Epilogue Systems Standard Terms & Conditions
These Standard Terms and Conditions (the “ Standard Terms and Conditions ”) apply to and are included as part of each Master Subscription Agreement between Epilogue Systems, LLC (“ Epilogue”, We”, “Us” or “Our”) and an entity that has entered into such Master Subscription Agreement with Epilogue (“ Client”, “You” or “Your”). As used in these Standard Terms and Conditions, unless the context dictates otherwise, the term “ Master Agreement” (also, the “ Agreement”) includes the Master Subscription Agreement, these Standard Terms and Conditions and any Exhibits and Amendments to either document.
1. Applicability of these Terms and Conditions
Along with the terms of the Master Agreement, these Standard Terms and Condition govern:Your rights of use in the software program(s) described in the Master Agreement (the “Software”) which we make available to you on a subscription basis (the “ Saas Services”) and; (b) Our provision of any and all related professional services which you purchased under the Master Agreement or under a statement of work (a “Statement of Work”) which is executed by the parties and references this Master Agreement (“Professional Services”).
2. Access To and Use of the SaaS Services
a. Rights of Use. During the Term and subject to the terms and restrictions set forth in this Master Agreement (including these Standard Terms and Conditions), We grant You a non-exclusive, non-transferable, limited, license to access and use the SaaS Services solely in support of Your internal business operations (unless otherwise expressly authorized in the Master Agreement). Due to the nature of the Software-as-a-Service (i.e., “SaaS”) delivery model: (i) You will access the Software on a remote access,
subscription basis via the Internet; and (ii) the Software to which You are provided remote access hereunder shall be the version of such Software which is then generally hosted by Epilogue for its clients.
b. Use by Authorized Employees and Consultants. You may only grant access to the SaaS Services to Your employees and third-party contractors who You authorize to use the SaaS Services in support of your business operations and who are bound by the confidentiality and limited use provisions of this Master Agreement, including that their use of the SaaS Services shall be solely in support of Your (and not their) internal business operations (unless otherwise expressly authorized in the Master Agreement). (“Authorized Users” or “ Users”). All usage is limited to the number of Authorized Users, and/or any other usage metrics and volumes, stated in the Master Agreement (including in Exhibit A). Access credentials (tied to an individual User’s email address) may not be used by more than one individual but may be transferred from one individual to another if the original User is no longer employed by You or is, on a permanent basis, no longer permitted to use the SaaS Service. You shall ensure that each Authorized User complies with the terms of this Master Agreement and You shall be liable for any breach thereby.
c. Scope of Use and Related Authorizations. Subject to the terms and restrictions in the Master Agreement, You may use the SaaS Services solely for the purposes described in the Master Agreement (for example, for those purposes which may be set forth or limited in Exhibit A of the Master Agreement) and in the applicable Documentation (“Documentation” is defined in Section 2(e)(v) below).
d. Reservation of Rights. Any rights that We do not expressly grant to You in this Agreement are expressly reserved by Us.
e. Additional Restrictions. Unless otherwise expressly permitted in this Master Agreement, You will not, and shall ensure that Your Authorized Users do not: (i) permit any third-party to access, use or copy all or any portion of the SaaS Services; (ii) modify, reverse engineer, decompile, disassemble, distribute, create derivative works based on, copy or otherwise exploit all or any portion of the SaaS Services; (iii) sell, sublicense, rent, lease, or otherwise transfer rights to all or any portion of the SaaS Services; (iv) use the SaaS Services to operate in or as a time-sharing, outsourcing or service bureau environment or in any manner which supports the business or operations of a third party; (v) use the SaaS Services for purposes other than those purposes which are described in this Master Agreement or in Our standard product documentation which we make available along with the SaaS Services at www.opuseps.com (the “Documentation”); or (vi) use the SaaS Services in any manner which: (a) poses a security risk; (b) violates any applicable law or regulation or
f. Intellectual Property Rights . The SaaS Services (including the underlying Software) are licensed, not sold. Except for the license expressly granted herein, Epilogue retains all right, title and interest in and to the SaaS Services and Software, and in and to the associated Documentation and materials, and in all related intellectual property and derivative works, including all know-how, methods and processes, as well as all related technology and all content (other than Your Data), will belong solely and exclusively to Us. Similarly, any intellectual property developed by us during the performance of any Professional Services will belong solely and exclusively to Us. In the event that You, or Your Authorized Users, submit any ideas, comments, suggestions, proposed modifications or enhancements, or other feedback related to the SaaS Service (collectively, “Feedback”), We shall automatically own such Feedback without compensation to You and You hereby assign all rights in such Feedback to Us.
g. Your Data. “Your Data” is all data or information provided by You or any Authorized User to Us or in connection with Your use of the SaaS Services. All of Your Data shall remain Your property or the property of Your licensors (as applicable).
i. Support. You are entitled to certain technical support (“Support”) in connection with Your purchase of a subscription to access and use the SaaS Services. A description of the Support which will be made available to You can be found at https://www.epiloguesystems.com/support and Service Level Agreements can be found at https://www.epiloguesystems.com/slas/. We reserve the right to modify Support from time to time, in which changes will be effective ten (10) days after posting the updated Support descriptions at the above URL. However, we will not materially reduce the level of services described as included in your Support for periods for which you have already purchased a subscription for the SaaS Services.
j. Conditions of Service. We will use commercially reasonable efforts to make the SaaS Services available for access 24 hours a day, 7 days a week, except for planned and emergency downtime and other outages or delays caused by Your or by factors or circumstances beyond Our reasonable control (including acts of God, utility outages, failures or delays of communication lines and/or the Internet,or other failures or delays caused by factors outside of Our hosted computing environment).
3. Term and Termination
a. Initial Term and Renewals; Notice of Price Increases for Renewal Terms. The “Initial Term” of this Master Agreement is described in the Master Services Agreement (generally in Exhibit A). This Master Agreement will continue in effect from year to year after the expiration of the Initial Term and after the expiration of each annual renewal period (as applicable; in each case, a “ Renewal Term”) unless either party provides at least 60 days prior written notice of its desire not to renew prior to the expiration of the then-current term, in which event this Master Agreement will terminate at the end of the then current term. In the event that We change the pricing set forth in this Master Agreement for periods beyond the Initial Term, We will give You at least 90 days notice of the new pricing prior to the end of the then current term. Unless You provide notice of nonrenewal as set forth above, the new pricing will take effect at the beginning of the next Renewal Term. The Initial Term, along with any Renewal Term constitutes the
“Term” of this Master Agreement. If this Master Agreement is terminated prior to the natural expiration of its Term as authorized hereunder, then the Term shall be deemed reduced accordingly.
b. Termination; Suspension. Either party may terminate this Master Agreement upon written notice if the other party breaches any material provision of this Agreement and fails, within thirty (30) days after receipt of written notice of such breach, to correct the breach. Failure to make payment when due shall constitute a material breach hereof. Without limiting the above, We may suspend Your rights of use, or any user’s rights of use, in the SaaS Services: (i) if You are delinquent in Your payment obligations for more than five (5) days after We notify You of the delinquency; (ii) if there is a material misuse of the SaaS Services in violation of the terms, limitations and restrictions hereof or Your use of the SaaS Services presents an imminent security or liability risk.
c. Effect of Termination. Upon termination, all rights and obligations under this Master Agreement will automatically terminate except as otherwise provided below. In addition, You will return any of our proprietary materials, information and documents, along with any of our Confidential Information and immediately cease all use of the SaaS Services. Within thirty (30) days after termination, You may download a file containing a copy of Your data. After such 30-day period, We may, without obligation to do so, delete any or all of Your data without liability. We may maintain a copy of Your data in accordance with our then-current data retention practices and for the purposes contemplated by Section 7(b) below. The terms of this Section 3(c), along with Sections 4, 5(c), 6 and 7 and all provisions protecting Our intellectual property rights and disclaiming warranties, shall expressly survive expiration or termination of this Master Agreement.
4. Financial Terms.
All SaaS Services and Professional Services fees (and associated reimbursable expenses) shall be invoiced in accordance with the terms of the Master Agreement, and (for Professional Services covered thereby) a Statement of Work, and shall be due within thirty (30) days of issuance of the invoice. If not otherwise specified in the Master Agreement or an applicable Statement of Work, all fees shall be invoiced annually in advance. Invoiced amounts not paid by their due date shall be subject to a 1 percent per month interest fee, or the maximum amount permitted by applicable law, whichever is less. Prices do not include taxes. You shall promptly pay (or promptly reimburse Us for) all applicable sales, use and other taxes in connection with the SaaS Services or any other services or support provided, or any payments made, under this Master Agreement. All fees due throughout the Term are committed amounts which are non-cancelable and non-refundable.
5. WARRANTY, DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
a. We warrant, for the Term hereof, and conditioned on Your use of the SaaS Services in compliance herewith, that the SaaS Services will perform in all material respects in accordance with the applicable descriptions set forth in the Master Agreement and in our Documentation. We further warrant that all Professional Services will be performed in a professional manner in accordance with any applicable requirements specified in the Master Agreement (including in any scope of work or similar document which is attached to this Master Agreement or incorporated herein). In the event that We breach a warranty above, You shall promptly notify us in writing of the breach. If We are unable thereafter to remedy the deficiency within a commercially reasonable period of time, then your sole and exclusive remedy will be: (i) for SaaS Services, to seek recovery of direct damages caused by the breach, subject to the limitations of liability below; and (ii) for Professional Services, to receive a refund of the fees paid for the un-remedied Professional Services, subject to the limitations of liability below.
b. WE MAKE NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND WE EXPLICITLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. WE EXPRESSLY DO NOT WARRANT THAT THE SAAS SERVICES OR UNDERLYING SOFTWARE, IN WHOLE OR IN PART, WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION.
c. IN NO EVENT SHALL EPILOGUE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST DATA OR LOST REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL THE LIABILITY OF EPILOGUE UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SAAS SUBSCRIPTION FEES PAID BY YOU TO EPILOGUE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INITIAL CLAIM ASSERTED BY YOU HEREUNDER. THE REMEDIES PROVIDED IN THIS MASTER AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION (INCLUDING NEGLIGENCE) AND SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSES OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
a. Intellectual Property Indemnity by Epilogue. We will defend, indemnify and hold You harmless from and against any damages, losses, and costs that You incur as a direct result of a claim brought by a third party which alleges that the SaaS Services provided by Epilogue hereunder (in the unmodified form which We provide to You) infringe a third party’s United States intellectual property rights. As a condition of Our indemnity obligation, You must promptly notify Us of any such claim; grant Us sole control of the defense and settlement of any such claim; and cooperate with Us to facilitate Our ability to settle or defend the claim. In the event of a covered infringement claim or threat thereof, We will undertake commercially reasonable efforts to obtain for You the right to continue using the SaaS Services, or to replace or modify the SaaS Services so that they are not infringing without a material reduction in functionality. If we determine that these alternatives are not commercially reasonable, We may elect to terminate the SaaS Services and, if we do so and You have prepaid for any unused SaaS Services, We will refund that prepayment. We shall have no indemnity obligations to You if the infringement claim is caused by your misuse of the SaaS Services, or Your use of the SaaS Services in combination with unauthorized products or services. THESE ARE OUR EXCLUSIVE OBLIGATIONS WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
b. Indemnities From You In Favor of Epilogue . You will defend, indemnify, hold Us and our agents, employees, officers and directors (collectively and individually “We” or “Us” for purposes of this Section) harmless from and against any loss, cost and expenses arising from or in connection with: (i) the gross negligence or willful misconduct of You or any Authorized User, or (ii) any claim that Your Data, or any materials or other intellectual property of You or any Authorized User, infringes any rights of any third party, violates applicable laws or regulations, or otherwise gives rise to liability; and (iii) any use of the SaaS Services by You or any Authorized User in a manner in breach of the terms and conditions (including the license/usage restrictions) of this Master Agreement or contrary to applicable law. As a condition of Your indemnity obligations, We must promptly notify You of any such claim, grant You sole control of the defense of any such claim and of all negotiations for its settlement or compromise; and cooperate with You to facilitate Your settlement or defense of the claim.
a. Confidentiality. “Confidential Information” is non-public information of a party which is provided to the other party hereunder and which is either designated as confidential or of a type which should be recognized by a commercially reasonable party as confidential. Confidential Information of Epilogue includes Software and its Documentation and materials, along with the terms and conditions of this Master Agreement. The party receiving Confidential Information may use it only for the purposes for which it was provided and may not disclose it to any third party unless such third party is providing services or performing obligations hereunder and is bound in writing by confidentiality restrictions substantially similar to those required hereunder. The obligations to maintain the Confidential Information as confidential shall remain in place for so long as the applicable information is maintained as confidential. The limitations on disclosure or use of Confidential information shall not apply to information which (i) is rightfully obtained by the recipient without breach of any confidentiality obligation; (ii) is or becomes known to the public through no act or omission of the recipient; (iii) the recipient develops independently without using Confidential Information of the other party; or (iv) is disclosed in response to a valid court or governmental order, if the recipient has given the other party prior written notice and provides reasonable assistance. You shall maintain, and shall ensure that your authorized users maintain, the confidentiality of all account information that We provide to You to enable access and use of the SaaS Services. You shall be responsible for any unauthorized disclosure or use of such account information.
b. Our Use of Your Data. You grant Us a license to use, reproduce, perform, display and share Your Data as is reasonably necessary in order to provide the SaaS Services and Professional Services and otherwise perform our obligations contemplated hereunder, including, subject to compliance with applicable data security and privacy laws, by sharing Your Data with third parties (such as Amazon Web Services) that support the provision of such services or our ability to facilitate the intended uses of our SaaS Services. In addition, You grant us a license to de-personalize (in a manner that does not allow the identification of an individual) and aggregate any of Your Data to determine usage trends, perform analytics, improve the SaaS Services and Professional Services, promote and market and effectiveness of the SaaS Services, or for any other business or commercial purpose. We shall have no obligation, restriction or liability in connection with any use of Your data which We anonymize or otherwise de-personalize, except to the extent that an obligation is otherwise imposed by applicable law
c. Right to Use Name and Logo. You hereby grant us the right to use and display Your company or organization’s name and logos to identify it as a user of the SaaS Services and for Our marketing and public relations purposes, including marketing materials, advertisements, customer lists, press releases, presentations, and publications during the Term hereof. We shall obtain Your prior written consent for any other uses of Your company or organization’s name, logos, and trademarks.
d. Independent Contractor Relationship; No Third-Party Beneficiaries. The parties are independent contractors and nothing contained in this Agreement will be construed to create an association, trust, partnership, agency or joint venture between the parties. This Master Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.
e. Assignment. You may not assign or transfer any part of this Master Agreement without the prior written consent of Epilogue. We may assign this Master Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or a controlling interest in our stock but will endeavor to provide notice of such assignment as soon as practicable after it occurs.
f. Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations under this Master Agreement during any period in which performance is delayed by circumstances not within such party’s reasonable control, such as a natural disaster, act of war or terrorism, government action, labor disruption, internet outages or interruptions or power outages or interruptions, (a “Force Majeure”).
g. Compliance with Laws (Including Export Laws). Each of us shall abide by allbapplicable laws and regulations regarding our performance of obligations under thisbMaster Agreement, and You shall abide by all such laws and regulations in connection with your use of the SaaS Services. Without limiting the above, Your shall comply with all applicable import, re-import, export and re-export control laws, orders and regulations.
h. Entire Agreement; Severability; Waiver. This Master Agreement is the entire agreement between You and Epilogue with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between you and Epilogue regarding that subject matter. No amendment to or modification of this Master Agreement will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Master Agreement is found to be void or unenforceable, the provision will be stricken or modified and the remainder of this Master Agreement will remain in full force and will not be terminated. A waiver of any default is not a waiver of any subsequent default. Allawaivers must be in writing to be effective.
i. Governing Law and Jurisdiction. The laws of the Commonwealth of Pennsylvania shall govern the interpretation and enforcement of this Master Agreement and any dispute arising out of or related hereto, without regard to its conflict of laws principles. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Philadelphia, Pennsylvania with respect to any dispute arising out of or relating to this Master Agreement.
j. Contract for Services. The parties agree that the provisions of the Uniform Commercial Code (UCC) and the Uniform Computer Information Transaction Act (UCITA) shall not apply hereto. If You are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply hereto.
k. Notices. All notices must be in writing and shall be sent by first class U.S. mail or a nationally known express or overnight courier (such as FedEx, UPS or the U.S. Postal Service). Notices to Us shall be sent to our main address as listed on our website and, for each notice, a copy shall also be sent to Our CFO. Notice to You may be sent to Your address set forth in the Master Agreement. Notices shall be deemed given upon receipt thereof. Without limitation, notices delivered by courier shall be deemed received on the date shown on the courier’s confirmation of delivery.
l. Government. The SaaS Services may not be used by, for, or on behalf of, any governmental body or agency (including in the United States) without Our express prior written consent. Upon such consent, We provide the Services, including related software and technology, for government end use solely by the entity identified as the Client herein and in accordance with the terms and limitations of this Master Agreement. With respect to the U.S. Government or any U.S. Government agency, the following additional terms and limitations apply: Government technical data and software rights related to the Saas Services include only those rights customarily provided to the public as specified in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.2277015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If the government, or a government agency, has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
m. Geographic Limitations. We are a U.S.-based company which operates the SaaS Services, and stores all associated content and data, in the United States (either itself or through a third party hosting provider). If Your Data is being transferred or provided under foreign laws governing data collection and use that are different from U.S. law, then You represent and warrant that, subject to Our compliance with obligations imposed on us under applicable data security and privacy laws, You have all necessary consents and authorizations to transfer Your Data to Us and for Us to process and store such Data. You are obligated to notify us of any additional prerequisites which must be satisfied under applicable foreign law in order to appropriately transfer Your Data or allow us to use or process it, and We will work in good faith with You to seek to address the legal requirements in a commercially reasonable, mutually agreeable manner.