YARDVIEW® PRO SUBSCRIPTION
Applicable Terms and Conditions
Updated: 23 July 2024
These Applicable Terms and Conditions supplement the Commercial Terms executed between Customer and Cypress, and form an integral part of the Agreement between Cypress and the Customer identified on the Commercial Terms.
1. DEFINITIONS. The capitalized terms not defined in the text of the Agreement shall have the meanings set forth in this Section.
1.1.1. “Authorized Users” means Customer’s employees, independent contractors and suppliers, and the independent contractors’ and suppliers’ employees and agents who need access to the Software to fulfill obligations to Customer.
1.2 “Customer Data” means all data created or transmitted by Customer and stored on Cypress’s servers as part of the Hosted Services.
1.3 “Documentation” means all help files or written instruction manuals which Cypress decides to make available to Customer regarding the use of the Software provided to Customer by Cypress, as such instruction manuals may be updated from time to time during the Term.
1.4 “Go-Live Date” means the earlier of (a) the date Customer first utilizes the Software to manage its containers, trailers or other assets at facilities owned or under Customer’s control, or (b) three (3) months following the Effective Date.
1.5 “Hosted Software” means the functionality portions of the yard management computer software programs or routines, known as “YardView Pro”, as expressly set forth within the Commercial Terms, and any associated databases associated therewith, which have been developed by or for Cypress for the purpose of managing containers, trailers and other assets at facilities, but in all instances excluding the YardView Smart Client In-Truck Application and any software programs, routines, functionality or databases that Cypress determines to separately license or charge an additional fee to access or use.
1.6 “Minor Release” shall mean periodic bug fixes, and minor feature and functional improvements to the Software, but only to the extent the same relates to the Software functionality licensed herein.
1.7 “Services” means the Hosted Services, Support Services and Professional Services rendered (as applicable) by Cypress pursuant to this Agreement.
1.8 “Site(s)” means the location(s), facility(ies), or property(ies) set forth on the Commercial Terms.
1.9 “Software” means the Hosted Software and the YardView Smart Client In-Truck Application.
1.10 “Term” means the period of time from the Effective Date through the end of the Initial Term, and any Additional Term(s), unless earlier terminated pursuant to the terms of this Agreement, in which case it shall be the date of termination.
1.11 “Version Upgrade” shall mean major change(s), feature(s) and/or functional improvement(s) to the Software as designated by Cypress, but only to the extent the same relates to the Software functionality licensed herein.
1.12 “YardView Smart Client In-Truck Application” shall mean the YardView Yard Management Software® desktop application, installed on a PC in a vehicle, which is used to manage work tasks and move requests, perform yard inventories and perform refrigerated trailer status checks.
2. TERM AND TERMINATION
2.1 Term.
The Agreement shall commence on the Effective Date and continue as specified for the initial term as specified within the Commercial Terms (the “Initial Term”), unless terminated earlier pursuant to Section 2.2. The Agreement shall automatically be extended for additional one-year terms (each an “Additional Term”) unless either party (a) gives written notice to the other not fewer than ninety (90) days prior to the expiration of the then-current term, or (b) terminates this Agreement earlier pursuant to Section 2.2.
2.2 Termination.
This Agreement may be terminated (a) by either party by providing written notice to the other party upon the material breach by the other party of any of its obligations hereunder, which breach has not been cured within sixty (60) days after the breaching party has received notice thereof; (b) by Cypress upon notice to Customer if (i) Customer attempts to distribute, use, or offer or promise to distribute or use one or more copies of the Software in any manner contrary to the terms of this Agreement or in derogation of Cypress’s proprietary rights in the Software, whether by sale, license, lease or otherwise, and whether or not any consideration is received for any such transfer, use, offer or promise, or (ii) Customer terminates its business activities or becomes insolvent or admits in writing its inability to pay its debts as they mature; or (c) by Cypress, if Customer fails to make timely payment of any undisputed sums due to Cypress, within ten (10) days after Cypress gives Customer written notice of such breach.
2.3 Effect of Termination.
Upon termination or expiration of the Agreement for any reason, all rights granted to Customer under this Agreement with respect to the Software, Documentation and Services will cease, and Customer will promptly pay to Cypress all Fees and other amounts that are due pursuant to this Agreement,. Termination or expiration of this Agreement shall not impair either parties then accrued rights, obligations, liabilities or remedies. Notwithstanding any other provisions of this Agreement to the contrary, the terms and conditions of Sections 1, this 2.3, 3.4, 4.2, 4.3, 4.4, 4.5, 5, 6.4, 7, 8 and 9 shall survive termination of this Agreement.
3. SERVICES
3.1 Hosting.
Subject to the payment of the Fees, and following the Go-Live Date through the remaining Term, Cypress shall (a) host (or have hosted) the Hosted Software for Customer’s use with respect to each of the Site(s), and (b) provide Customer with unique and confidential access codes permitting Authorized Users remote access to utilize the Hosted Software (“Hosted Services”). Customer shall prohibit Authorized Users from (i) disclosing access codes to any third party, and (ii) using the Software for purposes other than permitted in this Agreement. Customer agrees it shall be responsible for the acts and omissions of its Authorized Users, and agrees any activity relating to this Agreement by Authorized Users shall be deemed an act or omission by Customer. Cypress shall provide the Hosted Services in accordance with Schedule B.
3.2 Support.
During the Term and subject to payment of the Fees, Cypress shall perform the support services as set forth in Schedule A solely for the version of the Software utilized by the Customer and, following the second anniversary of the Effective Date, then only to the extent Customer has implemented the most recent Version Upgrade within three (3) months of the date Cypress makes such Version Upgrade available to Customer (“Support Services”). Unless otherwise agreed in a writing executed by Cypress, neither the license grant herein nor the Support Services include (a) custom modifications to the Software, (b) maintenance and support of any customization or any third party software, (c) necessary modifications to third party applications enabling them to function properly with updates, upgrades or modifications provided by or on behalf of Cypress, nor (d) any new functionality, database or module Cypress makes generally available as a separately priced item.
3.3 Implementation and Professional Services.
Cypress agrees to furnish Services for the installation and initial use of the Software as expressly specified within Commercial Terms. Upon written request by Customer, Cypress in its sole discretion may provide additional assistance to Customer in the modification, training or use of the Software (“Professional Services”), at Cypress’s then prevailing hourly rate. Cypress and Customer agree that the Services will not involve development of custom software applications or other intellectual property rights to be owned by Customer.
3.4 Reliance on Customer.
Customer will permit Cypress to have reasonable access to Customer’s premises, personnel and computer equipment for the purposes of performing the Services and complying with Cypress’s obligations under this Agreement. In providing the Services, Cypress shall be entitled to rely upon and act in accordance with the instructions, guidelines, Customer Data or information provided by Customer or any of its Authorized Users who have actual or apparent authority to provide such instructions, guidelines or information, and Cypress shall incur no liability in doing so. Customer shall indemnify, defend and hold Cypress, its shareholders, officers, directors, employees and agents harmless from any and all claims, losses, actions, suits, proceedings or judgments, including, without limitation, costs and reasonable attorneys’ fees, incurred by or assessed against such parties resulting, in whole or in part from (a) any action or failure to act by Cypress in reliance on any instruction, approval, election, decision, action, inaction, omission or nonperformance by Customer, its Authorized Users, officers, directors, shareholders, employees and agents relating to the Software or Services, (b) any information or Customer Data provided to Cypress by Customer or any Authorized User in connection with the Services, and/or (c) any breach of any term or condition of this Agreement by Customer.
4. LICENSE
4.1 Software License.
During the Term, subject to payment of the applicable Fees and the limitations set forth in this Agreement, Cypress hereby grants to Customer, and Customer hereby accepts, a non-exclusive, and non-transferable license for the use of the Software by and on behalf of Customer solely with respect to the Site(s) specified on the Commercial Terms and the limited number of YardView Smart Client In-Truck Applications designated on the Commercial Terms. The foregoing licenses apply to the periodic updates for the Software as supplied by Cypress in accordance with the Support Services.
4.2 License Restrictions.
Except as expressly permitted in this Agreement, Customer shall not, nor allow or authorize any third party to (a) reproduce, allow use of or access to the Software on behalf of, or sell, rent, lease, use in a service bureau, sublicense or otherwise transfer or assign its rights to access and use the Software as provided hereunder, in whole or in part, to a third party; (b) alter, enhance or otherwise modify or create derivative works of or from the Software; (c) disassemble, decompile, reverse engineer or otherwise attempt to derive the source code of the Software; (d) merge the Software with other software; (e) remove or destroy any proprietary markings, confidential legends or any trademarks or trade names of Cypress or its licensors placed upon or contained within the Software or Documentation; (f) upload, post or transmit into the system hosting the Software any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law, including violations of the intellectual property rights or any other rights of a third party, or any information, content or software containing a virus, cancelbot, Trojan horse, worm or other harmful component. Use, duplication or disclosure by the U.S. Government or any of its agencies is subject to restrictions set forth in the Commercial Computer Software and Commercial Computer Software Documentation clause at DFARS 227.7202 and/or the Commercial Computer Software Restricted Rights clause at FAR 52.227.19(c).
4.3 Ownership.
All trademarks, service marks, patents, copyrights, trade secrets and other intellectual and proprietary rights in or related to the Software, the Deliverables, and any third party software, provided by or on behalf of Cypress and any copies, derivative works and modifications thereof (collectively the “Delivered Solution”) are and will remain the exclusive property of Cypress or its licensors, whether or not specifically recognized or perfected under applicable law. Customer will not take any action that jeopardizes Cypress’s or its licensor’s proprietary rights or acquire any right in the Delivered Solution, except the limited license rights specified herein. Cypress or its licensor will own all rights in any copy, translation, modification, adaptation or derivation of the Delivered Solution, including any improvement or development thereof. If Customer or any third party engaged by Customer is deemed to have any ownership interest or rights in the Delivered Solution, Customer shall assign and/or cause such third party to assign, and Customer does hereby irrevocably and assign without royalty all of such ownership interest and rights to Cypress.
4.4 Export.
Customer acknowledges that the Delivered Solution and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations and other applicable laws. Customer will (a) comply strictly with all legal requirements established under these controls, (b) cooperate fully with Cypress in any official or unofficial audit or inspection that relates to these controls, and (c) not export, re-export, divert, provide access to or transfer, directly or indirectly, any such item or direct products thereof to any country that is embargoed by applicable law, including Executive Order, unless Customer has obtained the prior written authorization of Cypress and the U.S. Commerce Department.
4.5 Reservation of Rights.
Except as expressly provided herein this Section 4, Cypress does not grant any rights or licenses to the Delivered Solution or Cypress’s other intellectual property rights, whether by implication, estoppel or otherwise.
5. FEES AND PAYMENT TERMS
5.1 Fees and Expenses.
Cypress shall provide the Services and the Software for the fees set forth within the Commercial Terms (the “Fees”). In addition to the Fees, Customer shall also reimburse Cypress for its reasonable out-of-pocket travel, travel-related and pre-approved expenses which are incurred by Cypress in connection with Cypress’s performance of the Services (“Reimbursable Expenses”).
5.2 Invoicing and Payments.
Unless expressly agreed otherwise, all amounts invoiced will be due and payable in U.S. dollars. Except as otherwise agreed in the Commercial Terms, Customer shall pay invoiced amounts within thirty (30) days after the date of invoice; provided, however, if the Agreement is terminated for reasons other than material breach by Cypress, all outstanding Fees, Reimbursable Expenses and other amounts owing shall become due and payable on the termination date. Any amount not paid when due shall thereafter bear interest until paid at a rate equal to the lesser of one and one-half percent per month or the maximum rate allowed by applicable law.
5.3 Taxes.
The Fees do not include transfer, gross receipts, value-added, sales, use, import, withholding, excise, customs or other similar taxes, imports or duties applicable to or imposed on or as a result of the transactions contemplated by this Agreement under any applicable law or taxing jurisdiction (collectively, “Transaction Taxes”). Regardless of the party on whom Transaction Taxes are imposed under applicable law, Customer shall be solely responsible for and shall pay all Transaction Taxes. If at any time in Cypress’s sole discretion Cypress determines that Cypress should collect Transaction Taxes from Customer and remit such Transaction Taxes to a taxing jurisdiction under the laws of such jurisdiction, Cypress may separately charge Customer, and Customer shall pay to Cypress, the amount of such Transaction Taxes. If any tax jurisdiction formally asserts that Cypress is liable for any Transaction Taxes, Customer agrees to indemnify, defend and hold harmless Cypress from and against such claims, and shall immediately pay all such Transaction Taxes to the applicable jurisdiction on Cypress’s behalf, plus any corresponding interest, penalty interest, and penalties. If any tax jurisdiction asserts that Cypress is liable for Transaction Taxes, Customer agrees to promptly reimburse Cypress for the amount thereof plus any related interest and penalties paid by Cypress to such jurisdiction. If any amount payable by Customer to Cypress is subject to withholding or other deduction, charge or tax, then the amount payable to Cypress by Customer shall be increased so that after such withholding, deduction, charge or tax the net amount paid to Cypress equals the full amount invoiced by Cypress.
5.4 Acknowledgement.
Customer and Cypress acknowledge (a) the Fees and other charges contemplated under this Agreement are based on the limited warranty, disclaimer and limitation of liability specified in Sections 6.3, 6.4, 8.1 and 8.2, and (b) such charges would be substantially higher if any of these provisions were unenforceable.
6. WARRANTY AND DISCLAIMER
6.1 Mutual Warranties.
Each party represents and warrants that: (a) it has the power to and is free to enter into this Agreement; (b) this Agreement constitutes the legal, valid and binding obligation of such party in accordance with its terms; and (c) it will comply with all laws, rules and regulations applicable to the performance of its material duties hereunder.
6.2 Customer Warranty.
Customer represents, warrants, and covenants to Cypress that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Cypress and used in accordance with this Agreement, the Customer Data provided does not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any other privacy or other rights of any third party or violate any applicable law. Customer is solely responsible for reviewing all Customer Data to ensure compliance with this Agreement.
6.3 Services Warranty.
Cypress represents and warrants to Customer that Cypress shall endeavor to provide the Services with reasonable skill and care. As Customer’s sole and exclusive remedy and Cypress’s sole obligation for breach of this warranty, Cypress shall use commercially reasonably efforts to correct any Services failing to meet the foregoing warranty at no additional charge, provided that Customer gives Cypress specific written notice of the specific Services failing to meet the warranty within thirty days after Cypress’s performance thereof.
6.4 Exclusion of Additional Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, CYPRESS DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE DELIVERED SOLUTION AND SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY CYPRESS, ITS AGENTS OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION, FITNESS FOR PARTICULAR PURPOSE OR NONINFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. THE SOFTWARE, DELIVERABLES, AND SERVICES BEING PROVIDED ARE NOT WARRANTED BY CYPRESS TO BE ERROR-FREE OR FREE FROM INTERRUPTION.
7. CONFIDENTIALITY
7.1 Proprietary Information.
The Delivered Solution, including the Software, this Agreement, all other information and data (including information and data of a third party and to which Cypress has confidentiality obligations) furnished to Customer by or on behalf of Cypress (whether orally or by means of written material) and any benchmark or performance test data related to the foregoing (the “Proprietary Information”): (a) shall be deemed proprietary and shall be held by Customer in strict confidence and shall only be disclosed to Authorized Users who have a need to know such information for the purposes of conducting Customer’s business and who is obligated to maintain the confidentiality of and refrain from using such Proprietary Information under terms at least as protective as those set forth herein; (b) shall not be disclosed or revealed or shared with any other person except those individuals or entities specifically authorized by Cypress; and (c) shall not be used other than for purposes of, and in connection with, Customer’s permissible use of the Software as specified in this Agreement.
7.2 Authorized Disclosure.
If Customer should receive any legal request or process in any form seeking disclosure of, or if Customer should be advised by counsel of any obligation to disclose, Proprietary Information, Customer shall provide Cypress with prompt prior notice of such request or advice so that Cypress may seek a protective order or pursue other appropriate remedies to protect the confidentiality of the Proprietary Information. If such protective order or other remedy is not obtained, Customer agrees to furnish only that portion of the Proprietary Information which is legally required to be furnished and, in connection with Cypress, to use all reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnish.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1 Excluded Liabilities.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF OR FAILURE TO BE ABLE TO USE THE SOFTWARE OR THE SERVICES.
8.2 Liability Cap.
Cypress’s total aggregate liability for any damages arising out of or related to this Agreement shall in no event exceed the Fees paid hereunder during the twelve (12) month period preceding the initial claim. The existence of one or more claims will not enlarge this limit.
8.3 Exclusions to the Limits on Liability.
The exclusions and limits set forth in Section 8.1 and Section 8.2 shall not apply to any claim relating to a Party’s obligations to defend and indemnify hereunder or to pay any Fees, Reimbursable Expenses or Transaction Taxes pursuant to Section 5.
9. GENERAL TERMS
9.1 Amendments.
This Agreement shall be modified only by a written agreement executed by both Parties and by persons authorized to execute agreements on behalf of the Parties. Any other terms or conditions included in any purchase orders, order acknowledgments, invoices or other documents utilized or exchanged by the Parties shall not be binding on the Parties hereto.
9.2 Independent Contractors.
The status of Cypress will be that of independent contractor, and Cypress and its employees, contractors and agents will not be deemed employees or agents of Customer. None of the terms set forth in this Agreement will be construed as creating a partnership, joint venture, agency, master-servant, employment, trust, or any other relationship between Customer and Cypress or any of their employees.
9.3 Force Majeure.
Cypress will not incur liability for failing to perform any obligation under this Agreement if such failure results from a force majeure or any event or matter beyond its reasonable control.
9.4 Notices.
All notices and demands pursuant to the Agreement must be in writing. Notices to Customer shall be effective upon receipt thereof and may be delivered via the Software or any email or mailing address specified on the Commercial Terms. Notice to Cypress shall be provided by a reputable overnight courier with required signed receipt, or via certified mail of the U.S. postal system, and shall be deemed effective solely upon receipt if delivered to: Cypress Inland Corporation, 1429 Wandering Way, Castle Rock, Colorado, ATTN: President/Urgent.
9.5 Governing Law.
This Agreement will be governed by and interpreted in accordance with the laws of Colorado, to the exclusion of its conflict of laws provisions. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for Colorado or, if such court would not have jurisdiction over the matter, then only in a Colorado State court sitting in Denver, Colorado. Except as provided in Section 9.6, each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum.
9.6 Injunctive Relief.
A breach of Customer’s obligations under Section 4 or Section 7 will result in irreparable injury to Cypress for which there is no adequate remedy at law. Therefore, notwithstanding Section 9.5, in the event of any breach or threatened breach of such obligations, Cypress shall be entitled to equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.
9.7 Entire Agreement; Amendment; Waiver.
This Agreement, including any Schedules and documents referred to in this Agreement or attached hereto and thereto, constitute the entire and exclusive statement with respect to its subject matter and supersedes any and all oral or written representations, understandings, or agreements relating thereto. Notwithstanding the foregoing, nothing herein shall effect or terminate ongoing rights from non-disclosure agreements entered into by the Parties prior to the Effective Date; provided, however, any new information exchanged between the Parties shall be governed solely by the obligations with respect to Proprietary Information as set forth herein. No waiver regarding any breach of this Agreement shall constitute a waiver of any other breach. Any delay by a Party in exercising in any respect any right provided for in this Agreement, shall not be deemed a waiver of the subject right or any further right under this Agreement.
9.8 Binding Agreement.
This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
9.9 Promotions and Marketing.
Cypress and Customer may develop reference materials and media relations documents regarding this Agreement and/or Customer's usage and experience with Cypress. Cypress may use Customer's name and its trademark as a reference both publicly and privately in Cypress' marketing and promotional materials, including but not limited to press releases, newsletter articles, website references, social media, and email.
9.10 Assignment.
Any assignment of this Agreement or any rights or obligations hereunder by Customer, without the prior written consent of Cypress, shall be null and void and of no effect and a material breach hereof. Customer hereby agrees and consents that Cypress may assign or otherwise transfer this Agreement, in whole or in part, whether voluntary or by operation of law (including by way of sale of all or substantially all of its business or assets, merger or consolidation), this Agreement and the rights hereunder.
9.11 Severability.
If any part of this Agreement is declared to be invalid by any court of competent jurisdiction, that part of the Agreement shall be severed from this Agreement and the remainder of this Agreement shall remain in full force and effect.
9.12 Cumulative Remedies.
Except as expressly provided otherwise in this Agreement, in addition to any remedies provided in this Agreement, the Parties shall have all remedies provided at law or in equity. The rights and remedies provided in this Agreement or otherwise under law or in equity shall be cumulative and the exercise of any particular right or remedy shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy, except as expressly provided otherwise in this Agreement.
9.13 No Third-Party Beneficiaries.
Nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any entity, other than the Parties and those specified to be indemnified hereunder, and each of the foregoing parties’ respective successors and permitted assigns, any remedy or claim by reason of this Agreement.
9.14 Construction.
For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined herein include the plural as well as the singular and vice-versa; (b) words importing gender include all genders; (c) any reference to a “Schedule,” refers to a schedule to these Applicable Terms and Conditions, and any reference to a “Section” refers to an section of these Applicable Terms and Conditions; (d) the Schedules hereto form part of this Agreement; (e) all references to this Agreement and the words “herein,” “hereof,” “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Schedule, Section, or other subdivision; and (f) all Schedule, and Section headings are for convenience only and shall not affect the interpretation or construction of this Agreement.
9.15 Government Customers.
Cypress provides the Services and Software, including related software and technology, for federal government end use as a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services and Software are provided to the end user with only those rights as provided under the terms and conditions of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Cypress to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement..
Schedule A
Support Services
A. Support.
While Customer is obligated to provide Support Services, Cypress will provide telephone and e-mail support for Errors, as expressly described herein for up to six (6) hours per month of the Term. Cypress does not provide Support Services for problems that are caused by the hardware and/or software that Customer uses in conjunction with the Hosted Software (such as network products, web servers, browsers, operating system software and hardware). In addition, under no circumstances will Cypress be obligated to provide Support Services for problems resulting from use of the Software or Services other than as authorized in this Agreement. “Error” means a reproducible defect in the Software which causes the Software not to operate substantially in accordance with its applicable Documentation.
1. Support Procedures.
Subject to the foregoing, where Customer requires Support Services from Cypress, Customer and Cypress will use the following procedure:
a. Designated Representatives.
Customer designates the primary representative as set forth on the Commercial Terms to be its primary representative, and two additional representatives as its secondary representatives (such representatives, collectively, “Designated Representatives”) for purposes of (a) providing and receiving technical support relating to the Software, and (b) managing, training and providing tier-1 support for Authorized Users. Customer agrees that its primary Designated Representative shall have the authority to (i) authorize system and Software changes relating to the Services, (ii) approve and authorize on behalf of Customer the performance of Professional Services and other expenses relating to this Agreement. Customer shall cause the Designated Representatives to (x) coordinate and liaise with Cypress for all of Customer’s activities relating to this Agreement, (y) notify Authorized Users of information relating to the availability and functionality of the Software, including information relating to maintenance and system down-time(s), and (z) perform Tier-1 Support.
b. Contact Methods.
Customer shall have all Authorized User inquiries be initially directed to Designated Representatives for Tier-1 Support. “Tier-1 Support” means the Designated Representative shall (a) intake the contact from the Authorized User(s), (b) determine whether the issue is an Error, or caused by another application or problem with the Customer’s or Authorized Users system or hardware, (c) if it is reasonably believed by the Designated Representative to be an Error, then outline and document the purported Error in a manner to clearly communicate the cause and nature of the Error to Cypress, and (d) communicate the purported Error, along with the Designated Representative’s good faith opinion of the Error’s priority level to Cypress and continue to work in conjunction with Cypress until the Error is determined and resolved. Support Services requests from Customer, shall be made solely via a Designated Representative. Customer will be required to provide a reasonably detailed description of the Error that gave rise to the request so that a reasonable attempt to diagnose the Error can be made by Cypress.
c. Hours of Support Services.
Support Services for the Software is available Monday through Friday from 8 a.m. to 5 p.m. Mountain Time Zone, excluding Cypress’s recognized holidays. Support Services for Errors with Critical Priority Level is available 24 x 7 x 365.
d. Initial Response.
Cypress will handle and respond to Support Services requests based on the priority level assigned by Cypress to Customer’s requests as set forth below. Cypress will use commercially reasonable efforts to provide Customer with an initial response for each reported Error (indicating that the support query has been received) within the time frame indicated in the Initial Response Time column.
Priority and Response Schedule for Support Services Issues
Priority Level
Critical
Nature of Customer / Reported Error
Error causes complete loss of critical Software functionality (e.g. cannot access/use time entry system), system outage or down production system. The incident will be prioritized at the highest level. Once the issue has been resolved or a workaround is provided, efforts are then made to determine the “root cause” of the Error. Considering the nature of the cause, the Error is adjusted to one of the other priorities and processed accordingly.
Targeted Response Time: 1 hour
Priority Level
Important
Partial loss of critical functionality.
The Customer’s production/processing system is not down but there is an impact to a critical business process. If the Error persists, the end-user impacts may become serious.
Targeted Response Time: 1 business day
Priority Level
Routine
User and configuration questions
Targeted Response Time: 2 business days
e. Replacing Designated Representatives.
Customer may designate replacement Designated Representatives (either primary or secondary) at any time during the Term by providing Cypress as much notice as reasonably possible. In the event that Customer’s Designated Representatives change, Customer shall be responsible to train and pass along the know-how on all aspects of the Software and Services, and its use with Customers then current processes, from the existing individual to the replacing individual. If Customer requires Cypress to provide the new Designated Representatives to receive assistance, training and support beyond the level of the last representative, Cypress may elect to provide these Professional Services in accordance with Section 3.3 of the Agreement.B. Minor Releases and Version Upgrades.
Upon the Go-Live Date and for the duration of the Term for so long as Customer pays the applicable Fee for Support Services, Cypress will provide Minor Releases and Version Upgrades.
1. Upgrade Procedures.
Subject to the foregoing, once Cypress determines that either a Minor Release or Version Upgrade is ready and available for Customer.
a. Minor Releases.
Cypress shall implement the Minor Release into the live, hosted environment upon Cypress’s determination that the minor release is ready.
b. Version Upgrades.
Cypress shall implement the Version Upgrade into the live, hosted environment at a time mutually-agreed between Cypress and Customer’s primary Designated Representative; provided, however, Customer shall permit Cypress to implement such Version Upgrade not later than three (3) months following Cypress’s determination that the minor release is ready.
Schedule B
Hosting Services
1. Cypress will host the Hosted Software on behalf of Customer; provided, however, for hardware, software and Internet access as specified within the Documentation.
2. Cypress will use commercially reasonable efforts to make the Hosted Software available in accordance with prevailing hosting industry standards, taking into account the Customer’s workstations and the speed of their connection to the Cypress’s hardware (the “Technical Standards”). Subject to Customer handling Tier-1 Support, Cypress will use commercially reasonable efforts to remedy any interruptions, omissions, mistakes, accidents or errors in the Services and restore the Services substantially in accordance with the Technical Standards.
3. Customer Data shall at all times be owned by Customer. Except as instructed by Customer directly or through instructions provided to the servers through Customer’s use of the Software, Cypress shall treat Customer Data as confidential information. Upon termination or cancellation of the Hosted Services for any reason, Cypress shall use commercially reasonable efforts return all Customer Data to Customer in the file format used by the Software. Without exception, other than the performance of Implementation and Support Services pursuant to the Agreement, Cypress shall have no right, without Customer’s prior written consent, to (i) use Customer Data for any purpose other than in the course of providing hosting, support and related services to Customer, or (ii) download Customer Data from hosting servers to any laptop, PC or other device (except to the extent such Services are performed on secured network(s) equipment of Cypress), (iii) remove Customer Data from its hosted location, other than for disaster recovery purposes, or (iv) knowingly permit remote access to the Customer Data by anyone outside the United States. Customer shall secure all rights in the Customer Data in order to permit Cypress to perform its obligations as contemplated by this Agreement.
4. Cypress shall secure daily system backup of all Customer Data stored on the servers with the Hosted Software.
5. Customer Data may be permanently deleted from Cypress’s servers thirty-six (36) months from the date of its collection or receipt (the “Data Retention Period”). Notwithstanding the foregoing, Customer may extend the Data Retention Period for an additional twenty-four (24) or forty-eight (48) months for a fee of $3,600 or $7,200 respectively.
6. Cypress shall use commercially reasonable efforts to have 99% uptime in each calendar month as measured by site availability for acceptable usage. Cypress is not responsible for availability or acceptable usage due to Customer’s internal network issues. Less than 99% uptime in a given month will result in licensor crediting that amount ((100% - (Uptime %) times (the monthly fee)) from their next quarterly hosting payment.
12053551_v5
These Applicable Terms and Conditions supplement the Commercial Terms executed between Customer and Cypress, and form an integral part of the Agreement between Cypress and the Customer identified on the Commercial Terms.
1. DEFINITIONS. The capitalized terms not defined in the text of the Agreement shall have the meanings set forth in this Section.
1.1.1. “Authorized Users” means Customer’s employees, independent contractors and suppliers, and the independent contractors’ and suppliers’ employees and agents who need access to the Software to fulfill obligations to Customer.
1.2 “Customer Data” means all data created or transmitted by Customer and stored on Cypress’s servers as part of the Hosted Services.
1.3 “Documentation” means all help files or written instruction manuals which Cypress decides to make available to Customer regarding the use of the Software provided to Customer by Cypress, as such instruction manuals may be updated from time to time during the Term.
1.4 “Go-Live Date” means the earlier of (a) the date Customer first utilizes the Software to manage its containers, trailers or other assets at facilities owned or under Customer’s control, or (b) three (3) months following the Effective Date.
1.5 “Hosted Software” means the functionality portions of the yard management computer software programs or routines, known as “YardView Pro”, as expressly set forth within the Commercial Terms, and any associated databases associated therewith, which have been developed by or for Cypress for the purpose of managing containers, trailers and other assets at facilities, but in all instances excluding the YardView Smart Client In-Truck Application and any software programs, routines, functionality or databases that Cypress determines to separately license or charge an additional fee to access or use.
1.6 “Minor Release” shall mean periodic bug fixes, and minor feature and functional improvements to the Software, but only to the extent the same relates to the Software functionality licensed herein.
1.7 “Services” means the Hosted Services, Support Services and Professional Services rendered (as applicable) by Cypress pursuant to this Agreement.
1.8 “Site(s)” means the location(s), facility(ies), or property(ies) set forth on the Commercial Terms.
1.9 “Software” means the Hosted Software and the YardView Smart Client In-Truck Application.
1.10 “Term” means the period of time from the Effective Date through the end of the Initial Term, and any Additional Term(s), unless earlier terminated pursuant to the terms of this Agreement, in which case it shall be the date of termination.
1.11 “Version Upgrade” shall mean major change(s), feature(s) and/or functional improvement(s) to the Software as designated by Cypress, but only to the extent the same relates to the Software functionality licensed herein.
1.12 “YardView Smart Client In-Truck Application” shall mean the YardView Yard Management Software® desktop application, installed on a PC in a vehicle, which is used to manage work tasks and move requests, perform yard inventories and perform refrigerated trailer status checks.
2. TERM AND TERMINATION
2.1 Term.
The Agreement shall commence on the Effective Date and continue as specified for the initial term as specified within the Commercial Terms (the “Initial Term”), unless terminated earlier pursuant to Section 2.2. The Agreement shall automatically be extended for additional one-year terms (each an “Additional Term”) unless either party (a) gives written notice to the other not fewer than ninety (90) days prior to the expiration of the then-current term, or (b) terminates this Agreement earlier pursuant to Section 2.2.
2.2 Termination.
This Agreement may be terminated (a) by either party by providing written notice to the other party upon the material breach by the other party of any of its obligations hereunder, which breach has not been cured within sixty (60) days after the breaching party has received notice thereof; (b) by Cypress upon notice to Customer if (i) Customer attempts to distribute, use, or offer or promise to distribute or use one or more copies of the Software in any manner contrary to the terms of this Agreement or in derogation of Cypress’s proprietary rights in the Software, whether by sale, license, lease or otherwise, and whether or not any consideration is received for any such transfer, use, offer or promise, or (ii) Customer terminates its business activities or becomes insolvent or admits in writing its inability to pay its debts as they mature; or (c) by Cypress, if Customer fails to make timely payment of any undisputed sums due to Cypress, within ten (10) days after Cypress gives Customer written notice of such breach.
2.3 Effect of Termination.
Upon termination or expiration of the Agreement for any reason, all rights granted to Customer under this Agreement with respect to the Software, Documentation and Services will cease, and Customer will promptly pay to Cypress all Fees and other amounts that are due pursuant to this Agreement,. Termination or expiration of this Agreement shall not impair either parties then accrued rights, obligations, liabilities or remedies. Notwithstanding any other provisions of this Agreement to the contrary, the terms and conditions of Sections 1, this 2.3, 3.4, 4.2, 4.3, 4.4, 4.5, 5, 6.4, 7, 8 and 9 shall survive termination of this Agreement.
3. SERVICES
3.1 Hosting.
Subject to the payment of the Fees, and following the Go-Live Date through the remaining Term, Cypress shall (a) host (or have hosted) the Hosted Software for Customer’s use with respect to each of the Site(s), and (b) provide Customer with unique and confidential access codes permitting Authorized Users remote access to utilize the Hosted Software (“Hosted Services”). Customer shall prohibit Authorized Users from (i) disclosing access codes to any third party, and (ii) using the Software for purposes other than permitted in this Agreement. Customer agrees it shall be responsible for the acts and omissions of its Authorized Users, and agrees any activity relating to this Agreement by Authorized Users shall be deemed an act or omission by Customer. Cypress shall provide the Hosted Services in accordance with Schedule B.
3.2 Support.
During the Term and subject to payment of the Fees, Cypress shall perform the support services as set forth in Schedule A solely for the version of the Software utilized by the Customer and, following the second anniversary of the Effective Date, then only to the extent Customer has implemented the most recent Version Upgrade within three (3) months of the date Cypress makes such Version Upgrade available to Customer (“Support Services”). Unless otherwise agreed in a writing executed by Cypress, neither the license grant herein nor the Support Services include (a) custom modifications to the Software, (b) maintenance and support of any customization or any third party software, (c) necessary modifications to third party applications enabling them to function properly with updates, upgrades or modifications provided by or on behalf of Cypress, nor (d) any new functionality, database or module Cypress makes generally available as a separately priced item.
3.3 Implementation and Professional Services.
Cypress agrees to furnish Services for the installation and initial use of the Software as expressly specified within Commercial Terms. Upon written request by Customer, Cypress in its sole discretion may provide additional assistance to Customer in the modification, training or use of the Software (“Professional Services”), at Cypress’s then prevailing hourly rate. Cypress and Customer agree that the Services will not involve development of custom software applications or other intellectual property rights to be owned by Customer.
3.4 Reliance on Customer.
Customer will permit Cypress to have reasonable access to Customer’s premises, personnel and computer equipment for the purposes of performing the Services and complying with Cypress’s obligations under this Agreement. In providing the Services, Cypress shall be entitled to rely upon and act in accordance with the instructions, guidelines, Customer Data or information provided by Customer or any of its Authorized Users who have actual or apparent authority to provide such instructions, guidelines or information, and Cypress shall incur no liability in doing so. Customer shall indemnify, defend and hold Cypress, its shareholders, officers, directors, employees and agents harmless from any and all claims, losses, actions, suits, proceedings or judgments, including, without limitation, costs and reasonable attorneys’ fees, incurred by or assessed against such parties resulting, in whole or in part from (a) any action or failure to act by Cypress in reliance on any instruction, approval, election, decision, action, inaction, omission or nonperformance by Customer, its Authorized Users, officers, directors, shareholders, employees and agents relating to the Software or Services, (b) any information or Customer Data provided to Cypress by Customer or any Authorized User in connection with the Services, and/or (c) any breach of any term or condition of this Agreement by Customer.
4. LICENSE
4.1 Software License.
During the Term, subject to payment of the applicable Fees and the limitations set forth in this Agreement, Cypress hereby grants to Customer, and Customer hereby accepts, a non-exclusive, and non-transferable license for the use of the Software by and on behalf of Customer solely with respect to the Site(s) specified on the Commercial Terms and the limited number of YardView Smart Client In-Truck Applications designated on the Commercial Terms. The foregoing licenses apply to the periodic updates for the Software as supplied by Cypress in accordance with the Support Services.
4.2 License Restrictions.
Except as expressly permitted in this Agreement, Customer shall not, nor allow or authorize any third party to (a) reproduce, allow use of or access to the Software on behalf of, or sell, rent, lease, use in a service bureau, sublicense or otherwise transfer or assign its rights to access and use the Software as provided hereunder, in whole or in part, to a third party; (b) alter, enhance or otherwise modify or create derivative works of or from the Software; (c) disassemble, decompile, reverse engineer or otherwise attempt to derive the source code of the Software; (d) merge the Software with other software; (e) remove or destroy any proprietary markings, confidential legends or any trademarks or trade names of Cypress or its licensors placed upon or contained within the Software or Documentation; (f) upload, post or transmit into the system hosting the Software any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law, including violations of the intellectual property rights or any other rights of a third party, or any information, content or software containing a virus, cancelbot, Trojan horse, worm or other harmful component. Use, duplication or disclosure by the U.S. Government or any of its agencies is subject to restrictions set forth in the Commercial Computer Software and Commercial Computer Software Documentation clause at DFARS 227.7202 and/or the Commercial Computer Software Restricted Rights clause at FAR 52.227.19(c).
4.3 Ownership.
All trademarks, service marks, patents, copyrights, trade secrets and other intellectual and proprietary rights in or related to the Software, the Deliverables, and any third party software, provided by or on behalf of Cypress and any copies, derivative works and modifications thereof (collectively the “Delivered Solution”) are and will remain the exclusive property of Cypress or its licensors, whether or not specifically recognized or perfected under applicable law. Customer will not take any action that jeopardizes Cypress’s or its licensor’s proprietary rights or acquire any right in the Delivered Solution, except the limited license rights specified herein. Cypress or its licensor will own all rights in any copy, translation, modification, adaptation or derivation of the Delivered Solution, including any improvement or development thereof. If Customer or any third party engaged by Customer is deemed to have any ownership interest or rights in the Delivered Solution, Customer shall assign and/or cause such third party to assign, and Customer does hereby irrevocably and assign without royalty all of such ownership interest and rights to Cypress.
4.4 Export.
Customer acknowledges that the Delivered Solution and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations and other applicable laws. Customer will (a) comply strictly with all legal requirements established under these controls, (b) cooperate fully with Cypress in any official or unofficial audit or inspection that relates to these controls, and (c) not export, re-export, divert, provide access to or transfer, directly or indirectly, any such item or direct products thereof to any country that is embargoed by applicable law, including Executive Order, unless Customer has obtained the prior written authorization of Cypress and the U.S. Commerce Department.
4.5 Reservation of Rights.
Except as expressly provided herein this Section 4, Cypress does not grant any rights or licenses to the Delivered Solution or Cypress’s other intellectual property rights, whether by implication, estoppel or otherwise.
5. FEES AND PAYMENT TERMS
5.1 Fees and Expenses.
Cypress shall provide the Services and the Software for the fees set forth within the Commercial Terms (the “Fees”). In addition to the Fees, Customer shall also reimburse Cypress for its reasonable out-of-pocket travel, travel-related and pre-approved expenses which are incurred by Cypress in connection with Cypress’s performance of the Services (“Reimbursable Expenses”).
5.2 Invoicing and Payments.
Unless expressly agreed otherwise, all amounts invoiced will be due and payable in U.S. dollars. Except as otherwise agreed in the Commercial Terms, Customer shall pay invoiced amounts within thirty (30) days after the date of invoice; provided, however, if the Agreement is terminated for reasons other than material breach by Cypress, all outstanding Fees, Reimbursable Expenses and other amounts owing shall become due and payable on the termination date. Any amount not paid when due shall thereafter bear interest until paid at a rate equal to the lesser of one and one-half percent per month or the maximum rate allowed by applicable law.
5.3 Taxes.
The Fees do not include transfer, gross receipts, value-added, sales, use, import, withholding, excise, customs or other similar taxes, imports or duties applicable to or imposed on or as a result of the transactions contemplated by this Agreement under any applicable law or taxing jurisdiction (collectively, “Transaction Taxes”). Regardless of the party on whom Transaction Taxes are imposed under applicable law, Customer shall be solely responsible for and shall pay all Transaction Taxes. If at any time in Cypress’s sole discretion Cypress determines that Cypress should collect Transaction Taxes from Customer and remit such Transaction Taxes to a taxing jurisdiction under the laws of such jurisdiction, Cypress may separately charge Customer, and Customer shall pay to Cypress, the amount of such Transaction Taxes. If any tax jurisdiction formally asserts that Cypress is liable for any Transaction Taxes, Customer agrees to indemnify, defend and hold harmless Cypress from and against such claims, and shall immediately pay all such Transaction Taxes to the applicable jurisdiction on Cypress’s behalf, plus any corresponding interest, penalty interest, and penalties. If any tax jurisdiction asserts that Cypress is liable for Transaction Taxes, Customer agrees to promptly reimburse Cypress for the amount thereof plus any related interest and penalties paid by Cypress to such jurisdiction. If any amount payable by Customer to Cypress is subject to withholding or other deduction, charge or tax, then the amount payable to Cypress by Customer shall be increased so that after such withholding, deduction, charge or tax the net amount paid to Cypress equals the full amount invoiced by Cypress.
5.4 Acknowledgement.
Customer and Cypress acknowledge (a) the Fees and other charges contemplated under this Agreement are based on the limited warranty, disclaimer and limitation of liability specified in Sections 6.3, 6.4, 8.1 and 8.2, and (b) such charges would be substantially higher if any of these provisions were unenforceable.
6. WARRANTY AND DISCLAIMER
6.1 Mutual Warranties.
Each party represents and warrants that: (a) it has the power to and is free to enter into this Agreement; (b) this Agreement constitutes the legal, valid and binding obligation of such party in accordance with its terms; and (c) it will comply with all laws, rules and regulations applicable to the performance of its material duties hereunder.
6.2 Customer Warranty.
Customer represents, warrants, and covenants to Cypress that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Cypress and used in accordance with this Agreement, the Customer Data provided does not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any other privacy or other rights of any third party or violate any applicable law. Customer is solely responsible for reviewing all Customer Data to ensure compliance with this Agreement.
6.3 Services Warranty.
Cypress represents and warrants to Customer that Cypress shall endeavor to provide the Services with reasonable skill and care. As Customer’s sole and exclusive remedy and Cypress’s sole obligation for breach of this warranty, Cypress shall use commercially reasonably efforts to correct any Services failing to meet the foregoing warranty at no additional charge, provided that Customer gives Cypress specific written notice of the specific Services failing to meet the warranty within thirty days after Cypress’s performance thereof.
6.4 Exclusion of Additional Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, CYPRESS DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE DELIVERED SOLUTION AND SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY CYPRESS, ITS AGENTS OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION, FITNESS FOR PARTICULAR PURPOSE OR NONINFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. THE SOFTWARE, DELIVERABLES, AND SERVICES BEING PROVIDED ARE NOT WARRANTED BY CYPRESS TO BE ERROR-FREE OR FREE FROM INTERRUPTION.
7. CONFIDENTIALITY
7.1 Proprietary Information.
The Delivered Solution, including the Software, this Agreement, all other information and data (including information and data of a third party and to which Cypress has confidentiality obligations) furnished to Customer by or on behalf of Cypress (whether orally or by means of written material) and any benchmark or performance test data related to the foregoing (the “Proprietary Information”): (a) shall be deemed proprietary and shall be held by Customer in strict confidence and shall only be disclosed to Authorized Users who have a need to know such information for the purposes of conducting Customer’s business and who is obligated to maintain the confidentiality of and refrain from using such Proprietary Information under terms at least as protective as those set forth herein; (b) shall not be disclosed or revealed or shared with any other person except those individuals or entities specifically authorized by Cypress; and (c) shall not be used other than for purposes of, and in connection with, Customer’s permissible use of the Software as specified in this Agreement.
7.2 Authorized Disclosure.
If Customer should receive any legal request or process in any form seeking disclosure of, or if Customer should be advised by counsel of any obligation to disclose, Proprietary Information, Customer shall provide Cypress with prompt prior notice of such request or advice so that Cypress may seek a protective order or pursue other appropriate remedies to protect the confidentiality of the Proprietary Information. If such protective order or other remedy is not obtained, Customer agrees to furnish only that portion of the Proprietary Information which is legally required to be furnished and, in connection with Cypress, to use all reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnish.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1 Excluded Liabilities.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTIONS OR OTHER ECONOMIC LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF OR FAILURE TO BE ABLE TO USE THE SOFTWARE OR THE SERVICES.
8.2 Liability Cap.
Cypress’s total aggregate liability for any damages arising out of or related to this Agreement shall in no event exceed the Fees paid hereunder during the twelve (12) month period preceding the initial claim. The existence of one or more claims will not enlarge this limit.
8.3 Exclusions to the Limits on Liability.
The exclusions and limits set forth in Section 8.1 and Section 8.2 shall not apply to any claim relating to a Party’s obligations to defend and indemnify hereunder or to pay any Fees, Reimbursable Expenses or Transaction Taxes pursuant to Section 5.
9. GENERAL TERMS
9.1 Amendments.
This Agreement shall be modified only by a written agreement executed by both Parties and by persons authorized to execute agreements on behalf of the Parties. Any other terms or conditions included in any purchase orders, order acknowledgments, invoices or other documents utilized or exchanged by the Parties shall not be binding on the Parties hereto.
9.2 Independent Contractors.
The status of Cypress will be that of independent contractor, and Cypress and its employees, contractors and agents will not be deemed employees or agents of Customer. None of the terms set forth in this Agreement will be construed as creating a partnership, joint venture, agency, master-servant, employment, trust, or any other relationship between Customer and Cypress or any of their employees.
9.3 Force Majeure.
Cypress will not incur liability for failing to perform any obligation under this Agreement if such failure results from a force majeure or any event or matter beyond its reasonable control.
9.4 Notices.
All notices and demands pursuant to the Agreement must be in writing. Notices to Customer shall be effective upon receipt thereof and may be delivered via the Software or any email or mailing address specified on the Commercial Terms. Notice to Cypress shall be provided by a reputable overnight courier with required signed receipt, or via certified mail of the U.S. postal system, and shall be deemed effective solely upon receipt if delivered to: Cypress Inland Corporation, 1429 Wandering Way, Castle Rock, Colorado, ATTN: President/Urgent.
9.5 Governing Law.
This Agreement will be governed by and interpreted in accordance with the laws of Colorado, to the exclusion of its conflict of laws provisions. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States District Court for Colorado or, if such court would not have jurisdiction over the matter, then only in a Colorado State court sitting in Denver, Colorado. Except as provided in Section 9.6, each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum.
9.6 Injunctive Relief.
A breach of Customer’s obligations under Section 4 or Section 7 will result in irreparable injury to Cypress for which there is no adequate remedy at law. Therefore, notwithstanding Section 9.5, in the event of any breach or threatened breach of such obligations, Cypress shall be entitled to equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.
9.7 Entire Agreement; Amendment; Waiver.
This Agreement, including any Schedules and documents referred to in this Agreement or attached hereto and thereto, constitute the entire and exclusive statement with respect to its subject matter and supersedes any and all oral or written representations, understandings, or agreements relating thereto. Notwithstanding the foregoing, nothing herein shall effect or terminate ongoing rights from non-disclosure agreements entered into by the Parties prior to the Effective Date; provided, however, any new information exchanged between the Parties shall be governed solely by the obligations with respect to Proprietary Information as set forth herein. No waiver regarding any breach of this Agreement shall constitute a waiver of any other breach. Any delay by a Party in exercising in any respect any right provided for in this Agreement, shall not be deemed a waiver of the subject right or any further right under this Agreement.
9.8 Binding Agreement.
This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
9.9 Promotions and Marketing.
Cypress and Customer may develop reference materials and media relations documents regarding this Agreement and/or Customer's usage and experience with Cypress. Cypress may use Customer's name and its trademark as a reference both publicly and privately in Cypress' marketing and promotional materials, including but not limited to press releases, newsletter articles, website references, social media, and email.
9.10 Assignment.
Any assignment of this Agreement or any rights or obligations hereunder by Customer, without the prior written consent of Cypress, shall be null and void and of no effect and a material breach hereof. Customer hereby agrees and consents that Cypress may assign or otherwise transfer this Agreement, in whole or in part, whether voluntary or by operation of law (including by way of sale of all or substantially all of its business or assets, merger or consolidation), this Agreement and the rights hereunder.
9.11 Severability.
If any part of this Agreement is declared to be invalid by any court of competent jurisdiction, that part of the Agreement shall be severed from this Agreement and the remainder of this Agreement shall remain in full force and effect.
9.12 Cumulative Remedies.
Except as expressly provided otherwise in this Agreement, in addition to any remedies provided in this Agreement, the Parties shall have all remedies provided at law or in equity. The rights and remedies provided in this Agreement or otherwise under law or in equity shall be cumulative and the exercise of any particular right or remedy shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy, except as expressly provided otherwise in this Agreement.
9.13 No Third-Party Beneficiaries.
Nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any entity, other than the Parties and those specified to be indemnified hereunder, and each of the foregoing parties’ respective successors and permitted assigns, any remedy or claim by reason of this Agreement.
9.14 Construction.
For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined herein include the plural as well as the singular and vice-versa; (b) words importing gender include all genders; (c) any reference to a “Schedule,” refers to a schedule to these Applicable Terms and Conditions, and any reference to a “Section” refers to an section of these Applicable Terms and Conditions; (d) the Schedules hereto form part of this Agreement; (e) all references to this Agreement and the words “herein,” “hereof,” “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Schedule, Section, or other subdivision; and (f) all Schedule, and Section headings are for convenience only and shall not affect the interpretation or construction of this Agreement.
9.15 Government Customers.
Cypress provides the Services and Software, including related software and technology, for federal government end use as a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services and Software are provided to the end user with only those rights as provided under the terms and conditions of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Cypress to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement..
Schedule A
Support Services
A. Support.
While Customer is obligated to provide Support Services, Cypress will provide telephone and e-mail support for Errors, as expressly described herein for up to six (6) hours per month of the Term. Cypress does not provide Support Services for problems that are caused by the hardware and/or software that Customer uses in conjunction with the Hosted Software (such as network products, web servers, browsers, operating system software and hardware). In addition, under no circumstances will Cypress be obligated to provide Support Services for problems resulting from use of the Software or Services other than as authorized in this Agreement. “Error” means a reproducible defect in the Software which causes the Software not to operate substantially in accordance with its applicable Documentation.
1. Support Procedures.
Subject to the foregoing, where Customer requires Support Services from Cypress, Customer and Cypress will use the following procedure:
a. Designated Representatives.
Customer designates the primary representative as set forth on the Commercial Terms to be its primary representative, and two additional representatives as its secondary representatives (such representatives, collectively, “Designated Representatives”) for purposes of (a) providing and receiving technical support relating to the Software, and (b) managing, training and providing tier-1 support for Authorized Users. Customer agrees that its primary Designated Representative shall have the authority to (i) authorize system and Software changes relating to the Services, (ii) approve and authorize on behalf of Customer the performance of Professional Services and other expenses relating to this Agreement. Customer shall cause the Designated Representatives to (x) coordinate and liaise with Cypress for all of Customer’s activities relating to this Agreement, (y) notify Authorized Users of information relating to the availability and functionality of the Software, including information relating to maintenance and system down-time(s), and (z) perform Tier-1 Support.
b. Contact Methods.
Customer shall have all Authorized User inquiries be initially directed to Designated Representatives for Tier-1 Support. “Tier-1 Support” means the Designated Representative shall (a) intake the contact from the Authorized User(s), (b) determine whether the issue is an Error, or caused by another application or problem with the Customer’s or Authorized Users system or hardware, (c) if it is reasonably believed by the Designated Representative to be an Error, then outline and document the purported Error in a manner to clearly communicate the cause and nature of the Error to Cypress, and (d) communicate the purported Error, along with the Designated Representative’s good faith opinion of the Error’s priority level to Cypress and continue to work in conjunction with Cypress until the Error is determined and resolved. Support Services requests from Customer, shall be made solely via a Designated Representative. Customer will be required to provide a reasonably detailed description of the Error that gave rise to the request so that a reasonable attempt to diagnose the Error can be made by Cypress.
c. Hours of Support Services.
Support Services for the Software is available Monday through Friday from 8 a.m. to 5 p.m. Mountain Time Zone, excluding Cypress’s recognized holidays. Support Services for Errors with Critical Priority Level is available 24 x 7 x 365.
d. Initial Response.
Cypress will handle and respond to Support Services requests based on the priority level assigned by Cypress to Customer’s requests as set forth below. Cypress will use commercially reasonable efforts to provide Customer with an initial response for each reported Error (indicating that the support query has been received) within the time frame indicated in the Initial Response Time column.
Priority and Response Schedule for Support Services Issues
Priority Level
Critical
Nature of Customer / Reported Error
Error causes complete loss of critical Software functionality (e.g. cannot access/use time entry system), system outage or down production system. The incident will be prioritized at the highest level. Once the issue has been resolved or a workaround is provided, efforts are then made to determine the “root cause” of the Error. Considering the nature of the cause, the Error is adjusted to one of the other priorities and processed accordingly.
Targeted Response Time: 1 hour
Priority Level
Important
Partial loss of critical functionality.
The Customer’s production/processing system is not down but there is an impact to a critical business process. If the Error persists, the end-user impacts may become serious.
Targeted Response Time: 1 business day
Priority Level
Routine
User and configuration questions
Targeted Response Time: 2 business days
e. Replacing Designated Representatives.
Customer may designate replacement Designated Representatives (either primary or secondary) at any time during the Term by providing Cypress as much notice as reasonably possible. In the event that Customer’s Designated Representatives change, Customer shall be responsible to train and pass along the know-how on all aspects of the Software and Services, and its use with Customers then current processes, from the existing individual to the replacing individual. If Customer requires Cypress to provide the new Designated Representatives to receive assistance, training and support beyond the level of the last representative, Cypress may elect to provide these Professional Services in accordance with Section 3.3 of the Agreement.B. Minor Releases and Version Upgrades.
Upon the Go-Live Date and for the duration of the Term for so long as Customer pays the applicable Fee for Support Services, Cypress will provide Minor Releases and Version Upgrades.
1. Upgrade Procedures.
Subject to the foregoing, once Cypress determines that either a Minor Release or Version Upgrade is ready and available for Customer.
a. Minor Releases.
Cypress shall implement the Minor Release into the live, hosted environment upon Cypress’s determination that the minor release is ready.
b. Version Upgrades.
Cypress shall implement the Version Upgrade into the live, hosted environment at a time mutually-agreed between Cypress and Customer’s primary Designated Representative; provided, however, Customer shall permit Cypress to implement such Version Upgrade not later than three (3) months following Cypress’s determination that the minor release is ready.
Schedule B
Hosting Services
1. Cypress will host the Hosted Software on behalf of Customer; provided, however, for hardware, software and Internet access as specified within the Documentation.
2. Cypress will use commercially reasonable efforts to make the Hosted Software available in accordance with prevailing hosting industry standards, taking into account the Customer’s workstations and the speed of their connection to the Cypress’s hardware (the “Technical Standards”). Subject to Customer handling Tier-1 Support, Cypress will use commercially reasonable efforts to remedy any interruptions, omissions, mistakes, accidents or errors in the Services and restore the Services substantially in accordance with the Technical Standards.
3. Customer Data shall at all times be owned by Customer. Except as instructed by Customer directly or through instructions provided to the servers through Customer’s use of the Software, Cypress shall treat Customer Data as confidential information. Upon termination or cancellation of the Hosted Services for any reason, Cypress shall use commercially reasonable efforts return all Customer Data to Customer in the file format used by the Software. Without exception, other than the performance of Implementation and Support Services pursuant to the Agreement, Cypress shall have no right, without Customer’s prior written consent, to (i) use Customer Data for any purpose other than in the course of providing hosting, support and related services to Customer, or (ii) download Customer Data from hosting servers to any laptop, PC or other device (except to the extent such Services are performed on secured network(s) equipment of Cypress), (iii) remove Customer Data from its hosted location, other than for disaster recovery purposes, or (iv) knowingly permit remote access to the Customer Data by anyone outside the United States. Customer shall secure all rights in the Customer Data in order to permit Cypress to perform its obligations as contemplated by this Agreement.
4. Cypress shall secure daily system backup of all Customer Data stored on the servers with the Hosted Software.
5. Customer Data may be permanently deleted from Cypress’s servers thirty-six (36) months from the date of its collection or receipt (the “Data Retention Period”). Notwithstanding the foregoing, Customer may extend the Data Retention Period for an additional twenty-four (24) or forty-eight (48) months for a fee of $3,600 or $7,200 respectively.
6. Cypress shall use commercially reasonable efforts to have 99% uptime in each calendar month as measured by site availability for acceptable usage. Cypress is not responsible for availability or acceptable usage due to Customer’s internal network issues. Less than 99% uptime in a given month will result in licensor crediting that amount ((100% - (Uptime %) times (the monthly fee)) from their next quarterly hosting payment.
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