PART I: General Terms and Conditions

1. Term. The term of this Agreement shall commence on the SOW Effective Date and continue for so long as the parties have an active SOW in place. The term of the SOW as well as any applicable Subscription Term shall be set forth in the applicable SOW.
2. Fees and Taxes. Client shall pay the fees set forth in the applicable SOW when due. Client shall pay all applicable sales, use, transfer or other taxes and all duties that are levied or imposed by reason of the Agreement excluding income taxes on profits that may be levied against Company. No tangible media will be delivered under this Agreement.
3. Delegation. Company shall have the right to subcontract any or all the services set forth in an applicable SOW so long as (i) Company remains responsible for the actions of such subcontractors and (ii) each subcontractor undertakes confidentiality obligations substantially similar to those set forth herein.
4. Confidentiality. From time to time during the term of this Agreement, either party (as "Discloser") may disclose or make available to the other party (as "Recipient"), non-public, proprietary and confidential information of Discloser ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Recipient’s breach of this Section 1; (b) is or becomes available to the Recipient on a non-confidential basis from a third party source, provided that such third party was not prohibited from disclosing such Confidential Information; (c) was in Recipient's possession prior to Discloser's disclosure hereunder; or (d) was or is independently developed by Recipient without access to or use of the Confidential Information. Confidential Information also includes Client Content and information of tangible or intangible form that is marked or designated as confidential. Recipient shall: (i) protect and safeguard the confidentiality of Discloser's Confidential Information with at least the same degree of care as Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Discloser's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity. In the event any of the Confidential Information must be disclosed pursuant to judicial order or requirement of law, Recipient shall use commercially reasonable efforts to notify Discloser of such order or requirement.
5. Intellectual Property. As between Company and Client, for all software and documentation created by Company for Client under this Agreement, including but not limited to bug fixes, functional enhancements, or new features ("Company Materials"), all ownership and intellectual property rights thereto shall remain with Company. Company hereby grants Client a limited license to use the Company Materials solely in connection with the Service as authorized by the applicable SOW.
6. Assignment. Neither party to this Agreement shall assign or transfer its rights or obligations under this Agreement, by operation of law or otherwise, to any third party without prior written consent of the other party, which shall not be unreasonably withheld.
7. Insurance. The parties shall each maintain general liability insurance and employer's liability insurance and, to the extent required by applicable law, worker’s compensation insurance.
8. Publicity. Company reserves the right to use Client’s name and logo on Company’s website and marketing collateral unless Client requests otherwise in writing.
9. Force Majeure. Except for payment obligations set forth in an applicable SOW, neither Company nor Client shall be responsible for failure to perform any of the obligations imposed by this Agreement or the applicable SOW, provided such failure shall be occasioned by negligence of the other party, fire, flood, explosion, lightning, windstorm, earthquake, subsidence of soil, failure or destruction, in whole or in part, of machinery or equipment or failure of supply of materials, discontinuity in the supply of power, governmental interference, civil commotion, riot, acts of terrorism, war, strikes, labor disturbance, transportation difficulties, labor shortage, or any cause beyond the reasonable control of either party.
10. Company Indemnification. Provided Client uses the Service consistent with the terms and conditions of this Agreement and complies with this Section 10, Company will defend and indemnify Client, as described below, with respect to any claim made against Client for (a) copyright, patent, trade secret or other intellectual property rights violation relating to Client’s use hereunder of any Company Materials; or (b) bodily injury, death or damage to tangible property, excluding loss of or damage to software or data, arising solely from actions for which Company is legally responsible. Client agrees to promptly notify Company in writing of any such claim, to allow Company to control the litigation or settlement of any such claim and to cooperate with Company in the investigation, defense, and settlement thereof. Company will indemnify Client for such claim by paying the costs and reasonable attorneys’ fees Client incurs at Company’s direction and any judgment finally warded against Client or settlement approved by Company. Client may participate at Client’s own expense. If such claim is made or, in Company’s opinion, is likely to be made, then Company, at its option, may (i) modify the Company Materials; (ii) obtain rights for Client to continue using the Company Materials; or (iii) terminate the SOW at issue and refund any paid but unused fees. This indemnification obligation does not apply to the extent a claim is based on Client’s combination of the Company Materials with other software or services or Client’s modification to any part of the Service.
11. Client Indemnification. Provided Company complies with this Section 11, Client will defend and indemnify Company, as described below, with respect to any claim made against Company arising from or related to the Client Content (as defined below). Company agrees to promptly notify Client in writing of any such claim, to allow Client to control the litigation or settlement of any such claim and to cooperate with Client in its investigation, defense, and settlement thereof. Client will indemnify Company for such claim by paying the costs and reasonable attorneys’ fees Company incurs at Client’s direction and any judgment finally warded against Company or settlement approved by Client. Company may participate at Company’s own expense.
12. Limitation of Liability. 12.1. IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.12.2. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY CLIENT TO COMPANY PURSUANT TO THE APPLICABLE STATEMENT OF WORK DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.12.3. IN NO EVENT SHALL COMPANY BE RESPONSIBLE FOR DAMAGES, MALFUNCTION, OR FAILURES CAUSED BY (i) CLIENT’S FAILURE TO FOLLOW ANY OPERATION OR MAINTENANCE INSTRUCTIONS PROVIDED BY COMPANY TO CLIENT, OR (ii) DEFECTS OR ERRORS IN THE HOSTED SOFTWARE.
13. Termination. Either party may terminate this Agreement if the other party is in material breach of this Agreement and such breach remains uncured for a period of thirty (30) days after notice of such breach has been given in writing to the breaching party by the other party.
14. Notices. Any notices permitted or required by this Agreement shall be in writing and shall be deemed effective when received. Notices may be given by hand delivery, by mail, by courier service, or by electronic mail. Notices shall be addressed to the parties at the addresses set forth in the applicable SOW.
15. Injunctive Relief. Breach of either party’s intellectual property rights or confidentiality rights may lead to damages not adequately remedied by an award of money; therefore, the parties have the right to seek to protect these rights through temporary restraining orders or prohibitory injunctions which may be sought in any appropriate court. The parties further agree that any such equitable relief will be without prejudice to any other rights accruing to them under this Agreement.
16. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
17. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by both parties. For the avoidance of doubt, in the event of any conflict between this Agreement and the SOW, the terms and conditions of the SOW shall control.
18. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
19. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. Choice of Law. This Agreement and all related documents, including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Georgia, without giving effect to the conflict of law’s provisions thereof. The parties expressly agree to exclude from the Agreement the United Nations Convention on Contracts for the International Sale of Goods. ​

PART II: Hosting & Support Services

Company Responsibilities

1. Company provides cloud-based, hosting services operating the community-adopted version of the software platform set forth in Client’s SOW. Depending on the platform, Company may be an institutional member of the community and, as such, may contribute to the community code base. However, as a community member, Company cannot assume responsibility for the consistent and effective operation of the software itself, which lies solely within the community. This is the fundamental principle of a community-supported software platform.
2. Company will use commercially reasonable efforts to provide the Service twenty-four hours a day, seven days a week (24x7). Client agrees that from time to time the Service may be inaccessible or inoperable for any reason, including, but not limited to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Company may undertake; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company, including interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, and other failures. While Company has no control of the availability of the Service, it will work with its service providers to maintain the availability level.
3. In the event of any loss or interruption of the Service ("Outage"), Client’s sole and exclusive remedy and Company’ sole and exclusive liability shall be with respect to a loss or interruption that exceeds a continual period of twenty-four hours, in which event Client shall receive a credit against future Service equal to a pro rata portion of Hosting Service fees for the period of downtime. For the avoidance of doubt, an Outage is a critical system failure, not the expression of a bug in the software or its configuration.
4. Company will actively monitor the Service’s status 24x7 with automated monitoring software that polls servers and network devices.
5. Company will be responsible for daily backups of the Service and restoring from backup at no cost to Client in the event of catastrophic failure.
   1. If applicable, if Client requests Company to restore data due to an action on the part of Client, Company at its discretion may attempt to perform such a restoration. Restores will be limited to the entire Client database. Individual record/item restores are not available. Such requests by Client will incur additional Technical Support charges outlined in the applicable SOW.
6. Company will be responsible for installing all required community-adopted updates to the operating system, software platform and other underlying applications to ensure the security and continued operation of the Service.
   1. Company from time to time will also add additional functionality to the Service as developed by the communities of the open-source projects upon which the Service is based.
   2. Company will support community-adopted plug-ins as part of the Service. Some plug-ins, such as maintenance plug-ins, will be installed by default.
7. If applicable, Client may request the installation of third-party plug-ins into their Instance, although Company is under no obligation to install them. Client accepts full responsibility for the operation and effects of this third-party plug-in on its Instance and database. Company may remove an installed third-party plug-in in its sole discretion if it is determined to prevent proper delivery of the Service.
8. Company, at its own discretion, may work to address software defects ("bugs" as described in Table 1, Tier 2) if this development work can be contributed back to the appropriate open-source community.
   1. Bug fixes or workarounds performed at the request of and for the benefit of Client are considered additional development work that Company may choose to undertake and is subject to additional Development Work charges as described in the applicable SOW.
9. Company will control and provide support of the Service via its central administrative user account in its web-based ticketing system, which will be inaccessible to Client.