1. DEFINITIONS
1.1 “Affiliate”
means an entity controlling, controlled by, or under common control with a Party.
1.2 “Customer Data”
means Customer’s information or electronic data that Customer or any User uploads into the Services or otherwise transmits to AirBadge with respect to the Services.
1.3 “Documentation”
means the online user guides, instructions, demos, manuals and other similar documentation AirBadge provides within the Services or at www.airbadge.com, as may be updated or amended from time to time, as determined and provided by AirBadge to Customer.
1.4 “Effective Date”
means the Effective Date of the applicable Order Form.
1.5 “Order Form”
means a mutually executed AirBadge Order Form document used to purchase the access to and use of the Services during the Subscription Term (as defined herein). In the event of a conflict between the terms of this Agreement and an Order Form, the Order Form shall control.
1.6 “Services”
means the AirBadge cloud-based automation and data integrity software as a service platform (the “AirBadge Platform” or “Platform”) which is available to Customer during the subscription term based on the subscription level selected by Customer (“Subscription Term”), including without limitation all software, information, Documentation, updates, modifications, releases, versions, and enhancements to such software, features or functionality that may hereafter be generally released by AirBadge, as well as all present and future intellectual property, and other data not owned by Customer or any Creator.
1.7 “Service Data”
means data, information, material or Documentation, made available or transmitted to Customer or Users via the Services, or otherwise provided to Customer or Users by AirBadge, together with any derivative works made therefrom (but excluding any incorporated Customer Data). Service Data includes Usage Data.
1.8 “Usage Data”
means data regarding Customer’s or any User’s configuration and use of the Services.
1.9 “User” and “Users”
means either (i) employees, representatives, agents and consultants of Customer and its Affiliates, or (ii) Customer’s vendor designees and their personnel, who are authorized by Customer, up to the User Limit, to access and use the Services under this Agreement. Customer is responsible for all activities conducted under its Users’ logins to the Services. “User Limit” means the total number of Users available to Customer during the Subscription Term as identified in the applicable Order Form. All User access to the Services is subject to AirBadge’s then-current Terms of Use located at airbadge.us/terms-of-service (“TOS”).
2. SERVICES AND SUPPORT
2.1
During the Term of this Agreement, AirBadge agrees to host, maintain and support the Services and make them available to Users, pursuant to the terms of this Agreement, including the AirBadge Documentation and Support Terms located at airbadge.us/support-terms. AirBadge may update the Services during the term, however, at no time will an update materially diminish the function of the Services.
2.2
AirBadge will adopt and implement commercially reasonable data protection systems and procedures in accordance with industry standards and comply with the Data Security Policy located at airbadge.us/data-security/.
3. ACCESS TO SERVICES; RESTRICTIONS AND RESPONSIBILITIES
3.1
Subject to the terms and conditions of this Agreement, Users may access and use the Services consistent with the Documentation during the Term for Customer’s business purposes. Customer and Users may not sell, resell, license, sublicense, distribute, rent, lease or otherwise commercially exploit the Services except as expressly provided for by this Agreement. Customer and Users may not:
- decompile, disassemble, translate or reverse engineer the Services;
- interfere with the operation of the Services, circumvent its access restrictions or conduct any security or vulnerability test of the Services;
- send or store in the Services any malicious code;
- remove from the Services any language or designation indicating the confidential nature thereof or the proprietary rights, notices or labels of AirBadge or its suppliers;
- directly or indirectly use the Services for the purpose of building a competitive product, timesharing or otherwise for the benefit of a third party;
- post incomplete or inaccurate information on or through the Services;
- share or use User login with any person other than the individual User to whom the login has been assigned.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
3.2
Customer shall not exceed the User Limit as identified on the applicable Order Form unless Customer purchases additional User licenses.
3.3
Customer shall be liable for all activities conducted through any account accessible to Customer or any User, irrespective of whether such use was authorized by Customer or known to Customer.
3.4
Customer will cooperate with AirBadge and provide assistance and information reasonably necessary to implement the Services for Customer, including without limitation physical access to Customer’s premises and its information technology infrastructure.
3.5
Customer acknowledges that all Customer Data is encrypted and can only be decrypted with Customer’s decryption key. In the event that Customer loses or forgets its password key, Customer Data cannot be decrypted. AirBadge is not responsible for any losses, damages, costs, expenses, or claims that result in stolen or lost passwords.
3.6
Customer shall be responsible for obtaining and maintaining the functionality and security of any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including without limitation, modems, hardware, servers, software, operation systems, networking and web servers.
3.7
Customer shall use commercially reasonable efforts to cause Users to be, at all times, educated and trained in the proper use and operation of the Services, and to ensure that the Services are used in accordance with the Documentation.
4. EXPORT RESTRICTIONS AND DFAR
4.1
Customer may not remove or export from the United States or allow the export or re-export of the Services or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
4.2
The Services and any Documentation provided by AirBadge are deemed to be “commercial computer software” and “commercial computer software documentation: pursuant to Defense Federal Acquisition Regulation Supplement, codified under Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202, and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display, or disclosure of the Services or Documentation by the United States Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
4. LICENSES
4.1.
During the Term of this Agreement, AirBadge grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access, capture, copy, store, transmit, maintain and display the Service Data solely to the extent necessary to access the Services in accordance with this Agreement.
4.2
Customer will use reasonable efforts to maintain the security and integrity of the Services and the Service Data and will inform AirBadge of any unauthorized access to the Service Data.
4.3
Customer grants to AirBadge (i) a non-exclusive, non-sublicensable, non-transferable (except pursuant to this Agreement) license to use, access, capture, copy, store, transmit, maintain and display the Customer Data during the Term to provide the Services, and (ii) a non-exclusive, non-sublicensable, non-transferable (except pursuant to this Agreement), worldwide, fully-paid, perpetual license to use wholly anonymized and de-identified Customer Data (which is not capable of being de-anonymized or re-identified), as well as information and data derived therefrom, for any business purpose, including without limitation, to develop, improve, modify, and upgrade the Services and to create and distribute insights, reports and other materials. Upon termination or expiration of the Agreement AirBadge will destroy all copies of the Customer Data (other than anonymized and de-identified Customer Data) in accordance with AirBadge’s data retention schedule except for Customer Data contained in automatic backups or historical archives that must be retained to fulfill obligations under this Agreement for regulatory, legal or audit purposes. Customer may submit a written request for the deletion of Customer Data at any time prior to AirBadge’s scheduled data retention destruction and AirBadge will certify the same in writing to Customer. AirBadge will handle Customer Data in accordance with this Agreement and its privacy policy (airbadge.us/privacy) and will inform Customer of any third party who requests access to the Customer Data.
4.4
As between AirBadge and Customer, AirBadge will own all right, title and interest in and to the Services and Service Data, and Customer will own all right, title and interest in and to the Customer Data. This Agreement does not transfer or convey to either Party or any third party any right, title or interest in or to the Services, Service Data or Customer Data, or any associated intellectual property rights, but only the limited rights expressly set forth this Agreement. Upon termination of this Agreement, Customer will discontinue use of the Services.
5. CONFIDENTIALITY
Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of AirBadge includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information which are no less stringent than it utilized for its own Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the expiration or termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public other than through disclosure by 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 Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by any law, rule or regulation. If the Receiving Party receives a subpoena, order or other legal processes requesting disclosure of Proprietary Information of the Disclosing Party, it agrees to promptly provide the Disclosing Party notice of the request (unless prohibited by law) and cooperate with any steps the Disclosing Party elects to take in response to the request at Disclosing Party’s expense. Each Party further agrees its personnel and representatives are to be bound by confidentiality terms no less restrictive than those contained in this Agreement and that each Party be responsible for breach by its personnel and representatives. The Receiving Party acknowledges that disclosure of any Proprietary Information by it to an unauthorized third party may give rise to irreparable injury to the Disclosing Party or the owner of such information, and may not be adequately compensated by damages. Accordingly, the Disclosing Party may seek injunctive relief against the breach or threatened breach of this Section 6, in addition to any other legal remedies which may be available, without the requirement of posting bond. The Receiving Party further acknowledges and agrees that the covenants contained herein are necessary for the protection of the Disclosing Party’s legitimate business interests and are reasonable in scope and content.
6. PRIVACY
The data processing addendum (“DPA”) available at airbadge.us/dpa/ is incorporated by reference into the Agreement. Customer agrees that AirBadge may update the DPA if and when required by changes to applicable law, regulations, or regulatory guidance.
7. PAYMENT OF FEES
7.1
Customer agrees to pay all Fees for the AirBadge Services as set forth in each Order Form (“Fees”). Except as otherwise specified in this Agreement, all payment obligations are non-cancelable and Fees paid are non-refundable. Except as may otherwise be agreed upon by AirBadge, all Customers will be billed annually. All Fees will be invoiced to Customer electronically and will be due and payable as stated in the invoice or in the Payment Terms portion of each Order Form. AirBadge does not accept payment by paper check. If any undisputed amount owed by Customer is thirty (30) days or more overdue, AirBadge may, with three (3) days’ prior notice to Customer, without limiting AirBadge’s other rights and remedies, suspend Customer’s access to the Services until such amounts are paid in full. Customer may monitor its use of the Services at any time by accessing its dashboard within the Platform. AirBadge reserves the right to change the Fees or other applicable charges and to institute new charges and Fees which will not take effect until the expiration of the Initial Term or any Renewal Term, upon sixty (60) days prior notice to Customer (which may be sent by email). Customer agrees to provide AirBadge notice of any good faith invoice dispute no later than thirty (30) days after receipt, with all supporting information.
7.2
All Fees and Charges are Exclusive of Taxes. Customer agrees to be responsible for the payment of all Taxes related to the Services. To the extent AirBadge is required to collect any Taxes, AirBadge shall separately state the amount of tax due on its invoices to Customer and such invoices will include either AirBadge’s sales tax or use tax permit number. “Tax” or “Taxes” means any sales, use, value-added, excise, or similar transaction taxes or duties, together with any penalties, fines, charges or interest thereon, imposed by any domestic or foreign taxing authority on or with respect to the sale of any services or materials in connection with the performance of this Agreement. For the avoidance of doubt, each Party agrees to be responsible for its own income, unemployment, social security, and other payroll or wage taxes.
8. TERM AND TERMINATION
8.1 Agreement Term.
Subject to earlier termination as provided in Section 8.2 below, this Agreement is effective as of the Effective Date and ends on the date of termination or expiration of the final Subscription Term.
8.2 Termination for Breach.
Either Party may terminate this Agreement where the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice. In the event Customer terminates this Agreement pursuant to this Section 8.2, Customer will pay all Fees and charges incurred prior to the date of termination, provided that, AirBadge will refund Customer a pro-rata portion of any prepaid Fees for the remainder of the applicable Term after the effective date of such termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9. WARRANTIES AND DISCLAIMER
9.1 Mutual Warranties.
Each Party represents and warrants that:
- it is a business entity duly organized and validly existing under the laws of the jurisdiction in which it is organized;
- the individual signing below it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and obligate Customer to perform its obligations hereunder;
- this Agreement is legally binding upon it and enforceable in accordance with its terms;
- it shall comply with all applicable laws in connection with its performance hereunder (including laws relating to personal and health information and privacy); and
- the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
9.2 Customer Warranties.
Customer warrants and represents that it owns or has obtained all licenses, consents and approvals necessary for the provision of all Customer Data and use of Customer Data in connection with the Services.
9.3 AirBadge Warranties.
(I) Conformity with Documentation:
AirBadge warrants that the Services will perform substantially in accordance with the applicable Documentation when used in accordance with this Agreement for the Subscription Term. Non-substantial variations of performance from the published specifications or other Documentation do not establish a warranty right. This limited warranty is void if failure of the Services has resulted from installation, deployment, use, maintenance, or support not in accordance with this Agreement or the Documentation, modification by Customer, a User, or a third party not authorized by AirBadge, force majeure, or any breach of this Agreement by Customer or a User. In the event of a Services warranty claim, Customer’s sole and exclusive remedy and AirBadge’s entire obligation and liability shall be, at AirBadge’s sole option, to either (i) provide a correction, update or upgrade of the Services, (ii) correct or replace the Services, or (iii) refund Customer a pro-rated amount of the applicable Fees pre-paid by Customer covering the whole months that would have remained, absent such early termination, in the Subscription Term following the effective date of such early termination and terminate this Agreement. All warranty claims must be made to AirBadge in writing within such warranty period.
(II) Malicious Code:
AirBadge warrants that the Services are regularly tested for all known software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm (“Malicious Code”). As of the Effective Date, the Services do not contain Malicious Code.
9.4 Disclaimer.
EXCEPT TO THE EXTENT SET FORTH IN SECTION 10.3, THE SERVICES AND SUPPORT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, AIRBADGE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. AIRBADGE MAKES NO WARRANTY THAT THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
10. LIMITATION OF LIABILITY
Except for (i) a Party’s indemnity obligations under Section 12 (Indemnification), or gross negligence, willful misconduct, or fraud, and (ii) Customer’s obligations to pay Fees,
- EACH PARTY’S LIABILITY FOR ALL CLAIMS OR LOSSES ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY CUSTOMER TO AIRBADGE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT); and
- IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS, AND/OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. INDEMNIFICATION
11.1 AirBadge Indemnification.
AirBadge shall defend Customer and its Affiliates against any Claim that the Services infringe any valid patent, trademark, copyright or other intellectual property rights of a third party (the “Infringing IP”) and shall release, indemnify and hold harmless Customer and its Affiliates for and from all resulting Losses. Regarding any Infringing IP Claim, AirBadge shall, at AirBadge’s option after consulting with Customer (in each case, without any cost or expense to Customer), either: (i) procure the right for Customer to continue to use the Infringing IP; (ii) modify or replace the Infringing IP so that it is no longer infringing, provided however that such modification or replacement shall not degrade the functionality, operation or performance of the Services; or (iii) if subsections (i) and (ii) are deemed commercially unreasonable by AirBadge in its sole discretion, Customer shall have the option to terminate this Agreement and receive a pro rata refund of pre-paid Fees. This Section 12.1 shall not apply to the extent that the Infringing IP arises from (x) Customer’s modification of the Infringing IP or use thereof in a manner not contemplated by this Agreement, (y) the failure of Customer to use any reasonable corrections or modifications to Infringing IP made available by AirBadge (provided use of such corrections or modifications does not materially degrade the Service, or (z) the use of Infringing IP in combination with any product or data not provided by AirBadge.
11.2 Indemnification Procedure.
The Indemnified Party shall promptly give the Indemnitor notice of any Claim or Loss asserted by a third party for which the Indemnified Party seeks indemnity under this Section 13 (each a “Third Party Claim”). The Indemnitor shall have reasonable control over the defense and settlement of Third Party Claims; provided however, that the Indemnitor shall not enter into any Claim settlement requiring payment of money or other affirmative act (or inaction) by the Indemnified Party without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
12. MISCELLANEOUS
12.1 Publicity.
AirBadge may use in advertising, publicity or marketing communications the name and logo of Customer. AirBadge agrees that any such use shall be subject to AirBadge complying with any written guidelines that Customer may deliver to AirBadge regarding the use of its name or logo. Customer may revoke the foregoing use right at any time upon written notice to AirBadge.
12.2 Successors and Assigns; No Third-Party Beneficiaries.
This Agreement is legally binding upon and inures to the benefit of the Parties and their permitted successors and assigns. There are no third-party beneficiaries under or intended to benefit from, nor may any third party seek to enforce, any of the terms of this Agreement.
12.3 Relationship of the Parties.
AirBadge is furnishing the Services as an independent contractor. Nothing contained in this Agreement shall be deemed to create an association, partnership, joint venture, or relationship of principal and agent or master and servant between the Parties, or to grant either Party the right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against, in the name of, or on behalf of, the other Party.
12.4 Complete Agreement.
This Agreement constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the Parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. In entering into this Agreement, neither Party has relied upon any statement, representation, warranty, or agreement by or from the other Party except for those expressly contained in this Agreement.
12.5 Modification.
The terms of this Agreement may not be modified or amended other than by a writing executed by both Parties by their duly authorized representatives.
12.6 Counterparts.
This Agreement may be executed in one or more counterparts, each of which is deemed an original and all of which, taken together, constitutes a single enforceable agreement.
12.7 Notice.
All notices required or permitted to be given by one Party to the other under this Agreement shall be sufficient if in writing and sent by: (a) hand delivery, (b) certified mail, return receipt requested, (c) overnight carrier to the Parties at the addresses set forth below, or (d) electronic mail, or to such other address as the Party to receive the notice has designated by notice to the other Party. Notices to AirBadge shall be sent to:
Notices to Customer shall be sent to the email address set forth on the applicable Order Form, during Customer’s registration for the Services or to an updated email address provided by Customer for notice purposes, unless a mailing address was otherwise previously specified in writing by Customer for notice purposes.
[Insert Customer
12.8 Insurance.
AirBadge agrees to have in force for the Term the following policies of insurance issued by insurers with an A.M. Best Rating of A- VII or better: (i) General Liability with per occurrence and aggregate limits of at least $1 million / $2 million; (ii) Workers’ Compensation insurance at least to the applicable statutory limits; (iii) Errors & Omissions insurance with per occurrence and aggregate limits at least $1 million / $2 million; (iv) Technology Professional Liability/Cyberliability insurance with per occurrence and aggregate limits of at least $1 million / $5 million.
12.9 Governing Law; Jurisdiction; Venue.
This Agreement is governed by the laws of the State of Texas, without regard to its principles of choice of law. A Party must bring and maintain any action arising out of this Agreement exclusively in any state or federal court located in Austin, Texas. Each of Customer and AirBadge hereby expressly and irrevocably submits to the personal jurisdiction of such courts for the purposes of any such action. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to the Parties’ rights or obligations under this Agreement.
12.10 Assignment.
No Party may assign any of its rights under this Agreement or delegate its performance under this Agreement without the prior written consent of the other Party; except that either may assign its rights and delegate its performance under this Agreement to: (i) any entity that acquires all or substantially all of its assets; (ii) any Affiliate that controls, is controlled by, or is under common control with the Party; and (iii) any successor in a merger, acquisition, or reorganization, including any judicial reorganization; provided that, in each instance, all Fees owed and due have been paid and the assignee agrees to be bound by all the terms of this Agreement.
12.11 Savings Clause; Waiver.
If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force if the essential terms and conditions of this Agreement for each Party remain valid, binding and enforceable. Any delay by a Party in exercising its rights hereunder shall not constitute a waiver of its rights or its entitlement to enforce any provision of this Agreement.
12.12 Force Majeure.
In the event that either Party is unable to perform any of its obligations under this Agreement as a result of natural disasters, actions or decrees of governmental bodies, communication line failures not the fault of the affected Party, civil disturbances, extreme weather conditions, war, invasions, military or usurped power, sabotage, epidemics or pandemics, fires or other casualty, acts of God, or any other delay or failure which arises from causes beyond a Party’s reasonable control (hereafter referred to as a “Force Majeure Event”), the Party whose performance has been so affected shall immediately give notice to the other Party and shall do everything reasonably possible to resume performance. Upon receipt of such notice, those obligations that cannot be performed through commercially reasonable diligence shall be suspended. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice terminate this Agreement.
12.13 Remedies.
Unless otherwise specified in this Agreement, each Party’s rights and remedies (including but not limited to termination) are cumulative and not exclusive, are in addition to any other rights and remedies provided at law, in equity, or under this Agreement, and may be pursued separately or concurrently as such Party determines. Termination of this Agreement will not relieve any party from any liability for any obligation or breach of this Agreement occurring prior to termination.