1. SCOPE OF AGREEMENT
1.1 Scope of Services. The Occupier platform (the “Software”) will be hosted and distributed online by Occupier and made available to You as a software as a service, which consists of an online tool that will enable You to track and manage leased locations and facilitate compliance with the terms and conditions governing them. Occupier will be responsible for configuring and hosting of the software, communications systems, network and other infrastructure necessary to host the Software. You or Your Designated Users will be responsible for providing the computer hardware or mobile devices necessary to interface with the Software or interact with the Services (as defined below). In some instances, You may desire Occupier to provide additional customization and training services on a times and materials basis to be mutually determined by the Parties and agreed upon in a written addendum to this Agreement (“Supplemental Services”). This Agreement sets forth the terms and conditions that will govern Occupier’s grant of access to the Software and the performance of the Supplemental Services as specified on the Order Form (such Software and Supplemental Services are collectively, the “Services”). All Services are subject to these Standard Terms and Conditions.
1.2 Rights to Use. Subject to the terms and conditions of this Agreement, Occupier hereby grants a non-exclusive, non-sublicensable, non-transferable, limited, revocable license to You and Your Designated Users to access and use the hosted Software.
1.3 Ownership. Nothing in this Agreement will constitute a transfer of any proprietary right by Occupier to You. The Services may be protected by patent, copyright and other intellectual property laws. Occupier, its licensors and suppliers own and retain all right, title and interest in and to the intellectual property rights in the Services and any enhancements, modifications or derivative works thereof. As between the Parties, (i) each Party retains ownership to its Confidential Information (as hereinafter defined) and (ii) Occupier exclusively owns all right, title and interest in and to the Services and any derivative works and work product conceived, originated or prepared in connection with the Services.
1.4 Third-Party Sites. The Services may link, interface and integrate with third party software applications and websites that are not operated or controlled by Occupier (“Third-Party Sites”). All such Third-Party Sites will remain the property of their third party providers. You hereby acknowledge and agree that Occupier is not responsible for the content or practices of Third-Party Sites. Any links to or content from Third-Party Sites in the Services are provided for Your convenience only. Occupier reserves the right to update or remove any content available through the Services at any time for any reason.
1.5 Reservation of Rights. All rights not specifically granted to You in this Agreement are retained by Occupier. You acknowledge the proprietary rights of Occupier and its licensors in the Services and that Occupier retains all right, title and interest in and to the Services. You further acknowledge and agree that if You suggest any new features, functionality or performance for the Services that are subsequently incorporated into the Services, they will be the sole and exclusive property of Occupier and all such suggestions will be free from any confidentiality restrictions that might otherwise be imposed upon Occupier.
1.6 Changes to Services. Occupier reserves the right at any time to alter any features, functionality, license terms and other characteristics of the Services; provided, however, that in the event that any such alterations materially limit the features or functionality of the Services, Occupier will provide You with advanced notice thereof. Any subsequent upgrade, enhancement or other change to the Services will be owned by Occupier and subject to the terms of this Agreement.
1.7 Anonymized Data Use. Occupier shall have the right to utilize data capture, syndication, analysis and other similar tools, to extract, compile, synthesize and analyze any data collected through the Services in an anonymized manner (“Anonymized Data”), and to use, reproduce, display, and otherwise exploit such Anonymized Data to provide the Services to its customers and for analysis, understanding of market terms and trends, provision of analytics and research services and other similar uses and to create and compile aggregated Anonymized Data and/or statistics that Occupier may use, reproduce, display, license and commercially exploit for its business purposes, as long as such activities could not reasonably be expected to identify You.
2. YOUR DUTIES AND RESTRICTIONS
2.1 Login and Password. You must provide Occupier with the email addresses and names for Your designated end users and administrators (collectively, the “Designated Users”), and Occupier will assign unique initial login credentials for such Designated Users in order to access the Software. The logins for the Designated Users may not be shared and will only be used by the Designated User to whom the login is initially assigned. You are solely responsible for maintaining the confidentiality of the accounts and related passwords of Your Designated Users and all use of such accounts. Each Designated User must be Your employee or consultant and under Your control. You will be solely responsible for all use of the Services under Your account, including by Your Representatives. You hereby agree that the act or omission of a current or former Representative will be deemed the same as if performed by You.
2.2 Affirmative Covenants. You will: (i) ensure Your Designated Users, officers, directors employees, contractors, representatives, agents and affiliates (collectively, “Representatives”) comply with this Agreement; (ii) take all necessary steps to prevent unauthorized access to or use of the Services, (iii) notify Occupier immediately of any such unauthorized access or use; (iv) comply with applicable federal, state, local, municipal, domestic and foreign laws, rules and regulations (“Law”); (v) use the Services in compliance with all applicable industry standards; (vi) use the Services only for Your own internal business purposes and solely in accordance with the terms of this Agreement; and (vii) use the Services solely in accordance with Occupier’s instructions.
2.3 Restrictive Covenants. You will not, and You will cause Your Representatives to not: (i) alter, change, modify, adapt, translate or make derivative works of the Services; (ii) use the Services in a manner that violates any applicable Law; (iii) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system, data or personal information; (iv) transfer, resell, license, sublicense or otherwise make the Services available to any third party, except as expressly described in this Agreement; (v) use the Services for timesharing, rental, outsourcing or a service bureau operation; (vi) attempt to gain, or assist others with attempting to gain, unauthorized access to Occupier’s network, systems or the Services; (vii) decipher, decompile, disassemble or reverse engineer the Software or assist or encourage any third party to do so; (viii) engage in any activity that violates the rights of others or that interferes with or disrupts the Services; or (ix) upload any file containing any back door, time bomb, Trojan horse, worm, virus or similar malicious code (“Malware”).
3. CONFIDENTIAL INFORMATION
3.1 Definition of Confidential Information. “Confidential Information” means all information, in whatever form, that is disclosed by a Party to the other Party, which, given the totality of the circumstances, a reasonable recipient should have reason to believe is proprietary, confidential or competitively sensitive, regardless of whether such information is labeled as confidential or not, including without limitation personally identifiable information, creative works, business activities, trade secrets, know-how, techniques, research, developments, inventions, discoveries, processes, designs, technical data and information, financial information, vendors, customers, prospects, marketing plans and any other information of a similar nature. For the avoidance of doubt, Occupier’s Confidential Information includes the Software and the architecture thereof.
3.2 Access and Use. Each Party receiving Confidential Information from the other Party will: (i) use and reproduce the Confidential Information only for the purposes specified in this Agreement, and (ii) restrict disclosure of Confidential Information to its Representatives with a need to know the Confidential Information to enable the receiving Party to perform its obligations and exercise its rights under this Agreement, provided that such Representatives are bound by confidentiality obligations at least as strict as those contained in this Section 3, but in no case less than reasonable care. Additionally, to the extent that any Party’s Confidential Information includes personally identifiable information, the other Party agrees to use such personally identifiable information solely in accordance with applicable Law and in compliance with such other Party’s policies governing the dissemination and use of such personally identifiable information.
3.3 Exclusions. Except as expressly provided herein, nothing in this Agreement will be construed to restrict or impair in any way the right of a receiving Party to disclose any information which: (i) is at the time of its disclosure hereunder generally available to the public; (ii) becomes generally available to the public through no fault of the receiving Party; (iii) can be reasonably demonstrated to be in the possession of a receiving Party prior to its initial disclosure hereunder; or (iv) is acquired from a third party having a right to disclose the same to a receiving Party without breach of any confidentiality obligation. Notwithstanding the foregoing, the exclusions from the confidentiality obligations provided in this Section 3.3 will not apply to personally identifiable information. A receiving Party may disclose Confidential Information (including personally identifiable information) in accordance with a legally binding judicial or other governmental order, provided that, to the extent permitted by applicable Law, such Party provides the disclosing Party with prompt notice of the same and cooperates with the disclosing Party with any actions taken by the disclosing Party to protect such Confidential Information, including without limitation the seeking of an appropriate protective order or other remedy.
4.1 Payments. You will timely pay the fees set forth on the Order Form attached hereto in United States dollars. Unless otherwise specified on the Order Form, all fees will be due and payable in advance within thirty (30) days of the date of Your receipt of Occupier’s invoice. All payments not made when due will be subject to late charges equal to the lesser of: (i) one and one-half percent (1.5%) per month of the overdue amount, or (ii) the maximum amount permitted under applicable Law. You will reimburse Occupier for all fees and expenses, including reasonable attorneys’ fees, incurred to collect amounts owed by You.
4.2 Taxes. You will be responsible for paying all sales, use and excise taxes that may be due relating to this Agreement and the Services provided hereunder, except for taxes relating to the net income of Occupier.
5. WARRANTIES, DISCLAIMERS AND LIMITATIONS
5.1 Warranties. Each Party represents and warrants to the other that: (i) it is duly organized and existing under the laws of the state of its formation; (ii) it has all requisite power and authority to enter into this Agreement; (iii) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with this Agreement, and (iv) its activities relating to this Agreement will not violate any applicable Law. Additionally, Occupier represents and warrants to You that the Software will not contain any Malware. Occupier will use reasonable efforts not to transmit Malware to You, provided that it will not a breach of Occupier’s covenant to You if You or a Designated User uploads a file containing Malware in contravention of Your obligations under Section 2.3(ix).
5.2 Services Warranty. If You reasonably believe Occupier has failed in a material respect to perform the Services in accordance with the terms of this Agreement, You will notify Occupier within thirty (30) days after the defective Services were performed, and in the event of such defective Services, Your sole and exclusive remedy, and Occupier’s sole and exclusive obligation, will be for Occupier to correct the defects or re-perform the Services.
5.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, OCCUPIER MAKES NO WARRANTY (EXPRESS, IMPLIED OR STATUTORY) AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS OR CONDITIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. ALL SERVICES PROVIDED BY OCCUPIER ARE PERFORMED AND PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. OCCUPIER DOES NOT WARRANT THAT THE SERVICES OR ITS WORK PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DELAY. YOU ACKNOWLEDGE THAT, AS A SAAS-BASED SERVICE, THE FUNCTIONALITY AND INTERFACES OF THE SERVICES MAY CHANGE OVER TIME.
5.4 Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS OR VIOLATION OF OCCUPIER’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS, DAMAGES FOR LOSS OF GOODWILL, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR LOST DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE APPLICABLE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF CONFIDENTIALITY OBLIGATIONS OR A VIOLATION OF OCCUPIER’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO THE OTHER WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE TO OCCUPIER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM THAT GAVE RISE TO SUCH LIABILITY.
5.5 Prohibition of Claim. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT OR RELATING TO THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
5.6 Application. SECTIONS 5.3, 5.4 AND 5.5 WILL APPLY TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW AND WILL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND THE PERFORMANCE OF ANY SERVICES TO BE RENDERED HEREUNDER.
6.1 By Occupier.
6.1.1 Occupier will defend, indemnify and hold You harmless against any third-party claim, demand, suit, investigation or proceeding (each, a “Claim”) made or brought against You alleging that the use of the Services as permitted hereunder infringes or misappropriates a third-party copyright, trade secret, trademark or United States patent. Occupier will pay all costs, reasonable attorneys’ fees and any settlement amounts agreed to by Occupier or damages awarded in connection with the Claim.
6.1.2 If Your use of the Services has become, or in Occupier’s opinion is likely to become, the subject of any Claim, Occupier may at its option and expense: (i) procure for You the right to continue using the Services as set forth herein; (ii) modify the Services to make it non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate this Agreement and refund You any unused pre-paid fees.
6.1.3 Occupier will have no liability or obligation with respect to any Claim to the extent caused by: (i) Your use of the Services that is not in accordance with this Agreement or not reasonably foreseeable by Occupier; or (ii) the combination, operation or use of the Services with other applications, portions of applications, products or services where the Services would not by itself be infringing.
6.1.4 This Section 6.1 states Occupier’s entire and exclusive obligation, and Your exclusive remedy, for any claim of any nature related to the subject matter described in this Section 6.1.
6.2 By You. You will defend, indemnify and hold Occupier and its Representatives harmless against any Claim made or brought against Occupier arising from Your breach, or alleged breach, of this Agreement.
6.3 Conditions. As a condition of the obligations set forth in this Section 6, a Party entitled to indemnification (the “Indemnified Party”) will: (a) provide prompt written notice of the applicable Claim to the other party (the “Indemnifying Party”); (b) provide the Indemnifying Party with sole control of the applicable defense and settlement; and (c) cooperate as requested by the Indemnifying Party, at the Indemnifying Party’s expense. The Indemnifying Party will not agree to any settlement without the consent of the Indemnified Party, which consent will not be unreasonably withheld.
7. TERM AND TERMINATION
7.1 Term. The term of the Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue for the duration selected on the Order Form attached hereto (the “Term”).
7.2 Termination for Cause. Either Party may immediately terminate this Agreement or any part hereof for cause, in the event of any of the following by the other Party: (i) a material breach of this Agreement by the other Party which is not cured within thirty (30) days after receipt of written notice in reasonable detail of the breach; (ii) the filing of a petition in bankruptcy or for reorganization or for an arrangement pursuant to any federal or state bankruptcy laws by or on behalf of the other Party or an adjudication of bankruptcy of such Party; or (iii) the filing of a petition proposing the adjudication of the other Party pursuant to any federal or state bankruptcy law and such Party consents to such filing or such petition is not dismissed within ninety (90) days after the filing thereof.
7.3 Discontinuance of Business. If Occupier determines to cease to conduct a Service in the normal course of business, Occupier will have the right to terminate this Agreement upon thirty (30) days’ prior written notice.
7.4 Suspension of Services. Notwithstanding any provision herein to the contrary, Occupier may suspend the Services in the event of any activity by Your or any of Your Designated Users, if such activity has, or in Occupier’s reasonable assessment is likely to have, an adverse effect on the Services.
7.5 Effect of Termination. Immediately upon termination or expiration of this Agreement, Occupier’s obligation to provide the Services will immediately cease, and all unpaid fees and other amounts due from You for Services previously provided by Occupier will immediately become due and payable. Each Party will, within thirty (30) days of termination or expiration of this Agreement, return or destroy, at the option of the other Party, all copies of such other Party’s Confidential Information that are in its possession or control.
8. GENERAL TERMS
8.2 Publicity. Occupier will have the right to identify You as an Occupier customer for purposes of promotion and marketing of the Services, subject to Your prior approval which will not be unreasonably withheld, delayed or conditioned (and will be deemed given if no contrary indication is received from You within one (1) week from the date of written request for approval).
8.3 Law; Dispute Resolution. This Agreement will be governed by and construed under the laws of the Commonwealth of Massachusetts, without reference to principles of conflict of laws. Any dispute arising between the Parties will be settled in an action commenced and maintained in any court sitting in Suffolk County, Massachusetts. The Parties irrevocably consent and submit to the exclusive personal jurisdiction of such courts if there is any dispute between them and agree not to challenge or assert any defense to the jurisdiction of such courts.
8.4 Relationship. This Agreement does not create any agency, partnership, franchise, joint venture, or any other such relationship between the Parties. Neither Party is granted any express or implied right or authority to assume or create any obligation on behalf of or in the name of the other Party or to bind the other Party in any matter whatsoever.
8.5 Severability. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable, such provision will be automatically reformed and construed so as to be valid, legal, operative, and enforceable to the maximum extent permitted by applicable law while preserving its original intent. The invalidity, illegality or unenforceability of any part of this Agreement will not render invalid the remainder of this Agreement.
8.6 Survivability. Sections 1.3, 1.5, 2.2., 2.3, 3, 4, 5.3, 5.4, 5.5, 5.6, 6, 7 and 8 will survive and continue to bind the Parties after execution and delivery of this Agreement and its expiration or early termination to the extent and for as long as may be necessary to give effect to the rights, duties and obligations of the Parties pursuant to this Agreement, subject to any applicable statutes of limitation.
8.7 Waiver. Failure by a Party to insist upon strict performance of any provision herein by the other Party will not be deemed a waiver by the first Party of its rights or remedies or a waiver by it of any subsequent default by the other Party, and no waiver will be effective unless it is in writing and duly executed by the Party entitled to enforce the provision being waived.
8.8 Amendment. This Agreement may only be amended in a writing executed by both Parties.
8.9 Notice. All notices sent hereunder will be in writing, will be effective upon receipt (except as provided below), and may be: (i) personally delivered; or (ii) sent by a nationally recognized overnight commercial delivery service with provision for receipt, postage or delivery charges prepaid (effective upon receipt or refused delivery); and will be addressed to the Parties at the address set forth on the initial page of this Agreement or as updated in writing by a Party in accordance with this Section 8.
8.10 Force Majeure. Except with regard to payments due to Occupier, neither Party will be liable for any delays or failures in performance due to circumstances beyond its reasonable control. In the event any such delay continues for a period of thirty (30) or more days, then either party may terminate this Agreement upon five (5) business days’ prior written notice, provided You will remain responsible for payments due to Occupier prior to termination.
8.11 Assignment. Neither Party has the right to assign, transfer or pledge any of its rights, duties or obligations hereunder without the prior written consent of the other Party, which consent may not be unreasonably withheld; provided, however, that either Party may assign this Agreement to a successor in the event of a merger, sale of substantially all of its assets, acquisition or other change of control with respect to such Party or any division of its business. This Agreement is binding upon and inures to the benefit of each Party and its respective successors and permitted assigns, subject to the restrictions against assignment provided in this section.
8.12 Construction. In this Agreement, unless a clear contrary intention appears: (i) where not inconsistent with the context, words used in the present tense include the future tense and vice versa, and words in the plural number include the singular number and vice versa; (ii) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement; (iii) reference to any gender includes each other gender; (iv) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (v) the titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (vi) “hereunder,” “hereof,” “hereto,” and words of similar import will be deemed references to this Agreement as a whole and not to any particular Section or Subsection of this Agreement; (vii) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term; and (viii) any reference to “dollars” means United States Dollars.
8.13 Entire Agreement. Except as amended after the date hereof pursuant to Section 8.8, the Order Form, Standard Services Terms and Conditions and Schedules and Exhibits hereto, constitute the entire Agreement between the Parties and supersede all prior and contemporaneous undertakings and agreements between the Parties, whether written or oral, with respect to the Services.