Terms of Service and Subscription Agreement
Last Updated: January 1, 2023
These Terms of Service and Subscription Agreement (the “Agreement”) and the Order constitute a binding, written agreement by and between WorkWave LLC, doing business as Team Software or its affiliate listed as the contracting party on your Order (“TEAM”) and you, the individual or entity who is accessing or using TEAM’s Services, Hardware, or Software (“Client”) (each a “Party” and collectively the “Parties”).
By entering into an Order (defined below), by clicking “I Accept” or “I Agree” on any electronic version of this Agreement, by otherwise accessing or using any of TEAM’s Services, Hardware or Software (as each term is defined below), or by accessing a TEAM website, Client agrees to be bound by the terms and conditions set forth in this Agreement. If you are an individual entering into this Agreement on behalf of any company, organization or other entity, then you as the individual represent and warrant that you have the authority to bind such entity to the terms and conditions of this Agreement and, in which case, the term “Client” shall refer to such entity. If you, as the individual, do not have such authority, or if Client does not otherwise agree to the terms and conditions of this Agreement, then Client is prohibited from using any of TEAM’s Services, Hardware or Software. This Agreement includes and incorporates any initial or subsequent service order, order form, schedule, exhibit, scope of work, or invoice and regardless of whether it was submitted in written or electronic form (each, an “Order”).
TEAM may amend and update the terms and conditions of this Agreement at any time either by providing notice to Client or by posting them on a TEAM-designated website, currently located at https://teamsoftware.com/legal/. Any such updated terms and conditions shall be deemed effective and binding on Client as of the new effective date specified in the amended Agreement, or the first date on which Client enters an Order that references those updated terms and conditions, whichever is sooner.
In consideration of the mutual agreements set forth in this Agreement, the Parties agree as follows:
(a) “Affiliate” means, with respect to TEAM, any entity, including without limitation, corporation, company, partnership, limited liability company or group, that directly, or indirectly through one or more intermediaries, is controlled by or is under common control with TEAM. For purposes of this definition, the terms “controlled by” and “under common control with” means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise. All references to TEAM throughout this Agreement are deemed to include WorkWave LLC or the TEAM Affiliate providing the relevant Services, Hardware or Software as applicable.
(b) “Client Data” means any information or data that is transmitted, created, collected, stored, processed or otherwise made available by or to TEAM via the Software or Subscription Services.
(c) “Documentation” means any online guides or policies provided or made available to Client in connection with the Subscription Services, Hardware or Software, as the same may be updated by TEAM, in its sole discretion, from time to time.
(d) “Hardware” means third-party hardware, equipment or other product(s) which is sold or leased by TEAM to Client as specified in the Order.
(e) “PEPA” means for billing purposes “per employee per annum” and as may be further specified on an applicable Order or SOW.
(f) “PEPM” means for billing purposes “per employee per month” and as may be further specified on an applicable Order or SOW, and with PEPM measurements for active Client employees conducted by TEAM not less than twice per calendar year.
(g) “Professional Services” means the training, consulting, technical support or other professional services TEAM provides to Client, as specified on an Order or SOW.
(h) “Software” means the object code version of the TEAM software program that TEAM’s licenses to Client, either as a stand-alone executable program or as pre-installed in the Hardware, as specified in the Order.
(i) “Subscription Services” means TEAM’s software as a service accessed via the internet
(j) “Services” means the Professional Services and Subscription Services.
(k) “Third Party Services” means services or applications provided by a third party which TEAM may make available to Client as part of the Services or Software.
(l) “Term” means, with respect to the Subscription Services and Software, the subscription term indicated on the Order as well as any renewal terms designated therein; with respect rented Hardware, the rental period indicated on the Order; and, with respect to Professional Services, means the terms specified in the applicable Scope of Work (SOW).
(m) “Termination” means, i) termination of this Agreement as provided under Section 8, ii) expiration of all applicable Orders, or iii) acceptance by TEAM of a partial termination of an Order. In the event of a partial termination of an Order, Client will request in writing and identify the specific Subscription Services, Software, or rented Hardware that it is requesting TEAM to partially terminate, and the remaining Subscription Services, Software, or rented Hardware (if any) under this Agreement will continue in full force and effect until the termination of this Agreement.
(n) “User” means any individual authorized by Client to use the Services, Hardware or Software including any User that has been issued a login name and password to access the Services, Hardware or Software.
(a) During the Term, TEAM will make available to Client the Subscription Services set forth on the applicable Order, solely for its internal business purposes, and subject to the restrictions set forth herein and in the Documentation. Each Order will specify the applicable license term, pricing and licensing metric for Client’s use of the Services. TEAM rejects any terms, conditions or provisions contained in any purchase order, document or other communication issued to TEAM in connection with an Order that omit or are additional to or inconsistent with the terms of this Agreement or the applicable Order. Client’s purchase of a subscription to use the Services under this Agreement is not contingent upon the delivery of any future functionality or features, or dependent on any comments made by TEAM regarding future functionality or features.
(b) TEAM will use reasonable efforts to make the Subscription Services available to Client in accordance with TEAM’s current Service Level Agreement (“SLA”) found here, and which can also be made available to Client upon request.
(c) TEAM will provide the Professional Services as set forth in the applicable Order.
(d) The Parties may enter into additional Orders during the Term of this Agreement. Subject to Client’s compliance with the terms and conditions of this Agreement, TEAM hereby grants Client during the Term a right to access and use the Subscription Services for its internal business purposes through an Internet site(s) operated and hosted by TEAM.
(e) TEAM may make available to Client certain Subscription Services on an evaluation, trial or beta test basis (the “Trial Service”). Client’s use of a Trial Service will be for the term specified in the applicable Order. TEAM may discontinue a Trial Service at any time in its sole discretion. TEAM provides the Trial Service to Client “as is” and without any warranty or indemnity of any kind.
(a) License. During the Term, and in consideration of the payment of fees included in the Order, TEAM hereby grants to Client a nonexclusive and nontransferable license and right to use the Software and any related Documentation solely in accordance with this Agreement and for Client’s internal business purposes. TEAM does not sell the Software or Documentation to Client, and TEAM remains at all times the owner of the Software and Documentation. The license granted in this Section 3 shall commence upon the delivery of the Software and shall continue for the Term specified in the applicable Order. Client’s use of the Software and Documentation is further subject to any license terms which are linked to or otherwise presented to Client upon installation of the Software. Unless otherwise set forth on the applicable Order or as installed on Hardware delivered in accordance with Section 4, TEAM will deliver the Software electronically to Client in a format reasonably acceptable to the Parties. Unless otherwise specified in the relevant Order, all Software is deemed accepted by Client upon delivery to the Client.
(b) Software Support or Maintenance. In consideration of the payment of fees, sometimes referred to as annual Software license, support, or maintenance fees and specified in the Order, TEAM will use reasonable efforts to provide such Software support or maintenance services for the Software and in accordance with this Agreement.
(c) Third Party Services. When required, Third Party Services will be identified by TEAM in the applicable Order. TEAM may then make available to Client additional terms, if any, applicable to such Third Party Services. Client’s access to and use of Third Party Services is governed solely by the terms and conditions of such Third Party Services. TEAM hereby represents and warrants that it has the right to use or license such Third Party Services in conjunction with the Services or Software provided hereunder. TEAM is not responsible or liable for, makes no representations or warranties and provides no indemnification with respect to any aspect of the Third Party Services. TEAM is not liable for any damage or loss caused or alleged to be caused by or in connection with enablement, access or use of any such Third Party Services. TEAM may, upon ninety (90) days’ written notice to Client, discontinue any Third Party Services. In addition, the Subscription Services and Software may include or incorporate certain components which are licensed or made available under separate terms by the third party licensor of such components and/or under the terms of an open source software license. Any use of a third party component by Client shall be governed by, and subject to, the terms and conditions of the separate terms applicable to such third party component.
4. Hardware. This Section applies only to Orders which include Hardware.
(a) Delivery. Delivery of the Hardware will be made with shipping charges to be paid by Client. Unless specifically agreed in writing, all shipments of Hardware shall be to the same address set forth on an Order. Title and risk of loss or damage in the Hardware passes from TEAM to Client upon the tender of shipment to the applicable carrier at TEAM’ shipping facility (but title in any rented Hardware will not pass to the Client). Client shall pay all shipping charges, insurance, duties and taxes required. TEAM may allocate production and deliveries of the Hardware in its sole and reasonable discretion. Shipping dates are approximate only. TEAM shall not be liable for any damage, loss, or expense incurred by Client if TEAM fails to meet a specified shipping date. Notwithstanding anything herein to the contrary, Client does not by virtue of this Section 4 (or any Order) acquire any right, title or interest in or to any pre-installed or embedded Software in the Hardware, other than the right to use such pre-installed or embedded Software solely in the normal operation of the Hardware and in accordance with any license terms for such Software.
(b) Security Interest. If applicable, and to secure its obligations to make any and all payments required under this Agreement, Client hereby grants to TEAM a security interest, which may be a purchase money security interest, in the Hardware. TEAM may do such things as are necessary to achieve the purposes of this Section 4(b) including, without limitation, any notice filing under the Uniform Commercial Code (U.S.) (or other applicable law) in the appropriate jurisdiction(s). Client agrees to execute and deliver any additional documents or instruments that TEAM may reasonably request from time to time to achieve the purposes of this Section 4(b), including to allow TEAM to perfect its security interest in the Hardware.
(c) Installation; Support Services. If the Hardware is subject to installation on a site/location, TEAM or its appointed engineers must have installed it or supervised directly its installation, for support services for the Hardware to be available. Client will ensure that the site in which the Hardware will be installed satisfies TEAM’s specifications. Client shall, at its expense, obtain all licenses, permits, permission or consents required by any landlord or any other party applicable to the installation of such Hardware. In consideration of the payment of fees included in the Order, TEAM will use reasonable efforts to provide support services for the Hardware (if applicable) and in accordance with this Agreement.
(d) Applicable Terms. All Hardware that is sold or rented to Client is also subject to the third party manufacturer’s terms and conditions. Client acknowledges that TEAM merely acquired the Hardware for Client, and that the proprietary and intellectual property rights to the Hardware may be owned by parties other than TEAM. Client also acknowledges that, except for the payment to TEAM for the Hardware, all of Client’s rights and obligations with respect thereto flow from and to such third parties. Upon reasonable request, TEAM shall provide Client with copies of all documentation and warranties applicable to Client’s use of the Hardware that are provided to TEAM and which TEAM is permitted to provide to Client.
(e) Rented Hardware. TEAM, as lessor of the rented Hardware, leases the Hardware to Client for the Term set forth in the applicable Order. In addition to the rights set forth in Section 4(b), TEAM shall have all the rights and remedies available to a secured party and lessor under this Agreement, the Uniform Commercial Code, or other applicable law. All rented Hardware shall at all times be and remain personal property regardless of how the same may be affixed to any realty or other property. TEAM shall be permitted to display notice of its ownership of the rented Hardware by affixing an identifying indicia of ownership. If Client fails to return the rented Hardware after termination or at the end of the rental period, or the rented Hardware is returned to TEAM in a damaged state (ordinary wear and tear excluded), then TEAM reserves the right to invoice Client for the total purchase price of such Hardware at the prevailing rate.
5. Use Restrictions and Acceptable Use. Client’s access and use of the Services and Software is subject to the following use rights and restrictions:
(a) Use Restrictions. Client, in connection with its use of the Services and Software, shall: (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Software, including keeping passwords and user names confidential and not permitting any third party to access or use Client passwords or accounts for the Services and Software; (ii) be solely responsible and liable for all activity conducted through its account in connection with the Services and Software, including all activity of any Users; (iii) promptly notify TEAM if Client becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Client’s (or any User’s) user name, password, or account; (iv) provide and maintain systems and materials reasonably required by TEAM to perform the Services and Software, including, as applicable, but not limited to: Client or third party software, hardware, systems, routing and network systems, addresses and configurations and key contacts for problem escalation (collectively the “Client Systems”); (v) use, or otherwise access in connection with Client’s use, the Services and Software only in accordance with applicable laws and government regulations; and (vi) comply in all respects with all applicable terms of the Third Party Services that it accesses or subscribes to, in connection with the Services.
(b) Acceptable Use. Client shall not, and shall ensure that no Users are permitted to: (i) make the Services and Software available to anyone other than its employees and Users, including as a service bureau or third-party provider of the Services and Software to third parties; (ii) to the extent the Service is provided on a per User basis, allow more than one individual User to access the Services and Software using a single user password or account; (iii) use the Services and Software to store or transmit any content, including Client Data, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (iv) upload to, or transmit from, the Services and Software any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (v) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Services and Software (including any mechanism used to restrict or control the functionality of the Services and Software), any third-party use of the Services and Software, or any third-party data contained therein; (vi) attempt to gain unauthorized access to the Services and Software, or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Services and Software; or (vii) access the Services and Software in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services or Software.
(c) Suspension. TEAM reserves the right to suspend Client’s (or any User’s) access to the Services, without incurring any liability as result of such suspension: (i) for scheduled or emergency maintenance; (ii) in the event Client is in breach of this Agreement, including failure to pay any amounts due to TEAM; (iii) in the event that Client breaches this Section 5; (iv) as it deems reasonably necessary to respond to any actual or potential security concerns; or (v) based on TEAM’s reasonable belief that Client’s or its Users’ use of the Services is violating applicable laws, rules or regulations. TEAM will provide advance written notice to Client, to the extent possible under the circumstances, of its intent to suspend Services. The suspension will continue until Client has resolved any violation to TEAM’s satisfaction.
(d) Services Monitoring; Software Verification of Use. TEAM may electronically monitor the Services for the following purposes: (i) support, including diagnostics and corrective actions; (ii) to determine applicable fees due for Client’s use of the Services; (iii) to verify Client’s compliance with applicable terms and restrictions set forth in this Agreement. If such monitoring indicates Client or its Users are not in compliance with this Agreement, or if fraudulent activity is suspected, TEAM reserves the right to take such action as it deems necessary, including, but not limited to, suspension or termination of any User’s access, the Services, or this Agreement. With respect to Software, during the applicable Term and for two (2) years after its Termination, TEAM will, upon ten (10) days’ notice, have the right to audit Client’s use of the Software to confirm compliance with this Agreement. Client will reasonably cooperate with TEAM in the performance of any such audit and will, without prejudice to any other rights of TEAM under this Agreement, (i) promptly address any non-compliance identified by the audit, and (ii) reimburse TEAM for all reasonable costs of the audit if the audit reveals underpayment of more than five (5%) percent of the user subscription Fees payable by Client for the period audited.
6. Intellectual Property.
(a) Services. As between Client and TEAM, TEAM retains all right, title, and interest in and to the Services and Software. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services and Software or any of TEAM’s rights or interests therein or any other TEAM intellectual property, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services and Software not expressly granted in this Agreement are reserved by TEAM.
(b) Client Data. Client shall retain all right, title and interest in and to, and all intellectual property rights in, the Client Data. Client hereby grants TEAM a limited, worldwide, non-exclusive license to access, use, reproduce, electronically distribute, transmit, display, store, archive and index the Client Data for the purpose of providing the Services and Software to Client and supporting Client’s use of the Services and Software. Notwithstanding anything in this Agreement to the contrary, and except where expressly prohibited by law, Client agrees that TEAM may collect and analyze data and other information relating to the provision, use and performance of the Services and Software (including, without limitation, information concerning Client Data and data derived therefrom), and TEAM may (during and after the Term hereof) (i) use such information and data to improve and enhance the Services and Software (for Client and any other client) and for other development, diagnostic, benchmarking and/or corrective purposes in connection with the Services, Software and other TEAM offerings, and/or (ii) use such data solely in aggregate or other de-identified form in connection with TEAM’s business.
(c) Responsibility for Client Data. Client is solely responsible for the Client Data that Client and its authorized Users upload, publish, display, link to, or otherwise make available via the Services and Software.
(d) Feedback. To the extent Client or any of its Users offers TEAM any feedback, comments or suggestions regarding the Services, Hardware or Software, (the “Feedback”), Client irrevocably assigns to TEAM all right, title and interest in and to the Feedback. TEAM may freely use or exploit Feedback for any lawful purpose.
7. Representations and Warranties.
(a) Mutual Representations. Each Party represents and warrants to the other that: (i) its execution and performance of this Agreement will not violate any provision of law, rule, regulation to which such Party is subject; (ii) it will comply with all laws, rules and regulations pursuant to which such Party conducts its business; (iii) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; (iv) the execution, delivery, and performance of this Agreement has been duly authorized by such Party; (v) no approval, authorization, or consent of any governmental or regulatory authority is required to be obtained by it in order for it to enter into and perform its obligations under this Agreement; and (vi) the signatory to this Agreement possesses all necessary authority to enter into this Agreement.
(b) TEAM Representations. TEAM further warrants that: (i) the Services will be performed in a professional and workmanlike manner; and (ii) the Subscription Services and Software will conform in all material respects with applicable Documentation made available by TEAM to Client in connection with the applicable Order.
(c) Client Representations. Client represents and warrants that: (i) the Client Systems and the Client Data will be in compliance with all laws, rules, and regulations; (ii) Client is solely responsible for providing to TEAM sufficient rights to use the Client Systems and Client Data; (iii) Client’s processing instructions to TEAM with respect to the Client Systems and Client Data do not violate the rights of any third party or any law, rule, or regulation; and (iv) in connection with Client’s use of the Services and Software, as well as TEAM’s provision of the Services or Software, Client has obtained all consents, authorizations, or lawful bases and taken any other steps required by applicable law to collect, store, disclose, transfer (including, transferring between two countries as provided in this Agreement and the DPA), and use any personally identifiable information included in Client Data uploaded or used in connection with Client’s use of the Services and Software in compliance with such law. Client specifically acknowledges and agrees that, except as may be required under applicable law, TEAM has not and is not expected to provide Client with any analysis, interpretation or advice regarding the compliance of any aspect of the Client Data or Client Systems with any third-party rights or laws, rules, or regulations. Upon request, Client shall provide reasonable proof of compliance with the provisions set forth in this Agreement and TEAM shall have no obligation to provide Services and Software where TEAM reasonably believes that Client has not so complied.
(d) Disclaimer. THE SERVICES, HARDWARE AND SOFTWARE ARE PROVIDED BY TEAM “AS IS.” EXCEPT WHERE SUCH DISCLAIMER IS PROHIBITED BY APPLICABLE LAW, TEAM DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM OF SATISFACTORY QUALITY, MERCHANTABILITY, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE TO DESCRIPTION OR INTELLECTUAL PROPERTY INFRINGEMENT AND TEAM HEREBY EXPRESSLY DISCLAIMS ANY OF THE FOREGOING. TEAM DOES NOT REPRESENT OR WARRANT THAT (I) THE SERVICES, HARDWARE AND SOFTWARE WILL OPERATE ERROR FREE, (II) CLIENT’S USE OF THE SERVICES, HARDWARE AND SOFTWARE WILL BE UNINTERRUPTED OR (III) ALL DEFECTS WILL BE IDENTIFIED, REPRODUCIBLE OR RESOLVED. SUCH WARRANTIES, CONDITIONS OR OTHER TERMS SHALL NOT BE ENLARGED, DIMINISHED OR OTHERWISE AFFECTED BY THE RENDERING OF ANY ADVICE OR SERVICE BY TEAM IN CONNECTION WITH THE SERVICES, HARDWARE AND SOFTWARE OR BY ANY IMPLIED WARRANTY, CONDITION OR OTHER TERM ARISING OUT OF ANY COURSE OF DEALING, BY STATUTE, OR BY PERFORMANCE, CUSTOM OR USAGE OF TRADE.
8. Term and Termination.
(a) Term. Unless otherwise specified on the applicable Order, the initial Term of each Order shall commence on the earlier of (i) Client’s first use of the Services, Hardware or Software in a live environment; or (ii) the effective date specified in the Order and will continue for a period of one (1) year. Thereafter, the Order shall renew automatically for successive one (1) year renewal Term(s) unless a Party provides the other Party with a written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term.
(b) Termination for Cause. If a Party materially breaches any provision of this Agreement or Order, and fails to remedy the breach within thirty (30) days of receipt of written notice from the non-breaching Party, the non-breaching Party may terminate this Agreement or the Order adversely affected by the breach.
(c) Termination or Suspension for Nonpayment. In addition to any other rights set forth herein, and subsequent to an initial written notice, TEAM may take any or all of the following actions any time an undisputed payment is more than fifteen (15) days overdue and remains uncured by Client: (i) terminate this Agreement or the affected Order upon fifteen (15) days’ written notice; or (ii) suspend the Services or the provision of Professional Services.
(d) Termination in the Event of Bankruptcy. Either Party may terminate this Agreement upon written notice to the other Party in the event (i) the other Party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against the other Party and the petition is not dismissed within thirty (30) calendar days; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other Party discontinues its business; (v) a receiver is appointed for the other Party or its business; or (vi) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events set out in sub-sections (i) to (v) of this Section 8(d).
(e) Survival; Effect of Termination. All provisions of this Agreement which by their nature should survive Termination shall survive Termination. The Termination of this Agreement or Order shall not relieve Client of its liability to pay any amounts due to TEAM hereunder. Upon the Termination of this Agreement or any Order, all rights and licenses granted thereunder shall likewise terminate and Client must also (i) delete or remove the Software from all computer equipment in Client’s possession and destroy or return to TEAM (at TEAM’s option) all copies of the Software and Documentation then in Client’s possession, custody or control and, in the case of destruction, certify to TEAM that Client has done so; and (ii) immediately return to TEAM any rented Hardware, in accordance with TEAM’s instructions.
9. Fees. Client agrees to pay for the Services, Hardware and Software in accordance with the rates set forth in the applicable Order. Unless otherwise specified on an Order, all Fees are payable in United States Dollars (USD). Fees for Services, Hardware and Software are exclusive of all service, sales, use, and value-added taxes, duties, levies, or other fees, if any (collectively, “Taxes”). Client is responsible for all Taxes (except for taxes on TEAM’s net income) which may be assessed or levied by any governmental authority with respect to the Services, Hardware and Software provided by TEAM to Client pursuant to this Agreement. TEAM may increase the price of the Subscription Services, Software, or rented Hardware after completion of the initial Term, but not more than once per year, by providing Client with written notice of such increase at least sixty (60) days prior to the start of the upcoming renewal Term. Any amount due to TEAM hereunder will be due and payable via electronic funds. Invoices are due upon receipt, or in accordance with the applicable payment terms on the Order. Invoices will be transmitted electronically pursuant to TEAM’s invoicing procedures. TEAM may charge Client interest on all past due sums at a rate that is the lesser of (a) of one percent (1.0%) per month; or (b) the maximum rate allowed by law. In the event part of an invoice is in dispute, Client agrees to pay the undisputed portion of the invoice and make a note on the invoice regarding the disputed portion within thirty (30) days from the date of invoice, otherwise Client will be deemed to agree to such charges and TEAM will not be subject to making adjustments to charges or invoices .
10. Confidentiality and Proprietary Information; Data Privacy and Security.
(a) Confidential Information. Each Party may disclose (the “Discloser”) confidential and proprietary information (“Confidential Information”) to the other Party (the “Recipient”). In each such case, the Recipient shall hold such Confidential Information in confidence and shall not disclose such Confidential Information except to a Party’s employees or agents who have a need to know such Confidential Information in order to perform such Party’s obligations under this Agreement. Neither Party shall have any rights in the other Party’s Confidential Information and where possible, shall return or destroy all such Confidential Information upon the Termination or expiration of this Agreement.
(i) Client’s Confidential Information shall include Client Data.
(ii) TEAM’s Confidential Information shall include the computers, systems and software operating the Service and all Documentation, development tools, phone numbers, know-how and data related thereto, and any derivative works thereof as well as physical property, analytical procedures, techniques, skills, ideas, models, research, development, trade secrets, or business affairs of TEAM or its employees, suppliers or agents.
(b) Client Data. With respect to Client Data, upon expiration or Termination of this Agreement for any reason, TEAM will return the Client Data in raw form to Client in a generally recognized format. Notwithstanding the foregoing, the Parties acknowledge that TEAM shall not be required to return to Client or destroy those copies of Confidential Information residing on TEAM’s backup, disaster recovery, or business continuity systems and the obligations hereunder with respect to such Confidential Information shall survive until such Confidential Information is destroyed.
(c) Exceptions. Notwithstanding any other term hereof, the term “Confidential Information” shall not include information that: (i) was already in the lawful possession of the Recipient prior to receipt thereof, directly or indirectly, from the Discloser; (ii) lawfully becomes available to Recipient on a non-confidential basis from a source other than Discloser that is not under an obligation to keep such information confidential; (iii) is generally available to the public other than as a result of a breach of this Agreement by Recipient or its representative(s); or (iv) is subsequently and independently developed by employees, consultants or agents of the Recipient without reference to the Confidential Information disclosed hereunder. In addition, a Party shall not be considered to have breached its obligations by disclosing Confidential Information of the other Party as required to satisfy any request of a competent governmental body provided that, promptly upon receiving any such request and to the extent that it may legally do so, such Party advises the other Party of the request prior to making such disclosure in order that the other Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
(d) Security Practices. TEAM uses industry-standard administrative, technical, physical, and other safeguards (the “Security Program”) to preserve the Client Data. A copy of TEAM’s current Security Program can be found at https://teamsoftware.com/legal/.
(a) Indemnity by Client. Client shall indemnify, defend and hold TEAM and its officers, directors, employees and agents harmless from and against any and all third party claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from: (i) the Client Systems and Client Data; (ii) Client’s gross negligence or willful misconduct; (iii) violation of applicable law or regulation; or (iv) a claim relating to any service offered by Client to third parties.
(b) Intellectual Property Indemnity by TEAM. TEAM shall indemnify, defend and hold Client harmless from any claim, suit or proceeding brought against Client to the extent it is based on a third party claim that the Services or Software supplied by TEAM infringe a copyright or a patent issued in the country of Client’s use of Services or Software as of the Effective Date of this Agreement, provided that TEAM will have no indemnity obligation or other liability hereunder to the extent arising from: (i) Client’s negligence, breach of this Agreement or alteration of the Services or Software as provided by TEAM; (ii) the Client Systems, or information, data, or material not furnished by TEAM; (iii) combination of the Services or Software with the Client Systems or any materials, products or services not provided by TEAM; or (iv) any third party products or Third Party Services. If such a claim is or is likely to be made, TEAM will, at its own expense and sole discretion, exercise one or the following remedies: (x) obtain for Client the right to continue to use the Services or Software consistent with this Agreement; (y) modify the Services or Software so they are non-infringing and in compliance with this Agreement; or (z) terminate the applicable Services or Software without liability for such termination other than the ongoing indemnity obligation hereunder. The foregoing states the entire obligations of TEAM and its suppliers and licensors, and the exclusive remedy of Client, with respect to infringement of proprietary rights.
(c) Indemnification Procedure. The Party claiming indemnification shall: (i) notify the indemnifying Party of any claim in respect of which the indemnity may apply; (ii) relinquish control of the defense of the claim to the indemnifying Party; and (iii) provide the indemnifying Party with all assistance reasonably requested in defense of the claim. The indemnifying Party shall be entitled to settle any claim without the written consent of the indemnified Party so long as such settlement only involves the payment of money by the indemnifying Party and in no way affects any rights of the indemnified Party. The indemnities set forth herein shall not apply to the negligence of the indemnified Party.
12. Limited Warranty and Limitation of Liability.
(a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, TEAM MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND TEAM EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT. TEAM EXPRESSLY DENIES ANY REPRESENTATION, WARRANTY, CONDITION OR OTHER TERM ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES, HARDWARE OR SOFTWARE OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
(b) TEAM SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR , LOST DATA OR LOST PROFITS, COST OF CAPITAL, COST OF COVER, OR SERVICE INTERRUPTIONS, FROM THE USE OF OR INABILITY TO USE THE HARDWARE, SOFTWARE OR THE SERVICES, IRRESPECTIVE OF WHETHER SUCH DAMAGES CONSTITUTE DIRECT OR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES AND REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE EXCLUSIONS SHALL APPLY EVEN IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(c) THE TOTAL LIABILITY OF TEAM FOR ANY REASON, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO TEAM BY CLIENT UNDER THE ORDER APPLICABLE TO THE EVENT GIVING RISE TO SUCH ACTION DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITS ON LIABILITY IN THIS SECTION SHALL APPLY IN ALL CASES INCLUDING IF THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT PRODUCT LIABILITY, AND EVEN IF THE PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE OR FORESEEABLE. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS SPECIFIED IN THIS SECTION 12 SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(d) Nothing in this Agreement limits any liability for: (i) death or personal injury caused by a Party’s negligence; (ii) gross negligence, willful misconduct, fraud or fraudulent misrepresentation; or (iii) any liability which cannot be excluded by applicable law.
(e) Force Majeure. Neither Party shall be liable for delays and/or defaults in its performance (other than Client’s obligation to pay undisputed fees) due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of God or of the public enemy; fire or explosion; flood; stability or availability of the Internet; telecommunication system failure; war; technology attacks; acts of terrorism; riots; embargoes; quarantine; viruses; pandemic; strikes; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing (“Force Majeure Event”). Nothing in this Section shall limit TEAM’s obligations regarding disaster recovery services provided in connection with the Services.
13. Export Compliance, Government Use, and Other Regulations.
(a) The Services and Software may be subject to the trade laws and regulations including, but not limited to the Export Administration Regulation (EAR) and the sanctions program administered by the United States Government Office of Foreign Assets Control (OFAC). Client represents and warrants that it is not owned or controlled by any person or entity on the OFAC Specially Designated Nationals List.
(b) Client shall not export, re-export or release, directly or indirectly, or otherwise use the Services and Software in or to any country or jurisdiction to which the export, re-export or release of the same (i) is prohibited by applicable law, regulation, or to any country which is the subject of an embargo, or to any individual on a Specially Designated Nationals List; and (ii) without first obtaining any licenses and permits which may be required under the applicable export laws.
(c) If applicable, and if TEAM provides the Services, Software and Documentation, and any related software and technology, for ultimate United States federal government end use solely in accordance with the following conditions: any government technical data and software rights related to the Services, Software or Documentation include only those rights customarily provided to the general public, as further specified in this Agreement. The foregoing license is provided in accordance with specific sections of the Federal Acquisition Regulation (FAR) including FAR 12.211 and FAR 12.212 and, as applicable to any transaction with the Department of Defence, the Defence Federal Acquisition Regulation Supplement (DFARS) including DFAR 252.227-7015 and DFAR 227.7202-3. To the extent any governmental agency needs rights not otherwise granted under this Agreement, it must negotiate with TEAM to allow for a determination as to whether there are terms and conditions which are acceptable for granting such requested rights and, if so, any such additional terms and conditions must be set forth in a mutually agreeable written addendum to this Agreement.
(d) TEAM and Client mutually represent and warrant to one another that each complies with those laws applicable to their respective roles in the provisioning of the Services and this Agreement in the countries in which TEAM operates including, as applicable, the United States Foreign Corrupt Practices Act, the UK Bribery Act 2010, and those laws and regulations applicable to human trafficking and slavery.
(a) Complete Agreement; Modification. This Agreement constitutes the entire agreement between the Parties concerning its subject matter and supersedes all prior agreements and understandings, both written and oral, with respect to the subject matter of this Agreement. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement. Except as expressly set forth in this Agreement, this Agreement may be amended or waived only in a writing executed by both Parties. Notwithstanding any translation of this Agreement to any language other than English, the English language version shall control the interpretation of this Agreement between the parties.
(b) Assignment. Client may not assign or otherwise transfer this Agreement without the express written permission of TEAM. Any purported assignment or transfer by Client in violation of the preceding sentence shall be void and of no effect. TEAM may assign or otherwise transfer this Agreement upon written notice to Client, except that TEAM may assign this Agreement without written notice in the event of a legal merger or re-organization with an Affiliate. Subject to the foregoing, this Agreement will inure to the benefit of, and will be binding upon, the Parties hereto and their respective successors and permitted assigns.
(c) Use of Subcontractors. Either Party may subcontract any of its obligations under this Agreement to any third party; provided, however, that Party will be responsible for the performance of any such third party subcontractor and their compliance with obligations as required under this Agreement.
(d) Equitable Relief. Unless otherwise specified in this Agreement, all rights, remedies and powers of a Party are irrevocable and cumulative, and not alternative or exclusive, and are in addition to all other rights, remedies and powers given under this Agreement or any laws now existing or subsequently enacted. Client acknowledges and agrees that if it breaches any of the licensing or confidentiality obligations under this Agreement, TEAM may suffer immediate and irreparable harm for which monetary damages alone are not a sufficient remedy, and that, in addition to any other remedies TEAM may have, TEAM is entitled to seek injunctive relief, specific performance or any other form of relief in a court of competent jurisdiction, including, but not limited to, equitable relief, to remedy the breach or threatened breach by Client and to enforce this Agreement.
(e) Severability; Waiver. If any provision of this Agreement is declared void or unenforceable, then the provision is automatically amended to the minimum extent required to make it valid, legal, enforceable and nearest to the original intent, and the other provisions remain in full force and effect. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. The waiver of a breach does not operate as a waiver of any subsequent breach.
(f) Interpretation; Captions. If an ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise for or against any Party by virtue of the authorship of any of the provisions of this Agreement. The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.
(g) Notices. All notices under this Agreement must be in writing and deemed to have been duly given (a) when delivered electronically to the email address(es) provided by TEAM or Client as the primary account contact, as updated; (b) one (1) day after delivery by receipted overnight delivery; or (c) three (3) days after being mailed by certified or registered mail, return receipt requested, with postage prepaid to the registered or publicly available address of the Party, or other address as last provided to the other Party by written notice.
(h) Use of Client Name and Marks. TEAM may use the name, logo, trademarks or trade names of Client in publicity releases, promotional material and customer references, whether written or oral, but in any such event TEAM will reasonably comply with Client’s logo usage or branding guidelines which are provided in writing to TEAM. Notwithstanding the foregoing, and upon written request from Client not to be unreasonably withheld, Client may use the name, logo, trade mark or trade names of TEAM in publicity releases, promotional material and supplier references, whether written or oral, but in any such event Client will reasonably comply with TEAM’s logo usage or branding guidelines which are provided in writing to Client.
(i) Governing Law and Venue/Jurisdiction; Prevailing Party.
(i) This Agreement is and shall be governed by, construed and enforced solely in accordance with the laws of the United States of America and of the State of Delaware, U.S.A. without regard to its conflict-of-laws provisions, and the Parties agree that in any dispute exclusive jurisdiction and venue must be in the state and federal courts in the State of Delaware, U.S.A. The Parties mutually acknowledge and agree that they will not raise, and hereby waive, any defences based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with this provision.
(ii) If the Client has a primary place of business in the European Economic Area and its member states, Switzerland or the United Kingdom, then this Agreement is and shall be governed by, construed and enforced solely in accordance with the laws of England and Wales and the Parties agree that in any dispute exclusive jurisdiction and venue must be in the courts of England and Wales.
(iii) The Parties acknowledge and agree that neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods shall apply to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover its reasonable costs and attorneys’ fees.
(j) Independent Contractor Relationship. This Agreement is not a joint venture or partnership, and each Party is entering the relationship as a principal and not as an agent of the other. The Parties hereto agree that TEAM is an independent contractor in performing its obligations under this Agreement.
(k) Third Party Rights. Except as expressly provided in this Agreement relative to TEAM’s Affiliates’ rights to enforce the terms of this Agreement against Client, there are no third party beneficiaries to this Agreement.