Subject to the terms of this Agreement, 4ward hereby grants to Client and its Affiliates (as defined herein)a limited, non-transferable, non-sublicensable and nonexclusive license:(i) to access and use the purchased edition of the 4ward Platform and for which Client has registered and paid the corresponding fees for Client’s own business purposes and in accordance with all applicable laws; and (ii) to allow its authorized directors, officers, employees, partners, advisers, contractors, customers and agents (“End Users”) to access and use the 4ward Platform for the foregoing purposes. The foregoing license grant also includes a license to use any related Documentation (as defined herein). Client and its Affiliates shall be entitled to make a reasonable number of copies of the Documentation in connection with their use of the 4ward Platform hereunder. For purposes of this Agreement, “Affiliates” of Client means any entity that directly or indirectly controls, is controlled by, or is under common control with Client; and “Documentation” means all specifications, user manuals, and written materials and documentation relating to the performance, operation and/or use of the 4ward Platform, as well as any written proposals, program manuals and marketing materials submitted by 4ward to Client.
The limited license granted in Section 1.1is subject to the following restrictions: (a) except as otherwise set forth herein, no provision of this Agreement grants Client a license under any 4ward intellectual property rights, and no license is granted to Client by implication or estoppel; (b) Client shall not reverse engineer, disassemble, decompile, otherwise attempt to derive the source code of the 4ward Platform, or permit others to do any of the foregoing; . Client may not: (i) use the 4ward Platform to send or store material containing software viruses, worms, Trojan horses or other harmful computer code; (ii) interfere with or disrupt the integrity or performance of the 4ward Platform or the data contained therein; (iii) attempt to gain unauthorized access to the 4ward Platform or related systems or networks; (iv) use the 4ward Platform for any benchmarking or competitive purposes; (v) use the 4ward Platform to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the 4ward Platform, or copy any ideas, features, functions or graphics of the 4ward Platform; (vi) access or use (or attempt to access or use) a 4ward Platform user’s account without permission; (vii) “frame” or “mirror” any portion of the 4ward Platform; (viii) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the 4ward Platform; (ix) probe, scan or test the vulnerability of the 4ward Platform, or breach the security or authentication measures on the 4ward Platform, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the 4ward Platform, such as a denial of service attack; (x) use the 4ward Platform to send or otherwise post unauthorized commercial communications (such as spam); or (xi) use the 4ward Platform to engage in unlawful multi-level marketing, such as a pyramid scheme. Client shall not aid or permit others to do any of the foregoing.
Client shall adhere to all applicable export control laws and regulations with respect to the 4ward Platform, and will not export or re-export or permit access to the 4ward Platform, in whole or in part, directly or indirectly, to any country to which such export or re-export is restricted by any laws or regulations of the U.S. unless properly authorized by the U.S. Government . Client represents that it is not named on any U.S. or other applicable government denied-party list.
Client shall retain exclusive ownership of all rights in any and all Client Data (as defined herein). Subject to the terms and conditions of this Agreement, Client grants 4ward a nonexclusive, nontransferable, non-sublicensable, worldwide, license to use, copy and display Client data, information and other content transmitted, uploaded and/or generated to or through the 4ward Platform (“Client Data”) solely to provide the 4ward Platform to Client and to improve performance of the 4ward Platform for Client in accordance with the terms of this Agreement. For the avoidance of doubt, Client Data shall include, without limitation, all data generated or supplied by Client’s Affiliates, End Users, customers and subscribers.4ward will not use, sell, rent, transfer, distribute or otherwise disclose or make available Client Data for 4ward’s own purposes or for the benefit of any person or entity other than Client without Client’s prior written consent expressly authorizing the specific use and/or disclosure.
4ward represents, warrants and covenants that it will treat all Client Data in accordance with 4ward then applicable privacy policies, privacy statements and applicable law.
4ward will endeavor to collect Data from Microsoft on behalf of the Client at least one every 24 hours, where the time of collection is decided by 4ward. 4ward will ensure that Data presented to the Client is accurate and not in any way changed. The Customer acknowledges that the Data provided by 4ward has been sourced from Microsoft and that it does not hold 4ward responsible for any inaccuracies or defects of any Data presented to the Customer unless caused by a Defect in the Platform or otherwise due to the actions or inactions of 4ward and that from time to time 4ward may not be able to collect Data from Microsoft due to a Force Majeure Event or Service affecting issues outside of 4ward’s control.
Client is responsible for all use of the 4ward Platform and Customer Data by its End Users, and for their compliance with this Agreement, and any breach of this Agreement by such End Users shall be deemed to have been a breach by Client.
During the Term, 4ward shall provide Client with technical support and maintenance for the 4ward Platform in accordance with the service level agreement set forth in the applicable Ordering Document (the “Support Services”). The Support Services shall include: (a) responding to and remedying problems with the 4ward Platform; and (b) access to technical support in accordance with the terms of this Agreement.
The 4ward Platform will be subject to and will meet or exceed the service and performance level terms set forth in the service level agreement(s) attached to Exhibit A (the “Service Level Agreement”).
3.1.3. Backup. 4ward, at its expense, shall make a complete daily backup of all Client Data stored by 4ward under this Agreement, no less than once per day during the Term.
4ward shall maintain and keep current a disaster recovery plan for all 4ward locations .
Support will be provided by the US or European Support Team based on competencies
Each party warrants that it has the authority to enter into this Agreement. Client represents and warrants to 4ward that Client has the right to deliver the Client Content to 4ward and to allow 4ward to use, copy, modify, distribute, display and publicly perform Client Content. THE EXPRESS WARRANTY MADE BY 4WARD ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE 4WARD PLATFORM OR ANY INFORMATION OR SERVICES RELATING TO THE 4WARD PLATFORM, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, ALL OF WHICH ARE HEREBY DISCLAIMED. 4WARD DOES NOT WARRANT THAT THE 4WARDPLATFORM OR ANY INFORMATION OR SERVICES MADE AVAILABLE IN CONNECTION WITH THIS AGREEMENT OR THE 4WARD PLATFORM WILL BE ERROR OR DEFECT-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR THAT ERRORS, DEFECTS OR BUGS CAN OR WILL BE CORRECTED.
Client shall indemnify, defend and hold 4ward, its Affiliates and licensors, and their respective officers, directors, and employees harmless from any losses, damages, costs and expenses directly or indirectly arising out of any claim from any party arising out of or relating to (i) Client’s or its End Users’ use of the 4ward Platform, unless such claims are caused by 4ward’s negligence or is covered by 4ward’s defense obligations in Section 5.2; (ii) Client’s noncompliance with applicable laws or breach of this Agreement.
The requesting Party shall promptly notify the other Party in writing no later than thirty (30) days after its receipt of notification of any claim or potential claim.;(b) the requiring Party shall permit the other Party to assume sole control of the defense of such claim and all related settlement negotiations; and(c) requiring Party shall provide the other Party, at it’s request and expense, with the reasonable assistance, information and authority necessary to perform it’s obligations under this Section 5. Client may not make any admissions or consent to any judgment or settlement in respect of any IP claim without 4ward’s prior written consent.
4ward shall indemnify, defend and hold Client, its Affiliates and licensors, and their respective officers, directors, and employees harmless from any losses, damages, costs and expenses directly or indirectly arising out of any claim from any party arising out of or relating to i) personal injury or property damage caused by the fault or negligence of 4ward or a 4ward employee; (ii) any willful, intentional or negligent action or failure to act by 4ward or 4ward Employees iii) If a third party makes a claim against Client alleging the 4ward Platform (excluding Client Content) directly infringes any U.S. patent, U.S. copyright, or trademark or misappropriates any trade secret (“IP Claim”).
4ward shall have no liability for any Claim of infringement based on (i) the unauthorized modification of the 4ward Platform, (ii) use of the 4ward Platform other than in accordance with the provided Documentation and this Agreement, or (iii) Client Content. If, due to an IP Claim or the threat of an IP Claim, (a) the 4ward Platform or Software is held by a court of competent jurisdiction to be infringing, or in 4ward’s reasonable judgment may be held to infringe by such a court, or (b) Client receives a valid court order enjoining Client from using the 4ward Platform or Software, or in 4ward’s reasonable judgment Client may receive such an order, 4ward may, at its option (1) replace or modify the 4ward Platform or Software to be non-infringing; (2) obtain for Client a license to continue using the 4ward Platform or Software or (3) terminate this Agreement upon notice and refund prepaid but unused amounts received from Customer in respect of the balance of the Term. THIS SECTION 5 STATES THE ENTIRE LIABILITY OF 4WARD AND ITS AFFILIATES TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS.
IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, OR OTHER ECONOMIC LOSS, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF 4WARD HAS BEEN ADVISED OF SUCH CLAIM. The aggregate and cumulative liability of either party to the other for damages arising out of or relating to this Agreement shall in no event exceed the amount of fees paid by Client to 4ward under the applicable Ordering Document during the twelve (12) months immediately preceding the cause of action. Parties do not exclude or limit its liability for death or personal injury caused by its negligence or for fraud.
4ward reserves all rights not expressly granted to Client in this Agreement. Without limiting the generality of the foregoing, Client acknowledges and agrees that any implementation, customization, configuration or deployment of the 4ward Platform for Client shall not affect or diminish 4ward’s rights, title, and interest in and to the 4ward Platform. As between the parties, 4ward and its licensors, suppliers and customers retain all worldwide right, title and interest in and to the 4ward Platform, including all worldwide intellectual property rights therein, and 4ward solely and exclusively owns all right, title and interest therein and thereto, and to all derivative works or enhancements thereof, including but not limited to all worldwide intellectual property rights therein. Client shall not act in any manner inconsistent with such ownership. If Client suggests any new features, functionality, or improvement to the 4ward Platform (“Feedback”), Client acknowledges that all Feedback and products or services incorporating such Feedback are the sole and exclusive property of 4ward, and Client hereby irrevocably assigns to 4ward all intellectual property rights and all other rights and title to such Feedback.
Client acknowledges and agrees that 4ward may from time to time updated and make changes to the 4ward Platform without changing any core functionality to i) full fill market needs and demand, or ii) due to changes of Client’s Data availability from Microsoft or iii) due to changes in applicable law.
All headings in this Agreement are included solely for convenient reference, and shall not affect its interpretation. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable as drafted, that provision shall be severed and the enforceability of other provisions shall not be affected. This Agreement may be modified by 4ward time to time following the service eveolution and eventual law constrain; If any material change will occour 4ward will notify Client. The failure by a party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. This Agreement, together with each Ordering Document, constitutes the entire agreement between the parties concerning its subject matter and supersedes any prior or separate agreements, oral and written, between the parties concerning the subject matter of this Agreement, and supersedes the terms of any Client purchase order, and such terms are rejected by the parties.
Each party will be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including, but not limited to, acts of God, power outages, or failures of the Internet, provided that the party affected by such event will immediately begin or resume performance as soon as practicable after the event has abated.
The interpretation of this Agreement shall be governed by the laws of the State of New York, USA, without regard to its conflict of laws principles. The United Nations Convention for the International Sale of Goods is excluded. The parties agree that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and federal courts in County of New York, USA.
All headings in this Agreement are included solely for convenient reference, and shall not affect its interpretation. If any provision of this Agreement is determined by a court to be invalid or unenforceable as drafted, that provision shall be severed and the enforceability of other provisions shall not be affected. This Agreement may be modified or amended only by a written agreement signed by both parties. The failure by a party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. This Agreement, together with the Service Terms and Conditions, constitutes the entire agreement between the parties concerning its subject matter and supersedes any prior or separate agreements between the parties concerning the subject matter of this Agreement, and supersedes the terms of any Client purchase order, and such terms are rejected by the parties.
4ward will ensure that the 4ward Platform shall be available to Client at least 99.90% of the time during any calendar month (“Availability Commitment”). Notwithstanding the foregoing, 4ward may interrupt service for routine maintenance purposes for up to eight (8) hours per month (“Scheduled Downtime”).
If, in any calendar month during the Term, the availability of the 4ward Platform fails to meet the Availability Commitment, 4ward will grant Client a service credit (“Service Credit”) for that month in accordance with the chart below. Without limiting the foregoing, if 4ward fails to meet the Availability Commitment for any four (4) consecutive calendar months, Client shall have the right to terminate the Agreement for cause and without further liability, in accordance with Section 3 of the Agreement.
|*4ward Platform Availability (Monthly)||Service Credit % of MONTHLY FEES|
|99.89 – 99.00%||0%|
|98.99 – 98.00%||20%|
“4ward Platform Unavailability” is defined as the number of minutes in which the 4ward Platform, or any core functionality of the 4ward Platform, is not available, but does not include any unavailability that is caused solely by: (a) Scheduled Maintenance; (b) acts or omissions of Client or its End Users in violation of the Agreement; (c) failures within Client’s internal network or of Client-controlled connectivity to the 4ward Platform; (e) Microsoft issue or (f) force majeure events as described in Section 8.5 of the Agreement.
4ward will make available, during Business Hours (07:00 – 23:00 GMT on a Business Day), an email based helpsesk facility for the correction fo defects.
In addition to meeting the Availability Commitment set forth above, 4ward will correct problems with the 4ward Platform (“Problems”) in accordance with the following terms. 4ward wil provide an email address (email@example.com) to which Client can report Problems with the 4ward Platform. All support services will be provided remotely. All Problems will be categorized in accordance with the category definitions below
|Service Class Tier||SLA||Activity||Time|
|Severity 1 (Critical)||100%||Response||2 hrs|
|Severity 2 (Major)||95%||Response||4 hrs|
4ward’s disaster recovery plan shall provide, at a minimum, that (a) the core functions of the 4ward Platform will come back online and be available within twenty-four (24) hours after the declaration of a disaster; and (b) the 4ward Platform will be fully functional and operating in accordance with this Service Level Agreement within five (5) days after a declaration of a disaster.
4ward shall have no obligation under this Agrement to provide Support Services in respect of any fault or error caused by: