For purposes of this Agreement:
If Customer acquires any Products on a trial basis (the "Trial Products"), then Customer will have a period of thirty (30) days from the day the Trial Products are made available to Customer to evaluate the Product (the "Trial Period"). During the Trial Period, all terms and conditions of this Agreement will apply, except that (i) no fees will be due from Customer; (ii) such Products and any Services provided by IRGame with regard to such Products will be provided without warranties or indemnities of any kind, entirely on an "as-is" basis; and (iii) additional trial terms and conditions may appear on the trial registration web page or on the applicable Order. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
Subject to Customer's payment of all relevant fees, IRGame hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable right to access and use for its internal business purposes the SaaS Services. The initial term of the foregoing access right will be as set forth in the applicable Order. Customer shall be solely responsible for connection of Customer's systems to a telecommunications service that provides Internet access for purposes of Customer's access and use of the SaaS Services.
IRGame may offer "Beta Products" to Customer at no charge. Use of the Beta Products are at the election of Customer and are for evaluation purposes only. Beta Products are not considered "Products" and do not come with Support Services. Beta Products may be subject to additional terms. IRGame reserves the right to discontinue the Beta Products at any time. Beta Products will automatically terminate at such time as IRGame makes such Beta Products generally available.
Customer acknowledges and agrees that: (i) Beta Products are experimental and have not been fully tested; (ii) Beta Products may not meet Customer's requirements; (iii) the use or operation of any Beta Products may not be uninterrupted or error free; (iv) Customer's use of any Beta Product is for purposes of evaluating and testing the Beta Product and providing feedback to IRGame; (v) Customer shall inform its employees, staff members, and other users regarding the nature of Beta Product; and (vi) Customer will hold all information relating to Beta Products in strict confidence and shall not disclose such information to any unauthorized third parties.
IRGame reserves the right to update the Products from time-to-time but makes no guarantee as to the availability of such updates.
All sales are final, non-refundable, and non-returnable except with respect to Products that do not meet applicable specifications in the relevant Documentation.
Unless otherwise provided in the applicable Order, (i) Products are acquired on a subscription basis per the Order; (ii) additional subscriptions may be added at any time during a co-pending subscription term via an Order, with the term for such additional subscriptions to be prorated for the portion of then-current subscription term remaining at the time the mid-term subscriptions are added; and (iii) any such additional subscriptions will be co-pending and each shall terminate on the same date as the original subscription term.
This is not a work made-for-hire agreement (as that term is defined in Section 101 of Title 17 of the United States Code). IRGame and its licensors own all right, title, and interest, including intellectual property rights, in the Products and all enhancements, modifications, and updates thereto, as well as the results of any Services performed hereunder. Except for express licenses granted in this Agreement, IRGame is not granting or assigning to Customer any right, title, or interest, express or implied, in or to IRGame's intellectual property. IRGame reserves all rights in such property.
Customer may provide IRGame with suggestions, comments, or other feedback (collectively, "Feedback") with respect to the Products. Feedback is voluntary. IRGame is not obligated to hold it in confidence. IRGame may use Feedback for any purpose without obligation of any kind. To the extent a license is required under any Customer intellectual property rights to make use of the Feedback, Customer grants IRGame an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with IRGame's business, including the enhancement of the Products.
IRGame may audit Customer compliance with the terms of this Agreement. Upon reasonable notice, IRGame (or an agent of IRGame) may conduct an audit during normal business hours (with the auditor's costs being at IRGame's expense). If an audit reveals underpayments, then Customer will pay to IRGame such underpayments. If underpayments discovered exceed five (5) percent of the Order price, Customer will reimburse IRGame for the auditor costs.
Customer grants IRGame and its Affiliates a non-exclusive, world-wide, royalty-free license to use the data and other information input by Customer into the Products ("Customer Data"): (i) to perform IRGame's obligations under this Agreement; (ii) in compliance with the Privacy Policy; and (iii) as may be required by law. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to IRGame for use as contemplated under this Agreement. Customer Data shall be deemed Customer Confidential Information.
IRGame may also use Customer Data in an aggregate, de-identified, and generic manner for marketing, survey, and benchmarking purposes ("Aggregated Data"). Aggregated Data: (i) is used only for internal administrative purposes and general usage statistics; (ii) does not identify Customer or any individual; and (iii) to the extent such Aggregated Data is disclosed, it is only disclosed in a generic or aggregated manner. Aggregated Data will not be considered Customer Confidential Information.
Customer Data is maintained using industry standard administrative, physical, and technical safeguards that are designed to provide for the protection of the security, confidentiality, and integrity of Customer Data. IRGame's security safeguards include means for preventing access, use, modification, or disclosure of Customer Data by unauthorized individuals. Notwithstanding the foregoing, Customer Data access may be provided (i) to IRGame and other personnel to the extent necessary to provide Products and Services; (ii) as compelled by law; (iii) as set forth in the Privacy Policy; or (iv) as expressly permitted by Customer.
The collection, use, and disclosure of Customer Data in connection with Customer's use of the Products is subject to the Privacy Policy. Customer hereby acknowledges and agrees that all Users will review and consent to the Privacy Policy before accessing or using the Products. By using the Products, Customer and each User acknowledges that the Customer Data will be processed in accordance with the Privacy Policy and this Agreement.
Customer is solely responsible for all telecommunication or Internet connections and associated fees required to access and use the Products, as well as all hardware and software on the Customer site. IRGame is not responsible for (i) Customer's access to the Internet; (ii) interception or interruptions of communications through the Internet; or (iii) changes or losses of data through the Internet.
Customer shall keep the User credentials (e.g., usernames and passwords) confidential and not disclose any such credentials to any third party. In addition, Customer shall notify IRGame immediately upon discovery of the disclosure of any such credentials, and upon any termination of the engagement of any employees or agents of Customer with knowledge of any such credentials, so that such credentials can be changed.
Customer may not: (i) reverse engineer, disassemble, decompile, or otherwise attempt to reveal the trade secrets or know how underlying the Products, except to the extent expressly permitted under applicable law; (ii) use IRGame's intellectual property and Confidential Information to develop a product that is similar to the Products; (iii) use any IRGame Confidential Information to contest the validity of any IRGame intellectual property; (iv) remove or destroy any copyright notices or other proprietary markings placed on or made available through the Products; (v) use the Products in any manner or for any purpose inconsistent with the terms of this Agreement or the Documentation; or (vi) copy, reproduce, distribute, rent, loan, sell, transfer, grant any license, sub-license or otherwise make available Products to third parties except as expressly permitted in this Agreement.
The sale, resale or other disposition of Products and any related technology or Documentation may be subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Customer is solely responsible for complying with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export or import any Products to any country to which such export or transmission is restricted or prohibited.
Fees due for the Products or Services (the "Fees") will be as set forth in each Order. If no period is specified in a quotation, quoted Fees will be valid for thirty (30) days. Fees are exclusive of taxes, including sales, use, excise, value added, and similar taxes or charges imposed by any government authority. Customer is responsible for payment of the foregoing (with the exception of any IRGame income or employee taxes). Except as otherwise specified herein or in an Order: (i) payment obligations are non-cancelable and Fees paid are non-refundable; and (ii) term and quantities purchased cannot be decreased during the applicable Product term.
Fees due for Products or Services may be invoiced by IRGame in full at the start of the subscription term or as otherwise expressly provided in the Order. Customer agrees to pay the net amount of each invoice without offset or deduction within thirty (30) days after the date of IRGame's invoice (unless otherwise noted on the invoice). If any amount is not paid upon the due date, IRGame shall be entitled to receive the amount due plus interest thereon at the rate of 1.5% per month (or such lower rate as shall be the highest permissible contract rate under applicable law) on all amounts that are not paid on or before the date due. Customer shall also pay all of IRGame's reasonable costs of collection, including but not limited to reasonable attorney's fees.
IRGame will not exercise its right of suspension in the event Customer disputes such charges, in good faith, and provides IRGame with written notice of such dispute prior to the due date, pays all undisputed charges on time, and cooperates diligently to resolve the dispute.
All Orders are subject to credit approval by IRGame. Customer agrees to submit such financial information from time to time as may be reasonably requested by IRGame for the establishment and/or continuation of credit terms. Any payment received from Customer may be applied by IRGame against any obligation owing from Customer to IRGame.
In the event Customer acquires Products via a reseller, then all payment-related terms will be set forth in the applicable reseller agreement between such reseller and Customer.
"Confidential Information" does not include information that: (i) is or becomes publicly available other than as a result of a breach by the Receiving Party of this Agreement; (ii) was previously known to the Receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (iii) was acquired by the Receiving Party from a third party which was not in breach of any obligation of confidentiality; or (iv) was independently developed by the Receiving Party hereto without reference to Confidential Information of the Disclosing Party. In the event that the Receiving Party is required to disclose Confidential Information pursuant to a subpoena or other similar order of any court or government agency, the Receiving Party shall promptly inform the other Disclosing Party in writing, shall only disclose that Confidential Information necessary to comply with such subpoena or order, and shall use reasonable efforts to obtain confidential treatment of such information.
Except as expressly provided in this Agreement, the Receiving Party will not use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party's prior written consent, except disclosure to and subsequent uses by the Receiving Party's employees or consultants on a need-to-know basis, provided that such employees or consultants are bound to obligations of confidentiality that are at least as restrictive as the Receiving Party's obligations under this Section. The Receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the Receiving Party uses to protect the Receiving Party's own Confidential Information and trade secrets, and in no event less than reasonable care.
All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party upon the Disclosing Party's written request, and the Receiving Party shall use reasonable efforts to promptly delete or destroy all summaries, copies, descriptions, excerpts, or extracts thereof in their possession. Any such retained Confidential Information shall remain subject to the terms and conditions of this Agreement for so long as it is retained.
IRGame represents and warrants that all Products shall materially conform to their then-current Documentation. For SaaS Services, Customer must notify IRGame of any breach of this warranty within thirty (30) days of the first occurrence of such breach. Customer's sole and exclusive remedy, and IRGame's sole and exclusive liability, for a breach of the foregoing warranty will be for IRGame to provide Support Services to repair or replace the relevant Product or terminate the relevant Order and issue a refund for any pre-paid, unearned fees for the affected portion of the Product.
IRGame warrants that IRGame shall provide the Services in a professional, workmanlike manner consistent with generally accepted industry standards. Customer must notify IRGame of any breach of this warranty within thirty (30) days of delivery. Customer's sole and exclusive remedy for a breach of the foregoing warranty will be for IRGame, in its sole discretion, to use reasonable efforts to re-perform the Services or terminate the relevant Order and issue a refund for the non-conforming Services.
Customer represents and warrants that (i) it owns, or is a licensee of, having the right to sublicense, the Customer Data and that Customer has the right to grant IRGame the rights that Customer purports to grant in this Agreement; (ii) IRGame's possession or use of the Customer Data does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or other proprietary right of any third party; (iii) the Customer Data shall be free from viruses, trojan horses, or other similar elements which could harm the systems or software used by IRGame; and (iv) it will not use the Products for high risk activities, such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Products or Services could lead to death, personal injury, or environmental damage.
Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Products or Services or performance of its obligations under this Agreement, as applicable. In addition, each party represents and warrants that it has the full authority to enter into this Agreement and that it has the requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement.
IRGame will defend and indemnify Customer from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys' fees) finally awarded against Customer arising from a claim by a third party that Customer's authorized use of a Product infringes that third party's United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of IRGame is contingent upon Customer promptly notifying IRGame in writing of such claim, permitting IRGame sole authority to control the defense or settlement of such claim, and providing IRGame reasonable assistance in connection therewith.
If a claim of infringement under this Section occurs, or if IRGame determines a claim is likely to occur, IRGame will have the right, in its sole discretion, to either (i) procure for Customer the right or license to continue to use the Products free of the infringement claim; or (ii) modify the Products to make them non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to IRGame, IRGame may, in its sole discretion, immediately terminate the related Order and, upon return of the infringing Products from Customer, refund any pre-paid, unearned Fees paid for such Products.
Notwithstanding the foregoing, IRGame will have no obligation with respect to any claim of infringement that is based upon or arises out of (a) the use or combination of the Products with any hardware, software, products, data, or other materials not provided by IRGame; (b) modification or alteration of the Products by anyone other than IRGame; (c) a breach by Customer of this Agreement; (d) any specifications or other intellectual property provided by Customer; or (e) Customer's failure to comply with IRGame's direction to cease any activity that in IRGame's reasonable judgment may result in such a claim (collectively, the "Excluded Claims").
Customer will defend and indemnify IRGame, its Affiliates, officers, directors, shareholders, employees, agents, successors, and assigns (the "IRGame Indemnified Parties") and hold the IRGame Indemnified Parties harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys' fees) incurred by any IRGame Indemnified Party as a result of any claim by a third party arising from (i) Customer's use of the Products in breach of this Agreement; (ii) IRGame's authorized use of the Customer Data; or (iii) the Excluded Claims.
The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and IRGame's compensation hereunder reflects such allocations. The limitation of liability and types of damages stated in this Agreement are intended by the parties to apply regardless of the form of lawsuit or claim a party may bring, whether in tort, contract, or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose. No action arising out of this Agreement may be brought by either party more than two (2) years after such cause of action accrues.
This Agreement shall be effective as of the Effective Date and shall remain in full force and effect until terminated by either party pursuant to this Section. The "Effective Date" shall be the date an Order signed by Customer, or a purchase order issued by Customer, is acknowledged by IRGame. IRGame hereby rejects any preprinted term or condition included in any communication or document from Customer relating to this Agreement, including on purchase orders.
In the event IRGame, in good faith, believes or otherwise becomes aware of a User's violation of this Agreement, then IRGame may specifically request that Customer suspend such User's access to and use of the Products. IRGame may also suspend access and use of the Products to: (i) prevent damages to, or degradation of, the Products or IRGame's systems; (ii) comply with any law, regulation, court order, or other governmental request; or (iii) otherwise protect IRGame from potential legal liability. Any such suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the cause of the suspension.
The SaaS Services, content, and information disclosed is proprietary to IRGame and is an important business asset of IRGame (the "Proprietary Information"). In the event of a request for disclosure of IRGame's Proprietary Information, Customer will affirmatively respond denying the request and will promptly, but no later than five (5) business days after receiving such request, forward the request on to IRGame. Customer shall not release any such Proprietary Information except pursuant to written instructions by IRGame, or a final un-appealable court order.
Each party agrees that during the term of this Agreement, and for a period of one (1) year after the termination or expiration of this Agreement, it will not solicit, without the other party's prior written consent, any person employed then by the other party if such person became known to the soliciting party through the relationship established pursuant to this Agreement. This prohibition will not apply to job opportunities posted on recruiting websites or in other publications in which one party seeks to find candidates for open positions.
This Agreement does not and is not intended to confer any enforceable rights or remedies upon any person or party other than the parties hereto.
IRGame, its personnel, agents, subcontractors, and independent contractors are not employees or agents of Customer and are acting as independent contractors with respect to Customer. Neither party is, nor shall be considered to be, an agent, distributor, partner, joint venturer, or representative of the other party for any purpose, and neither party shall have the authority to act on behalf of, or in the name of, or to bind the other party in any manner whatsoever.
Neither party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than the payment obligations) resulting from acts or events beyond the reasonable control of such party, including acts of war, terrorism, acts of God, pandemic, earthquake, flood, embargo, riot, sabotage or dispute, governmental act, or failure of the Internet, power failure, energy interruption or shortages, or other utility or telecommunications interruption, provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
This Agreement, including any and all Orders, constitutes the entire understanding between the parties related to this Agreement which understanding supersedes and merges all prior understandings and all other proposals, letters, agreements, oral or written. In the event of any conflict between the body of this Agreement and any Order, the body of this Agreement shall control, unless language in a mutually executed Order explicitly states that it is intended to supersede a particular provision of this Agreement. This Agreement may not be modified, amended, or altered in any manner except by a written agreement signed by both parties, and any attempt at oral modification shall be void and of no effect.
Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of IRGame. Any attempted assignment or delegation without such consent will be void and IRGame may immediately terminate this Agreement for cause. Except as provided above, this Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and their successors and assigns.
The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed to be a waiver of any further right hereunder.
This Agreement shall be governed by and construed in accordance with the laws of the State of Louisiana without regard to choice of law principles. The parties consent and submit to the jurisdiction and venue of the state courts or federal courts that serve Lafayette, Louisiana for any dispute relating to the terms, interpretation, or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies). Notwithstanding the foregoing, IRGame shall have the right to seek injunctive or pre-judgment relief in any court of competent jurisdiction to prevent or enjoin the misappropriation, misuse, infringement, or unauthorized disclosure of IRGame's Confidential Information or intellectual property rights.
All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, and payment, and any other provisions which must survive in order to give effect to their meaning, shall survive the termination of this Agreement.
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by hand delivery or by delivery service, upon receipt thereof; or (ii) if mailed, three days after deposit in the U.S. mail, postage prepaid. All notices shall be addressed to the parties at the addresses specified in the opening paragraph of this Agreement or at such other addresses as either party may in the future specify in writing to the other.
The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement.