1.1 Grant. Subject to the terms and conditions of this Agreement, Blueprint hereby grants to Customer the following non-exclusive, non-sublicensable, non-transferable, licenses for the Term: (i) to have Conduit installed On Premises by Blueprint or through a supported Cloud Marketplace; (ii) to permit Customer's employees and contractors (the "Users") to access and use Conduit solely for the benefit of Customer's internal business purposes with customer owned and licensed data; and (iii) to make non-active copies of Conduit solely for backup and disaster recovery purposes as and when necessary for business resumption purposes in the event Customer's primary computing facility becomes inoperable. 1.2 Restrictions. The licenses granted under this Agreement are expressly conditioned upon Customer's compliance with each of the following conditions: (i) Customer shall be responsible for ensuring that access to and use of Conduit by Users is in accordance with the terms and conditions of this Agreement. (ii) All copies of Conduit and its associated documentation made by Customer must retain Blueprint's copyright and trademark notices. (iii) Customer shall keep records of the number and location of all such copies Conduit and its associated documentation and make such records available to Blueprint. (vi) Customer shall permit Blueprint or its authorized representatives reasonable access to Customer's facilities during regular business hours to inspect Customer's facility and records in order to ensure Customer's compliance with the terms of this Agreement. 1.3 Proprietary Rights. Customer acknowledges Blueprint's proprietary rights in Conduit and associated documentation and shall protect the proprietary nature of Conduit and associated documentation. Blueprint retains all right, title and interest in and to Conduit and associated documentation, subject only to the licenses expressly granted under this Agreement. If Customer suggests any new features, functionality or performance for Conduit, associated documentation and all intellectual property rights including trademarks, copyrights, and patents that Blueprint subsequently incorporates into Conduit, Customer hereby acknowledges that (i) Blueprint shall own, and has all rights to use and incorporate, such suggestions and Conduit incorporating such new features, functionality, or performance shall be the sole and exclusive property of Blueprint; and (ii) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Blueprint. Customer shall not disassemble, decompile, reverse engineer, modify, transcribe, store, translate, sell, lease, or otherwise transfer or distribute Conduit or its associated documentation, in whole or in part, without prior authorization in writing from Blueprint. In the event of any breach of this Section 1.3, Customer agrees that Blueprint would suffer irreparable harm and shall therefore be entitled to obtain injunctive relief against Customer.
2.1 Implementation Services. Subject to Customer paying the applicable Implementation Fee and License Fee, Blueprint shall implement and configure Conduit for use by Customer hereunder pursuant to Blueprint's standard implementation processes and procedures (the "Implementation Services"). The Implementation Services reflect the implementation of Conduit as it exists as of the Effective Date, without modification, and does not include any customizations of Conduit. Customizations to or troubleshooting of Conduit will only be performed pursuant to a separate service agreement agreed to by the Parties at Conduit's then prevailing rates. 2.2 Support Services. (a) Subject to Customer paying the applicable Support Fee, Blueprint shall use commercially reasonable efforts to (i) provide Customer with access (via the Internet, telephone or other means established by Blueprint from time to time) to Blueprint's support services concerning Conduit, (ii) provide, when and if generally available, updates, enhancements or modifications to the then-current, general release version of Conduit that are not separately priced or licensed as new products; and (iii) correct or circumvent documented errors in Conduit (the foregoing referred to collectively as "Support Services") as further detailed in Addendum B subject to the following limitations: (A) Application Modification. Any modifications such as adding new functionality or applications are not covered under Support Services and will be quoted on an as-requested basis. (B) Reporting. Blueprint may create one-time or custom reports or modify existing report(s) based on requests from Customer subject to Customer's agreement to pay quoted fees. (C) New Application/Features. Blueprint will use commercially reasonable efforts to review new applications/features developed for Blueprint or other customers for applicability and implement if requested (additional fees may be required). 2.3 Restrictions. Blueprint shall have no obligation to provide Support Services if Customer fails to pay the applicable Support Fees hereunder or is otherwise in breach of this Agreement. Blueprint shall have no obligation to provide Support Services for any Conduit in the event that: (i) Customer modifies Conduit (or any component thereof) without Blueprint's prior written consent; (ii) any error is caused in whole or in part by persons other than Blueprint, including without limitation, Customer's failure to properly enter data; or (iii) any error is caused in whole or in part by Customer's installation or use of Conduit in association with operating environments and platforms other than those approved by Blueprint. Customer agrees to provide Blueprint with access to such facilities and equipment as are reasonably necessary for Blueprint to perform its obligations hereunder, including remote access to Conduit. 2.4 Additional Costs. In addition to the Implementation Fee and Support Fee, Customer will reimburse Blueprint for actual travel and living expenses that Blueprint incurs in providing Customer with the Implementation Services and Support Services.
3.1 Payments. All payments due to Blueprint hereunder shall be made in United States Dollars. All payments not made when due shall be subject to late charges of the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount; or (ii) the maximum amount permitted under applicable law. Customer shall reimburse Blueprint for all fees and expenses, including reasonable attorneys' fees, Blueprint incur to collect, or attempt to collect, amounts owed by Customer to Blueprint. 3.2 Taxes. Customer shall pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by Blueprint's net income, unless Customer is exempt from the payment of such taxes and provides Blueprint with evidence of such exemption. 3.3 Trial Period. Customer shall have 30 days (the "Trial Period") to test Conduit. At any time during the Trial Period, Customer may elect to cease use of Conduit and cancel this Agreement, in which event Blueprint will refund to Customer all amounts paid by Customer to Blueprint pursuant to this Agreement less reasonable amounts determined by reference to the Fees/rates or initial set-up, implementation, training and support of Conduit provided prior to Customer's notice of cancellation pursuant to this section 3.3.
4.1 Limited Platform Warranty. For a period of ninety (90) days following Customer's receipt of Conduit (the "Warranty Period"), Blueprint shall correct or replace any component of Conduit that causes a reproducible error that results in (i) a total loss of functionality of Conduit (i.e., "crashing") or (ii) the generation of error messages. Customer's exclusive remedy with respect to any material nonconformity or defect in Conduit discovered during the Warranty Period will be limited to, at Blueprint's option, (a) the repair or correction of any defective or nonconforming component of Conduit; or (b) the replacement of any defective or nonconforming component of Conduit. Blueprint shall have no obligation to provide corrections or replacements in the event (x) Customer modifies Conduit (or any component thereof) without Blueprint's prior written consent; (y) the error is caused in whole or in part by persons other than Blueprint, including without limitation, Customer's failure to properly enter data; or (z) the error is caused in whole or in part by Customer's installation or use of Conduit in association with operating environments, third party software or platforms other than those approved by Blueprint. In the event that Blueprint determines that Customer's report of an error is incorrect, Blueprint may charge Customer for Blueprint's time at Blueprint's published rates then in effect. 4.2 DISCLAIMER. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 4, BLUEPRINT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT OF CONDUIT OR SERVICES FURNISHED HEREUNDER. BLUEPRINT DOES NOT WARRANT THAT CONDUIT WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
5.1 Infringement Indemnity. Blueprint will defend and indemnify Customer against a third-party claim that Conduit used by Customer in accordance with this Agreement infringes or misappropriates any third-party intellectual property rights in the United States, provided that: (a) Customer agrees to notify Blueprint promptly in writing of Customer's knowledge of a claim; (b) Blueprint has sole control of the defense and all related settlement negotiations; and (c) Customer shall provide Blueprint with the assistance, information, and authority reasonably necessary to perform such defense. Blueprint shall have no liability for any claim of infringement resulting from: (i) Customer's alteration or modifications of any of Conduit without Blueprint's prior written approval of such alterations or modifications; (ii) Customer's use of a superseded release of some or all of Conduit, if infringement would have been avoided by the use of a subsequent release of Conduit that is provided on a timely basis to Customer; or (iii) software, data, or material not furnished by Blueprint. 5.2 Indemnification by Customer. To the extent permitted by law, Customer hereby agrees to indemnify, defend and hold harmless Blueprint from and against, and in respect to, any and all losses, expenses, costs, obligations, liabilities and damages, including interest, penalties and reasonable attorney's fees and expenses, that Blueprint may incur as a result Customer's use of Conduit, any negligent or willful act of Customer or any of its agents, third party suppliers or employees or the failure by Customer to perform any of its representations, warranties, commitments, or covenants under this Agreement. 5.3 Mitigation/Termination. In the event that some or all of Conduit is held or is reasonably believed by Blueprint to infringe the rights of a third party, Blueprint shall have the option, at its expense, to (i) modify Conduit to make it non-infringing; or (ii) obtain a license that permits Customer to continue using Conduit. If neither of such options can be exercised by Blueprint on a commercially reasonable basis and the infringing materials materially affect Conduit or the ability of Blueprint to meet its obligations under this Agreement, then Blueprint may terminate this Agreement and Customer shall be entitled to recover from Blueprint a portion of the prepaid License Fee prorated over the remainder of the Term. 5.4 Exclusive Remedy. This Section 5 states Blueprint's entire liability and exclusive remedy for infringement of third-party intellectual property rights.
8.1 Definition. "Confidential Information" means Conduit, its associated documentation, Blueprint's pricing for Conduit and any results achieved by use of Conduit, and other information disclosed by Blueprint under this Agreement that is labeled or otherwise designated as confidential or that by its nature would reasonably be expected to be kept confidential. 8.2 Exclusions. Notwithstanding the previous paragraph, Blueprint's Confidential Information shall not include information that (i) is or becomes publicly available through no act or omission of Customer; or (ii) was in Customer's lawful possession prior to the disclosure and had not been obtained by Customer either directly or indirectly from Blueprint; or (iii) is lawfully disclosed to Customer by a third party not bound by a duty of non-disclosure; or (d) is independently developed by Customer without access to or use of the Confidential Information. 8.3 Nondisclosure. Customer agrees to hold the Confidential Information in confidence. Customer agrees not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than performing its obligations or enjoying its rights under this Agreement. Customer agrees to use the same degree of care that it uses to protect its own confidential information of a similar nature and value, but in no event less than a reasonable standard of care, to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement. Customer represents that it has, with each of its employees who may have access to any Confidential Information, an appropriate agreement sufficient to enable it to comply with all of the terms of this Section 8. 8.4 Required Disclosure. Notwithstanding the foregoing, Customer may disclose the Confidential Information to the extent that such disclosure is required by law or court order, provided, however, that Customer provides to Blueprint prior written notice of such disclosure and reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure. 8.5 Termination/Expiration. After termination or expiration of this Agreement, Customer shall return to Blueprint any Confidential Information received during the term of this Agreement.
9.1 Relationship Between the Parties. This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the Parties; nor will either Party hold itself out as an agent, partner, or joint venture party of the other party. 9.2. Exports. Customer understands that Blueprint is or may be in the future subject to regulation by United States government agencies, which may prohibit export or diversion of Conduit, information about Conduit, and direct products of Conduit to certain countries and certain persons. Regardless of any disclosure Customer makes to Blueprint of an ultimate destination of Conduit or direct products of Conduit, Customer shall not export in any manner, either directly or indirectly, any of Conduit or direct product of Conduit, without first obtaining all necessary approval from appropriate United States government agencies. Customer acknowledges that the regulation of product export is in continuous modification by the United States Congress and administrative agencies. Customer agrees to complete all documents and to meet all requirements arising out of such modifications. 9.3. Compliance with Law. Each party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement. 9.4. Notice. Whenever notice is required to be given under this Agreement, such notice shall be in writing and shall be delivered personally or by email or facsimile (and promptly confirmed by personal delivery, first class mail, courier or internationally-recognized delivery service), and addressed to the other Party at the Notice Address of such Party, or to such other address as the addressee shall have last furnished in writing to addressor. 9.5. Waiver. No waiver shall be implied from conduct or failure to enforce rights. No waiver shall be effective unless in a writing signed by both parties. 9.6. Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect. 9.7. Assignment. (a) Blueprint may assign its rights and obligations hereunder to a successor following a change of control of Blueprint or to an acquirer of Blueprint's assets used to perform Blueprint's obligations hereunder, provided, that, in each case, the assignee thereof agrees to assume Blueprint's obligations hereunder, provided, further, however, that if the assignee does not agree to assume Blueprint's obligations hereunder then Blueprint shall refund to Customer the fees actually paid by Customer hereunder in the then current Term prorated for the portion of the then current Term not yet completed. (b) Customer may not assign or delegate any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Blueprint. The sale, merger or combination of Customer through a single transaction or a series of transactions with another entity shall be deemed an assignment hereunder for which Blueprint's consent is required. (c) This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. 9.8. Governing Law. This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of The State of Washington, without regard to the conflict of law provisions thereof. Any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located in Seattle, Washington. 9.9. Dispute Resolution. Except with respect to equitable remedies, including, without limitation, injunction relief, all claims, demands, disputes, controversies, differences or misunderstandings arising out of or relating to this Agreement, or the failure or refusal to perform the whole or any part thereof, shall be referred to and finally resolved by arbitration to be administered by the American Arbitration Association ("AAA"), in accordance with its Commercial Arbitration Rules then obtaining (the "Rules"). The arbitration shall be conducted before one arbitrator to be selected by agreement of the parties or, if no agreement can be reached, in accordance with the Rules. The arbitration shall be conducted using the English language for all purposes. Either party hereto may initiate the arbitration by serving a written demand for arbitration on the other party, which demand shall contain a description of the nature of the dispute. All hearings of the arbitration shall take place in Seattle, Washington, United States of America. The initial fees and costs of the arbitration shall be borne equally and paid timely by each party hereto. Failure by a party to pay said fees and costs to the AAA timely shall constitute a material default under this Agreement. The award shall be final and binding upon the parties, and the parties agree to be bound by the terms of the award and to act accordingly. The judgment upon any award may be entered in and enforceable by any court having jurisdiction over the party against whom the award has been rendered or wherever the assets of the party are located. Any award for costs shall include attorney fees and costs to the prevailing party, and attorney's fees and costs shall also be recoverable in any action to enforce the award. 9.10 Force Majeure. Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar cause beyond the control of such party. Customer acknowledges that the performance of certain of Blueprint's obligations may require the cooperation of third parties designated by Customer and outside the control of Blueprint; in the event such third parties fail to cooperate with Blueprint in a manner that reasonably permits Blueprint to perform its obligations, such failures shall be consider as causes beyond the control of the Blueprint for the purposes of this Section and shall not be the basis for a determination that Blueprint is in breach of any of its obligations under this Agreement or is otherwise liable. Either party may terminate at its option this Agreement if any such a situation continues for thirty (30) days and prevents the continued performance of this Agreement by the other party. 9.11 Entire Agreement. This Agreement shall constitute the complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. It is expressly agreed that any terms and conditions of any purchase order or similar instrument of Customer shall be superseded by the terms and conditions of this Agreement to the extent that such terms may be in conflict. 9.12 Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts which, when taken together, shall constitute one and the same instrument. Facsimile signatures shall have the same effect as original signatures.