These Software as a Service Terms and Conditions (these “Terms”) set forth the terms and conditions pursuant to which AZDS, LLC, a Colorado limited liability company (“AZDS”), will provide the Customer identified on the Order Form (“Customer”) access to the Services. AZDS and Customer agree that the following terms and conditions will apply to the Services provided under these Terms and all Order Forms issued hereunder.
- ”Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by AZDS in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- ”Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer and AZDS to access and utilize backend controls for the Services under the rights granted to Customer pursuant to these Terms, and (ii) for whom access to the Services has been purchased hereunder.
- ”Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
- ”Documentation” means AZDS’s user manuals, handbooks, and implementation instructions relating to the Services provided by AZDS to Customer.
- ”Order Form” means AZDS’s standard form of ordering document, signed by both parties, detailing the Services to be made available by AZDS, which are subject to these Terms.
- ”Services” means the software-as-a-service offering described as an API driven SynXis booking service integrated into Customer’s existing website as more particularly described in the applicable Order Form.
2. Access and Use.
- Provision of Access. Subject to and conditioned on Customer’s payment of all fees set forth in the applicable Order Form and compliance with these Terms, AZDS hereby grants to Customer a non-exclusive, sublicensable, non-transferable subscription to install and access the Services during the Term. AZDS shall provide the Services to Customer, and provide Customer with training, implementation, and support services related thereto, on the terms and subject to the conditions set forth in the applicable Order Form. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form, except as expressly agreed to in writing by the parties.
- Documentation License. AZDS hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 11(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
- Implementation. With assistance and implementation instructions provided by AZDS, Customer will be solely responsible for the integration and configuration of the Services on Customer’s websites and other digital properties.
- Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights. AZDS reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted hereunder, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the AZDS IP.
- Suspension. Notwithstanding anything to the contrary in these Terms or any Order Form issued hereunder, AZDS may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) AZDS reasonably determines that (A) there is a threat or attack on any of the AZDS IP; (B) Customer’s or any Authorized User’s use of the AZDS IP disrupts or poses a security risk to the AZDS IP or to any other customer or vendor of AZDS; (C) Customer, or any Authorized User, is using the AZDS IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) AZDS’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of AZDS has suspended or terminated AZDS’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 4(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). AZDS shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. AZDS shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. AZDS will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
- Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, AZDS may collect and compile Aggregated Statistics. As between AZDS and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by AZDS. Customer acknowledges that AZDS may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that AZDS may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
3. Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this these Terms as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
4. Fees and Payment.
- Fees. Customer shall pay AZDS the fees (“Fees”) set forth in the applicable Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. All Fees will be billed in advance on an annual basis and are due within 30 days of receipt of invoice, unless otherwise provided in the applicable Order Form. If Customer fails to make any payment when due, without limiting AZDS’s other rights and remedies: (i) AZDS may charge interest on the past due amount at the rate of 3% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse AZDS for all reasonable costs incurred by AZDS in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) AZDS may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. All Fees paid in advance by Customer are non-refundable.
- Taxes. All Fees and other amounts payable by Customer under any Order Form are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on AZDS’s income.
5. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information of the Disclosing Party. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of its obligations hereunder or as otherwise permitted herein) or divulge to any third party any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document: (i) is or becomes generally available to the public; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; (iv) was independently developed without use of any Confidential Information of the Disclosing Party; or (v) is required to be disclosed by law (but only to the extent such disclosure is required) after giving the Disclosing Party as much advance notice of the possibility of such disclosure as reasonably practical so that the Disclosing Party may attempt to stop such disclosure or obtain a protective order concerning such disclosure (except that no notification is required if the Receiving Party is prohibited by law from notifying the Disclosing Party). Confidential Information disclosed to the Receiving Party remains the property of the Disclosing Party. All Confidential Information and any copies shall be promptly destroyed or returned to the Disclosing Party upon the termination or expiration of all Order Forms issued hereunder or upon the Disclosing Party's earlier request.
6. Intellectual Property Ownership.
- AZDS IP. AZDS shall own and retain all right, title and interest in and to: (i) the Services; (ii) the source code and object code and the underlying structure, ideas, know-how or algorithms relevant to the Services; (iii) any software, documentation (including the Documentation), data (other than Customer Data), applications, inventions or other technology related to or developed in connection with the Services; (iv) all improvements, enhancements or modifications to any of the foregoing (whether or not based upon any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Services); (v) Aggregated Statistics and any information, data, or other content derived from AZDS’s monitoring of Customers access to or use of the Services, other than Customer Data; and (vi) all intellectual property rights related to any of the foregoing (collectively, “AZDS IP”). Such AZDS IP shall be AZDS's sole and exclusive property. Customer shall have no proprietary interest in the AZDS IP, and will not seek, and will require its employees, agents or subcontractors not to seek, patent, copyright, trademark, registered design, or other protection for any rights in any AZDS IP. Customer acknowledges that the AZDS IP is protected by intellectual property rights owned by or licensed to AZDS. Other than as expressly set forth in these Terms, no license or other rights in any AZDS IP are granted to the Customer.
- Customer Data. AZDS acknowledges that, as between AZDS and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to AZDS a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for AZDS to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
7. Limited Warranty and Warranty Disclaimer.
- Limited Warranty. During the Term, AZDS warrants that the Service, when used in accordance with these Terms, the applicable Order Form, and the Documentation, will operate as described in the applicable Order Form in all material respects. AZDS does not make any representations or guarantees regarding uptime or availability of the Services. The remedies set forth in these Terms are Customer’s sole remedies and AZDS’s sole liability under the limited warranty set forth in this Section 7(a).
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), THE SERVICES AND AZDS IP IS PROVIDED “AS IS” AND AZDS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AZDS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), AZDS MAKES NO WARRANTY OF ANY KIND THAT THE AZDS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- AZDS Indemnification.AZDS shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) alleging that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Customer promptly notifies AZDS in writing of the claim, cooperates with AZDS, and allows AZDS sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit AZDS, at AZDS’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If AZDS determines that neither alternative is reasonably available, AZDS may terminate any Order Form issued under these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer; provided, however, that in the event termination by AZDS in accordance with this Section 8(a), AZDS will refund any prepaid and unused Fees paid by Customer. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by AZDS or authorized by AZDS in writing; or (ii) modifications to the Services not made by AZDS.
- Customer Indemnification. Customer shall indemnify, hold harmless, and, at AZDS’s option, defend AZDS from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by these Terms; or (iii) modifications to the Services not made by AZDS, provided that Customer may not settle any Third-Party Claim against AZDS unless AZDS consents to such settlement, and further provided that AZDS will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND AZDS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL AZDS’S LIABILITY UNDER THIS SECTION 8 EXCEED THE TOTAL AMOUNT PAID TO AZDS UNDER THE APPLICABLE ORDER FORM FROM WHICH THE LIABILITY ARISES IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Limitations of Liability. IN NO EVENT WILL AZDS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ANY ORDER FORM ISSUED HEREUNDER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER AZDS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE; AND/OR (f) CLAIMS ARISING OUT OF THE NEGLIGENCE, FAILURE, OR UNAVAILABILITY OF THIRD PARTIES ON WHICH THE SERVICES RELY, INCLUDING THIRD PARTIES ENGAGED BY CUSTOMER, AND INCLUDING BUT NOT LIMITED TO SYNXIS AND PCI BOOKING. IN NO EVENT WILL AZDS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ORDER FORM ISSUED HEREUNDER EXCEED THE TOTAL AMOUNT PAID TO AZDS UNDER THE ORDER FORM FROM WHICH THE LIABILITY ARISES IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination.
- Term. These Terms are applicable as of the first date on which the Services are provided by AZDS (including any trial period granted under an Order Form) and will continue in full force and effect until the later of (i) the last date on which an outstanding Order Form is effective or (ii) the date on which AZDS ceases providing Services to Customer (the “Term”).
- Order Form Renewal. Each Order Form issued hereunder shall automatically renew for successive one year terms with the same terms and Fees set forth in the current Order Form unless terminated by either party with at least 30 days’ advance written notice to the other party before the last day of the current Order Form term.
- Termination. Either party may terminate an Order Form (i) immediately upon written notice if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise, or (ii) upon written notice if the other party materially breaches these Terms or any terms set forth in an Order Form and fails to cure such breach (if curable) within 30 days after written notice of such breach. Upon the expiration or termination of an Order Form for any reason, (1) any amounts owed to AZDS under such Order Form will become immediately due and payable; and (2) each party will return to the other all property (including any Confidential Information) of the other party. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, ownership of intellectual property, confidentiality obligations, warranty disclaimers, and limitations of liability.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the first page of the related Order Form (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.
- Insurance. During the Term, AZDS shall maintain at its own expense the following insurance: (a) worker’s compensation insurance in the amount required by statute; (b) comprehensive general liability, with coverage of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage; (c) professional errors and omissions with a limit of at least $1,000,000 per each claim and $2,000,000 annual aggregate; and (d) cyber security in an amount not less than $500,000. Upon Customer’s request, AZDS shall provide Customer with certificates or other acceptable evidence of insurance evidencing the above coverage.
- Publicity. AZDS may use Customer’s name and logo on AZDS’s websites and promotional materials (including for use at trade shows) to identify Customer as a user of the AZDS Service.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) pursuant to any Order Form issued hereunder will not be considered a breach of these Terms or the applicable Order Form if such delay is caused by an act, event, or occurrence beyond such party’s reasonable control, including, without limitation, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, acts of terror, issues arising from bugs or other problems in the software, firmware or hardware of AZDS’s suppliers, or outages or issues with upstream providers, network carriers, and/or third-parties (including, but not limited to, SynXis) (any such event, a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as commercially feasible.
- Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. These Terms and all Order Forms issued hereunder are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any controversy or claim arising out of or relating to these Terms and all Order Forms issued hereunder, or the breach thereof, shall be settled by arbitration administered in Denver, Colorado by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Except for a claim of payments of amounts due, no action, regardless of form, arising out of these Terms or any Order Form issued hereunder may be brought by either party against the other more than one year after the cause of action has arisen.
- Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of AZDS, which consent shall not be unreasonably withheld. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. These Terms are binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
- Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from AZDS, or any products utilizing such data, in violation of the United States export laws or regulations.
- Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 5 or, in the case of Customer, Section 2(d), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Entire Agreement. These Terms, together with all Order Forms and any attachments or exhibits to any of the foregoing, are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. Without limiting the generality of the foregoing, (i) any proof of concept agreement or similar trial or interim services agreement between the parties, and (ii) any confidentiality, non-disclosure, or similar agreement between the parties, shall be superseded, terminated, and of no further force and effect as of the effective date of the first Order Form executed by the parties. No modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing and signed by an authorized signatory of Customer and AZDS.