Paradigm
agrees to furnish to Customer, and Customer agrees to accept, the use of the
Licenses and Services as defined below pursuant to and in accordance with the
terms and conditions of this Agreement.
DEFINITIONS: Whenever used in this Agreement, the terms
set forth in this Section will have the meanings below. Other terms are
defined throughout this Agreement as they first appear. Where the context so
indicates, a word in the singular form will include the plural and vice versa.
- "BIA Expert
" - an optional feature/module within the OpsPlanner Software Suite
that seamlessly integrates Business Impact Analysis workflow and data into
the business continuity process as specified in Paradigm's marketing
Documentation.
2. “Business Continuity
Planning” - the advanced planning and preparation which is necessary to
minimize loss and insure continuity of an organization’s critical business
functions in the event of a disaster and/or major business disruption.
- "Burstable Option" - an
optional feature within the OpsPlanner Software, which provides the
ability for the customer to extend their licensed number of concurrent
users to the full extent of the number of total licensed users. This
option is provided in blocks of time whereby each block is equivalent to 15
calendar days per year ("Burstable Days/Blocks").
- "Documentation" - interface
documentation to other applications and services, startup documentation
required for the installation, administration, usage, and initial setup of
the OpsPlanner Software Suite, help screens, user interface documentation,
training materials, advertisements, marketing collateral, company
information brochures, websites, and any other documentation provided by
Paradigm to Customer that describes the features and functionality of the
Service.
5. "FTP Sync" -
an optional feature of the OpsPlanner Software Suite that provides for the
ability to synchronize contact information stored in an organization’s
information system, with similar contact information stored within OpsPlanner.
6. “Hosting Service” - the
provision of the data center, servers and other devices, bandwidth, software,
and other services as applicable, contracted, and described in Schedule E.
7. “Notification
Software” – an optional feature within the Recovery Manager module that allows
for the automated notification of designated key persons (i.e.,
employees, customers, vendors) via a third party communications provider.
- “OpsPlanner Software Suite” - consists of
the Plan Manager and Recovery Manager software modules as defined herein.
- “Plan Manager” - a standard module within
the OpsPlanner Software Suite that facilitates the gathering of
information within an organization and the development of business
continuity recovery plans.
- “Professional Consulting Services” - business
continuity consulting services, including, but not limited to, training
regarding the use of the OpsPlanner Software Suite, and business
continuity planning and development consulting provided by Paradigm staff
or Third Party Providers.
- “Recovery Manager” - a standard module
within the OpsPlanner Software Suite that facilitates the management of an
emergency event through the assignment and tracking of tasks, issues,
announcements, and the automated notification of key parties.
- “Service” - the OpsPlanner Software Suite,
Professional Consulting Services, Hosting Services, and any other
supplemental service(s) provided by Paradigm to Customer pursuant to this
Agreement.
- “Third Party Provider(s)” - any and all
third party entities contracted by Paradigm for the purpose of providing
products or services associated with and or integral to provision of the
Service and/or the OpsPlanner Software Suite.
SECTION 1
SCOPE OF AGREEMENT
During the Term of this Agreement, Paradigm
shall provide and Customer shall use the OpsPlanner Software Suite, Paradigm
Professional Consulting Services, and all other associated functions,
(collectively the “Service”) as may be applicable.
SECTION 2
Use of the Service
Customer
agrees to utilize the Service in accordance with this Agreement and the Terms
of Use set forth as applicable. Customer acknowledges that Paradigm and its
Third Party Providers have the authority to disable or modify the access of any
user of the Service in Paradigm’s sole discretion if such user is in material
breach of the terms of this Agreement and such breach is not cured by Customer
within 30 days of Customer’s receipt of written notice describing such breach.
Customer shall not, nor without the express authorization of Paradigm, permit
any party to copy, transfer, create derivative works of, or otherwise reproduce
the Service, whether for redistribution, lease, assignment, or license to any
third party or for any other purposes, except in connection with the uses
expressly permitted by this Agreement. Customer shall not decompile or
otherwise reverse engineer any portion of the Service or in any other manner
attempt to obtain Paradigm proprietary database structure, indices, computer
programs, and programming techniques. Customer shall agree not to remove or
alter any proprietary notices or markings displayed in or on Paradigm’s or any
of its Third Party Providers’ software products.
SECTION 3
Implementation of the Service
Paradigm and
Customer agree to make their reasonable best efforts to complete the
implementation of the Service within thirty (30) days of execution of this
Agreement.
SECTION 4
EXPIRATION AND
TERMINATION
4.1 Term of Agreement.
This Agreement shall have an initial term of defined years from the
Effective Date (the “Term”).
4.2 Termination for Cause.
Either party may terminate this Agreement, or any part hereof, for cause in the
event of any material default by the other party, or if the other party fails
to comply with any material contract term or condition and such default or
failure of compliance has not been remedied within thirty (30) days (or some
mutually agreed timeframe) of the date of written notice of the default or
failure of compliance. In the event of termination by Customer for cause, no
future fees will be due or owing and Customer shall be entitled to a refund of
any pre-paid fees paid to Paradigm under this Agreement. In the event of
termination by Paradigm for cause, the Customer shall be liable to Paradigm for
payments for all services provided up to the date of termination, and Customer
shall not be entitled to a refund of any pre-paid fees.
4.3 Termination for
Bankruptcy. Upon the filing of a petition in bankruptcy, insolvency or
reorganization against or by either party, or either party becoming subject to
a composition for creditors, whether by law or agreement, or either party going
into receivership or otherwise becoming insolvent (such party hereinafter
referred to as the “Insolvent Party”), this Agreement may be terminated by the
other party by giving written notice of termination to the Insolvent Party,
such termination being immediately effective upon the giving of such notice of
termination.
4.4 Effect of Termination or Expiration. Upon any termination or expiration of this Agreement, (a)
the Parties shall immediately pay to each other any and all amounts due and
owing (and, except as provided in this Agreement, Customer shall not be
entitled to a refund of any payments made under this Agreement prior to
termination or expiration); (b) the rights and licenses granted to each Party
under this Agreement shall terminate; (c) each party shall return all
Confidential Information as defined herein of the other party, and (d) upon
request each party shall certify in writing to the other party its compliance
with the foregoing.
SECTION 5
COMPENSATION AND PAYMENT
5.1 Compensation.
In consideration for the Service, Customer shall pay Paradigm the amounts set
forth in Schedule E as attached hereto.
5.2 Payment
Schedule. All fees and charges are due and payable in accordance with the
Agreement as indicated below. Unless otherwise specified herein, the initial
fees for Services shall be invoiced at the Effective Date of this Agreement (or
order, if a follow up order), and all subsequent annual fees shall be invoiced
to be due and payable on each anniversary of the Effective Date.
5.3 Taxes.
The payment obligations stated in this Agreement are exclusive of any
federal, state, municipal or other governmental taxes, duties, excise taxes or
tariffs imposed on the storage, sale, transportation, import, export, licensing
or use of the Service. Such charges shall be paid by Customer, or in lieu
thereof, Customer shall provide an exemption certificate acceptable to Paradigm
and the applicable authorities.
SECTION 6
OWNERSHIP
Customer acknowledges
that Paradigm and its Third Party Providers retain ownership of any
intellectual property rights related to the delivery of the Service including,
but not limited to, Paradigm software, API’s, trademarks, templates, and
service marks (“Paradigm IP”). Paradigm shall be the exclusive owner
(including, without limitation owner of copyrights therein) of the Service, its
components and derivatives.
SECTION 7
WARRANTIES &
LIMITATION OF LIABILITY
7.1 Warranty.
Paradigm warrants to Customer that it and its Third Party Providers own or have
a valid license for all rights and title to the Service or is otherwise
authorized to grant to Customer the rights herein.
7.2 Disclaimers.
(a) Except as expressly set forth IN THIS AGREEMENT, SCHEDULES AND/OR
DOCUMENTATION, , Paradigm and its Third Party Providers MAKE NO
WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND CONCERNING THE SERVICES,
EITHER EXPRESS OR IMPLIED. PARADIGM WILL USE BEST EFFORTS TO MAKE ACCESS TO
THE SERVICES AVAILABLE TO CUSTOMER THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT
MAKES NO WARRANTY OR GUARANTEE THAT CUSTOMER OR ITS CUSTOMERS WILL BE ABLE TO
ACCESS THE SERVICES AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
(b) WITHOUT LIMITING
THE GENERALITY OF THE TERMS SET FORTH ABOVE, PARADIGM AND ITS AFFILIATES,
AGENTS, THIRD PARTY PROVIDERS, SERVICE PROVIDERS, AND LICENSORS:
(i) HEREBY DISCLAIM ALL
EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, MERCHANTABILITY,
OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SERVICES GENERALLY, AND ANY
CONTENT CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT
THE OPERATION OF THE SERVICES GENERALLY AND ANY CONTENT CONTAINED THEREIN WILL
BE UNINTERRUPTED OR ERROR-FREE; AND
(ii) SHALL IN NO EVENT
BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION IN,
OR LOSS, INJURY, OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS, OR
INTERRUPTIONS IN THE SERVICES GENERALLY, AND ANY CONTENT CONTAINED IN THE
MESSAGES DELIVERED BY PARADIGM AS PART OF THE SERVICES.
7.3 Limitation of Liability. IN NO
EVENT WILL (A) EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF REVENUES OR LOST OF ANTICIPATED PROFITS, ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) EITHER PARTY’S TOTAL AGGREGATE
LIABILITY HEREUNDER FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID or payable BY OR TO EITHER PARTY HEREUNDER; FOR THE TWELVE
(12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATION OF LIABILITY SHALL
NOT APPLY TO THE MATTERS THAT EACH PARTY IS INDEMNIFYING PURSUANT TO SECTIONS
7.5 AND 7.6 HEREIN.
7.4 High Risk Activities.
THE SERVICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR
INTENDED FOR USE OR RESALE IN HAZARDOUS CIRCUMSTANCES REQUIRING FAIL-SAFE
PERFORMANCE, INCLUDING BUT NOT LIMITED TO, USE IN THE OPERATION OF NUCLEAR
FACILITIES, AIRCRAFT NAVIGATION, OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL,
DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, OR IN ANY CASE IN WHICH THE
FAILURE OF THE SERVICE COULD CAUSE DEATH, PERSONAL INJURY, PROPERTY DAMAGE OR
SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, AND ANY SUCH USE SHALL BE AT
CUSTOMER’S SOLE RISK (“HIGH RISK ACTIVITIES”). IN ADDITION TO THE OTHER
DISCLAIMERS AND LIMITATIONS CONTAINED WITHIN THIS AGREEMENT, PARADIGM AND ITS
AFFILIATES, AGENTS, AND THIRD PARTY PROVIDERS, SPECIFICALLY DISCLAIM ANY EXPRESS
OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
7.5 Paradigm Indemnification. Subject
to Section 7.7, below, Paradigm shall defend Customer, its officers, directors
and employees (collectively, the “Customer
Indemnitees”) at Paradigm’s expense, against any third-party claim
or demand for relief to the extent arising out of the infringement of any
United States patent, copyright, or trade secret or any other intellectual
property right of any third party directly attributable to the Service; and
Paradigm shall indemnify the Customer Indemnitees for such amounts a Customer
Indemnitee is required to pay as a result of any (a) settlement of such claim
negotiated by Paradigm as provided below or (b) final judgment (meaning a judgment
not susceptible of any further judicial review or appeal) rendered by any court
of competent jurisdiction as a result of such claim, including reasonable
attorneys’ fees and costs assessed or awarded in connection with such a suit,
provided that: (i) the Customer Indemnitee notifies Paradigm promptly in
writing of the claim, (ii) the Customer Indemnitee permits Paradigm solely to
defend, compromise, or settle the claim, and (iii) the Customer Indemnitee
provides all available information and assistance, at Paradigm’ expense, to
enable Paradigm to do so. This indemnity shall be Customer’s sole remedy in
the event of an infringement of patent, copyright, or trade secret or any other
intellectual property right of any third party by Paradigm.
7.6 Customer
Indemnification. Customer shall defend, indemnify and hold Paradigm
and its officers, directors, employees, agents, consultants, and Third Party
Providers (collectively, the “Paradigm Indemnitees”) harmless from and against
any and all liability, judgment, loss, damages, fines and reasonable expenses
which any or all of them may hereafter suffer themselves or pay out to another
by reason of any claim, action, or right of action of a third party or
governmental authority, law or in equity, based on or in any way arising out of
Customer's or its customers’ use of the Service, or violations of this
Agreement, applicable laws or regulations., provided however that Customer
shall have no obligations under this Section 7.6 to the extent that such third
party claim results directly from Paradigm’s negligent, intentional or willful
acts, or omissions to act that constitute material nonconformance with the
terms contained in this Agreement, and provided in every instance that Paradigm
is promptly notified in writing of such liability or claim and given full and
complete authority, information and assistance, at Paradigm’s expense, for the
defense thereof, including any settlements or appeals related thereto.
7.7 Exceptions. Paradigm’s duty to
indemnify Customer Indemnitees shall not apply to the extent that such a claim
is based on (a) unauthorized modifications to the Service if the Service
without such modifications would not give rise to such claim, (b)
representations, warranties or other statements made by Customer but not
specifically authorized by Paradigm herein or otherwise in writing, including
without limitation any violation of the terms of Schedules A, B, or C hereto,
(c) use of the Service in combination with any other products, services,
applications or activities, if the use of the Service alone would not give rise
to such claim, (d) use of the Service in a manner inconsistent with the
Documentation or in a manner not authorized under this Agreement, (e) use or
marketing of the Service in a manner inconsistent with any applicable law, rule
or regulation, (f) the gross negligence, intentional act or willful misconduct
of Customer, or (g) Customer’s material breach of its obligations or
representations contained in this Agreement.
7.8 Replace or Modify. In the event
that the use of the Service in conformance with this Agreement is found by a
court of competent jurisdiction to be or is the subject of an action alleging
an infringement of a United States patent, copyright, trade secret right or any
other intellectual property right of any third party, which final judgment
results in a discontinuance of the Service, Paradigm shall at its option and
expense and to the extent commercially reasonable: (i) procure for the Customer
the right to continue using the Service in accordance with this Agreement; (ii)
modify the Service or appropriate part thereof, at no cost to Customer, so that
the Service, when used in accordance with the Agreement is non-infringing; or,
(iii) terminate this Agreement and refund to Customer any unamortized amounts
prepaid to Paradigm hereunder.
7.9 Other
Stipulations. Whenever a provision of the Service is dependent upon
Customer furnishing Paradigm appropriate data, documents, information, or
materials, Customer will furnish all such data, documents, information, or
materials in a timely fashion, and will process such data, documents,
information, or materials when necessary. Paradigm is not responsible for the
validity of Customer’s data in the system. The validity of the data or information
presented to Customer’s customers or users of the Service is the sole
responsibility of Customer.
Neither
Paradigm nor any of its Third Party Providers has control over any third party
content which may be transmitted through, stored on, or accessed via the
Service or the party to whom the communication is directed. Customer agrees
that it assumes all responsibility for such third party content and the valid
consent of the party receiving the communication. Customer expressly agrees
not to use the Service to store, acquire, solicit, transfer, exchange or
otherwise be involved with any illegal or illicit material, including, but not
limited to: materials which constitute copyright infringement, materials deemed
legally obscene or child pornography, materials which constitute illegally
acquired proprietary information or trade secrets, materials which facilitate
the commission of a crime, and material which constitutes actionable
defamation.
SECTION 8
CONFIDENTIALITY
During the Term of this Agreement and for a period of three
years thereafter, all Confidential Information disclosed by either party to the
other party shall not be used by the receiving party (except in connection with
the activities permitted by this Agreement), shall be maintained in confidence
by the receiving party and shall not otherwise be disclosed by the receiving
party to any other person, firm or agency, governmental or private, without the
prior written consent of the disclosing party, except to the extent required to
comply with applicable laws or governmental regulations. The obligation of
confidentiality and non-disclosure shall not apply to such portion of the
Confidential Information which:
(i) is or becomes
generally available to the public other than as a result of disclosure by the
receiving party or its employees, representatives or agents; or
(ii) becomes available
to the receiving party on a non-confidential basis from a third party
(unrelated to the receiving party) which is entitled to disclose it; or
(iii) was known to the
receiving party on a non-confidential basis prior to its disclosure to the
receiving party by the other party; or
(iv) is independently
developed by individuals without access to the Confidential Information.
“Confidential
Information” means information which the disclosing party desires to protect
against unrestricted disclosure or competitive use by the receiving party and
which is clearly identified as confidential to the receiving party or would be
deemed as confidential by a prudent individual, including, but not limited to,
customers’ names, telephone numbers, email addresses, identification numbers,
account numbers and passwords. Confidential Information also includes, without
limitation, information concerning business methods, pricing, business plans,
and customer information. Confidential Information may also include
proprietary or confidential information of third parties that have granted
licenses to the disclosing party. Any breach of this provision would
constitute irreparable harm, and either party shall be entitled to seek
specific performance or injunctive relief to enforce this provision in addition
to such remedies said party might otherwise be entitled to at law or in
equity. Upon termination of this Agreement, the recipient of Confidential
Information will promptly, either destroy all of the disclosing party’s
Confidential Information in its possession, including all copies and
compilations thereof and provide an officer’s certificate confirming its
destruction, or, if requested by the disclosing party, return all of its
Confidential Information, including all copies and compilations thereof. In
addition, each party will be obligated to report to the other any potential use
or disclosure of confidential information they become aware of that is not
provided for in this Agreement.
SECTION 9
MARKETING and
CO-BRANDING
9.1 Trademarks.
No usage of either party’s trademarks will be permitted without prior written
approval of the other party.
9.2 Joint
Public Relations. By prior mutual agreement in writing, the parties
may issue a joint press release announcing their collaboration, create an
application story highlighting Customer’s use of the Service, and/or
participate in other joint marketing activities.
SECTION 10
GENERAL
PROVISIONS
10.1 Non-Solicitation.
During the
period commencing on the Effective Date and continuing until the first
anniversary of the date on which this Agreement is terminated, neither party
shall directly solicit for employment, employees of the other party who are
involved in providing or receiving the Service. General solicitation of either
party’s employees (for example, advertisements in newspapers, recruiting
websites, etc.) does not constitute a violation of this section. Nothing
herein shall be construed to prohibit hiring of employees responding to general
solicitations.
10.2 Assignment.
Neither this Agreement nor any interest herein may be assigned, in whole or in
part, by either party without the prior written consent of the other party,
which consent shall not be unreasonably withheld. Notwithstanding the above,
either party may assign this Agreement in connection with a merger,
reorganization or sale of all or substantially all of its assets or capital
stock. Customer further agrees that any assignment or transfer of its rights
under this Agreement may also be subject to the approval of a Third Party
Provider.
10.3 Notices.
All notices provided for in this Agreement shall be given in writing and shall
be effective when either served by personal delivery, or deposited, postage
prepaid, in the United States, registered or certified mail, addressed to the
parties at their respective addresses, or to such other address or addresses as
either party may later specify by written notice to the other.
10.4 Mergers and Amendment.
This Agreement, and Schedules hereto, constitute the entire understanding of
the parties with respect to the subject matter of this Agreement and merges,
replaces and supersedes all prior communications, representations, documents,
understandings, and agreements. This Agreement shall not be modified except by
a subsequently dated written amendment to this Agreement signed by the duly
authorized representatives of each party.
10.5 Binding
Effect. Subject to the limitations herein before expressed, this Agreement
will mutually benefit and be binding upon the parties, their successors and
permitted assigns. All signed copies of this Agreement shall be deemed
originals.
10.6 Severability
and Waiver. If any provisions of this Agreement shall be held by a court
of competent jurisdiction to be contrary to law or public policy, the remaining
provisions shall remain in full force and effect. No terms or provisions
hereof shall be deemed waived and no breach consented to or excused, unless
such waiver, consent or excuse shall be in writing and signed by the party
claimed to have waived or consented. Should either party consent, waive or
excuse a breach by the other party, such shall not constitute a consent to,
waiver of, or excuse of any other different or subsequent breach whether or not
of the same kind as the original breach.
10.7 Governing
Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland without regard to its conflicts of laws
provision.
10.8 Force
Majeure. Neither Paradigm nor Customer shall be liable for damages for
any delay or failure of delivery arising out of causes beyond their reasonable
control and without their fault or negligence, including, but not limited to,
acts of civil or military authority, fires, riots, wars, or embargoes.
10.9 Relationship
of Parties. The parties hereto are independent contractors and neither
party is an employee, agent, partner or joint venture of the other. Neither
party shall have the right to bind the other to any agreement with a third
party.
10.10 Survival.
Notwithstanding anything else in this Agreement to the contrary, the parties
agree that Sections 4.4, 6, 7, 8, 9.1, and 10.1 shall survive the termination
or expiration of this Agreement.
10.11 Headings.
The section headings used herein are for convenience of reference only, and no
construction or inference shall be derived there from.
10.12 Counterparts.
This Agreement may be executed in several counterparts, all of which taken
together shall constitute one single Agreement between the parties. This
Agreement may be executed by facsimile signature(s).