasonably necessary or appropriate to the performance of this Agreement, and which have not been requested by the other Party.

6.4 Residuals. Notwithstanding anything in this Agreement to the contrary, Onymos shall be free to use for any purpose and with no obligation to Customer any ideas, concepts, know-how, techniques, or other information of a general nature relating to Customer’s business and/or industry that is learned by any Onymos personnel in the course of providing any Services and is retained in the unaided memory of any such personnel. However, this clause shall not be deemed to grant to Onymos a license under any of Customer’s copyrights or patents.

6.5 Disclosure of Agreement. Notwithstanding anything in this Agreement to the contrary, either Party may disclose this Agreement or the terms hereof as necessary to enforce this Agreement or in confidence to actual or bona fide prospective acquirers or financing sources to the extent reasonably necessary for legitimate due diligence purposes.

6.6 Survival. Each Party’s confidentiality and non-use obligations shall remain in effect with respect to the Confidential Information of the other Party during the term of this Agreement and for a period of seven (7) years thereafter.

 

  1. INTELLECTUAL PROPERTY RIGHTS

7.1 Licensed Materials and App Hosting Services. All Licensed Materials, and all copies thereof, are licensed, not sold to Customer. Onymos hereby retains title to any and all copies of the Licensed Materials and to the App Hosting Services whether provided by Onymos or made by or on behalf of Customer. The Licensed Materials and App Hosting Services, including but not limited to any components thereof, and their structure, organization, and source code, constitute and contain valuable trade secrets of Onymos. As between Onymos and Customer, Onymos shall at all times have and retain sole and exclusive ownership of, and all right, title, and interest in and to, the Licensed Materials and App Hosting Services, including without limitation any Customizations or other derivatives or modifications thereof and all intellectual property and proprietary rights associated with any of the foregoing.

7.2 Customer Apps. As between Onymos and Customer, subject to Onymos’s rights in the Licensed Materials (including the Onymos Components), Customer shall at all times have and retain sole and exclusive ownership of, and all right, title, and interest in and to, all Customer Apps, including without limitation any derivatives or modifications thereof.

7.3 Customer App Data. As between Onymos and Customer, all Customer App Data is owned exclusively by Customer. Onymos may access or use Customer App Data when permitted by Customer to perform its obligations or exercise its rights under this Agreement (including without limitation any Services), to respond to Customer questions, or to comply with any applicable Law.

7.4 Suggestions. Customer or its Users may, at Customer’s discretion, provide to Onymos suggestions, enhancement requests, recommendations, new software ideas, or other feedback relating to any Licensed Materials, Services, or other products or services that may be offered by Onymos, including without limitation regarding any existing or potential features or functionality thereto (“Suggestions”). Customer hereby grants to Onymos a fully-paid, royalty-free, worldwide, non-exclusive, transferable, sub-licensable, irrevocable, perpetual right and license to use and incorporate into any Licensed Materials, Services, or other products or services of Onymos all such Suggestions.

7.5 Usage Data. Onymos may collect or store information and/or data on how the Licensed Materials and Services are used by Customer and its Users in order to improve the Licensed Materials and Services or other products or services, for marketing and other purposes, and to verify Customer’s compliance with the terms of this Agreement. Onymos may use and disclose such information in an anonymous and aggregated form at its discretion and without compensation to Customer, any User, or any Customer App End User.

7.6 Publicity. With the other Party’s prior consent, each Party may use and publicly disclose the name and logo of the other Party to identify such other Party accurately as a customer or software provider of the other Party, as applicable. Either Party shall be entitled, upon request, to review and approve any use of its name and logo, such approval not to be unreasonably withheld, delayed, or conditioned.

  1. INDEMNIFICATION. Customer shall indemnify, defend, and hold harmless Onymos and its officers, directors, and employees against any suit, claim, action, or demand (a Claim”) brought by a third Person arising out of or in connection with: (i) Customer’s or its Users’ use of the Licensed Materials or Services in breach of the terms of this Agreement or of applicable Law; (ii) Customer App End Users’ use of the Customer App; (iii) Customer’s negligence or willful misconduct; (iv) any infringement of third party intellectual property or proprietary rights resulting from Customer App Data or the Customer App (except to the extent resulting from the Onymos Components); and (v) Customer’s use of any Customer App Data uploaded by Customer or any Customer App End User.

 

  1. WARRANTIES

9.1 Legal Power. Each Party represents and warrants to the other that it has all necessary power and authority to enter into this Agreement and to perform its obligations hereunder.

9.2 Right to Use Customer Materials. Customer warrants that it has all necessary rights to use otherwise exploit the Customer App Data and Customer App (except for the Onymos Components) in accordance with this Agreement.

9.3 Conformance Warranty. Onymos represents and warrants to Customer that, for a period of ninety (90) days from the date of installation of the Licensed Software, the Licensed Software will perform in a manner substantially consistent with general industry standards and substantially in conformance with all material requirements set forth in the applicable Documentation, when used in accordance with the Documentation and this Agreement. In the event the Licensed Software fails to conform to the foregoing warranty, Customer must submit a request for Maintenance and Support Services as set forth in Schedule 1 and Onymos shall address such non-conformance in accordance with the terms therein. THE OBLIGATIONS OF ONYMOS AND REMEDIES OF CUSTOMER SET FORTH HEREIN SHALL BE ONYMOS’S SOLE OBLIGATION AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY NON-CONFORMANCE WITH THE FOREGOING WARRANTY, NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREUNDER.

9.4 Services Warranty. Onymos represents and warrants that it will perform the Services in a workmanlike manner. Onymos represents and warrants that the App Hosting Services will perform in a manner substantially consistent with general industry standards and substantially in conformance with all material requirements set forth in the applicable Documentation, when used in accordance with the Documentation and this Agreement. In the event the App Hosting Service fails to conform to the foregoing warranty, Customer must submit a request for Maintenance and Support Services as set forth in Schedule 1 and Onymos shall address such non-conformance in accordance with the terms therein. ONYMOS’S SOLE OBLIGATION AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY NON-CONFORMANCE WITH THE FOREGOING WARRANTY WILL BE FOR ONYMOS TO RE-PERFORM SUCH NON-COMPLIANT SERVICES IN A CONFORMING MANNER IN ACCORDANCE WITH SCHEDULE 1, NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREUNDER.

9.5 No Malicious Code. Onymos warrants that it shall use commercially reasonable efforts applicable to Onymos’s industry to deliver Licensed Software and Services free of computer viruses, worms, Trojan horses, time bombs, time locks, trap door devices or any other similar materially harmful, malicious, or hidden procedures, routines, or mechanisms (“Malicious Code”). For the avoidance of doubt, Disabling Devices are not Malicious Code. If Onymos is found to have breached this warranty, Onymos’s sole obligation, and Customer’s sole and exclusive remedy, will be for Onymos to deliver a replacement for the Licensed Software or Services that, as of the date of delivery, has been processed by a detection program for Malicious Code chosen by Onymos in its reasonable discretion, and that is free of Malicious Code detectable by such program. The foregoing warranty does not include, and Onymos shall not be liable for, any Malicious Code (i) uploaded or sent by Customer or any User in connection with or through the Licensed Software or Services; (ii) contained within any Customer App Data; (iii) contained within any Customer App (other than in the Onymos Components); or (iv) otherwise originating with Customer or any User.

9.6 Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the warranties set forth in Sections 9.3-9.5 will not apply to matters arising out of relating to:

9.6.1 Any Licensed Materials or Services that are modified or damaged by Customer or any of its representatives;

9.6.2 Any operation or use of any Licensed Materials or Services other than as specified in the Documentation, including without limitation any incorporation in, combination of, operation of, or use of the Licensed Software or Services in or with any other technology or service not expressly approved in the Documentation;

9.6.3 Customer’s or any third party’s negligence, abuse, or misuse of any Licensed Materials or Services;

9.6.4 Customer’s failure to promptly install any Updates that Onymos has made available to Customer;

9.6.5 Customer’s failure to acquire or maintain the Deployment Prerequisites necessary for the Licensed Software or Services;

9.6.6 Any Third Party Materials;

9.6.7 The operation of, or access to Customer’s or a third party’s system or network;

9.6.8 Any beta, testing, temporary, or demonstration version of any Licensed Materials or Services;

9.6.9 Customer’s breach of any provision of this Agreement; or

9.6.10 Any other circumstances or causes outside of the reasonable control of Onymos.

9.7 Disclaimers.

9.7.1 THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 9 ARE THE COMPLETE AND EXCLUSIVE WARRANTIES OF ONYMOS RELATED TO THE LICENSED MATERIALS, THE SERVICES, AND THIS AGREEMENT. EXCEPT AS PROVIDED IN THIS SECTION 9, THE LICENSED MATERIALS AND SERVICES ARE PROVIDED “AS-IS”. ONYMOS MAKES NO, AND HEREBY DISCLAIMS ALL, OTHER REPRESENTATIONS, WARRANTIES, OR GUARANTEES, WHETHER EXPRESS, STATUTORY, OR IMPLIED, INCLUDING WITH RESPECT TO ANY LICENSED MATERIALS OR SERVICES, THEIR RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, OR ACCURACY, THIS AGREEMENT, OR ANY OTHER PRODUCT OR SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, SECURITY, OR QUIET ENJOYMENT. WITHOUT LIMITING THE FOREGOING, ONYMOS MAKES NO WARRANTY OF ANY KIND THAT ANY LICENSED MATERIALS OR SERVICES WILL MEET CUSTOMER’S, USERS’, OR ANY CUSTOMER APP END USERS’ REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE OR HARDWARE, OR BE ERROR-FREE. ONYMOS DISCLAIMS ALL EQUITABLE INDEMNITIES. WITHOUT LIMITING THE FOREGOING, ONYMOS MAKES NO, AND HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH RESPECT TO ANY THIRD PARTY MATERIALS OR ANY CUSTOMER APP.

9.7.2 CUSTOMER ACKNOWLEDGES AND AGREES THAT ONYMOS IS NOT RESPONSIBLE FOR THE ACCURACY, TIMELINESS, OR COMPLETENESS OF ANY CUSTOMER APP DATA PROVIDED BY CUSTOMER OR ANY USERS OR OF ANY CUSTOMER APP.

 

  1. LIMITATIONS OF LIABILITY

10.1 This Section 10 sets out the entire financial liability of Onymos and its Affiliates (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to Customer in respect of: any breach of this Agreement; any use made by Customer of any Licensed Materials or Services; and any representation, statement, or tortious act or omission (including negligence) arising under or in connection with this Agreement.

10.2 Except as expressly and specifically provided in this Agreement, Customer assumes sole responsibility for results obtained from the use of any Licensed Materials or Services by Customer, from the use of any Customer App, and for conclusions drawn or decisions made from such use. Onymos shall have no liability for any damage caused by errors or omissions in any Customer App or in any Customer App Data, information, or other materials provided to Onymos by Customer in connection with any Licensed Materials or Services, or any actions taken by Onymos at Customer’s direction.

10.3 IN NO EVENT SHALL ONYMOS OR ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY LICENSED MATERIALS, OR ANY SERVICES, WHETHER IN CONTRACT, TORT, WARRANTY, OR STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER HEREUNDER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST SUCH CLAIM, NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREUNDER.

10.4 IN NO EVENT SHALL ONYMOS OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY LICENSED MATERIALS, OR ANY SERVICES, WHETHER IN CONTRACT, TORT, WARRANTY, OR STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, FOR ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST DATA, LOSS OF USE, COSTS OF COVER, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, OR WARRANTY, OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREUNDER.

10.5 Nothing in this Agreement shall be taken in any way as reducing or affecting a general duty to mitigate loss suffered by a Party.

10.6 Customer understands and agrees that the terms of this Agreement, including without limitation the Fees payable by Customer for any Licensed Materials and Services, and the terms addressing warranties, disclaimers, limitations of liability, indemnities, and remedies, fairly allocate the risks associated with this Agreement between Onymos and Customer and that the terms of this Agreement would be different if such allocation were altered.

 

  1. TERM AND TERMINATION

11.1 Term. This Agreement commences on the date of the last signature of any Order Form that references this Agreement and continues until the last of any Order Form entered under this Agreement terminates or expires. Each Order Form will set forth the License Term, App Hosting Term, and Maintenance Term applicable to such Order Form and each such License Term, App Hosting Term, and Maintenance Term shall continue until terminated or not renewed in accordance with this Agreement. Unless otherwise specified in the applicable Order Form, the License Term, App Hosting Term, and Maintenance Term shall each automatically renew for successive one (1) year terms, unless either Party gives notice to the other Party of its intention not to renew at least sixty (60) days prior to the end of the then-current License Term, App Hosting Term, or Maintenance Term (as applicable). If Onymos provides Customer with notice of new License Fees, fees for App Hosting Services, Maintenance Fees, hourly rates, or other Fees at least ninety (90) days prior to the end of the then-current License Term, App Hosting Term, or Maintenance Term (as applicable), then Customer shall be deemed to have accepted such new Fees for the renewed period. Upon any termination of this Agreement, all Order Forms in effect under this Agreement shall also terminate, together with any applicable License Term, App Hosting Term, and Maintenance Term set forth therein.

11.2 Termination for Cause. Without prejudice to any other rights and remedies to which the Parties may be entitled, either Party may terminate any Order Form and/or this Agreement for cause without liability to the other for such termination: (i) for material breach of this Agreement and/or Order Form upon thirty (30) days’ written notice to the other Party specifying such breach, provided that the breach remains uncured for that thirty (30) day period or (ii) immediately upon notice to the other Party in the event that the other Party becomes insolvent or is the subject of a petition in bankruptcy, any proceeding related to its insolvency, receivership, or liquidation that is not dismissed within ten (10) days of its commencement, or any assignment for the benefit of creditors.

11.3 Effect of Expiration or Termination of App Hosting Term. Upon expiration or termination of the App Hosting Term of any Order Form, Onymos shall no longer have any obligation to provide App Hosting Services for the applicable Customer App.

11.4 Effect of Expiration or Termination of Maintenance Term. Upon expiration or termination of the Maintenance Term of any Order Form, Onymos shall no longer have any obligation to provide Maintenance and Support Services for the applicable Licensed Software.

11.5 Effect of Expiration or Termination of License Term. Upon expiration or termination of this Agreement or of the License Term of any Order Form for any reason:

11.5.1 The applicable Maintenance Term and all applicable App Hosting Terms for the Licensed Software shall immediately terminate;

11.5.2 All Services covered by, and all licenses granted under, such Order Form or this Agreement, as applicable, shall immediately terminate;

11.5.3 Customer shall cease use of the Licensed Materials and Services, delete all copies of the Licensed Materials to Onymos, and send Onymos upon request a written declaration signed by an officer of the Customer certifying compliance with this paragraph;

11.5.4 Except if Customer terminates an Order Form or this Agreement for cause per Section 11.2 above, all Fees that are or ever would be payable to Onymos under such Order Form or this Agreement for the remainder of the Licensed Term and Maintenance Term shall be accelerated and shall become immediately due and payable by Customer;

11.5.5 The accrued rights of the Parties at expiration or termination, or the continuation after expiration or termination with respect to Sections 1, 5.2, 5.3, 6, 7, 8, 9.7, 10, 11.3, 11.5, 12, 13, and 14, and any other provision expressly stated to survive termination, shall survive and shall not be affected or prejudiced; and

11.5.6 If Customer terminates an Order Form or this Agreement for cause per Section 11.2 above, Customer shall be entitled to a refund of the portion of any pre-paid Fees paid to Onymos under such Order Form or this Agreement, as applicable, for the time period following the effective date of such termination.

 

  1. AUDIT

12.1 Audit Procedure. Onymos or its designee may, upon request, inspect and audit Customer’s use of the Licensed Materials and Services under this Agreement at any time during the License Term of this Agreement and for five (5) years following the termination or expiration of this Agreement. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by Onymos with respect to such audit.

12.2 Cost and Results of Audit. If the audit determines that Customer’s use of any Licensed Materials or Services exceeded the usage permitted by this Agreement, Customer shall pay to Onymos all amounts due for such excess use, plus interest on such amounts as calculated pursuant to Section 5.2 for past due invoices. If the audit determines that such excess use equals or exceeds three percent (3%) of Customer’s permitted level of use, Customer shall also pay to Onymos all costs incurred by Onymos in conducting the audit. Customer shall make all payments required under this Section 12 within fifteen (15) days of the date of written notification of the audit results.

 

  1. DISPUTE RESOLUTION

13.1 Governing Law. This Agreement and all relations, disputes, claims, and other matters arising hereunder (including non-contractual disputes or claims) shall be governed exclusively by, and construed exclusively in accordance with, the Laws of the State of California, without regard to its conflicts of laws provisions, as well as applicable United States Federal Law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Parties further agree that the Uniform Computer Information Transactions Act or any version thereof adopted by any state in any form (“UCITA”) shall not apply to this Agreement and, if nevertheless UCITA is deemed to apply to this Agreement for any reason, the Parties hereby opt out of the applicability of UCITA pursuant to the opt-out provisions contained therein.

13.2 Arbitration. Except as set forth in Section 13.3 below, any dispute arising out of or relating to this Agreement shall be decided by confidential, binding arbitration to be administered by JAMS or its successor organization (“JAMS”) in accordance with JAMS’ then-current Comprehensive Arbitration Rules and Procedures for commercial contracts (except to the extent such rules are inconsistent with the terms hereof). The Parties agree that the arbitration shall take place in the City of San Francisco, California and shall be conducted in English before a single neutral arbitrator. The Parties shall mutually agree on an arbitrator, provided that if the Parties cannot agree on an arbitrator within ten (10) days, each Party will submit to JAMS a list of no more than three (3) potential arbitrators nominated by that Party and JAMS will choose a single arbitrator from among the potential arbitrators identified in such lists. In rendering the award, the arbitrator shall apply the governing Law set forth above, except where that Law conflicts with this clause and except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. The arbitrator shall be empowered to award the prevailing Party any remedy available at Law or in equity not specifically precluded by this Agreement, including without limitation injunctive or declaratory relief. The award entered or decision made by the arbitrator shall be final and non-appealable, and judgment may be entered upon it in accordance with applicable Law in any court having jurisdiction thereof. The Parties agree that the existence, conduct, and content of any arbitration hereunder shall be confidential and shall not be disclosed by either Party except on the same bases as the terms of this Agreement may be disclosed as provided in Section 6 above. In addition, either Party also may disclose an arbitration award to a court in order to secure confirmation or enforcement of an arbitration award.

13.3 Injunctive Relief. Customer acknowledges that its material breach of this Agreement will result in immediate and irreparable damage to Onymos, and that money damages alone will be inadequate to compensate Onymos. Therefore, in the event of a material breach or threatened material breach of any provision of this Agreement by Customer, Onymos may, in addition to all other remedies available to Onymos at Law or in equity, obtain preliminary or permanent injunctive relief prohibiting such breach or compelling specific performance, in any court of competent jurisdiction, notwithstanding Section 13.2.

13.4 Jurisdiction and Venue. Onymos and Customer each hereby submit to the personal jurisdiction of the state courts sitting in San Francisco County, California and the United States District Court for the Northern District of California (and the applicable state and federal appellate courts) in any suit or proceeding arising out of or relating to this Agreement and permitted by this Section 13, and hereby waive any objection to such courts on any basis (other than violation of this Section 13), including without limitation improper venue or inconvenience of the forum.

13.5 Attorney’s Fees. In the event a Party prevails in an arbitration or suit against the other Party for the enforcement or breach of this Agreement or any arbitration award, such Party shall be entitled to recover its reasonable attorneys’ and experts’ fees and costs incurred in the proceeding.

13.6 Remedies Cumulative. Except as expressly set forth in Section 13.2 above, the remedies set forth in this Agreement are cumulative and are not in lieu of any other remedies available at Law or in equity.

 

  1. GENERAL PROVISIONS

14.1 Assignment. Customer may not assign or otherwise transfer any Licensed Materials or any of Customer’s rights or obligations hereunder, whether by operation of Law or otherwise, without the prior written consent of Onymos, which consent shall not be unreasonably withheld (it being understood that Onymos may reasonably reassess applicable fees based on such transfer as a condition of providing its consent). For purposes of this paragraph, a change of control of Customer shall be deemed a transfer. Onymos may assign this Agreement without Customer’s consent. Any attempted assignment in breach of this Section shall be void and shall be grounds for immediate termination of this Agreement upon notice by Onymos. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns.

14.2 Entire Agreement. This Agreement, together with the Schedules hereto and any Order Form(s) executed hereunder, constitutes the entire agreement between the Parties regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous oral or written agreements, representations, and negotiations. In the event of any conflict between the terms of this Agreement and any Schedules or Order Form, such Schedules or Order Form shall govern with respect to the matters to which such Schedules or Order Form pertain. Customer agrees that any terms and conditions in any purchase order submitted by Customer to Onymos are for Customer’s own internal purposes and are superseded and replaced by the terms and conditions of this Agreement, and such purchase order terms and conditions shall have no force or effect. Any modification of this Agreement must be in writing and signed by an authorized representative of Onymos and Customer.

14.3 Non-Solicitation. Beginning as of the date that an Order Form is first signed by the Parties and for one year after the termination or expiration of this Agreement, Customer shall not, without Onymos’s prior written consent, solicit any employee or contractor of Onymos, either directly or indirectly, for the purpose of hiring such employee or contractor or causing such employee or contractor to terminate his or her employment or other relationship with Onymos.

14.4 Third Party Rights. This Agreement does not confer any rights to any Customer App End User or any Person other than Customer to enforce the terms of this Agreement against Onymos.

14.5 Force Majeure. Neither Party will be held responsible for any delay or failure in performance of any aspect of this Agreement (except any obligation to pay monies when due) to the extent that such performance violates, or in the reasonable opinion of such Party would violate, any applicable Law or the extent such delay or failure otherwise is caused by any Force Majeure.

14.6 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, its invalidity shall not affect the other provisions of this Agreement that can be given effect without the invalid provision.  If any provision of this Agreement does not comply with any applicable Law, such provision, to the extent possible, shall be interpreted in such a manner so as to comply with such Law, or, if such interpretation is not possible, it shall be struck and the Agreement construed in accordance with the remaining provisions of the Agreement.

14.7 Notices. Except as otherwise provided herein, all notices, including notices of contact information change, required or permitted to be sent hereunder shall be in writing and shall be deemed to have been give upon: (i) personal delivery; (ii) the third business day after mailing by certified or registered mail, postage prepaid, return receipt requested; (iii) on the first business day occurring on or after delivery by any nationally recognized overnight delivery service, such as Federal Express; (iv) the first business day occurring on or after sending by facsimile with confirmation of transmission by the sending machine; or (v) the first business day occurring on or after sending by email; provided that facsimile and e-mail delivery shall not be sufficient for notices of termination or an indemnifiable Claim. Notices shall be sent to the Parties at the addresses listed in the Order Form or using such other contact information as may be provided by a Party to the other by notice as provided herein.

14.8 Relationship. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, fiduciary, or agency relationship between the Parties. Neither Party shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of the other Party.

14.9 Waiver. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by any applicable Law.

 

Schedule 1

MAINTENANCE AND SUPPORT SERVICES

Technical Support

Onymos shall provide Maintenance and Support Services to Customer: (a) applicable to Customer’s routine operation of the Licensed Software during the Maintenance Term and (b) applicable to Customer’s routine operation of the App Hosting Services for a Customer App during the applicable App Hosting Term. Maintenance and Support Services shall only pertain to the routine operation of the Licensed Software and App Hosting Services, and shall not include services related to the deployment of the Licensed Software or App Hosting Services, Customizations, or other non-routine matters.

For Gold Level support, Onymos may be contacted via email for support during Onymos’s regular business hours, Monday to Friday 9:00 am to 6:00 pm Pacific Standard Time Zone, other than holidays or periods of downtime for which Onymos has notified Customer in advance.

For Platinum Level support, Onymos may be contacted via email or phone 24 hours a day, 7 days a week, other than holidays or periods of downtime for which Onymos has notified Customer in advance.

This support includes efforts to identify Defects and to provide corrections, workarounds, and/or patches to correct program errors. For Priority 1 or 2 problems (as defined below), Customer shall notify Onymos that Customer believes the failure is a Priority 1 or Priority 2 problem, but Customer’s characterization shall not be binding on Onymos. Customer shall coordinate its communications with Onymos regarding Maintenance and Support Services through the technical liaison identified in the applicable Order Form, and Onymos shall only be obligated to communicate with such technical liaison. Such liaison will have sufficient training and/or experience for Customer to perform its obligations hereunder.

For purposes of this Schedule, Defects or other problems will be categorized as follows:

Priority 1 (Emergency) – A critical problem with the Licensed Software or App Hosting Services resulting in a complete loss of function.

Priority 2 (Aggravation) – The Licensed Software or App Hosting Services are minimally functional, but its functions are more difficult to access or are substantially impaired or delayed.

Priority 3 (Annoyance) – Any problem with the Licensed Software or App Hosting Services that is not a Priority 1 or 2 item. Some non-critical features are not working as Onymos intended but there may be workarounds.

Priority 4 (Wish List) – The Licensed Software or App Hosting Services is working, but Customer may have suggestions to make it better. These suggestions will be logged in Onymos’s call tracking system and reviewed in Onymos’s development meetings. These items may or may not be included in future releases of the Licensed Software or App Hosting Services.

Response Goals

Onymos shall use commercially reasonable efforts to acknowledge receipt of Customer’s report of a Defect delivered to Onymos as provided above on the following timeframes during Onymos’s normal business hours.

 

 

GoldPlatinum
PRIORITY 1Within 2 hoursWithin 1 hour
PRIORITY 2Within 4 hoursWithin 2 hours
PRIORITY 3Within 8 hoursWithin 4 hours

Schedule 2

APP HOSTING SERVICES

Customer and Onymos acknowledge that App Hosting Services, if specified in an applicable Order Form, shall be subject to the terms of the Agreement and the following additional terms:

 

  1. SERVICES

1.1 Access and Use. During an applicable App Hosting Term, conditioned upon Customer’s compliance with the terms and conditions of the Agreement, and subject to the restrictions and exclusions contained in the Agreement, Onymos hereby grants to Customer a non-exclusive, non-transferable right to access and use the App Hosting Services, solely to allow Customer App End Users to use Customer Apps within the license grant set forth in the Agreement and in accordance with the applicable Service Allocations. The total number of Customer App End Users for a Customer App may not exceed the number specified in the applicable Order Form for such Customer App.

1.2 Operation and Use. Onymos has and will retain sole control over the provision, maintenance, management, and support of the App Hosting Services. Customer agrees to use the App Hosting Services in accordance with applicable Law and the Documentation. Customer acknowledges that it shall be responsible for maintaining the Deployment Prerequisites necessary to use the App Hosting Services.

1.3 Updates. Updates to the App Hosting Services, if any, will be provided to Customer at Onymos’s sole discretion. Onymos reserves the right to determine how and when to develop and apply any Updates to the App Hosting Services. Onymos retains the sole and exclusive discretion to provide new functionality as an Update to the existing App Hosting Services or as separate, stand-alone software (for which Onymos may charge additional fees).

 

  1. USE RESTRICTIONS. As conditions to the grant of rights hereunder, and except as expressly permitted by Onymos in writing, Customer shall not, and shall not permit any User, Customer App End User, or other Person to:

2.1 Commercially exploit any aspect of the App Hosting Services by licensing, sub-licensing, selling, re-selling, renting, leasing, lending, transferring, distributing, time sharing, or making any aspect of the App Hosting Services available to others, whether in the manner of a service bureau or otherwise, except for Customer’s development and use of Customer Apps in accordance with this Agreement;

2.2 Copy, modify, adapt, translate, enhance, improve, or otherwise create derivative works based on any aspect of the App Hosting Services;

2.3 Bypass or breach a Disabling Device or any security device or protection used for or contained in the App Hosting Services;

2.4 Remove, delete, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, symbols, marks, or other notices relating to any warranties, disclaimers, intellectual property rights, or proprietary rights on or relating to the App Hosting Services;

2.5 Disassemble, reverse engineer, decode, or decompile any aspect of the App Hosting Services, or otherwise attempt to derive or gain access to the source code of any portion of the App Hosting Services;

2.6 Access all or any part of the App Hosting Services in order to build a product or service that competes with any aspect thereof or that copies the “look and feel” of or any other aspect of the App Hosting Services;

2.7 Send, store, or run software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs on or through the App Hosting Services;

2.8 Upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (including the right of publicity and/or privacy) in connection with the App Hosting Service without first obtaining the permission of the owner of such rights;

2.9 Upload, post, reproduce, or distribute any information, content, software, or other material that in a manner that is prohibited by applicable Law;

2.10 Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the operation of any Licensed Software or App Hosting Services, or Onymos’s provision of products or services to any third party.

2.11 Use the App Hosting Services in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the App Hosting Services could lead to personal injury or physical or property damage.

 

  1. SUSPENSION OF SERVICES. Onymos may, directly or indirectly, by use of a Disabling Device or other lawful means, suspend, terminate, or otherwise deny Customer’s, any Users’, or any Customer App End Users’ access to or use of all or any part of the App Hosting Services, without incurring any resulting obligation or liability, if: (a) Customer’s right to access and use the App Hosting Services has ceased in accordance with the Agreement; (b) Onymos receives a judicial or other governmental demand or order, subpoena, or law enforcement request that in Onymos’s sole discretion requires Onymos to do so; or (c) Onymos believes, in its sole discretion, that Customer, any User, or any Customer App End User: (i) has failed to comply with any applicable term of the Agreement or the applicable EULA; (ii) has accessed or used the App Hosting Services beyond the scope of the rights granted or for an unauthorized purpose, or in any manner that does not comply with any instruction or requirement in the Documentation; or (iii) is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities. This Section does not limit any of Onymos’s other rights or remedies, whether at Law, in equity, or under the Agreement.

 

  1. FEES AND SERVICE ALLOCATIONS. As of the date of the Order Form, Customer shall pay Onymos the Fees applicable to the Service Allocation specified in the applicable Order Form. Onymos will use commercially reasonable efforts to notify Customer if Customer has reached 80% of its then-current Service Allocation and Customer may increase its Service Allocation and corresponding Fee obligations by entering into an amendment to the applicable Work Order. If Customer exceeds its allowed Service Allocation for any relevant period, Customer shall pay to Onymos the applicable Fees for such excess usage above its current Service Allocation. Customer acknowledges that exceeding its then-current Service Allocation: (a) may result in service degradation for Customer and (b) Onymos has no obligation to permit Customer to exceed its then-current Service Allocation.

 

5. HOSTING. Onymos shall contract with a hosting vendor such as Amazon AWS, Google Firebase, Microsoft Azure, or other vendor of national standing to provide the App Hosting with an availability target of 99.95%, excluding any routine maintenance and downtime. Onymos shall have no responsibility or liability for such hosting vendor’s failure to meet the availability target.