Elevate HR® Solutions with Microsoft Dynamics® 365 for Operations
Subscription-based Software License Agreement
This Subscription-based Software License Agreement, together with all referenced attachments (collectively the “Agreement”) is entered into on ___________________ (“Effective Date”) by and between Elevate HR, Inc. with a place of business at 1055 Parsippany Boulevard, Suite 511, Parsippany, NJ (“Elevate HR”) and _________________, with a place of business at _____________________________________________________________ (“Licensee”).
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, Elevate HR and Licensee hereby agree as follows:
1. DEFINITIONS. In addition to those terms defined in the context of this Agreement, the following terms shall have the meaning ascribed below:
1.1. Authorized Entity means certain divisions, business units, subsidiaries and affiliates of Licensee that is authorized to Use the Software, provided that each Authorized Entity is either directly or indirectly controlled by, or is under common control with, Licensee to the extent of at least a majority of the combined outstanding voting stock or ownership interests, and is bound by the terms of this Agreement, and further provided that Licensee remains primarily responsible for full compliance with this Agreement (for itself and all Authorized Entities). If any Authorized Entity is sold or otherwise ceases to be an Authorized Entity as defined herein, this Agreement and the License shall terminate with respect to such Authorized Entity.
1.2. Commencement Date is the date upon which Elevate HR makes the Software available to Licensee.
1.3. Configuration Key means the license code that enables Licensee to Use the Software. Sometimes this is referred to as the “partner license code” or “license key”.
1.4. Documentation means Elevate HR’s documentation, which is delivered to Licensee under this Agreement.
1.5. End-Users means those users for which Licensee has acquired license rights to use the Software identified in the applicable Software Order (NOTE: license rights to Microsoft Dynamics 365 for Operations software are granted pursuant to a separate agreement between Licensee and Microsoft or other third party as the case may be).
1.6. Enhancements means any and all patches, updates and/or version upgrades to the Software that is licensed pursuant to this Agreement.
1.7. Fees means fees for Use of the Software by Licensee.
1.8. Microsoft Customer Number means Licensee’s customer number as referenced by Microsoft with respect to Licensee’s licensing of Microsoft Dynamics® AX.
1.9. Microsoft Azure Platform for AX means Microsoft Dynamics 365 for Operations or Microsoft Dynamics 365 as developed for and released on Microsoft’s Azure cloud computing platform and infrastructure, and as used by Licensee according to its agreements with Microsoft, upon which the applicable Software will operate.
1.10. Order Form means a document that expressly states (i) the specific Software (modules) to be licensed by Licensee; (ii) Fees associated therewith; and (iii) the Subscription Term. An example Order Form is attached hereto as Schedule A.
1.11. Software means all software specified in an agreed upon Software Order, developed by or for Elevate HR and delivered to Licensee hereunder, together with Enhancements (solely to the extent applicable).
1.12. Subscription Term means the term of each subscription as specified in the applicable Order Form.
1.13. Worker Records means employee and/or contractor/agent records of Licensee (and Authorized Entity) that are stored in the Microsoft Azure Platform for AX database and have the employment status attribute of “employed”.
2.1. License Model.
The Software is licensed solely for use on (i) the Microsoft Azure Platform for AX and (ii) the maximum number of Worker Records during the applicable Subscription Term.
2.2. Scope. Upon receipt by Elevate HR of the Fees, and subject to the terms of this Agreement and compliance therewith, Elevate HR grants to Licensee (and any Authorized Entity) a nonexclusive, nontransferable (except as provided in Section 9 hereof) license to access the Software during the Subscription Term, solely with the Microsoft Azure Platform for AX, provided that Licensee may only use the Software for processing data concerning Licensee’s internal operations in the ordinary course of its business (and any such Authorized Entity’s), together with all Documentation accompanying such Software. The restriction to “internal operations” means that Licensee (and any such Authorized Entity) may not, for example, use the Software to provide services to third parties (e.g. business process outsourcing, service bureau applications or third party training). Licensee is not entitled to access or use, or allow End-Users to access or Use, the Software in any manner other than as expressly stated herein.
2.3. Click Through Terms. In order to access the Software, the Licensee may be asked to accept click through terms to complete the installation. The terms of this Agreement shall supersede such “click through” terms, regardless of whether such Software is licensed prior to, concurrent with or subsequent to the execution of this Agreement.
2.4. Compliance. Licensee is solely responsible for ensuring that all End-Users of the Software comply with the terms of this Agreement, including, without limitation each Authorized Entity. Non-compliance herewith shall be considered a material breach of this Agreement and entitle Elevate HR to terminate the Agreement without notice and to claim damages pursuant to applicable law.
3. MICROSOFT AZURE PLATFORM FOR AX
3.1. LICENSEE ACKNOWLEDGES AND AGREES THAT ELEVATE HR HAS NO RESPONSIBILITY REGARDING THE MICROSOFT AZURE PLATFORM FOR AX, INCLUDING, WITHOUT LIMITATION, (I) THE PERFORMANCE AND AVAILABILITY THEREOF, (II) LICENSEE’S ACCESS THERETO, AND/OR (II) THE DATA PRIVACY AND SECURITY ASSOCIATED THEREWITH.
3.2. Licensee acknowledges and agrees that Elevate HR is only responsible for making the Software available for Licensee’s use on the Microsoft Azure Platform for AX.
4. PRICING AND PAYMENT.
4.1. Payment Terms. All amounts due hereunder shall be payable in United States dollars (US$) and are due upon receipt of Elevate HR’s invoice. Failure to pay such amounts when due shall result in the imposition of an interest charge on any unpaid amount at an annual rate equivalent to the lesser of (i) 18% per year (1½% per month), or (ii) the highest rate allowable by law.
4.2. Taxes. All fees and charges specified herein are exclusive of taxes. Licensee is responsible for and shall promptly pay all taxes. If Elevate HR is required to pay any taxes to any governmental entity (except taxes based on Elevate HR’s net income) imposed with respect to this Agreement, Elevate HR shall invoice Licensee and Licensee shall pay Elevate HR for such taxes.
4.3. Audit. Licensee acknowledges and agrees that Elevate HR will audit Licensee’s usage of the Software, including, without limitation, by use of automated processes. In the event that an audit reveals that additional Fees are due to Elevate HR, then Licensee shall pay such underpaid fees based on Elevate HR’s prices and conditions in effect at the time of the audit.
Software, Documentation and the Configuration Key shall be delivered electronically over the Internet, or by other means in Elevate HR’s sole discretion. To the extent that any costs (e.g. shipping, replication of Licensee’s Microsoft Dynamics® AX environment, production of Software model store or package, and distribution through Microsoft Life Cycle Services platform) are incurred by Elevate HR in delivery of the Software or Documentation, then Elevate HR may, in its sole discretion, invoice Licensee for such costs and Licensee shall pay Elevate HR for such costs. Licensee agrees that acceptance of the Software shall occur on delivery of the Configuration Key, and that such acceptance of the Software shall not be revoked.
6. INSTALLATION AND TRAINING.
This Agreement does not include implementation, training or professional services of any kind. If Licensee requires such services in connection with the Software, then Elevate HR and Licensee will enter into a separate agreement to govern the performance of such services.
7. PROPRIETARY RIGHTS.
7.1. Ownership. Licensee acknowledges and agrees that the Software and Documentation, and all related materials provided to Licensee, and all copyrights, trademarks and other intellectual property rights therein are the exclusive property of Elevate HR and its suppliers, and that Licensee acquires no ownership rights in the Software or Documentation other than the rights expressly granted in this Agreement.
7.2. Copies. Licensee may not copy the Software.
7.3. Modifications. Licensee shall not modify, adapt, translate, disassemble, decompile, reverse engineer, (or otherwise attempt to determine the source code or protocols) or create (or attempt to create) derivative works based on the Software or Documentation.
7.4. Breach. Licensee acknowledges that Licensee’s failure to comply with the provisions of this Section 7 shall constitute a material breach of this Agreement and entitle Elevate HR to terminate this Agreement without notice. Furthermore, Licensee acknowledges that Licensee’s failure to comply with the provisions of this Section 7 shall result in irreparable harm to Elevate HR for which a remedy at law would be inadequate, and therefore, in the event of a breach or threatened breach by Licensee of its obligations under this Section 7, Elevate HR shall be entitled to seek equitable relief in the form of specific performance and/or an injunction, in addition to the exercise of any other remedies at law or in equity.
Licensee acknowledges and agrees that the Software and Documentation, and all related materials provided to Licensee, including, without limitation, any negotiated terms of this Agreement, and the correspondence and discussions relating thereto (“Information”), are confidential to Elevate HR. Licensee agrees to protect and maintain the Information in strict confidence and not to disclose the confidential aspects of the Information in whole or in part, and to take, at a minimum, reasonable precautions to protect the confidentiality of the Information. This provision shall survive the termination of this Agreement for as long as such Information remains confidential.
Neither this Agreement nor any of the rights and obligations under this Agreement may be sublicensed, leased, assigned or otherwise transferred in whole or in part by Licensee, and any attempted transfer, including, without limitation, a transfer pursuant to a sale of all, or substantially all, of Licensee’s assets or a merger in which Licensee is a constituent entity, shall be null and void unless made with prior written consent of Elevate HR (in Elevate HR’s sole discretion), which consent shall not be given in any event unless the intended assignee agrees to be bound by these terms by signing a copy of the Agreement and returning the copy to Elevate HR. If Elevate HR elects to consent to a permanent assignment of this Agreement by Licensee to a third party, then Licensee shall transfer the Agreement, and all copies of the Software, and may not retain any copies thereof. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns.
10.1. Limited Warranty. Elevate HR warrants to Licensee that the Software, when properly used, will perform substantially in accordance with the Documentation for a period of six months from the date of delivery of the Software (“Warranty Period”). Elevate HR’s entire liability and Licensee’s sole and exclusive remedy under this warranty shall be that Elevate HR, in its sole discretion, will either (i) remedy the non-conformity of the Software by providing corrections or a workaround, or replacing the Software, or (ii) terminate the Agreement and refund the Fees actually received for the nonconforming Software, provided that written notice itemizing such error is given to Elevate HR during the Warranty Period. THIS LIMITED WARRANTY IS VOID IF THE FAILURE OF THE SOFTWARE RESULTS FROM ANY MODIFICATION (INCLUDING, WITHOUT LIMITATION, CHANGES TO THE SOURCE CODE), ABUSE, MISUSE, ACCIDENT, OR OTHER CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF ELEVATE HR (INCLUDING, WITHOUT LIMITATION, USE OF THIRD PARTY APPLICATIONS).
10.2. No Additional Warranties. EXCEPT AS STATED ABOVE, ELEVATE HR DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. ELEVATE HR DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR FREE FROM MINOR DEFECTS OR ERRORS THAT DO NOT MATERIALLY AFFECT THE PERFORMANCE OF THE SOFTWARE, OR THAT THE APPLICATIONS CONTAINED IN THE SOFTWARE ARE DESIGNED TO MEET ALL OF LICENSEE’S BUSIENSS REQUIREMENTS. Licensee accepts the entire responsibility for the selection, installation and use of the Software and the compatibility of other programs or data not provided by Elevate HR and used in conjunction with the Software.
Elevate HR shall, at its expense, indemnify and defend Licensee against any claim by third parties alleging that Licensee’s Use of the Software infringes or misappropriates any United States patent, copyright or trade secret rights to which Elevate HR is aware, provided that Licensee gives Elevate HR prompt, written notice of any such claim and allows Elevate HR to fully control the defense and all related settlement negotiations. Licensee shall allow Elevate HR, at Elevate HR’s option and expense, if any infringement claim has occurred or in Elevate HR’s reasonable judgment is likely to occur, to procure the right for Licensee to continue using the Software or to replace or modify it so that it becomes non-infringing; and, if neither of the foregoing alternatives is available on terms that are commercially reasonable to Elevate HR, then Licensee shall, upon the request of Elevate HR, return the Software to Elevate HR, whereupon Elevate HR shall return to Licensee an equitable portion of the License Fee paid by Licensee. Elevate HR shall incur no other liability to Licensee on account of such request and return, except for return of such License Fee as provided herein. Licensee acknowledges that Elevate HR shall have no liability under this Section 11, and Licensee shall indemnify and defend Elevate HR against any claim arising out of (a) Licensee’s use or combination of the Software with other software or hardware not provided by Elevate HR or specified in the Documentation, or (b) Licensee’s misuse, modification or alteration of the Software. THIS SECTION 11 STATES LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND ELEVATE HR’S SOLE OBLIGATION WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION.
12. LIMITATION OF LIABILITY.
IN NO EVENT SHALL ELEVATE HR BE LIABLE FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN CONNECTION WITH ANY CLAIM THAT ARISES FROM OR RELATES IN ANY WAY TO THIS AGREEMENT OR LICENSEE’S USE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOST COMPUTER TIME, DESTRUCTION, DAMAGE OR LOSS OF DATA, AND OTHER DAMAGES, WHETHER INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE, IN TORT, CONTRACT OR OTHERWISE, EVEN IF ELEVATE HR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO AMOUNTS PAID TO ELEVATE HR UNDER THIS AGREEMENT IN THE TWENTY-FOUR (24) MONTHS PRECEDING THE OCCURRENCE OF THE CLAIM.
13. TERM AND TERMINATION.
13.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms hereunder have expired or have been terminated.
13.2. Term of Subscriptions. Each Subscription Term shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, Subscription Terms will automatically renew for additional periods equal to the expiring Subscription Term, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term.
13.3. Termination of Agreement.
13.3.1 By Licensee. Licensee may terminate this Agreement by notifying Elevate HR of Licensee’s desire to do so.
13.3.2 By Elevate HR. Elevate HR may terminate this Agreement (and the license rights granted hereunder) if (a) Licensee breaches any material representation, warranty, obligation or provision of this Agreement and fails to cure such breach immediately upon notice by Elevate HR, or (b) Licensee files a petition of bankruptcy, or has a petition in bankruptcy filed against it if not dismissed within sixty (60) days.
13.4. Effect of Termination. Upon the termination of this Agreement for any reason, Licensee shall discontinue all use of the Software, but Licensee’s obligation to pay accrued charges and fees up to the date of termination and to protect the proprietary rights and confidentiality of the Software shall continue.
14.1. Export Laws. Licensee shall not export, re-export or transfer, whether directly or indirectly, the Software and/or Documentation, or any system containing the Software outside the United States of America without first complying with the applicable export laws of the United States of America and the import laws of the country to which the Software is to be used.
14.2. Government Use/Procurement. If the Software is being licensed under the terms of a proposal or agreement with the U.S. Government or any contractor or any other third party on the U.S. Government’s behalf, the Software is commercial computer software and both the Software and Documentation are developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this commercial computer software license agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulation and its successors, or (b) if acquired by or on behalf of units of the Department of Defense, shall be subject to the terms of this commercial computer software license agreement as specified in 48 C.F.R. 227.7202, Defense Acquisition Regulation Supplement and its successors (“DFAR”). In the event any technical data are not covered by these provisions, it shall be deemed “technical data – commercial items” pursuant to DFAR 252.227-7015(a), and any use, modification, reproduction, release, performing, displaying, or disclosing of such technical data shall be governed by the terms of DFAR 252.227-7015(b).
14.3. Governing Law/Exclusive Jurisdiction. This Agreement shall be governed by the laws of the state of New Jersey, United States of America, without regard to conflict or choice of law principles of any jurisdiction. In the event of any conflicts between foreign law, rules, and regulations, and United States of America law, rules, and regulations, United States of America law, rules, and regulations shall prevail and govern. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods to this Agreement and the performance of the parties contemplated under this Agreement, to the extent that such convention might otherwise be applicable. Except for injunctive relief, which may be sought in any court of competent jurisdiction, Licensee consents to personal and exclusive jurisdiction in the state and federal courts serving Morris County, New Jersey and waives any objection that it may have to the laying of venue of any such proceeding and any claim or defense of inconvenient forum.
14.4. Notices. Any notice hereunder by either party shall be given by personal delivery or by sending such notice by certified or registered mail, postage pre-paid, or any internationally-recognized overnight courier service, addressed or delivered, as the case may be, to the other party at its address set forth in the introduction paragraph or at such other address designated by notice in the manner provided in this subsection. Such notice shall be deemed to have been given and received upon the date of actual delivery if personally delivered or, in the case of certified or registered mailing, five (5) days after deposit in the mail, or, in the case of nationally-recognized overnight courier service, one (1) business day after deposit with such service.
14.5. Force Majeure. Except for payment of amounts due hereunder, neither party may be held liable for damages sustained by the other party, to the extent caused by events of force majeure. Events of force majeure include war, mobilization, acts of nature, strikes, lockouts, fire, damage to production premises, import or export restrictions or other unforeseeable events beyond a party's control.
14.6. Severability. If any provision of this Agreement shall be determined to be void, invalid, unenforceable or illegal for any reason, then the validity and enforceability of all of the remaining provisions hereof shall not be affected thereby.
14.7. Waivers. The failure of either party to exercise any of its rights under this Agreement for a breach thereof shall not be deemed to be a waiver of such rights nor shall the same be deemed to be a waiver of any subsequent breach.
14.8. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements and understandings with respect to the subject matter herein. This Agreement shall not be modified except in writing signed by the party against whom enforcement is sought.
14.9. Standard Forms. From time to time the parties may prepare and issue papers ancillary to the License (collectively, “Standard Forms”), including, without limitation, purchase orders, acceptance letters, forms, and notices, from Licensee, in order to set up the use of Software, or to facilitate invoicing and bill payment and/or for other purely administrative purposes. It is understood that all Standard Forms issued or accepted by either party shall be governed solely by the terms of this Agreement. In no event shall Standard Forms be construed as amending or revising this Agreement, whether or not any such Standard Form is received, accepted, approved or signed by either party.
14.10. Headings. The headings of the Sections hereof are for convenience only and do not in any way limit or amplify these terms.
14.11. Survival. Any provision of this Agreement that by its nature should survive the termination of this Agreement shall survive the termination of this Agreement.
14.12. Publicity. Licensee agrees that Elevate HR may reference Licensee as a customer of Elevate HR, including a royalty-free, nonexclusive, non-transferrable right to use Licensee’s name, trademarks, service marks and/or logos, whether or not registered (“Licensee Trademarks”), within the scope of this Agreement, and otherwise in Elevate HR’s reasonable discretion, including, without limitation, on Elevate HR’s website and/or customer listings, provided that such use shall be i) in the form and manner, and with all appropriate legends, that are currently used by Licensee, as may be modified from time to time during the term of this Agreement, and ii) in accordance with usage guidelines to the extent provided by Licensee. Except for the licenses granted in this Section 14.13, Elevate HR shall not acquire any right, title or interest in any Licensee Trademarks and that all use of any Licensee Trademarks and all of the goodwill associated therewith shall inure solely to Licensee. Elevate HR shall cease all use of Licensee Trademarks upon termination of this Agreement.
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