This agreement (“Agreement”) is entered into on this _______ day of ________, 20__, (the “Effective Date”) between Inky Technology Corporation with offices at ______________ (“Inky”), and ______________, with offices at ______________ (“Customer”). There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in the Agreement to the exclusion of all other terms.
1.1 Subject to the terms and conditions of this Agreement, Inky will host the services described in an applicable quotation referencing this Agreement (the “Quotation”) Services and provide Customer with access to the Services on a remote basis. Customer is solely responsible for completing any implementation and onboarding steps, as necessary to allow Inky to enable the Services for Customer and activate Customer’s account. During Inky’s normal business hours, Inky will provide email-based support to Customer for implementing and using the Services. Customer shall be entitled to receive (as part of the Services) any enhancements, modifications, fixes and/or improvements to the Services that Inky makes available without charge to its customers generally.
1.2 Customer is responsible for establishing unique account credentials for any users who will have access to any administrative functions of the Services, and for removing account credentials for any administrative users if Customer wishes to suspend or terminate their access to administrative functions. Customer will be solely responsible for all activity occurring under user accounts established by or for Customer.
Customer will not, and will not permit anyone else, to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services that is provided by or on behalf of Inky (collectively, “Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for any purpose other than its own internal use for the benefit of its employees, contractors and/or other Customer representatives having a Customer-issued email address (“End Users”); or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations).
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (i) to give access to such Confidential Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
Except as expressly set forth herein, Inky alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to Inky. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
Inky will obtain and process email content (including any associated meta-data) provided through the Services by or on behalf of Customer and its End Users (collectively, “Content”) only to perform its obligations under this Agreement. Customer represents and warrants that it has all right, title and interest (including, without limitation, sole ownership of) all Content provided by it and its End Users through the Services. Other than the right to process Content for purposes of providing the Services to Customer, no rights in or to any Content are granted to Inky; provided, however, that Inky shall be free to (a) retain and use anonymous, statistical data concerning Customer’s and its End Users’ use of the Services for its internal purposes and (b) disclose aggregate measures of such statistical data so long as it is combined with the data of other Inky customers such that the identity of Customer cannot reasonably be determined).
Inky shall defend Customer from any third-party claims or allegations that the Services, when used in accordance with this Agreement, infringe any patent or copyright, or misappropriate any trade secret, of such third party, provided Inky is promptly notified of any and all such claims, and given sole control over the defense and/or settlement thereof, and all reasonably requested assistance (at Inky’s expense) in connection therewith. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Inky, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Inky (other than modifications made by or on behalf of Inky), (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where the claim Customer’s use of the Services is not strictly in accordance with this Agreement and all related documentation. Inky shall pay all losses, damages, penalties, and settlement amounts (collectively, “Losses) finally awarded to such third party as a result of any such claims or allegations. Customer shall pay all Losses resulting from any claims or allegations that, if brought against Customer, would be excluded from Inky’s indemnity obligation by the preceding sentence. If Inky receives any notice or claim subject to indemnification by Customer, Inky may (but is not required to) suspend Customer’s right to access the Services, in addition to any and all other available remedies.
6.1 Customer will pay Inky the applicable fees as set forth on the Quotation (the “Fees”). If Customer’s use of the Services exceeds any use limitations set forth on the Quotation, Customer will be invoiced at the end of each calendar month for the excess usage at the rate set forth on the Quotation, and Customer agrees to pay the additional fees without any right of set-off or deduction. All payments will be made in accordance with the Payment Terms set forth in the Quotation. If not otherwise specified, payments will be due within thirty (30) days after the date of the invoice.
6.2 If this Agreement remains in effect after the first anniversary of the Start Date specified in the Quotation, Inky may adjust the Fees not more than once per calendar year, upon ninety (90) days prior written notice, at a rate not to exceed the percentage increase (if any) of the Consumer Price Index for All Urban Consumers as reported by the Bureau of Labor Statistics; provided, that any increase in the per-user subscription fee increase will not exceed 3% in any calendar year.
6.3 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on Inky’s net income) unless Customer has provided Inky with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
7.1 Subject to earlier termination as provided below, this Agreement begins on the Start Date specified in the Quotation and ends on the End Date specified in the Quotation (such period, the “Initial Term”). After the Initial Term, the Agreement shall automatically renew for one (1) year renewal terms (each, a “Renewal Term”) unless either party gives prior written notice of its intent not to renew the Agreement at least thirty (30) days before the end of the then-current Initial Term or Renewal Term, as applicable. The Initial Term and any Renewal Terms are referred to collectively as the “Term.” If no End Date is specified, or if the Quotation is for a month-to-month or open-ended subscription, either party may terminate this Agreement [with such termination to be effective not sooner than one (1) year after the Start Date] upon at least sixty (60) days’ prior written notice to the other party.
7.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
7.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
8.1 THE SERVICES AND INKY CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. INKY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
8.2 No guarantee is made that the Services eliminate all risk of loss, damage, or unauthorized access to Customer’s information systems, software and equipment, or other unwanted effects on Customer’s infrastructure or business as the result of email-based threats (whether or not detected by the Services), and Inky assumes no obligation or liability with respect to any of the foregoing. It is not possible to detect or alert End Users to all threats, and there is no guarantee that End Users will observe and take appropriate action with respect to any alerts the Services provide. Inky is not responsible for any failure by any End User to observe or comprehend any alert issued by the Services, or for any action or inaction taken by End Users is response to any such alerts. The Services are intended to be part of, and not a substitute for, Customer’s implementation of sound information security practices.
IN NO EVENT WILL INKY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INKY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF INKY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO INKY HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), 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. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Inky are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
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. This Agreement is not assignable, transferable or sub-licensable by Customer except with Inky’s prior written consent. A merger or change of control by Customer shall be deemed an assignment. Inky may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that 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. 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 Inky in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 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 facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Inky will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of Maryland, U.S.A. without regard to its conflict of laws provisions. The federal and state courts located in in the State of Maryland and having jurisdiction over Inky’s place of business will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Inky. Inky may display Customer’s name and logo on its website as part of a listing of Customer’s customers. Inky is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.
INKY Technology Corporation: