THIS CUSTOMER LICENSE AGREEMENT (“Agreement”) is entered into by and between Inversoft Inc., dba FusionAuth, a Colorado corporation (“Company”), and the customer (either an individual or single legal entity) identified below (“Licensee”) and governs Licensee’s use of Company’s FusionAuth™ software together with any Updates or Enhancements thereto (“Software”), related documentation (“Documentation”), access rights to Company software-as-a-service platform that host the Software (“Hosting Platform”), Support Services (defined below), and professional services ordered by Licensee under this Agreement (collectively the “Offerings”), to the extent purchased or used by Licensee. Licensee agrees to be bound by the terms of this Agreement by executing an Order Form, installing or using the Software or Hosting Platform, or signing this Agreement below. The parties agree as follows:
DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
“Enhancement” means any modification or addition to the Software that materially changes its utility, efficiency, function capability or application, but that does not solely consist of an Error Correction. Company may designate Enhancements as minor or major.
“Error” means any reproducible failure of the Software to conform in any material respect with the Documentation.
“Error Correction” means either a bug fix, work-around, patch, or other modification or addition that corrects an Error or a procedure or routine that avoids the practical adverse effect of an Error.
“Fees” means all fees and expenses specified in an Order Form and payable by Licensee to Company in acquiring and using the Offerings.
“Licensee Data” means any data, content, works, and information provided or delivered by Licensee to Company in connection with Licensee’s use of the Offerings.
“Operating Environment” means the computer software, hardware, systems and networks through which or on which the Software will be installed and run by Licensee. Current minimum server requirements for the Software are set forth in the Documentation.
“Order Form” means Company’s form, which is incorporated into this Agreement, that describes which of the Offerings Licensee is purchasing from Company and the Fees and payment terms for which Licensee is responsible.
“Priority A Error” means an Error which renders Software inoperative or causes a complete failure of the Software.
“Priority B Error” means an Error which substantially degrades the performance of Software or materially restricts Licensee’s use of the Software.
“Priority C Error” means an Error which causes only a minor impact on the Licensee’s use of Software.
“Support Services” means Company support services as described in Section 2.1.5 of Agreement and the applicable Support Exhibit.
“Technical Support” means technical support assistance provided by Company by telephone, through email, or through any other online communication mechanism concerning the installation and use of the then-current release of Software, or the Hosted Platform.
“Update” means any new version of the Software, which may include Error Corrections, Enhancements or both, issued by Company from time to time to its customers.
OFFERINGS. Subject to the terms and conditions of this Agreement and Licensee’s payment of all applicable Fees, Company will provide the Offerings set forth in one or more mutually agreed upon Order Forms specifying the Offerings ordered by Licensee under this Agreement, or as described in Section 2.3 below. To the extent of any conflict between this Agreement and an Order Form, this Agreement will control, except to the extent an Order Form expressly identifies a provision of the Agreement to be superseded by the Order Form.
License. Subject to the terms and conditions of this Agreement, Company grants Licensee during the Term a limited, non-exclusive, non-transferable, non-sublicensable, license to install, execute, display and otherwise use the Software and Documentation for Licensee’s internal business purposes.
Delivery, Acceptance, and Installation of Software. Company will deliver to Licensee a download link which Licensee may use to access the Software via electronic download link. Licensee is solely responsible for installation of the Software in accordance with the Documentation (and any other installation instructions provided by Company), data conversion, data entry and verification of data. Delivery will be deemed complete upon the delivery of the download link to Licensee. It is the responsibility of Licensee to provide the Operating Environment, any other equipment required to operate the Software, proper configuration of all hardware and other equipment, and all databases and other software used with the Software. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY FAILURE OF THE SOFTWARE BASED ON THE LICENSEE’S OPERATING ENVIRONMENT AND THIRD PARTY SOFTWARE INCLUDING, BUT NOT LIMITED TO, VIRTUAL MACHINES, LIBRARIES AND/OR HARDWARE.
Software Warranty. Company warrants that the Software, when used in accordance with the Documentation, will perform substantially in accordance with the Documentation for a period of thirty (30) days from the date of delivery of the Software to Licensee (the “Warranty Period”). Licensee’s sole and exclusive remedy, and Company’s sole and exclusive obligation, for the Software’s non-conformity with this warranty shall be to notify Company within the Warranty Period, detailing the nonconformance, and to provide Company with a reasonable opportunity to correct or replace the defective Software; which Company will use commercially reasonable efforts to correct. This limited warranty shall be void if Company determines that the Software has been (i) used other than in accordance with the Documentation; (ii) abused, modified, altered or otherwise subjected to damage from accidents, acts of nature, or other events outside the reasonable control of Company; or (iii) used in combination with other products, devices, equipment, software, or data not supplied by Company or approved in writing by Company.
System Tampering. If the Licensee notifies the Company of an error or malfunction in the Software which, after investigation by the Company, is determined to have been caused by Licensee’s unauthorized modifications, any Software warranties, expressed or implied are void; Licensee shall reimburse the Company, at its then current rates, for all costs incurred by the Company in investigating and correcting such error or malfunction; and Company, upon written notice, may terminate this Agreement.
Support Services. This Agreement does not include support, or any configuration or customization of the Software to Licensee’s Operating Environment, specifications, or any other services. Any Support Services provided by Company, if ordered pursuant to an Order Form, will be described in Exhibit A, and may be subject to the payment of additional Fees set forth in an Order Form. Support Services, if applicable, will be performed in a professional and competent manner in accordance with industry standards.
Audit. During the Term and for one (1) year thereafter, upon thirty (30) days written prior notice Company will have the right to have an independent audit firm inspect Licensee’s records relating to Licensee’s use of the Offerings solely in order to verify Licensee’s compliance with the terms and conditions of this Agreement. The audit will be performed during Licensee’s normal business hours. The costs of the audit will be paid by Company, unless the audit reveals that Licensee has (a) failed to comply with the terms and conditions of this Agreement, or (b) underpaid the amounts owed to Company by five percent (5%) or more, in which case Licensee will reimburse Company for all reasonable out-of-pocket costs and expenses reasonably incurred by Company in connection with such audit. Licensee will promptly pay to Company any amounts shown by any such audit to be owing and due. In addition, Software may report certain details regarding certain usage to Company, and Licensee will not interfere with such reporting.
Hosted Platform License. Subject to the terms and conditions of this Agreement, and if purchased pursuant to an Order Form, Company hereby grants Licensee, during the Term, a non-exclusive, non-sublicensable, non-transferable license, in accordance with the Documentation, to access and use the Software via the Hosted Platform subject to any usage limitations (such as number of users) described in the applicable Order Form for which Company will provide access.
Data Security. Company will implement and maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Licensee Data. If indicated in the applicable Order Form, the terms of Company’s data processing addendum (currently located at: https://fusionauth.io/legal/data-processing-addendum-v1.1.pdf) will apply to any processing of Licensee Data.
Support and SLA. Subject to the terms and conditions of this Agreement, Company will provide Technical Support services to Licensee to the extent specified in the applicable Order Form. Without limiting the foregoing, if Licensee has purchased access to the Hosted Platform pursuant to an Order Form, Company will provide Licensee the support and service level commitments as set forth in the attached Exhibit C (SLA Exhibit).
Derived Data. Licensee acknowledges and agrees that provision of the Offerings involves, and Licensee authorizes Company’s: (a) collection and generation of Derived Data in connection with providing the Offerings, and (b) use of Derived Data in connection with providing, analyzing, and improving Company’s products and services. Company may develop and improve products and services that it makes available to its customers using and incorporating Derived Data. Company will comply with applicable statutory requirements with respect to Derived Data. “Derived Data” means data that is (i) generated, computed, or derived from Licensee Data or other data related to Licensee’s use of the Offerings, and (ii) aggregated (including with other customers’ data) or de-identified as necessary so that it does not include any identifying information of, or reasonably permit the identification of, Licensee or any individual. Licensee Data excludes Derived Data.
Free-Tier Software. Company offers a free version of the Software that Licensee may download (“Free-Tier Software”, and each Licensee using such Free-Tier Software, a “Free-Tier Licensee”). Free-Tier Licensees will be bound by the terms of this Agreement by downloading the Free-Tier Software, and the parties will not execute an Order Form unless Free-Tier Licensee also purchases fee-based Offerings. Free-Tier Licensees will only have access and use rights for the Free-Tier Software and Documentation. Free-Tier Licensees do not have access or use rights to the Hosted Platform.
RESTRICTIONS. Licensee will have no right and will not, nor will it authorize or assist others to: (a) permit any affiliated entities or third parties to use, directly-access, copy, download, or install the Software for their own use; (b) use the Software on equipment owned or operated by third parties unless otherwise specified in an applicable Order Form; (c) copy the Software and Documentation (other than as reasonably required for authorized use under this Agreement (provided that Licensee maintain on all such copies all proprietary rights notices of the Software and Documentation); (d) disassemble, reverse engineer, modify, make derivative works of, translate, alter or decompile all or any portion of the Offerings or otherwise discern or attempt to discover the source code of the Offerings except and solely to the extent permitted under applicable law notwithstanding this restriction; (e) use the Offerings on a service bureau or time sharing basis or to provide services to third parties unless as otherwise specified in separate written materials provided by Company to the Licensee; (f) distribute, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Offerings or any of Licensee’s rights therein to any third party; (g) use or access the Offerings to create or develop any competing product or service; (h) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Offerings or Documentation (or any copies thereof); or (i) publish or disclose to any third party any evaluation, performance or benchmark tests or analyses, the results of audits or ethical hacks, or any other non-public information relating to the Offerings or the use thereof, except as may be expressly authorized by Company in writing. Licensee shall be responsible for any breaches or violations of this Agreement by its employees and agents.
PROFESSIONAL SERVICES. The Company does not provide any professional services, including installation services, unless as otherwise set forth in Exhibit B and specified in an Order Form. If ordered, professional services provided by Company will be described in the manner outlined in Exhibit B and may be subject to the payment of additional Fees set forth in an Order Form. Professional services, if provided, will be performed in a professional and competent manner in accordance with industry standards.
Ownership. Licensee acknowledges and agrees that the Offerings contain proprietary and trade secret information of Company. Other than the limited license granted to Licensee under Section 2 of this Agreement no license or other rights in the Offerings are granted to Licensee, and Company retains all ownership and proprietary rights in and to the Offerings, including any and all copies made by Licensee and any and all Updates or Enhancements or derivatives thereto and any work product or deliverables from any professional services, as described in Exhibit B.
Licensee Data. Licensee exclusively owns and retains all rights, title and interest in and to the Licensee Data. Licensee hereby grants to Company, and its authorized representatives, a non-exclusive, non-transferable, non-assignable, sublicensable, right and license to use the Licensee Data solely for the limited purpose of, and solely as necessary for, performing Company’s obligations hereunder.
Feedback. If Licensee provides any feedback, comments, or ideas to Company regarding the Offerings or improvements thereto (“Feedback”), Licensee hereby grants Company a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate the Feedback into Company Offerings, and other of its products and services.
FEES AND PAYMENT.
Payment. The Fees for the Offerings will be set forth in each Order Form. Licensee will pay all such Fees in accordance with the terms of this Agreement and the applicable Order Form. Unless otherwise set forth in the applicable Order Form, all Fees due hereunder are non-refundable, will be paid in U.S. dollars, and will be due within thirty (30) days of the date of the invoice therefor. If Licensee exceeds any usage or deployment limitations as set forth in the applicable Order Form, Licensee shall be responsible for all excess fees. Upon expiration or termination of this Agreement for any reason, any unpaid portion of any Fees, or other fee, payable by Licensee to Company under this Agreement, will be immediately due.
Taxes. The Fees are exclusive of any and all taxes, and Licensee is responsible for payment of such taxes (excluding those based on Company’s net income). If Licensee is legally obligated to make any deduction or withholding from any payment under this Agreement, Licensee shall also pay whatever additional amount is necessary to ensure that Company receives the full amount otherwise receivable had there been no deduction or withholding obligation. If Company has the legal obligation to pay or collect taxes for which Licensee is responsible under this Agreement, Company will invoice Licensee and Licensee will pay that amount unless Licensee provides Company a valid tax exemption certificate from the appropriate taxing authority. Licensee agrees to hold harmless Company from all claims and liability arising from Licensee’s failure to report or pay such taxes.
Interest. If any portion of Fees is disputed in good faith, the remaining amounts will be paid when due and payment of such undisputed amounts may not be withheld for any reason. Any past due undisputed amounts shall be subject to a monthly service charge of one and one-half percent (1.5%) per month of the unpaid balance or the maximum rate allowable by law, until paid. Licensee shall be responsible for Company’s costs of collecting any delinquent amounts, including without limitation any attorney’s fees.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2.1.3, TO THE MAXIMUM EXTENT POSSIBLE BY LAW, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT RELATING TO THE OFFERINGS OR ANY SERVICES PROVIDED HEREUNDER. WITHOUT LIMITING THE FOREGOING, THE OFFERINGS ARE PROVIDED BY COMPANY TO LICENSEE “AS IS” AND COMPANY DOES NOT WARRANT THAT THE SOFTWARE OR ANY OTHER OF THE OFFERINGS AND SERVICES PROVIDED HEREUNDER WILL MEET LICENSEE’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR THAT ALL DEFECTS WILL BE CORRECTED. LICENSEE WILL BEAR ALL RISKS RELATING TO THE QUALITY AND PERFORMANCE OF THE OFFERINGS, AND ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
Indemnification by Licensee. Licensee will defend, at its own expense, any claim, suit, or action against Company brought by a third party to the extent that such claim, suit, or action arising from or related to (a) any Licensee Data, or (b) Licensee’s breach of Section 3 (Restrictions), (each, a “Company Claim”), and Licensee shall indemnify and hold Company harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded in such Company Claim or those costs and damages agreed to in a monetary settlement of such Company Claim. The foregoing obligations are conditioned on Company: (i) promptly notifying Licensee in writing of such Company Claim; (ii) giving Licensee sole control of the defense thereof and any related settlement negotiations (provided Licensee will not enter into any settlement of any claim, suit, or action that does not contain a full release of Company’s liability without Company’s prior written approval, which approval will not be unreasonably withheld, conditioned, or delayed); and (iii) cooperating and, at Licensee’s request and expense, assisting in such defense. Notwithstanding the foregoing, Licensee shall have no obligation under this Section 8.1 or otherwise with respect to any claim to the extent based upon the gross negligence or intentional misconduct of Company.
Indemnification by Company. Company will defend Licensee from any claim, suit, or action brought or made by a third party against Licensee based upon any allegation that the Offerings infringe any valid United States intellectual property rights of such third party (“Licensee Claim”), and Company will indemnify and hold Licensee harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded in such Licensee Claim or those costs and damages agreed to in a monetary settlement of such Licensee Claim. The foregoing obligations are conditioned on Licensee: (a) promptly notifying Company in writing of any such Licensee Claim; (b) giving Company sole control of the defense thereof and any related settlement negotiations, (provided that Company will not enter into any settlement of any claim, suit, or action that does not contain a full release of Licensee’s liability without Licensee’s prior written approval, which approval will not be unreasonably withheld, conditioned, or delayed); and (c) cooperating and, at Company’s request and expense, assisting in such defense.
Modifications and Improper Use. Notwithstanding anything contrary to Section 8.2, Company will have no obligation to Licensee for any Licensee Claim that arises from: (a) any modification to the Offerings by anyone other than Company; (b) modifications made by Company at Licensee’s request; (c) use of the Offerings other than as specified in this Agreement or in the applicable Documentation; (d) use of prior versions of the Software after an Update has been provided by Company to Licensee; or (e) use of the Offerings in combination with third-party products, software, hardware or data, if such infringement would have been avoided without the combination with such other products, software, hardware, or data.
Licensee Claims. If a Licensee Claim arises, or in Company’s opinion is likely to arise, Company may at its discretion and own expense either (a) obtain for Licensee the right to continue using the Offerings as contemplated by this Agreement, (b) replace or modify the infringing Offering to make it non-infringing, or substitute other Offerings of similar capability and functionality, or (c) if “(a)” or “(b) are not commercially feasible for Company, Company may terminate this Agreement and refund to Licensee any pre-paid but unused Fees. SECTIONS 8.2 - 8.4 STATE THE ENTIRE OBLIGATION OF COMPANY AND THE EXCLUSIVE REMEDIES OF LICENSEE WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS.
LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY), EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION) OR LICENSEE’S BREACH OF SECTION 3 (RESTRICTIONS), (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON THE BASIS OF WHICH ANY CLAIM FOR DAMAGES IS BROUGHT, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT OR STATUTE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY RELATED TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY LICENSEE TO COMPANY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS FIRST GIVING RISE TO ANY SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER ANY REMEDY UNDER THIS AGREEMENT HAS PROVEN INEFFECTIVE.
CONFIDENTIALITY. Each party acknowledges that the Confidential Information (as hereinafter defined) of the other party may contain information valuable to the Disclosing Party, and each party that receives such Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) agrees that Confidential Information will remain the property of the Disclosing Party. Receiving Party will not make use of Disclosing Party’s Confidential Information, except as authorized by this Agreement and to the extent necessary for performance or enforcement of this Agreement. Receiving Party will not disclose Disclosing Party’s Confidential Information to any third party, except to such Receiving Party’s employees and contractors who need to know such information in order for such party to perform under this Agreement and who are bound by confidentiality and non-use obligations not less restrictive than this Agreement. “Confidential Information” means all information that is, or should be reasonably understood to be, confidential or proprietary information of the Disclosing Party (and its suppliers, contractors and customers), including without limitation information concerning its business, products, services, finances, employees, contractors, software, notes, documentation, tools, processes, protocols, product designs and plans, customer lists and other marketing and technical information, whether disclosed orally or in writing by any other media. The terms of this Agreement are considered Confidential Information. Company’s Confidential Information includes, but is not limited to, the Software and Documentation included in the Offerings. Licensee’s Confidential Information includes Licensee Data. Confidential Information excludes information that (a) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (b) is independently developed by a party without reference to the Confidential Information of the other party; (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was communicated to the Receiving Party; or (d) is rightfully obtained by a party from a third party without restriction on use or disclosure. Notwithstanding the foregoing, the Receiving Party will not be in violation of this Section with regard to disclosure of Confidential Information in response to an order or subpoena of a court, agency or tribunal of competent jurisdiction, or pursuant to any applicable law or regulation, provided that the Receiving Party provides the Disclosing Party with prior written notice of such disclosure to the extent reasonably practicable and legally permissible in order to permit the Disclosing Party to seek confidential treatment of such information. Upon expiration or termination of this Agreement for any reason, each party shall return to the other party all Confidential Information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement.
TERM AND TERMINATION.
Term. This Agreement shall commence as of the Order Form Date and continue in effect for the period stated in the Order Form, and if not so stated, then for an initial term of one (1) year unless terminated earlier as provided herein. This Agreement will automatically renew for successive one (1) year periods unless either party provides the other party written notice of its intention not to renew at least ninety (90) days before the end of the then-current term (the initial term, together with any renewal terms, collectively, the “Term”).
Termination. Either party may terminate this Agreement by giving the other party written notice if (i) the other party is in material breach of this Agreement and such breach remains uncured for thirty (30) days after receipt of notice of such breach, or (ii) the other party is insolvent, makes an assignment for the benefit of creditor, receivership, or the institution of any similar proceedings, provided that, such proceedings are not cancelled within sixty (60) days. To clarify, any professional services, and/or Support Services shall not automatically renew each year and a new Order Form must be created if Licensee wishes to continue any professional services, and/or Support Services.
Effect of Termination. Upon expiration or termination of this Agreement, all outstanding Order Forms will be terminated, the licenses granted to Licensee under this Agreement will terminate, and Licensee will cease all use of the Offerings. Within ten (10) business days of termination, Licensee will destroy or deliver to Company all copies of the Software or any portion thereof and Documentation in Licensee’s possession or under its control, and an officer of Licensee will certify to Company such destruction or delivery. Licensee’s failure to comply with the obligations of this Section will constitute unauthorized use of the Offerings, entitling Company to equitable relief as provided in this Agreement and other legal and equitable remedies. Sections 1, 2.1.6, 2.2.4, 3, 5-10, 11.3, and 12-15 shall survive any expiration or termination of this Agreement.
FORCE MAJEURE. Except for payment obligations, neither party shall be liable to the other for any performance delay or failure to perform hereunder, due to any act, omission or condition beyond the reasonable control of the affected party (“Force Majeure Event”), provided the affected party gives prompt notice to the other and makes reasonable efforts to resume performance as soon as possible.
ADVERTISING. Licensee agrees that, during the Term, Company may use Licensee’s name and logo, subject to Licensee’s then-current trademark usage guidelines, in Company’s marketing materials or communications and customer list. Subject to the terms and conditions of this Agreement, Licensee hereby grants to Company a non-exclusive and limited license to use and publicly display Licensee’s logo as set forth in this Section.
THIRD PARTY SOFTWARE.
Third Party Software. Licensee acknowledges that the Software may contain or be accompanied by certain third party software products (“Third Party Components”) and certain items of such Third Party Components may be subject to open source licenses (“Open Source Software”). Third Party Components may be accompanied by certain notices or license documentation relating to such Third Party Components (collectively, the “Third Party Notices”). Licensee shall comply with the terms of all Third Party Notices governing Licensee’s use of such Third Party Components.
Disclaimer. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO OPEN SOURCE SOFTWARE AND THIRD PARTY COMPONENTS, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
Entire Agreement. This Agreement, including any exhibits attached hereto, and all applicable Order Forms, constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agreements between the parties, with respect to the subject of this Agreement. Except as otherwise expressly provided herein, this Agreement may be modified only by a writing signed by an authorized representative of each party. Any standard terms associated with a Licensee purchase order, Licensee ordering document, or Licensee invoice submission system or other portal are hereby rejected (regardless of any electronic or online indication of agreement to the same), will be not binding on the parties, and will be of no consequence whatsoever in interpreting the parties’ legal rights and responsibilities as they pertain to this Agreement (including any billing or payment requirements) or the Offerings. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado exclusive of its conflict of laws principles that would require application of the laws of a different jurisdiction. Any dispute arising under or relating to this Agreement will be resolved in the state or federal courts in Denver, Colorado, and the parties hereby expressly consent to jurisdiction therein. The prevailing party shall be awarded its reasonable attorneys’ fees and costs in any suit or proceeding arising out of or related to this Agreement. Nothing in this Agreement shall be construed to limit or delay Company’s ability to seek immediate relief at law or in equity for any breach by Licensee of this Agreement.
Notice. Notices under this Agreement shall be in writing, addressed to the party at its address below, and shall be deemed given when delivered personally, or by facsimile (with confirmation of receipt), if sent conventional mail (registered or certified, postage prepaid with return receipt requested) or overnight courier, two (2) business days after the date of mailing.
Independent contractors. The parties are independent contractors and nothing contained in this Agreement is intended or is to be construed to create a partnership, joint venture or agency relationship.
Severability. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Assignment. Licensee may not delegate, assign or transfer this Agreement, or any of its rights and obligations under this Agreement without Company’s prior written consent, and any attempt to do so shall be void. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
Waiver. Neither party will be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of both parties, and no waiver of any rights hereunder shall be deemed to be a waiver of the same or other right on any other occasion.
This Support Services exhibit (“Support Exhibit”) by and between Company and Licensee is hereby incorporated into the Licensee License Agreement (the “Agreement”). All terms not otherwise defined in this Support Exhibit have the meanings provided in the Agreement. The terms and conditions in this Support Exhibit only apply if Licensee has purchased Support Services as reflected in an applicable Order Form.
Support Services. Support Services consist of (a) Error Corrections and Technical Support regarding the installation and use of the Software, and (b) periodic delivery of Updates when Company makes such Updates commercially available to its customers. Telephone, e-mail, verbal and Internet-based support shall only be available during Company’s regular business hours in Colorado (9a.m.- 5p.m. MST) unless otherwise specified in an applicable Order Form. Such support will be given (i) to answer routine questions regarding the use of the Software; (ii) to assist Licensee in identifying and reporting Errors which may need corrections; (iii) to assist Licensee in identifying and reporting new features and functional improvements that may warrant the development of an Update or Enhancement; and (iv) to provide work-around solutions when reasonably available. Support Services cover only, and Licensee is responsible for obtaining at its expense, Operating Environments designated by Company in the Documentation. If additional implementation services are required due to any incompatibility between Licensee’s Operating Environment and the Software and if Licensee requests Company to perform other services and Company agrees to provide such additional services (“Additional Services”), these shall be provided by Company under Exhibit B (Professional Services). At Licensee’s request, Company will provide a written quote for rates or fees for specific Additional Services. Company will not be responsible for providing Support Services for any version of the Software other than the then-most recent release of the Software, except that Company will provide Licensee with Support Services for a reasonable period of time to allow Licensee to implement the most recent Update, not to exceed six (6) months. Licensee agrees to maintain the Software to the latest version as soon as practicable and to incorporate all corrections and enhancements to the Software provided by Company. Licensee understands that its failure to incorporate error corrections and enhancements will cause the Software to be non-conforming and that subsequent Software error corrections, enhancements and updates may be unusable.
Duration. This Support Exhibit will terminate upon the expiration or termination of the Agreement for any reason. Company may terminate this Support Exhibit or suspend Support Services if Licensee fails to make payment as provided under the Agreement or breaches this Support Exhibit and such breach is not remedied within fifteen (15) days after Licensee receives notice of the breach.
Fees and Payment. Licensee agrees to pay the Fees and other charges as specified in the Order Form for the Support Services. Termination of this Support Exhibit will not relieve Licensee of its obligations to pay all Fees, other charges and expenses that accrued prior to such termination.
Error Priority Levels.
Company shall exercise commercially reasonable efforts to correct any sufficiently identified Error reported in writing by Licensee in accordance with the priority level reasonably assigned to such Error by Company.
(a) In the event of (i) a crash of Licensee’s computer network causing a critical impact to business operations that Licensee reasonably believes is due to an Error in the Software or (ii) Priority A Errors, Company will promptly commence verification of the Error and, upon verification, will initiate work to provide Licensee with an Error Correction. If Licensee has purchased Enterprise Support, Company will make the initial verification of the Error and report its findings back to Licensee within 1 hour of the report of the Error by Licensee. Company will provide Licensee with reports on the status of the Error Correction every 2 hours. If commercially feasible, Error Correction will be delivered within 24 hours of the report of the Error by Licensee. If Licensee has purchased Basic Support, Company will provide Licensee with periodic reports on the status of the Error Correction. If commercially feasible, Error Correction will be delivered within 72 hours of the report of the Error by Licensee.
(b) In the event of Priority B Errors, Company will commence verification during normal support hours of the Error, and upon verification, initiate work to provide Licensee with Error Correction. If Licensee has purchased Enterprise Support, Company will make the initial verification of the Error and report its findings back to Licensee within 6 hours of the report of the Error by Licensee. If commercially feasible, Error Correction will be delivered within 1 week of the report of the Error by Licensee. If Licensee has purchased Basic Support, Company will provide Error Correction in the next Update of the Software.
(c) In the event of Priority C Errors, Company may include the Error Correction for the Error in the next Update of the Software.
If Company believes that a problem reported by Licensee may not be due to an Error in the Software, Company will so notify Licensee. At that time, Licensee may (a) instruct Company to proceed with problem determination at Licensee’s possible expense as set forth below or (b) instruct Company that Licensee does not wish Company to pursue the problem. If Licensee requests that Company proceed with problem determination at Licensee’s possible expense and Company determines that the error was not due to an Error in the Software, Licensee shall pay Company, at Company’s then-current and standard consulting rates, for all work performed in connection with such determination, plus reasonable related expenses incurred by Company. If Licensee instructs Company that it does not wish the problem pursued at its possible expense or if such determination requires efforts in excess of Licensee’s instructions, Company may, at its sole discretion, elect not to investigate the problem with no liability therefore.
Company shall have no obligation to support: (a) altered, damaged or modified Software or any portion of the Software incorporated with or into other software, except for modifications or alterations provided as a result of Support Services provided by Company; (b) Software that is not the then current release (except as provided in Section 1 above); (c) Software problems caused by use of, or changes to, third party software with which the Software is used; or (d) Software problems caused by (i) Licensee’s negligence, abuse or misapplication of Software, other than as specified in the Documentation (including incompatible operating environments and systems, unless Support Services have been specifically provided to make the Software compatible with such Operating Environments), or (ii) accidents, acts of nature, disasters, strikes, acts of war, pandemic, viruses introduced by parties other than Company, or other causes beyond the reasonable control of Company.
Company shall have no liability for any changes in Licensee’s hardware which may be necessary to use Software due to an Update (including any Error Correction).
IN ADDITION TO WARRANTY DISCLAIMERS PROVIDED IN THE AGREEMENT, COMPANY DOES NOT WARRANT OR REPRESENT THAT EVERY REPORTED PROBLEM CAN OR WILL BE RESOLVED TO THE SATISFACTION OF LICENSEE AND DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SOFTWARE OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY COMPANY.
This Professional Services exhibit (“Services Exhibit”) by and between Company and Licensee is hereby incorporated into the Licensee License Agreement (the “Agreement”) and provides the terms and conditions for certain Company professional services purchased by Licensee related to Licensee’s use of the Offerings. All terms not otherwise defined in this Services Exhibit have the meanings provided in the Agreement. The terms and condition in this Services Exhibit only apply if Licensee has purchased professional services as reflected in an applicable Order Form.
Services to be Provided. Company agrees to provide the professional services (“Services”), and Licensee agrees to pay the Fees, identified in separate statement(s) of work (each a “SOW”), unless otherwise set forth in an Order Form. If any onsite visits to Licensee’s premises are necessary to perform the Services, Licensee agrees to provide Company with reasonable access to the premises, Licensee’s equipment and other parts of Licensee’s system as may be necessary or appropriate. Company will use commercially reasonable efforts to perform the Services for Licensee in accordance with the schedule specified in the applicable SOW or applicable Order Form.
Duration. This Services Exhibit will terminate upon the expiration or termination of the Agreement for any reason. Company may terminate this Services Exhibit or suspend Services if Licensee fails to make payment as provided under this Agreement or breaches this Services Exhibit and such breach is not remedied within fifteen (15) days after Licensee receives notice of the breach.
Fees and Payment. Unless otherwise specified in a SOW or the applicable Order Form, Company will periodically invoice Licensee for Fees and other charges and reimbursable expenses for the Services. Invoices will be due and payable within thirty (30) days of invoice date. Termination of this Services Exhibit will not relieve Licensee of its obligations to pay all Fees, other charges and expenses that accrued prior to such termination.
Proprietary Rights. Unless otherwise expressly agreed to in writing by the parties, Licensee agrees that any and all deliverables or work product provided to Licensee (“Deliverables”) or other results of the Services shall be owned exclusively by Company including all intellectual property and proprietary rights therein. Company hereby grants Licensee a non-exclusive and non-transferable license to use the Deliverables, during the Term of the Agreement, solely for Licensee’s authorized use of the Offerings pursuant to the licenses granted to Licensee in the Agreement.
Licensee Assistance. Licensee shall provide Company with such resources, information and assistance as Company may reasonably request in connection with the performance of the Services. Licensee acknowledges and agrees that Company’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Licensee of the information, resources and assistance requested. Company shall have no liability for deficiencies in the Services resulting from the acts or omissions of Licensee, its agents or employees or performance of the Services in accordance with Licensee’s instructions.
This SLA exhibit (“SLA Exhibit”) by and between Company and Licensee is hereby incorporated into the Licensee License Agreement (the “Agreement”). All terms not otherwise defined in this SLA Exhibit have the meanings provided in the Agreement. The terms and condition in this exhibit only apply if Licensee has purchased access to the Hosted Platform.
Service Level: System Availability. Company shall provide the Hosted Platform on a 24 hours per day, 365 days per year basis with an availability uptime set forth in the Order Form, excluding scheduled maintenance which shall not be performed during normal business hours of operation from 9:00 AM to 5:00 PM (MST) (“Service Level”). Company will provide Licensee with its maintenance schedule and will endeavor to pre-notify Licensee of any non-scheduled maintenance. The term “availability uptime” means that the Software hosted by Company, is accessible and available to Licensee and its authorized users without interference or interruption, excluding any Excused Delay.
Service Level: Security. Company shall provide adequate and appropriate physical and technical security, in no event less that those security standards set forth in the Statement on Standards for Attestation Engagements (“SSAE”) 16.
Remedies. In the event that Company fails to meet any of the Service Levels set forth in this SLA Exhibit (each such failure, a “SLA Failure”) within a calendar month, and such SLA Failure that is not excused due to any Excused Delay (as defined below), then Licensee shall be entitled to receive service level credits as follows (each, a “SLA Credit”):
(a) The ratio of unavailable minutes to total potentially available minutes (net of Excused Delays) in the applicable calendar month during which the Service Level was not met multiplied by the monthly fee for the Hosted Platform due for such month (1/12 of the annual fee if the Fees for access to the Hosted Platform is paid annually).
Notwithstanding anything to the contrary, in no event shall the value of the SLA Credits exceed three (3) months of Hosted Platform fees (“SLA Credit Cap”). Licensee shall notify Company in writing if Licensee believes it is entitled to any SLA Credit, which notice shall be provided no later than thirty (30) days after the end of the applicable month in which the SLA Failure(s) occurred, and shall describe the SLA Failure(s) in detail. If Company agrees that Licensee is due an SLA Credit, Company will promptly credit Licensee’s account. If Company does not reasonably believe Licensee is entitled to an SLA Credit, the parties will meet and discuss the issue in good faith. If the parties cannot mutually agree on a resolution, Company’s determination shall be binding and final. In the event Licensee brings any claim for damages based upon response times, then any such damages shall be offset by any SLA Credits issued to Licensee hereunder.
For purposes herein, “Excused Delay” shall mean (a) scheduled maintenance, (b) maintenance or service interruptions requested by Licensee and implemented by Company, (c) Licensee’s breach of any provision of this Agreement that solely and directly caused the delay, (d) any delay solely and directly caused by any Licensee Data, (e) performance of internet services, or (f) any delay caused by a Force Majeure Event.
This is the FusionAuth Customer License Agreement version 1.1 dated 2021-04-20.