SysTrack Cloud Master SaaS Agreement

SYSTRACK CLOUD
MASTER SAAS AGREEMENT

This Master SaaS Agreement (the “Agreement“) is entered into between Lakeside Software, LLC (“Lakeside“) and the customer (“Customer“) identified on the corresponding Order Form. This Agreement governs Customer’s access to and use of Lakeside’s Services. Customer and Lakeside may be referred to in the Agreement individually as a “Party” and collectively as the “Parties.” Capitalized terms shall have the meanings set forth in this Agreement.

THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN LAKESIDE AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT”, OR ACCESSING OR USING ANY LAKESIDE SERVICE. BY SIGNING AN ORDER FORM, OR ACCESSING OR USING ANY LAKESIDE SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, LAKESIDE’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY LAKESIDE SERVICE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S CONSENT TO THIS AGREEMENT.


1. DEFINITIONS

1.1 “Affiliate” means any company, partnership, or other legal entity that directly or indirectly controls, is controlled by, or under common control with a Party. For purposes of this definition “control” means the direct or indirect possession of more than fifty percent (50%) of the voting interests of the subject entity;

1.2 “Agent Software” means any client software included with the Subscription Service that is made available to Customer by Lakeside for installation on Machine(s);

1.3 “Customer Data” means all Data that are uploaded by Customer or a User to the Subscription Service;

1.4 “Data” means electronic data, information, text, messages, images, materials, photos, audio, video, software code, executable scripts, and all other forms of data or content;

1.5. “Documentation” means the written product documentation for the Subscription Service generally made available by Lakeside;

1.6 “Feedback” means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Subscription Service;

1.7 “Lakeside Data” means all Data made available by Lakeside to Customer in connection with the Customer’s use of the Services;

1.8 “Lakeside Technology” means all of Lakeside’s and its licensors’ proprietary technology made available to Customer by Lakeside in providing the Services (including, without limitation, any and all software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information);

1.9 “Machine” means a virtual or physical device, including a desktop computer, laptop, server, or other computer that is using an operating system compatible with the Subscription Service and on which the Agent Software is authorized to operate;

1.10 “Order Form” means each Lakeside quotation, order form, and/or similar ordering document which expressly references this Agreement, identifies the specific Services purchased by Customer from Lakeside, sets forth the prices for the Services and contains other applicable terms and conditions;

1.11 “Professional Services” means any standard training, customer success, or related professional services package(s) purchased by Customer. All Professional Services purchased by Customer shall be set forth in an Order Form;

1.12 “Reports” means any content, reports, or analyses pertaining to Customer’s desktops, end user computers, or network resulting from Customer’s use of the Subscription Service;

1.13 “Services” means the Subscription Service (including the Agent Software), support services, and any Professional Services provided by Lakeside pursuant to this Agreement;

1.14 “Subscription Service” means Lakeside’s proprietary SysTrack Cloud subscription-based software-as-a-service offering as set forth in the applicable Order Form;

1.15 “Subscription Term” means the set term designated on an Order Form; and

1.16 “User” means an individual who is authorized by Customer to use the Subscription Service and who has been supplied passwords by the Customer (or by Lakeside at the Customer’s request).

2. SUBSCRIPTION SERVICES

2.1 Subscription Service. Subject to the terms and conditions of this Agreement, Lakeside grants to Customer the non-exclusive, non-transferable right to access and use the Subscription Service for the Subscription Term solely for Customer’s internal business use in accordance with the limitations in this Agreement, the Documentation, and/or the applicable Order Form(s). Customer shall be responsible for each User’s compliance with this Agreement. Customer shall use the Services in compliance with this Agreement, the applicable Order Forms, Documentation, and all applicable regulations and laws. In connection with the performance of the Subscription Service (except as otherwise expressly set forth herein), Lakeside shall operate and support the Subscription Service’s hosted environment, including, without limitation, the Lakeside Technology. For the avoidance of any doubt, any purchase of Lakeside’s on-premise products and services (i.e., products and services hosted and operated by Customer) are excluded from this Agreement and are subject to separate and distinct terms and conditions.

2.2  Agent Software License. To the extent use of the Subscription Service requires Customer to install Agent Software and subject to the terms and conditions of this Agreement, Lakeside grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to use the object code form of the Agent Software solely in connection with Customer’s use of the Subscription Service. Customer must purchase and possess licenses for every Machine or end user for which it operates the Agent Software. If Customer uninstalls the Agent Software from a Machine, it may install and use the Agent Software on another equivalent Machine under the same per-unit license, provided that either (i) Customer removes the Machine from which the Agent Software is uninstalled from service entirely, or (ii) Customer does not reinstall the Agent Software on a new Machine for at least thirty (30) days after the Agent Software is uninstalled from the prior Machine. For the avoidance of doubt, it does not matter whether a Machine upon which the Agent Software is installed is in use at any particular time. The Agent Software may only be used by Customer to support its use of the Subscription Service and all other use is strictly prohibited. Customer is solely responsible for the installation and control of the Agent Software, including but not limited to selecting the applicable Machine(s) upon which the Agent Software will be installed.

2.3 User Subscriptions Restrictions. The Customer acknowledges that access and use of the Subscription Service may be subject to a limitation on the number of Users and/or devices as described on the applicable Order Form (“Volume Limitations”). In the event that the Subscription Service is used in excess of the Volume Limitations then the Customer shall be obligated to pay Lakeside for the excess of such Volume Limitations at Lakeside’s then current rates.

2.4 SLO. Lakeside’s Subscription Service will also be provided in accordance with the Service Level Objective made available at: Lakeside Service Level Objective (the “SLO”). Customer may access Subscription Service availability information at: Subscription Service Status (the “Status Portal”).

2.5 Affiliates Not Under Direct Order Form. Subject to the terms of the Order Form and this Agreement, the Customer may make the Subscription Service available to its Affiliates for its Affiliates own internal use provided that (i) each Affiliate complies with all licensing and use restrictions; and (ii) such Affiliates are bound by obligations as protective of Lakeside as this Agreement for the benefit of Lakeside. Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates except where the Affiliate has signed its own Order Form with Lakeside for the Subscription Services pursuant to Section 2.6.

2.6 Affiliates Under Direct Order FormCustomer’s Affiliates may acquire the Subscription Service subject to the terms and conditions of this Agreement by executing Order Forms hereunder directly with Lakeside. Each Order Form executed by an Affiliate shall incorporate the terms of this Agreement by reference and shall be deemed to be a two party agreement between Lakeside and such Affiliate.

2.7 General Restrictions. Customer will not (and will not permit any User or any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Services to a third party (except as expressly set forth in Section 2.6 with respect to Affiliates) or in a service bureau or outsourcing offering; (b) use the Services to provide, or incorporate the Subscription Service into, any general purpose data warehousing service for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Subscription Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Lakeside); (d) remove or obscure any proprietary or other notices contained in the Services; (e) install the Agent Software on any Machine without express rights to do so or for any unlawful purpose or in violation of any third party rights; (f) upload, transmit, input, or otherwise use any Data or materials with the Services that are unlawful, libelous, infringing, contain harmful code, or for which Customer otherwise lacks sufficient rights; (g) upload to the Subscription Service any patient, medical, or other protected health information; or (h) use the Subscription Service in violation of Lakeside’s Fair Use Policy at: Lakeside Subscription Service Fair Use Policy. In addition, Customer and those accessing the Subscription Service through Customer’s accounts or on its behalf may not use the Subscription Service: (i) in any application or situation where failure of the Subscription Service could lead to the death or serious bodily injury of any person or to severe physical or environmental damage; (ii) with online control equipment in hazardous or “mission critical” environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which failure could lead to death, personal injury, or severe physical or environmental damage; or (iii) to aide development of products or services that are competitive with the Services.

2.8 Professional Services. Professional Services are separate and apart from the Subscription Service and neither Party’s obligations in connection with the Subscription Service are dependent in any way on any Professional Services. Lakeside retains all ownership rights in and to all work product created by or for Lakeside in the provision of any Professional Services (excluding any Customer Confidential Information or Customer Data contained therein) and any derivative works thereof. Nothing in this Agreement or any Order Form will prohibit or limit Lakeside from providing the same or similar Professional Services or work product to any third party.

2.9 Support Services. During a Subscription Term, Lakeside will provide Customer the support services for the Subscription Service as set forth in the SLO and the Software Product Lifecycle terms made available at: Lakeside Software Lifecycle, both of which constitute integral parts of this Agreement. In addition, Customer may subscribe via the Status Portal to receive automated text and/or email updates about Subscription Service maintenance.

2.10 Non-Production Usage. From time to time, to the extent applicable, Customer may use the Subscription Service for evaluation, demonstration, testing or other purposes where such use is outside a production environment. By using the Subscription Service on such a non-production basis, Customer accepts the Subscription Service on an “as is” basis.

2.11 Third Party Product & Services. To the extent use of the Subscription Service requires use of any third party products or services, such products and services may require Customer to agree to separate terms. Any terms associated with such third party products or services are solely between Customer and such third party. Lakeside does not endorse or make any representations or warranties with respect to such third party products or services. Notwithstanding any other term of this Agreement, Customer acknowledges that it may receive open source software when Customer uses the Subscription Service and any such open source software is made available under the applicable open source license. Lakeside shall provide a list of the applicable open source license(s) upon request.

2.12 Orders Via Lakeside Partners. Subject to a separate agreement between Customer and a third party authorized by Lakeside to resell or distribute the Services (each a “Partner”), Customer may purchase the Services from Partner. In the event Customer purchases Services from Partner, this Agreement sets forth the terms and conditions by which Lakeside will make the Services available for use by Customer but fees, payment and related terms shall instead be specified in that separate agreement between Customer and Partner. For the avoidance of doubt, Lakeside is not a party to that separate agreement between Customer and Partner (including, without limitation, any pricing or payment terms). No terms between Customer and Partner are binding on or enforceable against Lakeside. Any Customer claims for refunds, credits, or other fees shall be submitted to the applicable Partner.

3. CUSTOMER DATA

3.1 Ownership and Use of Customer Data.  As between the Parties, Customer or its licensors retain all right, title, and interest (including any and all intellectual property rights) in and to the (i) Customer Data and any modifications made thereto in the course of the operation of the Subscription Service, and (ii) the content of the Reports, subject to Lakeside’s ownership in the templates, structure and format of the Reports.  Customer hereby grants to Lakeside a non-exclusive, worldwide, royalty-free right to use, access, transfer, copy, store, transmit, modify, create derivative works of, and display the Customer Data to the extent necessary to provide the Services to Customer, to prevent or address service or technical problems, to meet Lakeside’s obligations under this Agreement, to improve or enhance the Services, to exercise any rights hereunder, and as otherwise may be required and/or permitted by law.

3.2 Sufficient Rights in Customer Data.  Customer will ensure that its use of the Subscription Service, including but not limited to the Agent Software, and all Customer Data is at all times compliant with this Agreement, Customer’s privacy policies, and all applicable laws and regulations. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer represents and warrants that Customer has sufficient rights in the Customer Data to grant the rights to Lakeside hereunder and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy, or other rights of any third party. For the avoidance of doubt, by installing the Agent Software on a Machine, Customer authorizes Lakeside to collect and use data collected via the Agent Software.

3.3 Security of the Subscription Service.  Lakeside will only use Customer Data as permitted by applicable laws and this Agreement. Lakeside will also implement and maintain a data security program for the Subscription Service that will (i) include administrative, physical, technical, organizational, and other security measures intended to protect against the unauthorized access, destruction, loss, or alteration of any Customer Data, and (ii) comply with applicable data protection laws pertaining to Lakeside’s provision of the Subscription Service. Lakeside will notify Customer not more than seventy two (72) hours following discovery by Lakeside of any unauthorized access, destruction, loss, or alteration of any Customer Data.

4. FEES; PAYMENT TERMS

4.1 Fees. The Customer agrees to pay Lakeside for Services provided and expenses incurred in accordance with and at the rates specified in each Order Form. Unless otherwise set forth on the Order Form, fees for Services will be invoiced annually in advance and payment shall be due within thirty (30) days of receipt of Lakeside’s invoice and shall be made in US dollars. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, Lakeside (i) reserves the right to suspend the Subscription Services until such amounts are paid in full; and (ii) will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due, together with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by Lakeside in collecting such overdue amounts or otherwise enforcing Lakeside’s rights hereunder; provided that Lakeside will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue. Unless otherwise expressly set forth herein, all fees are non-refundable. If the Customer requires that a purchase order be issued before making payment under any Order Form, Customer must provide such purchase order to Lakeside in time for Customer to meet its payment obligations.

4.2 Taxes.  Fees are exclusive of all taxes, levies, withholdings, deductions, and duties imposed by taxing authorities in connection with any Order Form and/or the Services provided hereunder (collectively, “Taxes”). Unless Customer provides a valid certificate of exemption for each respective jurisdiction of its tax-exempt status, Customer is responsible for payment of all Taxes assessed or collected by any governmental body arising from Lakeside’s provision of the Services (except any taxes assessed on Lakeside’s net income). If Lakeside is required to directly pay or collect Taxes related to Customer’s use of the Services hereunder, Customer agrees to promptly reimburse Lakeside for any amounts paid by Lakeside. If Customer has the legal obligation to withhold or deduct any amount from the Fees, the sum payable by Customer shall be increased to the extent necessary to ensure that Lakeside receives an amount net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made. Unless prohibited by the applicable taxing jurisdiction, the tax situs will be Customer’s ship-to address as set forth in the applicable Order Form.

5. CONFIDENTIALITY

5.1 Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature.  The receiving Party shall hold in confidence, and shall not disclose any Confidential Information to any person or entity except to an Affiliate, director, officer, employee, outside consultant, contractor, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach hereunder and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.

5.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process, or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure (to the extent permitted by law), and such disclosure is otherwise limited to the required disclosure.

5.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to seek an injunction (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

6. WARRANTIES

6.1 Subscription Service Warranty. Lakeside warrants that during the Subscription Term the Subscription Service will conform, in all material respects, with the Documentation. Lakeside does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free. Lakeside makes no warranty regarding features or services provided by third parties or under the control of Customer. For any breach of the above warranty, Lakeside will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. The Customer will provide Lakeside with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. Such warranty shall only apply if the Subscription Service has been utilized by the Customer in accordance with the Order Form and this Agreement.

6.2 Professional Services Warranty. If Customer purchases Professional Services, then Lakeside warrants that any such Professional Services provided hereunder shall be provided in a competent and professional manner and in accordance with any specifications set forth in the Order Form in all material respects. If the Professional Services are not performed as warranted, then, upon the Customer’s written request, Lakeside shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to the Customer.  Such warranties and other obligations shall survive for thirty (30) days following the completion of the Professional

6.3 Disclaimer; No Other Warranty. LAKESIDE DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 6 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY LAKESIDE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SUBSCRIPTION SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS.

7. LIMITATION OF LIABILITY

7.1 Consequential Damage Exclusion. Except for a breach by a Party of its obligations in Section 5 (Confidentiality) and a Party’s willful misconduct or gross negligence, neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, punitive, consequential, or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information, and/or loss of data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.

7.2 Limitation of Liability. Except for a breach by a Party of its obligations in Section 5 (Confidentiality), a Party’s indemnification obligations in Section 10 (Indemnification), a Party’s willful misconduct or gross negligence, or infringement of the other Party’s intellectual property, the total cumulative liability of a Party to the other Party for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the fees paid or payable by Customer to Lakeside under the Order Form for the Subscription Services which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim. The provisions of this Agreement allocate risks between the Parties. The pricing set forth in each Order Form reflects this allocation of risk and the limitation of liability specified herein.

8. TERM

8.1 Term.  This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 8.2 (Termination) below.  The Subscription Term shall be set forth on the Order Form. Lakeside reserves the right to change the rates, applicable charges, and usage policies and to introduce new charges for such Order Form upon providing the Customer with written notice thereof (which notice may be provided by e-mail) at least 30 days prior to the the next renewal date of the Order Form with such changes to take effect upon the renewal date.

8.2 Termination.  Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice from the other Party. Termination of an Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Forms then currently in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.

8.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Lakeside shall no longer provide the applicable Subscription Service to the Customer and the Customer shall promptly cease and cause its Users to promptly cease using the Subscription Service and Customer agrees to uninstall and remove the Agent Software from all Machines at Customer’s expense and destroy any copies thereof that Customer has made.  The Customer shall pay Lakeside for all fees that accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either Party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such Party.  If the Order Form is terminated for any reason other than termination as a result of Lakeside’s material breach, then Lakeside shall be entitled to all of the fees due under the applicable Order Form for the entire unexpired terminated portion of the term of such Order Form. If the Order Form is terminated as a result of Lakeside’s material breach, then Customer shall be entitled to a refund of the pro rata portion of any prepaid unused subscription fees or any other prepaid, unused fees paid by Customer to Lakeside under this Agreement. Upon termination of this Agreement, each Party shall promptly return or destroy all Confidential Information of the other Party in its possession. After termination of this Agreement, Lakeside will have no further obligation to store and/or make available the Customer Data and may delete the same.

8.4 Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Lakeside reserves the right to suspend provision of the Services if: (i) Customer is thirty (30) days or more overdue on a payment; (ii) Lakeside reasonably determines suspension is necessary to avoid material harm to Lakeside, Customer, and/or other Lakeside customers, including if the Subscription Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Lakeside’s control; or (c) required by law or at the request of governmental entities.

9. OWNERSHIP; USE OF DATA; OBLIGATIONS

9.1 Services. The Customer acknowledges and agrees that as between Lakeside and the Customer, all right, title, and interest in and to the Services (including, without limitation, the Subscription Service), the Lakeside Technology (excluding any Customer Data) and including all modifications and configurations, all Lakeside Data, and all of Lakeside’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information made available to the Customer by Lakeside in providing the Services and all derivatives thereof are and shall remain Lakeside’s or its licensors’. The Lakeside name, all Lakeside logos, and the product names associated with the Services are trademarks of Lakeside or third parties, and no right or license is granted to use them. The Customer shall not remove any Lakeside trademark or logo from the Services.  During the term of this Agreement, Lakeside grants to the Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.3 (Assignment)), royalty-free right to use, display, transmit, and distribute Lakeside Data solely in connection with the Customer’s permitted use of the Services. Lakeside owns all Subscription Service Data and the Parties agree that Lakeside may use Subscription Service Data for any business purpose during or after the term of this Agreement. Lakeside will not distribute Subscription Service Data in a manner that personally identifies Customer, customers of Customer, or its Users. For purposes of the foregoing, “Subscription Service Data” means (i) data generated by aggregating Customer Data with other data so that the results are not personally identifiable with respect to Customer, customers of Customer, or Authorized Users, and (ii) any analytics, benchmarking, statistical usage, performance metrics, pseudonymous data, and learnings regarding Customer’s use of the Subscription Service or otherwise derived from Lakeside’s operation of the Subscription Service. Subscription Service Data is not Customer Data or Customer Confidential Information. In the event Customer provides Lakeside with Feedback, Customer hereby grants to Lakeside an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed.

9.2 Customer Obligations. Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Subscription Service. The Customer agrees: (i) that only authorized Users are permitted to use the Subscription Service; (ii) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement; and (iii) to otherwise take all commercially reasonable steps to protect the Subscription Service (including the Agent Software) and the Documentation from unauthorized use and/or access. Customer is also responsible for all activities conducted under its User logins, on any Machines, and for its Users’ compliance with this Agreement. Neither the Customer nor its Users shall use the Subscription Service to: (a) send, upload, or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or otherwise objectionable; (b) upload or otherwise transmit, display, or distribute any Customer Data that infringes any trademark, trade secret, copyright, or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation. The Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Lakeside regarding future functionality or features. Customer acknowledges that Lakeside may engage third parties to provide or enable elements of the Services, provided that Lakeside is responsible to Customer for the performance of such third parties as if Lakeside performed the Services directly.

9.3 Export Related Obligations. Neither Party shall commit any act or request the other Party to commit any act which would violate the export control laws, rules or regulations of the United States or any other country in which the Services are provided for use. In addition, each Party represents and warrants that it is not named on any US, UK, or EU government list of persons or entities with which US, UK, or EU persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities. Use or facilitation of the Subscription Service in connection with any activity including, but not limited to, the design, development, fabrication, training, or testing of chemical, biological, or nuclear materials, or missiles, drones, or space launch vehicles capable of delivering weapons of mass destruction is strictly prohibited.

10. INDEMNIFICATION

10.1 Lakeside Indemnification.  Subject to Section 10.3 below, Lakeside will defend Customer, its Affiliates and their respective officers, directors, and employees (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Subscription Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Customer.  If a Claim Against Customer is brought or is likely, in Lakeside’s sole opinion, to be brought, Lakeside will: (i) obtain the right for Customer to continue using the Subscription Service; (ii) replace or modify the affected portions of the Subscription Service so that they becomes non-infringing; or (iii) upon notice to Customer, terminate this Agreement or Customer’s use of the affected portions of the Subscription Service, provided that in the case of (iii) Lakeside promptly refunds to Customer the pro rata portion of any unearned pre-paid annual subscription fees paid hereunder for the affected portions of the Subscription Service. Lakeside’s obligations in this Section 10.1 do not cover third party claims to the extent such claims arise from: (a) any products, services, technology, materials, or data not created or provided by Lakeside (including without limitation any Customer Data); (b) any part of the Subscription Service made in whole or in part in accordance to Customer’s specifications; (c) any modifications made after delivery by Lakeside; (d) any combination with other products, processes, or materials not provided by Lakeside (where the alleged damages, costs, or expenses arise from or relate to such combination); (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (f) Customer’s use of the Subscription Service other than in strict accordance with this Agreement, the Order Form, or any Documentation.

10.2 Customer Indemnification.  Subject to Section 10.3 below, Customer will defend Lakeside, its Affiliates and their respective officers, directors and employees (collectively, the “Lakeside Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Lakeside Indemnitees by a third party: (i) alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party; (ii) Customer’s installation of the Agent Software; (iii) arising out of or attributable to the Customer’s breach of Sections 2.7 (General Restrictions) or 9.2 (Customer Obligations) above; or (iv) arising out of or attributable to Customer’s misuse of the Subscription Service (each, a “Claim Against Lakeside”), and will indemnify the Lakeside Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Lakeside Indemnitees as a result of, or for any amounts paid under a court-approved settlement of a Claim Against Lakeside.

10.3 Indemnification Procedure.  Each Party’s obligation to indemnify the other Party is conditioned on the Party seeking indemnification:  (i) promptly notifying the indemnifying Party in writing of any claim, suit, or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby; (ii) allowing the indemnifying Party to solely control the defense of any claim, suit, or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim that requires the indemnified Party to admit fault without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed); and (iii) giving the indemnifying Party reasonable assistance in the defense and settlement of any claim, suit, or proceeding for which indemnity is claimed.

10.4 Sole Remedy.  This Section 10 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this section.

11. GENERAL

11.1 Entire Agreement. This Agreement, including all Order Forms, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties. Only a written instrument that refers to this Agreement or the applicable Order Form and that is duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Form. Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the order is accepted by Lakeside. Any conflict between the terms and conditions set forth in this Agreement and any Order Form shall be resolved in favor of this Agreement.

11.2 Lakeside Affiliates. Any obligations or rights under this Agreement that may be performed or exercised by Lakeside may be performed or exercised by Lakeside’s Affiliates. By way of non-limiting example, Lakeside’s Affiliates may provide support, Professional Services, and/or carry out invoicing and receipt of payment.

11.3 Assignment. Either Party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement. In the event of any permitted assignment by Customer, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under the applicable Order Form(s) prior to the assignment. Any purported assignment or other transfer in violation of this Section 11.3 is void.

11.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions.  For resolution of any disputes arising out of this Agreement, the parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Suffolk County, Massachusetts.

11.5 Relationship of the Parties. Lakeside and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

11.6 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.

11.7 Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift, or other thing of value by any Lakeside employee, representative or agent in connection with this Agreement.

11.8 Notices. All legal notices (e.g., notice of termination of this Agreement or an Order Form) required under this Agreement must be delivered to the other Party in writing: (i) in person, (ii) by recognized overnight delivery service, or (iii) by certified mail (requiring signature) to the other Party’s corporate headquarters, Attention: Legal Department. With respect to all other notices, Customer may email Lakeside at [email protected] and Lakeside may email Customer’s contact identified on the applicable Order Form. Either Party may change its address by giving written notice to the other Party.

11.9 Modifications to Subscription Service. Lakeside may make modifications to the Services or particular components from time to time provided that such modifications do not materially degrade any functionality of the Subscription Service.

11.10 Publicity. Customer hereby grants Lakeside a non-exclusive license solely during the term of the Order Form to list Customer’s name and display Customer’s logo in the customer section of Lakeside’s website and to use Customer’s name and logo in Lakeside’s customer lists, but only to the extent that other customers of Lakeside are also listed on such list.

11.11 No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits, or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.

11.12 Counterparts. This Agreement may be executed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.

11.13 Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.