cPaperless agrees to (i) make available, for use by Customer, the software set forth in each Order Form (the “Software”), and (ii) provide hosting, support and maintenance services, as applicable, in relation to the Software (the “Support Services”), in accordance with the General Terms and Conditions attached hereto as Exhibit A (the “General Terms and Conditions”), Support and Maintenance Terms and Conditions attached hereto as Exhibit B (the “Support and Maintenance Terms and Conditions”).
This Agreement with the General Terms and Conditions, and the Support and Maintenance Terms and Conditions constitutes the entire, final and exclusive agreement between the parties regarding the subject matter hereof, and supersede all prior or contemporaneous agreements, understandings, discussions, negotiations and communications, whether written or oral, express or implied. No amendment to or modification of this Agreement shall be binding unless in writing and signed by a duly authorized representative of both parties.
EXHIBIT A: GENERAL TERMS AND CONDITIONS
These General Terms and Conditions are attached to the Master Software License and Services Agreement (the “Agreement”) by and between cPaperless and the Customer and govern the Customer’s use of the Software. All capitalized terms used but not defined in these General Terms and Conditions have the meaning set forth in the Agreement.
1.1 “Client Software” means the client-side part of the Software, which is made available for download and use by each User on up to the permitted number of Devices set forth on the Order Form and remotely interfaces with the Server Software.
1.2 “Confidential Information" means (a) all nonpublic information disclosed or made available under this Agreement that relates to the provision or receipt of the Software, Support Services or either party's financial condition, operations or business, and which is clearly identified as confidential at the time of disclosure, (b) the Software, (c) the Documentation, (d) the Customer Information; and (e) the User IDs.
1.3 “Customer Information” means all data, information or other content entered by or collected from Customer (including a User) while accessing the Software or through integration with other systems and maintained by cPaperless.
1.4 “Devices” means the hardware devices identified on the Order Form on which a User may install the Client Software.
1.5 “Documentation” means the version of the user guide or training videos (whether in print or electronic form) made available by cPaperless to Customer concurrently with the execution of this Agreement.
1.6 “Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and any and all other legal rights protecting intangible proprietary information.
1.7 “Server Software” means the server-side part of the Software, which is hosted on a cPaperless server and remotely interfaces with the Client Software.
1.8 “Subscription” means the right to use the Software and receive Support Services in connection therewith, subject to the terms and conditions of the Agreement.
1.9 “Support Services” means the support services offered by cPaperless, in relation to the Software, set forth in Exhibit B attached hereto.
1.10 “User ID” means each unique User identification name and password used for access to and use of the Software through Customer’s Subscription.
1.11 “User” means anyone accessing and using the Software through Customer’s Subscription.
2. SOFTWARE LICENSE.
2.1 License Grant. Subject to the terms and conditions of this Agreement, cPaperless grants to Customer a limited, non-exclusive, non-transferable license, during the Subscription Period, to: (a) permit Users to install and use the Client Software solely in executable form on up to the permitted number of Devices controlled by each User for Customer’s internal business purposes; and (b) permit Users to access the Server Software through the Client Software or portal login for Client’s business purposes; provided, that the number of Users shall not exceed the number of users set forth in the applicable Order Form; provided further, that each User shall be permitted to use the Software only on the number of Devices set forth in the Order Form and the Users shall not be permitted to share the Devices. Customer acknowledges that Customer is not receiving any ownership interest in the Software or Intellectual Property Rights related to the Software or any part thereof.
2.2 Audit. Customer hereby grants cPaperless the right to audit Customer’s compliance with this Agreement upon reasonable notice and at reasonable times; provided, that in no event shall such audit be required more than once in any six (6) month period. If an audit reveals that Customer has underpaid fees by more than five percent (5%) then, in addition to any other remedies cPaperless may have, (i) Customer shall promptly pay the underpaid fees and reimburse cPaperless for the cost of the audit, and (ii) notwithstanding the foregoing, cPaperless may conduct an audit every quarter for a twelve-month period following such audit.
2.3 Restrictions. Customer acknowledges that the object and source code versions of the Software (or any part thereof) and the structure, sequence and organization thereof constitute valuable trade secrets of cPaperless. Customer will not, and will not permit any User or any other party to: (a) alter, modify, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software (or any part thereof); (b) distribute, rent, lease, loan or sublicense the Software (or any part thereof) or sublicense or transfer any of its rights under this Agreement; (c) use the Software (or any part thereof) for the business needs of another person or entity including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties, or otherwise making available the Software, or access thereto, to any third party (except the Users); (d) otherwise use the Software (or any part thereof) except as explicitly permitted by this Agreement; or (e) interfere in any manner with the operation or hosting of the Software or attempt to gain unauthorized access to the Software or any other services offered by cPaperless.
2.4 User IDs. Customer will cause each User authorized to use the Software through the Customer Subscription to create a User ID. Customer will be responsible for ensuring that the Users do not share or disclose User IDs with each other or with third parties and to keep such confidential. Customer acknowledges that each User account is personal to such User and agrees not to provide any other person with access to the website or portions of it using such User name, password or other security information and to keep such confidential. Customer agrees to notify cPaperless immediately after Customer determines that an unauthorized access to or use of a User name or password or any other breach of security occurred. Each User agrees to exit from such User’s account at the end of each session and exercise particular caution when accessing such User’s account from a public or shared computer so that third parties are not able to view or record a User’s password or other personal information. Customer shall ensure that any User no longer an employee of Customer has their User access revoked within 24 hours of such termination. cPaperless reserves the right to disable any User name, password or other identifier, whether chosen by such User or provided by cPaperless, at any time in cPaperless’ sole discretion for any or no reason, including if, in cPaperless’ opinion, Customer has violated any provision of this Agreement. Customer acknowledges that Customer will be fully responsible for (i) ensuring User compliance with this Agreement and all liabilities arising from any non-compliance, and (ii) all liabilities incurred through use of any User ID (whether lawful or unlawful) and that any transactions completed under a User ID will be deemed to have been lawfully completed by Customer or Customer’s personnel. In no event will cPaperless be liable for the foregoing obligations or the failure by Customer to fulfill such obligations.
2.5 Customer Requirements. Customer shall be responsible for obtaining and maintaining, throughout the Subscription Period, all computer hardware, software, communication lines, ports, interface equipment, terminals, internet access, bandwidth, network routing equipment, application licenses and other materials (“Customer Requirements”) necessary for each User to access and use the Software as set forth in the Order Form. Customer shall ensure that each User is aware of this Agreement and the guidelines for using cPaperless products that are included in the Terms of Service on cPaperless’ website and shall be fully responsible for any breaches of this Agreement and the Terms of Service by User. Customer shall back up any Customer Information provided to cPaperless pursuant to this Agreement at commercially reasonable intervals and shall take such other reasonable actions to back up its important information. Customer and its Users may only access the network, systems, or application through encrypted connections. Customer shall ensure that all Users maintain up-to-date operating system patching and active anti-malware on any end-user devices used to connect to the network, systems, or application. Customer shall notify cPaperless within 72 hours of any security incident that could have a negative impact to cPaperless, including, but not limited to, compromised User credentials, theft or loss of a Customer computer or server, malware or ransomware on Customer’s system, or other data security breach.
2.6 Mandatory Activation. Activation associates the use of the Software with a specific Device. During activation, the Software will send information about the Software and the Device to cPaperless. This information includes the device name, the version, the license version, language and the product ID of the Software, Internet protocol address of the Device, information derived from the hardware configuration and User IDs. BY USING THE SOFTWARE, CUSTOMER CONSENTS TO THE TRANSMISSION OF THIS INFORMATION. Customer must activate the Software over the Internet; Internet and telephone service charges may apply.
3. SUPPORT AND SERVICE LEVELS.
3.1 Support Services. During the Subscription Period, cPaperless will use commercially reasonable efforts to provide the support services to Customer, as described in Exhibit B.
3.2 Service Level Agreement. If applicable, cPaperless will use commercially reasonable efforts to make available the Server Software in accordance with the Service Level Agreement set forth in Exhibit B. In the event that cPaperless fails to achieve the applicable service level in any month, Customer will be entitled, as its sole and exclusive remedy, to a service level credit in accordance with the terms set forth in Exhibit B.
4.1 Customer Ownership. With the exception of Data collected pursuant to Section 8, Customer retains all right, title and interest in and to all the Customer Information and User IDs. cPaperless will use the Customer Information and User IDs solely to perform its obligations under this Agreement and as otherwise specified under this Agreement.
4.2 cPaperless Ownership. The Software is licensed, not sold, to Customer for use solely subject to the terms of this Agreement. cPaperless retains all right, title and interest in and to, the Software and all Intellectual Property Rights embodied in or related to the Software, including, without limitation, any and all improvements, updates, and modifications thereto, whether or not made in conjunction with this Agreement. Except as set forth in Section 2, this Agreement does not grant Customer a license to the Software, or to any other software, by implication, by estoppel, or otherwise. The cPaperless name, logo, and the product and service names associated with the Software are trademarks of cPaperless, and no right or license is granted to Customer to use them separate from Customer’s use of the Software.
5. FEES AND PAYMENT.
5.1 Services Fees. Customer will pay the fees and other payments set forth in the Order Form for the Subscription (the “Subscription Fees”) when due. cPaperless is not required to begin performance of any Services prior to receipt of all Subscription Fees due as per the invoicing structure set forth in Order Form.
5.2 Payment. Subscription Fees must be paid in U.S. dollars. Any undisputed invoiced amounts, which are not paid within thirty (30) days of the invoice date shall be considered past due. Customer will notify cPaperless of any good faith dispute relating to any Subscription Fees in writing on or before the date that is thirty (30) days after the invoice date. Regardless of any reasonable dispute as to any Subscription Fees, Customer will pay all other non-disputed fees on such invoice (and all other non-disputed fees on every other invoice) not subject to a reasonable dispute, in accordance with the terms of this Agreement. Customer’s obligation to pay Subscription Fees that is not subject to a reasonable dispute will be unconditional and not subject to abatement, set off or defense of any kind. All Subscription Fees are nonrefundable except as expressly set forth otherwise in the Agreement. Subscription Fees exclude all applicable sales, use, and other taxes, fees, duties and similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on cPaperless’ income), fees, duties, and charges. Any portion of the non-disputed Subscription Fees not paid when due will accrue interest at 18% per annum (1.5% per month) or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
6. TERM AND TERMINATION.
6.1 Term. Unless sooner terminated as provided in this Section 6, the term of this Agreement shall commence on the Effective Date, and will continue thereafter for a period of twelve (12) months (the “Initial Subscription Period”), unless and until earlier terminated as provided in this Section 6. Upon expiration of the Initial Subscription Period, this Agreement shall automatically renew for an additional period of twelve (12) months unless either party provides written notice of nonrenewal at least 60 days prior to the end of the then-current term (each a “Renewal Subscription Term” and together with the Initial Subscription Period, the "Subscription Period"), unless and until earlier terminated as provided in this Section 6. If either party provides timely notice of its intent not to renew this Agreement, then, unless otherwise sooner terminated in accordance with its terms, this Agreement shall terminate on the expiration of the then-current Subscription Period.
6.2 Termination for Convenience. For a period of thirty (30) days from the commencement of the Subscription Period, Customer may terminate this Agreement for any reason; provided, that as consideration for the time and effort expended by cPaperless to implement the Software: (i) if the Subscription Fees are based on a monthly subscription, Customer shall forfeit twenty-five percent (25%) of the prepaid Subscription Fees, and (ii) if the Subscription Fees are based on credits or a set number of accounts, Customer shall forfeit twenty-five percent (25%) of the remaining unused credits or accounts. The remainder shall be refunded to Customer within thirty (30) days of notice of termination.
6.3 Termination for Cause. This Agreement will automatically terminate if Customer breaches a material term of this Agreement, and such breach is not cured within thirty (30) days after Customer receives written notice from cPaperless of such breach. If cPaperless breaches a material term of this Agreement, and such breach is not cured within thirty (30) days after cPaperless receives written notice from Customer of such breach, Customer may terminate this Agreement upon written notice to cPaperless.
6.4 Termination for Inactivity. This Agreement will automatically terminate if Customer does not use the program for 18 consecutive months. Upon termination any unused units, will be forfeited.
6.5 Suspension. cPaperless may suspend the Services, or any portion thereof, or this Agreement for material breach including without limitation any breach of the payment obligations set forth in Section 5, with advance written notice of five (5) business days. cPaperless is not required to refund any fees paid or prepaid after such suspension.
6.6 Effect of Termination or Expiration. Upon any termination or expiration of this Agreement, (a) all rights and licenses granted to Customer in this Agreement will immediately cease to exist, (b) cPaperless may promptly cease performing all obligations under this Agreement, (c) all access and use by Customer or any Users of the Software will be immediately suspended, and (d) Customer will pay cPaperless any amounts payable for Customer’s use of the Software through the end of the term. The provisions of Sections 1, 2.2, 4, 6.5, 6.6, 7, 8, 10, 11, 12, 14 through 19 of this Agreement will survive termination of the Agreement for any reason. Upon the expiration or termination of this Agreement, Customer will (i) discontinue all use of the Software, (ii) uninstall and hard-delete all copies of the Software (or any part thereof) installed on Customer’s devices, (iii) destroy or return to cPaperless all copies of the Software and any other materials provided by cPaperless to Customer except for copies included in backups that cannot be reasonably individually identified and deleted, and (iv) promptly provide cPaperless with written confirmation (including via email) of Customer’s compliance with these provisions. Customer acknowledges that Software may contain mechanisms that will terminate the Customer’s ability to use the Software at the end of the Subscription Period.
6.7 Transition. Subject to the Customer’s payment of any and all fees and charges due through the date of expiration or termination and provided that Customer is not in breach or default of any of its obligations hereunder, upon termination or expiration of this Agreement and for up to thirty (30) days from the effective date of such termination or expiration (the “Transition Period”), Customer may request cPaperless to provide services reasonably necessary to enable Customer to obtain from another vendor, or to provide for itself, services to substitute for or replace the Software provided by cPaperless under this Agreement. During such Transition Period, cPaperless will use commercially reasonable efforts to make available services reasonably necessary for an orderly and seamless transition of the Customer to a third party solution. Any transition services or other related services from cPaperless will be provided by cPaperless at cPaperless’ then current service rates. cPaperless reserves the right to require all or part of such fees and charges to be paid in advance prior to providing any transition services to Customer.
7. CONFIDENTIAL INFORMATION.
7.1 Obligations. Each party agrees to disclose to the other party only that portion of such party’s Confidential Information that is reasonably necessary to enable the other party to perform its obligations under the Agreement. The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt of Services under this Agreement, respectively, in accordance with all terms and conditions of this Agreement. Further, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The Disclosing Party shall ensure that it has the full right and authority to disclose to the Receiving Party (pursuant to this terms of this Agreement) any information, including Confidential Information, provided to the Receiving Party. For the sake of clarity, Customer shall ensure that it and its Users maintain the confidentiality of all cPaperless Intellectual Property Rights, including proprietary information related to the Client Software and Server Software.
7.2 Termination of Obligations. The Receiving Party’s obligations under this Section 7 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body; provided, that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Without limiting the foregoing, cPaperless has the right to fully cooperate with any law enforcement authorities or any court order requesting or directing the disclosure of the identity or other information of anyone posting any materials on or through the website. CUSTOMER AND EACH USER WAIVES AND HOLDS HARMLESS CPAPERLESS AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
7.3 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first; provided, that in the event of termination or expiration of this Agreement, cPaperless will hold Customer Information on its servers for a period of sixty (60) days unless Customer expressly requests earlier deletion. At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section 7.3. For the purposes of this Section 7.3, Data, as defined in Section 8 below, shall not be considered Confidential Information.
cPaperless will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information resulting from Customer’s use of the Software ("Data"). To the extent that any Data is collected by cPaperless, the Data will be solely owned by cPaperless and may be used by cPaperless for any lawful business purpose without a duty of accounting to Customer; provided, that the Data is used only in an aggregated form, without specifically identifying Customer as the source of the Data.
9. DATA SECURITY.
9.1 Data Environment. cPaperless agrees to provide a reasonably secure environment for all data including, but not limited to, measures such as ensuring encryption of data during receipt and transmission and encryption of data at rest. While cPaperless cannot guarantee that its security measures will not be breached, it will use commercially reasonable security measures to protect all data.
9.2 Network Vulnerability Assessments. No less than once every twelve (12) months and after any significant firewall, network or other system change, cPaperless agrees to undergo an external network vulnerability assessment (“Pen Test”). Such Pen Test shall include but not be limited to testing for SQL and other injection vulnerabilities by an independent third party security assessor.
9.3 Controls Assessments. No less than once every twelve (12) months cPaperless agrees to undergo an independent third party security and controls assessment (e.g., SOC1, SOC2) following an established commercially available controls assessment framework.
9.4 Security Breach Notification. cPaperless shall notify Customer immediately of any known unauthorized use, disclosure, modification or destruction of Confidential Information (each a “Security Breach”). cPaperless shall investigate each Security Breach and promptly provide Customer with a written statement concerning the circumstances surrounding each Security Breach and a proposed remediation plan, acceptable to Customer, to address the Security Breach and prevent any further incidents. cPaperless will cooperate with Customer and take the necessary steps to comply with existing laws in connection with any Security Breach.
10. ACCEPTANCE, REPRESENTATIONS, WARRANTIES AND DISCLAIMER.
10.1 Representations and Warranties. Each party represents and warrants to the other party that: (a) such party has all requisite corporate or other applicable power and authority to execute, deliver and perform its obligations under this Agreement; (b) the execution, delivery and performance of this Agreement by such party has been duly authorized; and will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; (c) such party is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the transaction of business of the character transacted by such party; and (d) such party has obtained all applicable permits and licenses required of such party in connection with such party’s obligations under this Agreement and will, in such party’s performance of this Agreement, comply with all applicable laws, rules, treaties, generally prevailing industry standards and regulations.
10.2 Limited Warranty. During the subscription period, for any faults of the Software, cPaperless will either correct any reproducible failure of the Software pursuant to Exhibit B to conform with the specifications that Customer reports in writing to cPaperless within thirty (30) days after such failure is discovered or terminate this Agreement and refund any prepaid Subscription Fees paid by Customer for the affected Software. The warranty granted under this Section 10.2 will be effective only during the subscription period and only for so long as (a) the Software has not been materially modified or customized by any person other than cPaperless or its authorized agents or subcontractors, and (b) the Software has not been subject to any abuse, accident, or misapplication. The foregoing is Customer’s sole and exclusive remedy and states cPaperless’ entire liability arising out of the warranty granted under Section 10.2. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 10.2, CPAPERLESS PROVIDES THE SOFTWARE AND SUPPORT SERVICES “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO SUCH WARRANTIES IN ENTERING INTO THIS AGREEMENT. FURTHER, CPAPERLESS DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
11. LIMITATION OF LIABILITY.
11.1 Cap on Liability. EXCEPT FOR (A) EITHER PARTY’S LIABILITY WITH RESPECT TO A BREACH BY SUCH PARTY OF ITS CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS HEREUNDER, (B) CUSTOMER’S LIABILITY WITH RESPECT TO ITS PAYMENT OBLIGATIONS UNDER THIS AGREEMENT OR BREACH OF SECTION 2, (C) EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (D) EITHER PARTY’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, THE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION, WILL NOT EXCEED THE SUBSCRIPTION FEES PAID TO CPAPERLESS FOR THE SOFTWARE TO WHICH SUCH LIABILITY RELATES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, TO THE MAXIMUM EXTENT ALLOWED BY LAW, CPAPERLESS’ AGGREGATE LIABILITY TO CUSTOMER FOR BREACHES OF SUBSECTIONS (A) AND (C) ABOVE, REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION, WILL NOT EXCEED THE LESSER OF (i) $250,000 OR (ii) CUSTOMER’S PRO-RATA SHARE OF $4 MILLION DOLLARS SPLIT BETWEEN ALL OF CPAPERLESS’ CUSTOMERS IF A BREACH AFFECTED MORE THAN ONE CUSTOMER.
11.2 Disclaimer. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, INCLUDING WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR REVENUES, LOSS OR RECONSTRUCTION OF DATA, OR LOSS OF ACCESS TO DATA. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, CPAPERLESS’ AND CUSTOMER’S LIABILITY IS LIMITED TO THE LOWER OF $250,000 OR THE MAXIMUM EXTENT PERMITTED BY LAW.
11.3 Basis of Bargain. CUSTOMER ACKNOWLEDGES THAT (A) CPAPERLESS HAS SET ITS PRICES AND ENTERED INTO THE AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND (B) THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THE AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
12.1 By cPaperless. cPaperless will, at its own expense, indemnify, defend and hold harmless Customer and pay all costs and damages awarded against or incurred by Customer based on any third party claim that authorized use of the Software by Customer infringes upon any US copyright or misappropriates any trade secrets. cPaperless’ obligation will not extend to a claim based on any alleged infringement arising from any: (a) additions, changes or modifications to the Software by or on behalf of Customer; (b) use or incorporation of the Software or any component thereof with or into any other service, product or process; (c) Customer Information or Confidential Information provided to cPaperless by Customer; or (d) use of the Software other than as permitted by this Agreement. Should the Software become, or in cPaperless’ opinion be likely to become, the subject of any such suit or action for infringement or if Customer is enjoined from using the Software, then cPaperless will, at cPaperless' option and expense: (i) procure for Customer the right to continue using the Services; (ii) replace or modify such Services so that they become non-infringing; or (iii) terminate the Agreement and refund any Subscription Fees prepaid by Customer to cPaperless for the remaining Subscription Period. THIS SECTION 12.1 STATES CPAPERLESS’ ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS RELATING TO THE SOFTWARE OR SUPPORT SERVICES.
12.2 By Customer. Customer will, at Customer’s own expense, indemnify, defend, hold harmless and pay all costs, damages and expenses (including reasonable attorney’s fees) awarded against or incurred by cPaperless based on any claims, allegations or lawsuits that may be made or filed against cPaperless by any person: (a) as a direct or indirect result of any use by Customer or any User of the Software, excluding claims for which cPaperless is liable to indemnify Customer under Section 12.1; or (b) that use by cPaperless under this Agreement of Customer Information or Customer’s Confidential Information infringes or misappropriates the Intellectual Property Rights of, or has caused harm or damage to, a third party, including by way of breach of Customer’s or the User’s obligation of confidentiality to any third party.
12.3 Procedure. The indemnifying party's indemnification obligations under this Section 12 are conditioned upon the indemnified party: (a) giving prompt notice of the claim to the indemnifying party, however, failure to provide prompt notice does not negate the indemnifying party’s obligation unless the indemnifying party has been materially prejudiced by the failure to receive the notice; (b) granting sole control of the defense or settlement of the claim or action to the indemnifying party (except that the indemnified party's prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of or, result in any ongoing material liability to the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party's request and expense, assistance in the defense or settlement of the claim. In any event, the indemnified party will have the option of participating in the defense at its own expense.
cPaperless, at its sole cost and expense, will maintain the following insurance coverage (and provide evidence of such to Customer upon request) to protect Customer from losses or claims which may arise out of the performance of services throughout the term of this Agreement, including renewal periods and transition periods.
Neither party may assign, resell or otherwise transfer any goods or services received under this Agreement to a third party without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign all of its rights and duties under this Agreement to a third party that: (a) directly or indirectly controls such party; (b) is controlled by or under common control with such party; or (c) purchases all or substantially all of such party’s assets including by way of merger or operation of law; provided that: (i) such party uses reasonable efforts to give prior written notice to the other party of the assignment, and (ii) the assignee agrees to be bound by all the terms of this Agreement; and (iii) in the case of assignment by Customer, unless otherwise agreed to in writing, the number of Users authorized by assignee to use the Software does not exceed the number of Users using the Software prior to such assignment without the payment of additional fees. Unless specifically authorized in writing by cPaperless, assignment of this Agreement will not release Customer from any prior outstanding obligation under this Agreement. This Agreement will inure to the benefit of each party’s successors and permitted assigns. Any assignment in violation of this Section 14 is null and void.
No agency, partnership, or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party. Neither party has the authority to act for, bind, or incur any debts or liabilities on behalf of, the other party in any respect whatsoever.
Each party will act in good faith and refrain from activities that attempt to induce the other party’s employee(s) to leave their employer, or to interfere with the other party’s relationship with its employees. The parties agree that during the term of the Agreement, and for a period of twelve (12) months thereafter, neither party will, in any way, directly or indirectly (a) induce or attempt to persuade any employee of the other to quit employment, (b) otherwise interfere with or disrupt the other party’s relationship with its employees, or (c) knowingly solicit, entice or hire away any employees of the other party. Nothing in this Section 16 prohibits either party from hiring in response to a general solicitation for employment or if approached by the prospective employee without solicitation by the party hiring.
17. FORCE MAJEURE.
Either party will be excused from performance under this Agreement for any period and to the extent that it is prevented from performing pursuant hereto, in whole or in part, as a result of delays caused by Customer or third parties or an act of God, war, civil disturbance, court order, labor dispute or other cause beyond cPaperless’ reasonable control, including without limitation failures or fluctuations in electrical equipment. In addition, the Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Neither party is responsible for any delays, failures, or other damage resulting from such problems.
18. GENERAL TERMS.
If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired. Under no circumstances will the preprinted terms of any purchase order or any other terms apply to this Agreement. Capitalized terms have the meanings given in this Agreement. No waiver of any of the terms or conditions of this Agreement will be binding for any purpose unless made in writing and signed by authorized representatives of both parties and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either of the parties in exercising any right will operate as a waiver, nor will any single or partial exercise by either of the parties of any right preclude any other or further exercise thereof or the exercise of any other right. All notices, consents and approvals under this Agreement must be delivered in writing by overnight delivery with a tracking system, personal delivery, or certified mail, postage pre-paid, to the other party at its address set forth in above or at such other address as may be later designated by such party. Notices will be deemed to have been received upon the date of receipt or, in the case of certified mailing, two (2) days after deposit in the mail. This Agreement will be governed by the laws of the State of California without regard to conflicts of law principles. All disputes arising under this Agreement must be brought in the state and federal courts located in Orange County, California. Each party irrevocably hereby consents to the jurisdiction and venue of any such court in any such action or proceeding. Each party consents to service of process by mail at the address for such party using the notice provisions hereof or any other method allowable under the laws of the State of California. The prevailing party in any action shall be entitled to recover all of its attorneys’ fees and costs related to or arising out of such action.
EXHIBIT B: SUPPORT AND MAINTENANCE TERMS AND CONDITIONS
This Support and Maintenance Terms and Conditions are attached to the Master Software License and Services Agreement (the “Agreement”) by and between cPaperless and the Customer and address cPaperless’ performance of the Support Services and the service levels with respect to the Server Software under the Agreement. All capitalized terms used but not defined in these Support and Maintenance Terms and Conditions have the meaning set forth in the Agreement or the General Terms and Conditions.
1.1. “Excused Downtime” means anytime the Server Software is not available for access that (i) occurs during a Scheduled Maintenance Period or (ii) is caused by: (A) Customer’s or a Users’ telecommunications and Internet services, (B) services, software or hardware not provided and controlled by cPaperless (including third-party services, software or sites that are accessed or linked through the Software), or (C) force majeure events.
1.2. “Scheduled Maintenance Period” means any time period during which cPaperless performs scheduled or emergency maintenance on the Software.
2. SERVICE LEVEL.
cPaperless will use commercially reasonable efforts to cause the uptime for the Server Software to be no less than 99%, excluding Excused Downtime. cPaperless shall provide an advanced notice of at least two (2) business days to Customer for any scheduled maintenance.
3. SUPPORT SERVICES.
3.1. The Support Services provided under this Agreement will include online support available during cPaperless’ normal business hours (5 am PST to 5 pm PST) Monday – Friday or as extended (5 am PST to 6 pm PST, Monday – Friday, and 7 am PST to 4 pm PST on Saturday) during Customer’s annual busy seasons, which are January 27th – April 15th and September 5th – October 15th. Any Support Services provided by cPaperless to Customer after normal business hours, the extended hours referenced above or during weekends and cPaperless’ holidays or other periods of closure will be, at cPaperless’ option, charged at cPaperless’ then-current rates and costs.
3.2. The Support Services will be provided only for those issues submitted to cPaperless from (1) via email to firstname.lastname@example.org, (2) submitted as a support ticket from the cPaperless website, (3) submitted via a phone call or voice mail to (855) 818-3552, or (4) Submitted directly through the Program i.e Report a Problem. Customer must provide cPaperless with accurate and complete information regarding each issue logged by Customer. cPaperless will not be responsible for any delays or failures caused by Customer's failure to abide by the requirements of this Section 3.2. cPaperless may reclassify any case misclassified as falling into one of the severity categories listed below.
3.3. The Support Services are offered to Customer on a commercially reasonable-efforts basis only. Customer acknowledges that cPaperless may not be able to resolve every request for support through the Support Services. Customer’s exclusive remedy and cPaperless’ sole obligation for any failure to resolve a request shall be to use commercially reasonable efforts to resolve such request. In the event that the request for support is not covered by the Support Services, Customer may have to purchase additional services from cPaperless. Any additional services are made available upon agreement by cPaperless at cPaperless’ then-current rates. The Support Services are provided for on-going use of the Software; they are not intended to be a substitute for the professional services or training necessary for the implementation of the Software. All other services, including without limitation, on-site assistance, custom programming, database and network administration, new features and custom designed reports and forms, may be furnished by cPaperless at cPaperless’ then-current rate.
3.4. The Support Services do not include any of the following: (i) resolving network, workstation or environmental errors not directly related to the Software; or (ii) supporting the Software being used in a manner for which it was not designed.
3.5. As part of Support Services, cPaperless will investigate all reproducible, material failures of the Software to conform to the specifications as described in the applicable Documentation. cPaperless will partner with Customer to classify the severity of the error, provide efforts to correct the error or provide a workaround to the error as defined in the table below.
|Severity Level||Description||Response Time||Resolution Status/Effort|
|Urgent||Inability to use the Software in any way.||Within twenty-four (24) hours||cPaperless will provide status updates to the designated customer contact on all open Urgent issues, as needed. cPaperless will work to resolve all Urgent issues on a 24-hour basis until such Urgent issue is resolved.|
|High||The Software are severely restricted in use causing major business impact.||Within forty-eight (48) hours||cPaperless will provide status updates to the designated customer contact on all open High priority issues, as needed. cPaperless will work to resolve all High priority issues until such High priority issue is resolved.|
|Normal||A non-critical component of the Software is malfunctioning causing moderate business impact.||Within five (5) business days||cPaperless will provide status updates to the designated customer contact on all open Normal priority issues, as needed.|
|Low||Any other issue that is not an enhancement.||Within fifteen (15) business days||cPaperless will provide status updates to the designated customer contact on all open Low priority issues, as needed.|
4. SERVICE LEVEL CREDITS.
4.1 If the Server Software availability for a given quarter is less than 99%, Customer, as its sole and exclusive remedy, will be entitled to a refund of a portion of the fees payable to cPaperless with respect to that quarter calculated on a pro rata basis, in accordance with the following schedule:
|Quarterly Average Availability||Refund|
|99% or above||0%|
|98.99 to 99%||1%|
|97.99 to 98%||2%|
|96.99% or below||3%|
4.2 Customer will measure the Server Software unavailability on a monthly basis. In order to receive any of the service credits described above, Customer must notify cPaperless within ten (10) days from the end of the month. Failure to comply with this requirement will forfeit Customer’s right to receive a service credit.
4.3 cPaperless will pay the Customer service credits set forth above, on a quarterly basis and within forty-five days of the end of a quarter, for verified unavailability reported by Customer. Notwithstanding anything to the contrary in this Agreement, no service credits will be issued, if Customer is not current in its payment obligations under the Agreement either when the outage occurs or when the credit would otherwise be issued. cPaperless shall not be required to pay credits to the extent that failure to meet service levels is due to Excused Downtime.