THIS SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) IS AN AGREEMENT BETWEEN YOU (“CUSTOMER”) AND ERWIN, INC. (“ERWIN”) AND SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH ERWIN AGREES TO GRANT CUSTOMER THE RIGHT TO ACCESS AND USE CERTAIN HOSTED SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR PLACING AN ORDER (AS DEFINED IN SECTION 1 BELOW) THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “CUSTOMER,” “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE.
1. CONSTRUCTION. Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, and Customer’s Order. For the purpose of this Agreement, an “Order” means an order for one or more erwin services placed by Customer and accepted by Erwin or an authorized Erwin reseller. The Order may be a physical purchase order, or may be a form that you click through electronically.
2. SOFTWARE AS A SERVICE.
2.1 Access. Commencing on the Effective Date of this Agreement, erwin shall make available to Customer the unique instance of the erwin software identified in the Order for use by the number of Authorized Users specified in the Order (the “Service”) under the terms of this Agreement.
2.2 Rights to the Service. Subject to the terms and conditions of this Agreement, erwin hereby grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access the Service and permit the number of individual users specified in the Order to use the Service solely for Customer’s own internal business purposes (“Authorized Users”). Unless otherwise specified, the term “quantity” as used in the Order refers to the number of Authorized Users that are permitted to access the associated product or service. erwin will use commercially reasonable efforts to provide the Service is compliance with the erwin Service Level Agreement which is available for review at http://www.erwin.com/sla.
2.3 Updates. At no charge to Customer, erwin shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement.
2.4 Restrictions and Conditions. Customer shall not, directly, indirectly or through its Authorized Users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any erwin technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with the erwin online products and services; (f) circumvent or disable any security features or functionality associated with Service; or (g) use the Service in any manner prohibited by law.
2.5 Reservation of Rights. All rights not expressly granted to Customer are reserved by erwin, its suppliers and licensors.
2.6 Return of Hosted Data. If requested by Customer within thirty (30) days of the expiration or termination of this Agreement, erwin shall make available to Customer all Customer data stored within the Service at the time of expiration or termination. Thirty (30) days after termination, erwin shall have no further obligation to Customer and may, at its option, permanently delete or destroy the Service and all information and materials contained therein.
2.7 Delivery of Service and Materials. The Service, and any updates or maintenance releases thereof, shall be made available only on a hosted basis, and will not be delivered in object code or physical media to Customer. The Service, and any deliverables provided under this Agreement will be delivered only through an electronic transfer.
2.8 Security Policy. erwin agrees to maintain during the term of this Agreement, data security policies and procedures that are compliant with the ISO 27001 standard for data security (or a generally accepted successor standard as may replace the ISO 27001 standard). erwin will on an annual basis have its security practices audited and certified as ISO 27001 (or a generally accepted successor standard) compliant. Upon request, erwin will provide Customer with a copy of its most recent ISO 27001 audit summary report. Customer will treat this information as confidential, and will not disclose it to any third parties or use it for any purpose other than the evaluation of erwin’s performance under this Agreement.
In line with AWS policy (see links below), erwin retains control of which Region(s) are used to store and process content entered into our SaaS environments. This allows erwin environments to be established in specific geographic locations where needed. Our environments are designed to use availability zones within the same Region (data centre cluster), where possible, for backup and data storage purposes. erwin will not move customer content across regions, except as legally required.
Common Privacy and Data Protection Considerations of our service provider can be found: https://d0.awsstatic.com/whitepapers/compliance/Using_AWS_in_the_context_of_Common_Privacy_and_Data_Protection_Considerations.pdf
Cloud infrastructure is built around Regions and Availability Zones. The following is a list of the current Availability Zones within geographic Regions around the world: https://aws.amazon.com/about-aws/global-infrastructure/
3. SERVICES. Additional support services, including custom configuration, consulting, report development, training and system integration, may be separately purchased from erwin under the terms of an addendum to this Agreement. For clarity, erwin has no obligation to support Customer’s own technology, internal infrastructure, provide free training, or provide consulting on customer created content such as views, reports, and configurations or third party technologies and services unless agreed to in writing via an approved sales agreement and or statement of work.
4. CUSTOMER OBLIGATIONS.
4.1 Fees. In consideration of the rights granted herein, Customer shall pay Erwin or its authorized reseller the amounts specified in Customer’s Order for the Service (“Fees”) for the number of Authorized Users permitted to access the Service. erwin reserves (among other rights and remedies) the right to suspend access to the Service in the event that Customer does not pay Erwin or its authorized reseller for the Service.
4.2 Compliance with Laws. The erwin software and Service are of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights. Notwithstanding anything to the contrary in this Agreement or any other agreement between the parties, Customer will not upload any data or information that is subject to government regulation, including without limitation, protected health information regulated under the Health Insurance Portability and Accountability Act of 1996 or sensitive financial information regulated under the Gramm-Leach-Bliley Act of 1999.
5. TERM AND TERMINATION.
5.1 Term. Unless otherwise specified in the Order, the initial term of this Agreement will begin on the Effective Date and shall continue thereafter until the End Date specified in the Order (the “Initial Term”), and shall thereafter automatically renew for additional periods of one (1) year unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the current term (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”). If no End Date is specified in the Order, the End Date will be one year from the Effective Date of this Agreement.
5.2 Termination. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof.
5.3 Effect of Termination. Upon expiration or termination for any reason, Customer shall discontinue all use of the Service.
6.1 Customer. Customer shall indemnify and hold erwin, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 2 or 4 of this Agreement. In the event erwin is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney’s fees.
6.2 erwin. erwin shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out a third party claim that the Service infringes or misappropriates any U.S. patents issued as of the Effective Date or any copyright or trade secret of any third party during the term of this Agreement. erwin shall have no indemnification obligation, and Customer shall indemnify erwin pursuant to this Agreement, for claims of infringement arising from the combination of Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Service or any erwin software not expressly authorized herein.
6.3 Process. A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.
7. WARRANTY/ LIABILITY/ TOTAL LIABILITY.
Mutual Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
7.1 Disclaimer. THE SERVICE AND ANY ERWIN TRAINING, INSTRUCTION AND SUPPORT OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, “SERVICES”) ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ERWIN, ITS SUPPLIERS AND ITS LICENSORS.
7.2 CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. ERWIN IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND ERWIN’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY ERWIN.
7.3 Limitation. CUSTOMER’S EXCLUSIVE REMEDY AND ERWIN’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, UP TO THE AGGREGATE AMOUNTS PAID BY CUSTOMER AND RECEIVED BY ERWIN HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. CUSTOMER HEREBY RELEASES ERWIN, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT ERWIN’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
7.4 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL ERWIN BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
7.5 Interpretation. The limitations in sections 7.3 and 7.4 are independent of each other. The limitation of damages set forth in section 7.3 shall survive any failure of essential purpose of the limited remedy in section 7.4.
8. NOTICES AND REQUESTS. Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement. In the event Customer desires to increase the number of Authorized Users permitted to use the Service during the Term, Customer may purchase such rights via telephone, facsimile or e-mail. An e-mail or other writing from erwin confirming such order shall be deemed sufficient to modify the quantity of Authorized Users set forth in the Order. All additional access licenses purchased by Customer during the Term shall be subject to the terms of this Agreement. For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase and all other changes to this Agreement shall be governed by terms of Section 9, below.
9. ADDITIONAL TERMS. With the exception of additional Authorized Users obtained by Customer under Section 8, erwin shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by erwin and counter-signed by its authorized agent. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.
10. GENERAL. This Agreement shall be governed by Florida law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Tampa, Florida. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of erwin to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this “General” section shall survive termination of this Agreement. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect. This Agreement comprises the entire agreement between Customer and erwin and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.