"Customer" refers to the entity that has ordered software as a service from BenTek, Inc. (“BenTek”) or through an authorized distributor (sublicensor) by executing the ordering document that accompanies and incorporates this BenTek software as a service agreement (collectively, the “Agreement”). Software as a service consists of system administration, system management, and system monitoring activities that BenTek performs for BenTek Programs, and includes the right to use the BenTek Programs, support services for such BenTek Programs, as well as any other services provided by BenTek, including professional services as defined in the Ordering Document (collectively, the “Services”). The term “User Documentation” refers to the program user manual as well as any other materials provided by BenTek as part of the Services. The term “BenTek Programs” refers to the software products owned or distributed by BenTek to which BenTek grants Customer access as part of the Services, including program documentation, and any program updates provided as part of the Services. The term “Users” shall mean those individuals authorized by Customer or on Customer's behalf to use the Services, as defined in the ordering document. The term “Customer Data” refers to the data provided by Customer that resides in Customer's services environment. The term “Ordering Document” refers to the ordering document signed by the parties that accompanies and incorporates this Software as a Service agreement, including the Services policies and any other document referenced or incorporated into the ordering document.
This Software as a Service Agreement incorporates the terms of the Ordering Document, which this agreement accompanies.
Upon BenTek’s acceptance of Customer's order and for the duration of the Services Term defined in the Ordering Document, Customer has the non-exclusive, non-transferable, royalty free, worldwide limited right to use the Services solely for Customer's internal business operations and subject to the terms of the Agreement. Customer may allow Customer's users to use the Services for this purpose and Customer is responsible for Customer's users’ compliance with the Agreement. The Services are provided as described in, and subject to, the Services policies referenced in the Ordering Document. Customer acknowledges that BenTek has no delivery obligation and will not ship copies of the BenTek Programs to Customer as part of the Services. Customer agrees that Customer does not acquire under the Agreement any license to use the BenTek Programs specified in the ordering document in excess of the scope and/or duration of the subscription term to Services. Upon the end of the Agreement or the Services thereunder, Customer's right to access or use the BenTek Programs specified in the Ordering Document and the Services shall terminate.
Customer retains all ownership and intellectual property rights in and to Customer Data. BenTek or its licensors retain all ownership and intellectual property rights to the Services and BenTek Programs. BenTek retains all ownership and intellectual property rights to anything developed and delivered under the Agreement.
BenTek warrants that the services will perform in all material respects in accordance with the User Documentation and Services policies referenced in the Ordering Document. If the Services provided to Customer for any given month during the Services Term were not performed as warranted, Customer must provide written notice to BenTek as specified in the Ordering Document no later than five business days after the last day of that particular month or within such other period stated in the Ordering Document.
BENTEK DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT BENTEK WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT BENTEK DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BENTEK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. FOR ANY BREACH OF THE ABOVE WARRANTIES, BENTEK WILL REMIT A SERVICES FEE CREDIT TO CUSTOMER CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO BENTEK, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT CUSTOMER'S EXCLUSIVE REMEDY, AND BENTEK’S SOLE AND ENTIRE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
If a third party makes a claim against either Customer or BenTek (“Recipient” which may refer to Customer or BenTek depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either Customer or BenTek (“Provider” which may refer to Customer or BenTek depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may terminate the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material (or in Customer's case if an entity has paid fees on Customer's behalf, then such fees will be refunded to such entity). If such return materially affects BenTek’s ability to meet its obligations under the relevant order, then BenTek may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to Customer within or from the Service (e.g., a third party Web page accessed via a hyperlink). BenTek will not indemnify Customer to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by BenTek. BenTek will not indemnify Customer for infringement if Customer is in breach of section 4(a), 4(b), or for infringement caused by Customer's actions against any third party if the services as delivered to Customer and used in accordance with the terms of the agreement would not otherwise infringe any third party intellectual property rights. BenTek will not indemnify Customer for any infringement claim that is based on: (1) a patent that Customer was made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) Customer's actions prior to the effective date of the agreement. This section provides the Recipient's sole and exclusive remedy and Provider's entire liability for any infringement claims or damages.
Support services provided under the agreement are specified in the services policies referenced in the Ordering Document.
Services provided under this Software as a Service Agreement shall be provided for the period defined in the Ordering Document unless earlier terminated in accordance with the Agreement. The term of the services and any renewal years are collectively defined as the “Services Term.” At the end of the Services Term, all rights to access or use the Services, including the BenTek Programs listed in the ordering document, shall end. If either of us breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable ordering document under which the breach occurred. The non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. Customer agree that if Customer are in default under the agreement, (or in the event that a third party is responsible for payment of fees and such party has not paid us the fees then due and owing) Customer may not use the Services ordered. In addition, BenTek may immediately suspend Customer's password, account, and access to or use of the Services (i) if Customer (or a third party who is obligated to pay) fails to pay BenTek as required under the Agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if Customer violates any provision within sections 3, 4, 13, or 17 of this Software as a Service Agreement. BenTek may terminate the Services hereunder if any of the foregoing is not cured within 30 days after BenTek’s initial notice thereof. Any suspension by BenTek of the services under this paragraph shall not excuse Customer (or the third party obligor) from Customer's obligation to make payment(s) under the Agreement. At Customer's request, and for a period of up to 60 days after the termination of the applicable ordering document, BenTek may permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in the Services environment. Customer agrees and acknowledges that BenTek has no obligation to retain Customer Data and that Customer Data may be irretrievably deleted after 60 days following the termination of the Ordering Document. Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others, which by their nature are intended to survive.
Unless a third party has separately contracted with BenTek to pay for the Services on Customer's behalf and BenTek has confirmed such arrangement with Customer in writing, Customer agrees to pay for all Services ordered as set forth in the applicable ordering document. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. Unless a third party has separately contracted with BenTek to pay for the Services on Customer's behalf and BenTek has confirmed such arrangement with Customer in writing Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law that BenTek must pay based on the Services Customer ordered, except for taxes based on BenTek’s income. Customer will reimburse BenTek for reasonable expenses related to providing any on-site portion of the Services. Fees for services listed in an ordering document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. Customer agrees that Customer has not relied on the future availability of any services, programs or updates in entering into the payment obligations in the ordering document; however, the preceding does not relieve BenTek of its obligation to deliver Services that Customer has ordered per the terms of the Agreement.
By virtue of the agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under the Agreement. Confidential information shall be limited to the terms and pricing under the Agreement, Customer Data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure. A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. We each agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. Nothing shall prevent either party from disclosing the terms or pricing under the Agreement in any legal proceeding arising from or in connection with the Agreement or from disclosing the Confidential Information to a governmental entity as required by law.
Customer agrees that the Agreement (including the information which is incorporated into the Agreement by written reference (including reference to information contained in an Ordering Document, a URL or referenced policy), is the complete agreement for the Services ordered by Customer, and that the Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the Agreement, including any BenTek Ordering Document, shall supersede the terms in any purchase order or other non-BenTek document and no terms included in any such purchase order or other non-BenTek document shall apply to the Services ordered. The Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of Customer and of BenTek.
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. BENTEK’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR CUSTOMER'S ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO BENTEK FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN CUSTOMER'S FAVOR AGAINST BENTEK SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY CUSTOMER (OR THE THIRD PARTY WHO MADE SUCH PAYMENTS ON CUSTOMER'S BEHALF) UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the services. Customer agrees that such export control laws govern Customer's use of the Services (including technical data) and any Services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer's obligation (or a third party who is so obligated) to pay for the services.
Customer agrees not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b)involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to BenTek under the agreement, BenTek reserves the right to remove or disable access to any material that violates the foregoing restrictions. BenTek shall have no liability to Customer in the event that BenTek takes such action. Customer agrees to defend and indemnify BenTek against any claim arising out of a violation of Customer's obligations under this section.
BenTek may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve Customer's BenTek service requests. The Tools will not collect, report or store any of Customer Data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing BenTek’s product and service portfolio and for license management. Customer agrees that (a) except as set forth in the following paragraph, Customer may not access or use the Tools, and (b) Customer will not use or restore the Tools from any tape backup at any time following termination of the Agreement. If BenTek provides Customer with access to or use of any Tools in connection with the Services, Customer's right to use such Tools is governed by the license terms that BenTek specifies for such tools; however, if BenTek does not specify license terms for such tools, Customer shall have a non-transferable, non-exclusive, limited right to use such Tools solely to facilitate Customer's administration and monitoring of Customer's Services environment, subject to the terms of the Agreement. Any such Tools are provided by BenTek on an “as is” basis and BenTek does not provide technical support or offer any warranties for such Tools. Customer's right to use such Tools will terminate upon the earlier of BenTek’s notice (which may be through posting on Client Information Portal or such other URL designated by BenTek), the end of the Services Term, or the date that the license to use such Tools ends under the license terms specified for such Tools.
BenTek may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer's confidential information or include Customer's name. BenTek retains all intellectual property rights in such information.
The Services may enable Customer to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. BenTek is not responsible for any third party Web sites or third party content provided on or through the Services and Customer bears all risks associated with the access and use of such Web sites and third party content, products and services.
Customer agrees (i) that BenTek may identify Customer as a recipient of Services and use Customer's logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by BenTek on www.MyBenTek.com for promotional purposes.