1.1 “Agreement” shall mean this Service Agreement and the Order Form to which it is incorporated into.
1.2 “Authorized User” means each of the Customer’s employees, agents, representatives who are permitted to use the Services under the terms and conditions of this Agreement.
1.3 “Deliverables” means the documentation identified as “Deliverables” in the Order Form.
1.4 “Documentation” means Red Queen-provided user documentation, in all forms, relating to the Services (e.g., user manuals, on-line help files), excluding the Deliverables.
1.5 “Scope Limitations” means the limitations on Customer’s use of the Services specified in the Order Form, including the number of Authorized Users.
1.6 “Services” means the software services identified in the Order Form.
2. USE OF THE SERVICES
2.1 Use of the Services. Subject to the terms and conditions of this Agreement, Red Queen grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) right during the term of this Agreement to use the Services, only by and through its Authorized Users, solely in connection with Customer’s internal business operations. Customer’s right to use the Services is subject to the Scope Limitations and contingent upon Customer’s compliance with the Scope Limitations. Customer is responsible and liable for its Authorized Users’ compliance with this Agreement and any acts or omissions associated with their accounts as if such acts or omissions were those of Customer.
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Red Queen grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Services in accordance with this Agreement.
2.3 Deliverables. Subject to the terms and conditions of this Agreement, Red Queen grants to Customer a perpetual, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) license to use the Deliverables in connection with Customer’s business operations.
2.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Services or Documentation; (b) use the Services to provide services to third parties (e.g., as a service bureau); (c) use the Services for any benchmarking activity or in connection with the development of any competitive product; nor (d) circumvent or disable any security or other technological features or measures of the Services.
2.5 Compliance with Laws. Customer will use the Services, Deliverables and Documentation in compliance with all applicable laws and regulations.
2.6 Feedback. If Customer or its Authorized Users provides any feedback to Red Queen concerning the functionality and performance of the Services or Deliverables (including identifying potential errors and improvements), Customer and its Authorized Users hereby assigns to Red Queen all right, title, and interest in and to the feedback, and Red Queen is free to use the feedback without payment or restriction.
2.7 Protection against Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the Services and Documentation and immediately notify Red Queen in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Red Queen to prevent or terminate unauthorized use of the Services or Documentation.
2.8 Reservation of Rights. Red Queen grants to Customer a limited right to use the Services, Deliverables and Documentation under this Agreement. Customer will not have any rights to the Services, Deliverables or Documentation except as expressly granted in this Agreement. Red Queen reserves to itself all rights to the Services, Deliverables and Documentation not expressly granted to Customer in accordance with this Agreement.
3. CUSTOMER RESPONSIBILITES. Customer understands that in order to provide the Deliverables, Red Queen needs certain information from the Customer. Red Queen is not responsible for any delay in providing the Deliverables that is caused by Customer’s failure to provide such information.
4. FEES AND PAYMENT
4.1 Fees and Payment Terms. Customer will pay Red Queen the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in the Order Form. Unless otherwise specified in the Order Form, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Red Queen to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.
4.2 Taxes. Other than net income taxes imposed on Red Queen, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by Red Queen after all such taxes are paid are equal to the amounts that Red Queen would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5. TERM AND TERMINATION
5.1 Term. The term will be as specified in the Order Form, unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive one-year terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
5.2 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Customer fails to timely pay any fees, Red Queen may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
5.3 Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Customer will pay to Red Queen any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Customer will provide Red Queen with a written certification signed by an authorized Customer representative certifying that all use of the Services and Documentation by Customer has been discontinued.
6. WARRANTIES. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
7. WARRANTY DISCLAIMERS
7.1 No Legal Advice. The information and documentation provided by Red Queen through the Service, including the Deliverables do not, and are not intended to, constitute legal advice. Red Queen encourages Customers to consult with legal counsel for legal advice or guidance in connection with using the Deliverables and the Service.
7.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 7, RED QUEEN MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. RED QUEEN EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. RED QUEEN DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR DELIVERABLES. RED QUEEN DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. RED QUEEN DOES NOT WARRANT THAT any information PROVIDED THROUGH the Services or DELIVERABLES IS accuraTE OR COMPLETE OR THAT any information PROVIDED THROUGH the SERVICES WILL ALWAYS BE AVAILABLE. RED QUEEN EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICES AND DELIVERABLES.
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 Defense of Infringement Claims. Red Queen will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: (a) Customer gives Red Queen prompt written notice of the Claim; (b) Customer grants Red Queen full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as Red Queen may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Services). Customer will not defend or settle any Claim without Red Queen’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Red Queen will have sole control over the defense and settlement of the Claim.
8.2 Indemnification of Infringement Claims. Red Queen will indemnify Customer from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Red Queen’s consent after Red Queen has accepted defense of the Claim); and (c) all amounts that Red Queen agrees to pay to any third party to settle any Claim under Section 8.1.
8.3 Exclusions from Obligations. Red Queen will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Services are provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use the Services in accordance with instructions provided by Red Queen, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by Red Queen where such infringement or misappropriation would not have occurred absent such modification.
8.4 Limited Remedy. This Section 8 states Red Queen’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Services.
9. CUSTOMER INDEMNIFICATION
9.1 Defense. Customer will defend Red Queen from any actual or threatened third party Claim arising out of or based upon Customer’s use of the Services or Deliverables or Customer's breach of any of the provisions of this Agreement if: (a) Red Queen gives Customer prompt written notice of the Claim; (b) Red Queen grants Customer full and complete control over the defense and settlement of the Claim; (c) Red Queen provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (d) Red Queen complies with any settlement or court order made in connection with the Claim. Red Queen will not defend or settle any Claim without Customer’s prior written consent. Red Queen will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
9.2 Indemnification. Customer will indemnify Red Queen from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Red Queen in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Red Queen in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, (c) all amounts that Customer agrees to pay to any third party to settle any Claim under Section 9.1.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, RED QUEEN WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF RED QUEEN IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL RED QUEEN’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO RED QUEEN DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY RED QUEEN TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11.1 Relationship. Red Queen will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
11.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
11.3 Subcontractors. Red Queen may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Red Queen remains responsible for all of its obligations under this Agreement.
11.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
11.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Kent County, Delaware in connection with any action arising out of or in connection with this Agreement.
11.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services or Deliverables under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Services will immediately terminate.
11.9 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
11.10 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding Customer’s use of the Services and Deliverables. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Services that Red Queen may provide. No employee, agent, or other representative of Red Queen has any authority to bind Red Queen with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Red Queen will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Red Queen specifically agrees to such provision in writing and signed by an authorized agent of Red Queen.