TAP INNOVATIONS, LLC
1. SOFTWARE AND SUPPORT
1.1 Services. Subject to all the terms of this Agreement, including Customer’s timely payment of Fees (as defined herein), TAP will make the Software available to Customer as a service, along with related support services (the “Services”). TAP may provide the Software and Services using its own infrastructure or using a third-party cloud computing services provider. TAP may, in its sole discretion, modify, enhance and/or expand the Software at no additional cost to Customer. TAP may also modify, enhance or expand the Software by providing additional features or functionality, which may, but are not required to be, added by Customer to this Agreement at additional cost. Such additional cost features and functionality may be added by mutual written agreement of the parties. Customer acknowledges that its purchase of the Services hereunder are not contingent on the delivery of any future functionality or features in any of the Software.
1.2 License Grant. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees, TAP hereby grants to Customer, during the Term of this Agreement, a limited, non-exclusive, non-sublicensable and non-transferrable license to access and use the Software in the manner provided by TAP, solely for Customer’s own internal business operations.
1.3 Availability. TAP will use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which TAP will provide at least 8 hours electronic notice and which TAP will schedule, to the extent practicable, outside of normal office hours), and (b) any unavailability caused by circumstances beyond TAP’s reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving TAP’s employees), Internet service provider failure or delay, failure or delay of service from any third party cloud computing services provider, or denial of service attack.
1.4 Support. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees (as defined herein), TAP will provide Customer with standard phone and email technical support (break-fix, questions and answers, end user permission and other general Software help) services Monday through Friday, 8-5pm CST, except major holidays (New Year’s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Eve, Christmas Day, and New Year’s Eve). TAP will provide 24/7 monitoring of Software. TAP will publish the support phone and email details to the Customer prior to Services implementation. This is subject to change from time-to-time or this may be stated, specifically in the Services Form. Additional details about TAP’s current Application support program will be provided on request. TAP has the right to change, modify or amend its Application support program at any time in its sole discretion. Additional or upgraded support services may be available for an additional fee.
1.5 Professional Services. From time to time, so long as this Agreement remains in full force and effect, TAP and Customer may, but are under no obligation to, enter one or more statements of work (each, an “SOW”) to engage set-up, implementation, consulting or other professional services (“Professional Services”) by TAP. Professional Services will only be provided pursuant to a signed SOW, which may be included as part of a Services From. Each SOW shall contain, at a minimum, the following information: (a) the scope of the Professional Services to be provided; (b) applicable fees; (c) responsibilities and dependencies of each party; (d) agreed upon work product and specific deliverables, if any; and (e) signatures of authorized representatives. TAP has no obligation to provide Professional Services without a fully-executed SOW. Each SOW, regardless of whether it relates to the same subject matter as any previously executed SOW(s), shall become effective upon execution by authorized representatives of both parties.
1.6 Change Order Procedures. Customer may request a change to the scope of Services in an SOW by submitting a written request to TAP describing the proposed change in reasonable detail (the “Change Order Request”). TAP shall prepare and submit a change order proposal (“Change Order”) that describes the proposed impact of the requested change, including, without limitation, modifications to projected schedules and estimated fees as a result of such change. Upon execution of a Change Order, the applicable SOW will be deemed amended as provided in the Change Order. No Change Order Request or Change Order shall be binding until agreed to in writing and signed by authorized representatives of each Party.
1.7 Software and Deliverables. The ownership of each Software and any Deliverables shall be as set forth in the SOW applicable to the development thereof. In the event that the ownership of Software is not set forth in an SOW, the Software shall be the exclusive property of TAP and Customer shall have only the right and license to use the Software and Deliverables for its own internal business purposes, subject to all of the terms and conditions of this Agreement.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Access to the Software is subject to usage limits that are specified in the Services Forms. Unless otherwise specified in the applicable Services Form, Software and Services are purchased as monthly user subscriptions and the Software may not be accessed by more than the number of users (each a “User”). If Customer exceeds a contractual usage limit, TAP may work with Customer to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding these efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Services Form for additional quantities of Users promptly upon request, and/or pay any invoice for excess usage in accordance with this Agreement. Additional Users may be purchased during the Term by signing an additional Services Form and paying the additional fees for such additional Users.
2.3 Customer will not, directly or indirectly, do any of the following: (a) make any Software available to, or use any Software for the benefit of, anyone other than Customer or its authorized Users; (b) sell, resell, license, sublicense, distribute, rent or lease any Software unless agreed to in writing with TAP; (c) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) interfere with or disrupt the integrity or performance of any the Software; (e) attempt to gain unauthorized access to any Software; or (f) permit direct or indirect access to or use of any Software in a way that circumvents a contractual usage limit.
2.4 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software, or any documentation or data related thereto; (b) modify, translate, or create derivative works based on the Software (except to the extent expressly permitted by TAP or authorized within the Services); (c) use any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or (d) remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, TAP hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.5 Customer may not remove or export from the United States or allow the export or re-export of Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.6 Although TAP has no obligation to monitor Customer’s use of the Software, TAP may do so and may prohibit any use of the Software it believes may be (or alleged to be) in violation of this Section 2 or any other provision in this Agreement.
2.7 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of TAP includes non-public information regarding features, functionality, and performance of the Software. Proprietary Information of Customer includes non-public data provided by Customer to TAP to enable the provision of the Software (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect the Proprietary Information of the Disclosing Party; and (ii) not to use (except in performance of the Software or as otherwise permitted herein) or divulge to any third person the Proprietary Information of the Disclosing Party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title, and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Software. TAP shall own and retain all right, title and interest in and to (a) the Software and the Services, and all improvements, enhancements or modifications thereto, (b) any software, Software, inventions or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Customer hereby grants TAP a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services and/or Software any suggestions, enhancement requests, recommendations, correction or other feedback provided by Customer, including Users, relating to the functionality and/or operation of the Services and/or Software.
3.4 Notwithstanding anything to the contrary, TAP shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and TAP shall also have the right (during and after the Term hereof) to (a) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software and other TAP offerings, and (b) disclose such data, so long as it does not otherwise disclose the Proprietary Information of Customer.
3.5 No rights or licenses are granted except as expressly set forth herein.
4. FEES AND PAYMENT FOR SOFTWARE
4.1 Customer will pay TAP the applicable fees described in the Services Form for the Software, Services and Professional Services in accordance with the terms of this Agreement (the “Fees”).
4.2 TAP will invoice Customer for Fees due under this Agreement. All invoices are due and payable within thirty (30) days following Customer’s receipt of the invoice. Unpaid amounts are subject to an interest charge of 1% per month on any outstanding balance, or the maximum permitted by law. Customer shall reimburse TAP for all expenses of collection of past due amounts.
4.3 Customer is responsible for all taxes associated with Software and Services other than U.S. taxes based on TAP’s net income
4.4 If Customer’s use of the Software exceeds any of the limitations set forth on the Services Form or otherwise requires the payment of additional Fees, Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein.
4.5 TAP reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term on the Software Services Form or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
4.6 If Customer believes that TAP has billed Customer incorrectly, Customer must contact TAP no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to TAP’s customer support department.
4.7 If any amount owing by Customer is thirty (30) or more days overdue, TAP may, without limiting its other rights and remedies, suspend the Customer’s access to the Software until such amounts are paid in full.
4.8 TAP may increase fees annually to keep up with inflation. TAP will provide Customer(s) a minimum of sixty (60) days’ notice.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Services Form, and shall be automatically renewed for additional periods renewal periods as specified in the Services Form (collectively, the “Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice (or five (5) days’ written notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Software up to and including the last day on which the Software are provided.
5.3 This Agreement may be terminated immediately by a party through written notice if the other party ceases to carry on business as a going concern, becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets.
5.4 TAP will make all Customer Data available to Customer for electronic retrieval within thirty (30) days following the date of termination of this Agreement. TAP will notify Customer when Customer Data is available for electronic retrieval, and Customer shall have at least thirty (30) days following such notice to retrieve its Customer Data; thereafter, TAP may, but is not obligated to, delete stored Customer Data.
5.5 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. TAP WARRANTIES; DISCLAIMER
6.1 TAP shall use reasonable efforts consistent with prevailing industry standards to maintain the Software in a manner which minimizes errors and interruptions in the Software and shall perform the Professional Services in a professional and workmanlike manner. Software may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by TAP or by third-party providers, or because of other causes beyond TAP’s reasonable control, but TAP shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, TAP DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE.
6.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SOFTWARE, SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND TAP DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 Mutual Indemnity. Each party (“Indemnifying Party”) shall indemnify and defend the other party and its officers, directors, shareholders, members, managers, employees, agents and affiliates (each, an “Indemnified Party”) against any claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or omissions of the Indemnifying Party, its employees or agents, while performing its obligations pursuant to this Agreement, which result in death, personal injury or property damage; provided that (a) the Indemnified Party gives the Indemnifying Party prompt notification in writing of any such claim and reasonable assistance, at the Indemnifying Party’s expense, in the defense of such claim; and (b) the Indemnifying Party has the sole authority to defend or settle such claim as long as such settlement shall not impose a financial obligation on, or include an admission of liability by, the Indemnified Party.
8. LIMITATION OF LIABILITY
8.1 TAP AND ITS LICENSORS AND SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR SPECIAL DAMAGES; (B) LOSS OF BUSINESS BY CUSTOMER, ERROR OR INTERRUPTION OF USE OF THE SOFTWARE OR SERVICES, LOSS OR INACCURACY OR CORRUPTION OF CUSTOMER DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR (C) ANY MATTER BEYOND TAP’S REASONABLE CONTROL; IN EACH CASE, WHETHER OR NOT TAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 TAP AND ITS LICENSORS AND SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR OTHER LIABILITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT THAT EXCEED, IN THE AGGREGATE (WHEN TAKEN TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS) THE FEES PAID BY CUSTOMER TO TAP FOR THE SOFTWARE AND SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE EVENT OR ACT THAT GAVE RISE TO THE LIABILITY.
8.3 The limitations on liability in this Section 8 do not apply: (a) to claims based on personal injury or death; (b) in the event of gross negligence on the part of TAP or its licensors or suppliers; or (c) if prohibited by applicable law.
9.1 To the extent a Customer Services Order or similar document contains terms and conditions that are different from or inconsistent with this Agreement, such terms are hereby rejected, and this Agreement shall control over any such different or inconsistent terms.
9.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.3 This Agreement is not assignable, transferable or sublicensable by Customer except with TAP’s prior written consent. TAP may transfer and assign any of its rights and obligations under this Agreement without consent.
9.4 Non-solicitation of Personnel. With respect to each SOW, during the term of the SOW and for a period of one (1) year following completion of the Services under such SOW, neither Party shall, either directly or indirectly, solicit or hire any employees or independent contractors from the other Party that participated in the activities and Services that are or were the subject of the SOW, without the prior written consent of the other Party. This provision does not prohibit either Party from making general solicitations of employment using public job postings or other general publication of employment opportunities using such media newspapers, trade publications or the Internet.
9.5 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.7 This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of law’s provisions. The United Nations Conventions on Contracts for the International Sale of Goods shall not apply to this Agreement.
9.8 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
9.9 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind TAP in any respect whatsoever.
9.10 Relationship. TAP is an independent contractor; nothing in this MSA shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability on behalf of, or to otherwise bind, the other Party.
9.11 Subcontractors. TAP may use subcontractors or independent contractors to perform any portion of the work to be performed under this MSA or any SOW. TAP will supervise and be responsible for any work performed by or acts or omissions of a subcontractor.
9.12 Force Majeure. Neither Party shall be liable or deemed to be in default for any delay or failure in performance under this MSA for interruption of services resulting directly or indirectly from acts of God, civil or military authority, war, riots, civil disturbances, accidents, fire, earthquakes, floods, strikes, lock-outs, labor disturbances, foreign or governmental order, or any other cause beyond the reasonable control of such Party.