Simpson Strong-Tie Standard Terms and Conditions
- Definitions. All capitalized terms used herein, including those set forth in Exhibit A, have the meanings indicated, and cognate terms have corresponding meanings.
- Software License. The following provisions apply only if Licensed Software will be installed on Client’s Designated Systems:
- License Grant. Simpson Strong-Tie hereby grants, and Client hereby accepts, a nontransferable, non-assignable (except as otherwise provided in Section 16of this Agreement), non-exclusive, worldwide right and license to use any Licensed Software and related Documentation during the License Term for Client’s Internal Business Purposes only on the Designated Systems, subject to the terms of this Agreement, including the payment of all License Fees. Client may License additional Licensed Software in the future by executing an Order Form provided by Simpson Strong-Tie. Client shall have no right to sublicense its rights with respect to the Licenses granted herein without Simpson Strong-Tie’s prior written consent, which may be withheld in Simpson Strong-Tie’s absolute discretion. Client may make a reasonable number of copies of the Licensed Software solely for back-up or archival purposes, which copies shall be the exclusive property of Simpson Strong-Tie. All rights to the Licensed Software not specifically granted herein are reserved to Simpson Strong-Tie or its licensors.
- Electronic Delivery. All Licensed Software, including Updates, and Documentation shall be delivered electronically. The Documentation shall include, among other things, any operational instructions and technical information related to the Simpson Strong-Tie Solutions in the form generally made available by or on behalf of Simpson Strong-Tie to its other licensees.
- Restrictions. Client may not: (i) disclose, sell, resell, assign, share, lease or make any Simpson Strong-Tie Solutions available to any Third Party or use the Service as a service bureau; (ii) modify or make derivative works of the Simpson Strong-Tie Solutions or any portion thereof; (iii) create Internet links to the Simpson Strong-Tie Solutions or frame or mirror any portions of the Simpson Strong-Tie Solutions on any other server or wireless device; (iv) reverse engineer, disassemble or decompile any component, or attempt to access any Source Code, of any Simpson Strong-Tie Solutions; (v) access the Simpson Strong-Tie Solutions to design or develop a competitive product or service; (vi) otherwise access or use the Simpson Strong-Tie Solutions in any manner that exceeds the Licenses or scope of use permitted under this Agreement; (vi) Upload any Prohibited Information or Disabling Codes; (vii) interfere with or disrupt the integrity or performance of the Simpson Strong-Tie Solutions or the data contained therein; (viii) attempt to gain unauthorized access to the Simpson Strong-Tie Solutions; (ix) use the Simpson Strong-Tie Solutions or the data generated by the Simpson Strong-Tie Solutions in violation of applicable Law; or (x) remove any copyright, trademark, disclaimer, warning or proprietary rights notice included on or embedded in any part of the Simpson Strong-Tie Solutions.
- User IDs. Only Authorized Users may use or access the Simpson Strong-Tie Solutions. No User ID may be shared by more than one Authorized User. Client shall be responsible for ensuring the security and confidentiality of all User IDs provided to Client and any passwords or other information used to access or use the Simpson Strong-Tie Solutions. Client shall not disclose User IDs or passwords to any Third Party. Client acknowledges that it shall be fully responsible for any liabilities incurred through use of any User ID and that any transactions under a User ID shall be deemed to have been performed by Client.
- Client Responsibilities.
- Third Party Hardware and Software. Client shall be solely responsible for the purchase, installation, maintenance and use of all Third Party Hardware and Software. Simpson Strong-Tie shall not be required to provide any Services relating to: (i) Third Party Hardware and Software; (ii) any interoperability of the Licensed Software with any Third Party Hardware and Software; (iii) any failure to meet any Minimum System Requirements; or (iv) resolving Client network, workstation, environmental or other problems not directly related to the Simpson Strong-Tie Solutions.
- Provision of Client Data. Client shall be solely responsible for collecting, Uploading and updating all Client Data. Client shall not Upload any Client Data that has not been backed up and securely stored elsewhere in a reasonably accessible format. Simpson Strong-Tie shall not be liable or responsible for any lost data, including Client Data and any data that may be generated through use of the Simpson Strong-Tie Solutions.
- Designated Client Representative. Client shall designate an employee (“Project Manager”) who shall be assigned the primary responsibility for communicating with and providing necessary assistance to Simpson Strong-Tie with respect to the Services provided pursuant to this Agreement. Project Manager will be the primary point of contact for this Agreement, and shall respond promptly when contacted by Simpson Strong-Tie regarding this Agreement.
- Application Services. Simpson Strong-Tie shall provide to Client any Application Services identified in the Order Form, Exhibits or any other SOW, subject to the terms of this Agreement. Client may subscribe to additional Application Services in the future by executing an Order Form provided by Simpson Strong-Tie. Subject to the terms of this Agreement, Simpson Strong-Tie will make the Application Services and related Documentation available to Client via the Internet during the Term solely for Client’s Internal Business Purposes. Client shall, at its own expense, acquire, install, configure and maintain all Third Party Hardware and Software as may be required for Authorized Users to connect to and access the Application Services via the Internet.
- Professional Services. Simpson Strong-Tie shall perform any Professional Services and shall provide any Deliverables identified in the Order Form, Exhibits or any other SOW, subject to the terms of this Agreement. The Professional Services may include, as applicable, BIM drafting services, marketing content creation services, implementation and setup services, delivery of reports and other Deliverables, integration, installation, configuration, custom programming, customization, training and other Services related to the Simpson Strong-Tie Solutions. To the extent that any SOW for Professional Services requires Simpson Strong-Tie to provide Deliverables to Client prior to completion of the SOW, Client shall be responsible for reviewing such Deliverables and providing feedback to Simpson Strong-Tie in accordance with the SOW. Each Party shall use commercially reasonable efforts to perform its obligations under any SOW in accordance with the time frames and other terms set forth therein. Client acknowledges that such time frames may vary if Client fails to provide the personnel, resources, feedback or other information specified in any SOW.
- Support Services. Simpson Strong-Tie shall perform any Support Services set forth in the Exhibits or any other SOW, including those set forth on Exhibit B, if applicable, subject to the terms of this Agreement. Client may subscribe to additional Support Services in the future by executing an Order Form provided by Simpson Strong-Tie. The Support Services may include, as applicable, providing telephone support, e-mail support, Error Correction, Updates and other support related to the Simpson Strong-Tie Solutions.
- Additional Services and Change Requests. Client may request additional Services, or changes to the Services specified in any SOW, by delivery of a written request to Simpson Strong-Tie describing the desired changes (each, a “Change Request”). Within a reasonable time, not to exceed fifteen (15) business days, after receipt of any Change Request, Simpson Strong-Tie shall provide a written response informing Client whether such Change Request is accepted and whether it would result in an extension of the schedule for Services or any additional cost to Client (each, a “Change Order”). Simpson Strong-Tie may, upon prior Notice to Client, charge Client a fee for such review and analysis. A Change Order shall be considered binding on the Parties and effective if, within ten (10) business days after receipt of such Change Order, Client executes the Change Order provided by Simpson Strong-Tie (which, upon acceptance, shall become a new SOW).
- Acceptance. Upon completion of the Services in any SOW (“Completion Date”), Simpson Strong-Tie shall send via email to the designated Client Project Manager a notice of completion or the final Deliverables. The Services and any Deliverables provided on or before the Completion Date shall be deemed to have been accepted ten (10) business days following the Completion Date unless Client provides Simpson Strong-Tie with Notice of noncompliance that identifies with specificity any Error or Deficiency (“Notice of Noncompliance”). Simpson Strong-Tie shall have ten (10) business days following receipt by Simpson Strong-Tie of any Notice of Noncompliance to describe in detail how Simpson Strong-Tie intends to Correct the Error or Deficiency, including the time required for such Correction (the “Correction Plan”). Upon receipt of the Correction Plan, the Client shall have five (5) business days to provide any reasonable objection to the Correction Plan to Simpson Strong-Tie in writing (“Objection”). If Client timely provides any Objection to the Correction Plan, the Parties shall use commercially reasonable efforts in good faith to agree upon a revised Correction Plan. If the Client does not provide any Objection to the Correction Plan within such five (5) day period, the Correction Plan shall be deemed to have been accepted by Client. Simpson Strong-Tie shall use commercially reasonable efforts to implement any Correction Plan. Following implementation of any Correction Plan, Simpson Strong-Tie shall provide Client with notice thereof, and Client shall have ten (10) business days to accept the applicable Deliverables and Services or provide a Notice of Noncompliance, in which case the procedures set forth above in this Section 7 shall apply.
- Fees and Payments.
- Fees. In consideration of the Licenses and Services provided by Simpson Strong-Tie, Client agrees to pay all fees set forth in any SOW, including any Exhibit or Order Form (the “Fees”). Simpson Strong-Tie shall invoice Client according to the terms of any such SOW. Any Services for which the fees are not set forth in any SOW shall be paid for on a time and materials basis at Simpson Strong-Tie’s then-current hourly rates.
- Expenses. Client shall reimburse Simpson Strong-Tie for all out-of-pocket expenses reasonably incurred in rendering any Services hereunder, including reasonable travel and transportation expenses, lodging, and meals (“Expenses”); provided, however, that Simpson Strong-Tie shall request and obtain prior written approval from Client for any travel Expense exceeding one thousand dollars ($1000) and any non-travel Expense exceeding five hundred dollars ($500).
- Payment Terms. All invoices shall be due and payable in full no later than fifteen (15) days after the date of invoice. Late invoices shall be subject to interest of 1.5% per month, or the maximum permitted by Law, whichever is less, plus any expenses of collection. Simpson Strong-Tie reserves the right to suspend and/or terminate access to the Simpson Strong-Tie Solutions and Services if any Fees payable hereunder are past due and Client fails to cure such non-payment within ten (10) days of receipt of Notice from Simpson Strong-Tie. Such a suspension of Simpson Strong-Tie Solutions and Services shall not relieve Client from its obligation to pay all amounts due under this Agreement.
- Taxes. Fees and all other amounts set forth in this Agreement do not include any sales, property, use, value added or other taxes (collectively “Taxes”), all of which shall be paid by Client; provided, however, that such Taxes shall not include any tax determined based on Simpson Strong-Tie’s net income. In the event that Simpson Strong-Tie is required by applicable Law to pay or remit any Taxes, Client shall reimburse Simpson Strong-Tie.
- Audit. For the sole purpose of insuring compliance with this Agreement, Simpson Strong-Tie shall have the right, at its expense, to audit Client’s use of the Simpson Strong-Tie Solutions on at least fifteen (15) business days’ advance Notice, during Client’s normal business hours and no more frequently than once each year, which audit shall not unreasonably interfere with Client’s business. Client shall provide reasonable cooperation to Simpson Strong-Tie in connection with such audit, including granting to Simpson Strong-Tie supervised access to any systems used to access or store the Simpson Strong-Tie Solutions. Any such audit shall be subject to the confidentiality provisions of Section 11.
- Client Information.
- Simpson Strong-Tie Access to Client Information. Client shall provide Simpson Strong-Tie with all Client Information required or reasonably requested by Simpson Strong-Tie for purposes of providing the Services contemplated under this Agreement, subject to the confidentiality provisions of Section 11. Upon request from Client, Simpson Strong-Tie shall return to Client or destroy all Client documents and other tangible embodiments of Client’s Information.
- Use of Deliverables. Client shall be solely responsible for its use of the Deliverables and other data and information generated through use of the Simpson Strong-Tie Solutions.
- Use of Aggregated Data. Subject to all applicable Laws and the confidentiality obligations set forth in Section 11 of this Agreement, Simpson Strong-Tie may capture and analyze data and information for the purpose of monitoring and improving system performance and the Simpson Strong-Tie Solutions. Client hereby grants to Simpson Strong-Tie a non-exclusive, perpetual, irrevocable, unlimited, worldwide, royalty-free right and license to disclose and use any Aggregated Data generated as a result of this Agreement; provided that such Aggregated Data is completely anonymous with respect to Client or any other Person.
- Security Measures. Simpson Strong-Tie shall: (i) implement reasonable administrative, physical, and technical safeguards that protect the security, confidentiality and integrity of the Client Data, which safeguards shall include password protection and restricting access to Client Data; (ii) maintain reasonable firewalls and encryption, as described in the Documentation; (iii) conduct privacy and information security training, as appropriate, for its employees and contractors; and (iv) monitor security at any of Simpson Strong-Tie’s premises or on any of Simpson Strong-Tie’s computer systems where the Client Data shall have been stored. Simpson Strong-Tie may host Client Data through Third Party providers; provided, however, that Simpson Strong-Tie shall use commercially reasonable efforts to ensure that such Third Party providers comply with the requirements of this Agreement and SAS-70 or other similar standards applicable to hosted data centers, application service providers or other service organizations.
- Ownership. As between the Parties, Client shall own all right, title and interest in and to the Client Information and all Intellectual Property Rights related thereto. As between the Parties, Simpson Strong-Tie or its Affiliates and licensors, as applicable, shall own all right, title and interest in and to the Simpson Strong-Tie Solutions, Services and Work Product, and any revisions, modifications, enhancements and derivative works thereof, and all Intellectual Property Rights related thereto (collectively, the “Simpson Strong-Tie Technology”). If title to any of the Simpson Strong-Tie Technology does not, by operation of law, vest in Simpson Strong-Tie, Client hereby assigns to Simpson Strong-Tie, or its designee, all right, title and interest in and to the Simpson Strong-Tie Technology. For avoidance of doubt, the foregoing shall not be construed to transfer to Simpson Strong-Tie any right, title or interest in or to the Client Information. Simpson Strong-Tie retains all rights not expressly granted to Client hereunder.
- Confidentiality. Neither Party shall disclose the other Party’s Confidential Information to any Third Party, except as authorized by this Agreement. Each Party may disclose the other Party’s Confidential Information only to those of its Affiliates, employees and contractors who have a need to know such information and who have previously agreed in writing to be bound by confidentiality and nondisclosure obligations consistent with and no less restrictive than the terms of this Agreement. Each Party shall treat the other Party’s Confidential Information with reasonable care and at least the same degree of care as it accords its own Confidential Information. No violation of this Section shall occur by reason of a disclosure of Confidential Information as required by Law, including in response to a valid order by a court or other governmental body, provided that the Party subject to such order shall have provided the other Party with prior Notice of such disclosure in order to permit it to seek confidential treatment of such information, and provided further that the Party making such disclosure has been advised by counsel that such disclosure is required by Law.
- Term and Termination.
- Term. This Agreement shall remain in effect for the Initial Term and any Renewal Term, subject to Sections 12and 12below. On each anniversary of the Effective Date, this Agreement shall automatically renew for additional terms of one (1) year (each, a “Renewal Term”) unless either Party provides Notice to the other Party at least one hundred twenty (120) days’ prior to the expiration of the Initial Term or Renewal Term, as applicable, of its intention not to renew this Agreement.
- Termination With Cause. Either Party may terminate this Agreement upon Notice to the other Party if the other Party breaches any material representation, warranty or obligation of this Agreement, which breach has not been substantially cured within thirty (30) days after such Notice has been provided. Simpson Strong-Tie may suspend access to the Simpson Strong-Tie Solutions or Services until any breach by Client shall have been cured.
- Termination for Nonpayment. If Client fails to pay when due any Fees or Expenses and does not cure such breach within ten (10) days after Notice has been provided to Client, Simpson Strong-Tie may terminate this Agreement.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason: (i) each Party shall return to the other Party or destroy all of the other Party’s documents and materials (including any Software and all tangible embodiments of any Confidential Information); (ii) Simpson Strong-Tie shall immediately cease performing Services; (iii) Client and all Authorized Users shall immediately cease using any of the Simpson Strong-Tie Solutions; and (iv) Client shall promptly pay to Simpson Strong-Tie any undisputed amounts owed under this Agreement, including any unpaid Fees or Expenses. Following each Party’s compliance with such return or destruction, as applicable, each Party shall provide the other Party with a statement signed by its one of its executive officers certifying that such destruction or return shall have been completed pursuant to this Section 12(d). Survival. Sections 4, 5, 8, 9(d), 9(e), 10, 11, 12(d), 13(f), 13(g), 14, 15 and 16 shall continue in full force and effect notwithstanding, and shall survive, any termination of this Agreement.
- Limited Warranties and Disclaimer of Warranties.
- By Simpson Strong-Tie. Simpson Strong-Tie represents and warrants that: (i) it exclusively owns or has the right to license all Licensed Software; (ii) the Licensed Software shall operate in accordance with the applicable Documentation when operated on the Designated Systems by Authorized Users in accordance with the Documentation; (iii) the Services shall be performed in a professional and workmanlike manner, and in accordance with the applicable SOW; (iv) it has the power and authority to enter into this Agreement and to perform its obligations and grant to Client any rights and licenses hereunder, and that its performance of this Agreement will not violate any agreement by which it is bound; and (v) it shall comply with all applicable Laws; provided, however that in the event of any breach of subsection (ii) above, Client’s sole and exclusive remedy, and Simpson Strong-Tie’s entire liability and obligation, shall be to perform Error Correction Services in accordance with any applicable SOW; and provided further that, in the event of any breach of subsection (iii) above, Client’s sole and exclusive remedy, and Simpson Strong-Tie’s entire liability and obligation, shall be to perform further Services to cure any Deficiency.
- By Client. Client represents and warrants that: (i) it exclusively owns and has the right to disclose to Simpson Strong-Tie, Upload and use all Client Information; (ii) it has obtained all rights, licenses, consents and permissions necessary to disclose to Simpson Strong-Tie, Upload and use the Client Information; (iii) it has the power and authority to enter into this Agreement and to perform its obligations and grant to Simpson Strong-Tie any rights and licenses hereunder, and that its performance of this Agreement will not violate any agreement by which it is bound; and (iv) it shall comply with all applicable Laws.
- Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 13, NEITHER PARTY MAKES AND EACH PARTY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SIMPSON STRONG-TIE DOES NOT WARRANT THAT THE OPERATION OF THE SIMPSON STRONG-TIE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE SIMPSON STRONG-TIE SOLUTIONS OR SERVICES WILL MEET CLIENT’S REQUIREMENTS, OR THAT CLIENT WILL ACHIEVE ANY PARTICULAR RESULTS THROUGH ITS USE OF THE SIMPSON STRONG-TIE SOLUTIONS OR SERVICES.
- Warranty Exclusions. The warranties provided under this Agreement with respect to Simpson Strong-Tie Solutions shall apply only during the time period when Client shall have paid all applicable Fees and Expenses for such Simpson Strong-Tie Solutions. Simpson Strong-Tie shall have no warranty or other obligation under this Agreement with respect to any Error or Deficiency that is caused by any: (i) modification of the Simpson Strong-Tie Solutions or any addition of Software to the Simpson Strong-Tie Solutions by any Person other than Simpson Strong-Tie; (ii) Third Party Hardware or Software, (iii) failure of Client to provide any information, data, support or assistance required under this Agreement or reasonably requested by Simpson Strong-Tie; (iv) use of the Licensed Software on any system other than the Designated Systems; (v) use of the Simpson Strong-Tie Solutions other than in accordance with this Agreement and the Documentation; (vi) failure to install and use the current or immediately preceding version of the Licensed Software and any Updates thereto; or (vii) problem attributable to the Internet or other public infrastructure.
- Limitation of Liability. NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT (UNDER ANY THEORY, INCLUDING NEGLIGENCE, CONTRACT OR STRICT LIABILITY), EVEN IF SUCH PARTY OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SIMPSON STRONG-TIE’S OR ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO SIMPSON STRONG-TIE BY CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHEN NOTICE OF SUCH CLAIM WAS PROVIDED HEREUNDER.
- By Simpson Strong-Tie. Simpson Strong-Tie shall indemnify and defend Client and its Affiliates and Representatives, and hold them harmless, from and against any Claims by a Third Party arising from or related to: (i) any breach or alleged breach by Simpson Strong-Tie or any of its Representatives of any representation, warranty, obligation or other provision of this Agreement; (ii) any activity, error or omission of Simpson Strong-Tie or any of its Representatives, either alone or in conjunction with any Third Party; and (iii) any Third Party allegation that the Simpson Strong-Tie Solutions infringe its Intellectual Property Rights; provided, however, that Simpson Strong-Tie shall have no indemnification obligation under subsection (iii) if the alleged infringement results from: modification of the Simpson Strong-Tie Solutions by any Person other than Simpson Strong-Tie; the combination of the Simpson Strong-Tie Solutions with any Third Party Hardware or Software, but only to the extent the Simpson Strong-Tie Solutions would not themselves infringe; use of the Licensed Software on any system other than the Designated Systems; use of the Simpson Strong-Tie Solutions other than in accordance with this Agreement and the Documentation; or failure to install and use the current or immediately preceding version of the Licensed Software and any Updates thereto. If a Third Party alleges that the Simpson Strong-Tie Solutions infringe its Intellectual Property Rights, or if Simpson Strong-Tie reasonably believes that such a Claim may be asserted, Simpson Strong-Tie may, at its sole option and expense: replace the Simpson Strong-Tie Solutions, without additional charge, with a functionally equivalent and non-infringing product; modify the Simpson Strong-Tie Solutions to avoid the infringement; obtain a license for Client to continue use of the Simpson Strong-Tie Solutions at no additional charge to Client; or return to Client any pre-paid Fees for, and cease providing to Client, the infringing portion of the Simpson Strong-Tie Solutions. This Section 15states Client’s sole and exclusive remedy, and Simpson Strong-Tie’s entire liability and obligation, for any Claim that the Simpson Strong-Tie Solutions infringe any Intellectual Property Rights.
- By Client. Client shall indemnify and defend Simpson Strong-Tie and its Affiliates and Representatives, and hold them harmless, from and against any Claims by a Third Party arising from or related to: (i) any breach or alleged breach by Client or any of its Representatives of any representation, warranty, obligation or other provision of this Agreement; and (ii) any activity, error or omission of Client or any of its Representatives, either alone or in conjunction with any Third Party; and (iii) any use of the Client Information pursuant to the terms of this Agreement..
- Notice and Handling of Indemnity. The Party seeking indemnity under Section 15or 15(the “Indemnified Party”) shall give the other Party (the “Indemnifying Party”) prompt Notice of any indemnified Claim, and sole control of the defense of the Claim and any related settlement negotiations; provided that the Indemnifying Party shall not enter into any settlement agreement without the Indemnified Party’s prior consent, which shall not be unreasonably withheld. The Indemnified Party shall cooperate fully with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of the Claim.
- General Provisions
- Assignment. Client may not assign its rights or delegate its duties hereunder without Simpson Strong-Tie’s prior written consent, which may be withheld in Simpson Strong-Tie’s absolute discretion. This Agreement shall be binding on each Party’s successors and permitted assignees.
- Subcontract of Services. Simpson Strong-Tie may subcontract certain portions of the Services to be performed by Affiliates (including, without limitation, CG Visions, LLC) or other Third Parties in connection with this Agreement, provided that no such arrangement shall relieve Simpson Strong-Tie of any of its obligations hereunder.
- Change in Services. Simpson Strong-Tie has the right to change, modify, add to or remove any part of the Simpson Strong-Tie Solutions or Services, provided that the basic functionality and quality of the Simpson Strong-Tie Solutions and Services are not materially affected.
- Force Majeure. Except as otherwise provided, if performance hereunder (other than payment) is interfered with by any condition beyond a Party’s reasonable control, including disruption of Internet access or public infrastructure, the affected Party, upon giving prompt Notice to the other Party, shall be excused from such performance to the extent of such condition.
- Governing Law; Venue. This Agreement is made and shall be governed by and construed in accordance with the Laws of the State of California, excluding its choice of law principles. Exclusive jurisdiction and venue of any actions connected with this Agreement shall be in the state or federal courts residing in the Northern District of California and/or Alameda County, California. In any action or proceeding to enforce rights under this Agreement, the prevailing Party shall be entitled to recover all of its reasonable costs and attorney fees, including any expert witness fees, mediation fees, costs of investigation, arbitration fees, court costs and other fees and expenses related to any arbitration, litigation or other legal proceeding.
- Interpretation. The Parties agree that each of them has participated in the drafting of the Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply to the interpretation of the Agreement. The headings of sections herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction or interpretation of any provision hereof. Whenever the context requires, the use in this Agreement of the singular number shall be deemed to include the plural and vice versa, and each gender shall be deemed to include each other gender. References herein to sections refer to sections of this Agreement, except as otherwise stated. For purposes of this Agreement, each of the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” the word “any” shall be deemed to be followed by the phrase “and all,” and the word “terms” shall be deemed to be followed by the phrase “and conditions.”
- Independent Contractors. The Parties are and shall be independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement. Neither Party shall make any warranties or representations on behalf of the other Party.
- Notice. All notices shall be in writing and sent by regular mail, certified mail, overnight courier, facsimile (if confirmed by mail), or delivered personally to the addresses indicated in the signature block of the applicable Order Form, or such other address as either Party may indicate by at least ten (10) days prior notice to the other Party. Except as otherwise specified by a Party, notices shall be sent to the attention of the person identified in the signature block of the applicable Order Form. Notice shall be effective on the date shown on the delivery receipt or facsimile confirmation or, in the case of regular mail, actual receipt.
- Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The Parties agree to reform or replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
- No Third Party Beneficiaries. Simpson Strong-Tie and Client agree that, except as otherwise expressly provided in this Agreement, there shall be no Third Party beneficiaries to this Agreement.
- Export. Client acknowledges that the Simpson Strong-Tie Solutions may be subject to United States export controls. Client agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export of the Simpson Strong-Tie Solutions, or any technical information about the Simpson Strong-Tie Solutions, without fully complying with this Agreement, the United States Export Administration Act, any regulation thereunder, and all other applicable Laws.
- Use of Marks. No right to use any of the Simpson Strong-Tie Marks or the Client Marks is granted under this Agreement. Each of Simpson Strong-Tie and Client reserves all right, title and interest in their respective Marks, and any goodwill associated therewith.
- Publicity. Neither Party shall issue publicity or general marketing communications concerning the other Party without such other Party’s prior written approval.
- Dispute Resolution. If any controversy, dispute or claim arises between the Parties with respect to this Agreement, the Parties shall make good faith efforts to resolve such matters informally. In the event a dispute arising out of or relating to this Agreement is not settled between the Project Managers for the Parties, then the Parties shall escalate the dispute for resolution by authorized executive officers of Simpson Strong-Tie and Client. If the dispute is not resolved informally, the Parties agree that any disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration as set forth below. Any mediation or arbitration shall be initiated and conducted in San Francisco, California, and any arbitration shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the Effective Date of this Agreement, including Rules 16.1 and 16.2 of those Rules. Either Party may commence mediation by providing to JAMS and the other Party a written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The Parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their Affiliates, agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either Party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the Parties so desire. At no time prior to the Earliest Initiation Date shall either Party initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the Parties, including Section 16(o) below. However, this limitation is inapplicable to a Party if the other Party refuses to comply with the requirements of this Section. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The Parties will take such action, if any, required to effectuate such tolling.
- Equitable Remedies. The Parties acknowledge that a violation of Sections 4 of this Agreement by Client, or Section 11 of this Agreement by either Party, could cause irreparable harm to the other Party which would not be adequately compensated by monetary damages, and that in addition to other relief, the non-breaching Party shall be entitled to initiate a court action and obtain injunctive relief, without the necessity of posting a bond or other security, to prevent any actual or threatened violation of any such provision.
- Entire Agreement; Waiver. This Agreement (including any Exhibits, Order Forms and SOWs) sets forth the entire understanding and agreement of the Parties, and supersedes any oral or written agreements or understandings between the Parties, as to the subject matter of this Agreement. Only a subsequent agreement signed by both Parties may change this Agreement. The waiver of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach. The terms of any purchase order or other ordering document issued by Client in connection with this Agreement that are in addition to or inconsistent with the terms of this Agreement shall not be binding and shall not be deemed to modify this Agreement unless agreed to in writing by an authorized representative of Simpson Strong-Tie. In the event of any conflict or inconsistency in the interpretation of this Agreement, such conflict or inconsistency shall be resolved by giving precedence first to the applicable Order Form, then to these Standard Terms and Conditions, then to the Exhibits, then to any other applicable SOW, unless otherwise expressly provided in such documents.
- Counterparts. This Agreement may be executed in any number of counterparts, including facsimile or scanned PDF documents, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
“Acceptance Date” means the date when any Licensed Software or Services shall be deemed to have been accepted pursuant to Section 7.
“Affiliate” of a specified Person means any Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common Control with, the specified Person.
“Aggregated Data” means data that contains no Personally Identifiable Information or any other data that identifies or permits the tracing of individual data elements to Client or any other Person. “Agreement” means the Standard Terms and Conditions to which this Exhibit is attached, and any Exhibits, Order Forms and Statements of Work. “Application Services” means Simpson Strong-Tie’s provision of Software to Client as a Service pursuant to any Exhibit, Order Form or other Statement of Work.
“Authorized Users” means any of Client’s employees who shall have been assigned a User ID for the Application Services or who shall have been provided with access to any Licensed Software pursuant to a License; provided, however, that Client may only have as many User IDs or users for any Simpson Strong-Tie Solution as the number specified on the applicable SOW.
“Change Order” has the meaning ascribed to it in Section 6(d).
“Change Request” has the meaning ascribed to it in Section 6(d).
“Claims” means any claims, demands, actions, causes of action, prosecutions, suits, proceedings, damages, assessments, losses, liabilities, judgments, awards, fines, sanctions, taxes, levies, penalties, interest, charges, costs and expenses, including any reasonable attorney fees, expert witness fees, mediation fees, costs of investigation, arbitration fees, court costs and other fees and expenses related to any arbitration, litigation or other legal proceeding.
“Client Confidential Information” means Client’s Confidential Information, including Client Information, Client Data, marketing plans, strategies, forecasts, projections and other confidential information about Client’s business.
“Client Data” means any of Client’s data that is Uploaded for use in connection with the Simpson Strong-Tie Solutions.
“Client Marks” means trademarks, service marks, trade names, and logos used by Client to identify its products and/or services.
“Client Information” means any information provided by Client to Simpson Strong-Tie, including Client Data and Client Confidential Information.
“Confidential Information” means the terms of this Agreement and any information or materials disclosed, directly or indirectly, either orally, in writing or through visual inspection, which information includes, without limitation, financial information, business information, product information, technical information, customer information, operating practices, pricing and fee structures, and any other proprietary and confidential information; provided, however, that Confidential Information does not include any of the foregoing that: (i) has become generally known to the public or to other Persons who can obtain economic value from disclosure or use of the information; (ii) was in the Recipient’s possession or known by Recipient prior to the date of disclosure by the Disclosing Party, as proven by reasonably satisfactory evidence; (iii) becomes lawfully available to the Recipient from a source other than the Disclosing Party or a Person under a duty of nondisclosure to the Disclosing Party; (iv) is required to be disclosed by Recipient to comply with applicable Laws; or (v) is authorized for public dissemination by an authorized executive officer of Disclosing Party, as evidenced by written records. “Control” (including the phrases “Controlled by” and “under common Control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Correct” means, with respect to an Error or Deficiency, making a modification or addition to the Simpson Strong-Tie Solutions that, when made or added to the Simpson Strong-Tie Solutions, renders the Simpson Strong-Tie Solutions in substantial conformity with the applicable Documentation and/or SOW. “Correction Plan” has the meaning ascribed to it in Section 7.
“Deficiency,” with respect to Services, means any material failure of the Services, including any Deliverables, to comply substantially with the applicable SOW or the terms of this Agreement.
“Deliverables” means any report or other documents or materials that Simpson Strong-Tie is obligated to provide to Client pursuant to any SOW. “Designated System” means the computer server(s) and systems identified in writing by Client to Simpson Strong-Tie; provided that such servers and systems shall meet or exceed the Minimum System Requirements.
“Disabling Codes” means any malicious codes, expiration codes, response codes, viruses, programming routines, worms, date or time bombs, back doors, booby traps, trap doors or other codes placed therein for the purpose of causing Software to cease operation, or to damage, interrupt or interfere with use of or access to Software or any associated hardware or data. “Disclosing Party” means a Party that makes Confidential Information available to the other Party.
“Documentation” means any user manuals and documentation, user guides and any other operating, training, and reference manuals relating to the use of the Simpson Strong-Tie Solutions, and any instructions or on-line help files supplied by Simpson Strong-Tie to Client. “Error” means any reproducible and verifiable failure of the Simpson Strong-Tie Solutions to operate in all material respects in accordance with the Documentation.
“Error Report” means any report of an Error by Client to Simpson Strong-Tie that shall have been submitted by email to the applicable e-mail address provided by Simpson Strong-Tie to Client.
“Exhibit” means any of the Exhibits attached to this Agreement.
“Expenses” has the meaning ascribed to it in Section 8(b).
“Fees” has the meaning ascribed to it in Section 8(a). “Indemnified Party” has the meaning ascribed to it in Section 15(c). “Indemnifying Party” has the meaning ascribed to it in Section 15(c).
“Initial Term” means one (1) year. “Intellectual Property Rights” means any rights with respect to intellectual property, including: patents, patent applications and other rights related to patents; copyrights, rights to register copyrights, copyright registrations and other rights related to copyrights; trademarks, service marks, rights to register trademarks and service marks, trademark and service mark registrations and other rights related to trademarks and service marks; know-how and trade secrets and other rights related to confidential or proprietary information; other intellectual property and industrial property rights, whether or not subject to statutory registration or protection; and all rights under any license or other agreement or arrangement with respect to the foregoing.
“Internal Business Purposes,” with respect to the Licensed Software, means any use of the Licensed Software to process Client’s data, or to meet their internal or operational needs.
“Law” means any applicable common law, statute, code, regulation, rule, ordinance or judicial decision.
“License” means the license granted to Client in Section 2(a).
“License Fees” means the monthly fees or other fees for any Licensed Software specified in any Exhibit, Order Form or other Statement of Work.
“Licensed Software” means the Object Code for the Software identified in any Exhibit, Order Form or other Statement of Work pursuant to which Client licenses Software from Simpson Strong-Tie, and any Updates thereto; provided, however, that the Licensed Software shall not include any Source Code.
“License Term” means the period of time when Client shall have paid all License Fees for the Licensed Software.
“Live Support Hours” means (except as otherwise expressly provided in any SOW) Monday through Friday, 9:00 a.m. to 5:00 p.m. EST, excluding holidays (New Year's Day, Presidents' Day, Memorial Day, 4th of July, Labor Day, Thanksgiving Day, Day after Thanksgiving, Christmas Day).
“Minimum System Requirements” means any minimum requirements for Third Party Hardware and Software set forth in the Documentation or any SOW.
“Notice” has the meaning ascribed to it in Section 16(h). “Notice of Noncompliance” has the meaning ascribed to it in Section 7.
“Notice of Objection” has the meaning ascribed to it in Section 16. “Object Code” means any executable Software code produced by a compiler or assembler.
“Objection” has the meaning ascribed to it in Section 7. “Order Form” means any document that shall have been executed by the Parties pursuant to which the Client contracts for Licensed Software or Services.
“Party” means Simpson Strong-Tie or Client. “Person” means a natural person, partnership, trust, estate, association, corporation, limited liability company or other entity or person, whether domestic or foreign.
“Personnel” means Simpson Strong-Tie’s employees or contractors who perform Services.
“Personally Identifiable Information” means any information that can be used to identify, contact or locate a natural person, including name, address, telephone number, email address, social security number, driver’s license number, and credit card information.
“Professional Services” means the Services set forth on any Exhibit, Order Form or other Statement of Work that requires Simpson Strong-Tie to perform drafting, marketing content creation, implementation, setup, installation, configuration, integration, training, consulting, customization, design, development, testing or other Services related to the Simpson Strong-Tie Solutions.
“Prohibited Information” means information that contains Personally Identifiable Information (except as otherwise expressly provided in any SOW) or information that is obscene, threatening, libelous, defamatory, harassing, malicious, offensive or otherwise in violation of any Law, including information that infringes or misappropriates any Intellectual Property Right.
“Project Manager” has the meaning ascribed to it in Section 5.
“Recipient” means a Party that shall have received or been provided with access to Confidential Information disclosed or owned by the other Party.
“Release Event” means that: (1) Simpson Strong-Tie ceases to carry on business on a regular basis, or becomes insolvent, or enters into voluntary or involuntary receivership; and (2) the Licensed Software is no longer supported by Simpson Strong-Tie or its successor.
“Renewal Term” has the meaning ascribed to it in Section 12(a).
“Representatives” means, with respect to a Party, such Party’s directors, officers, Affiliates, employees, agents, consultants and independent contractors; provided that, for purposes of this Agreement, neither Party shall be considered or deemed to be a Representative of the other Party or any of the other Party’s Affiliates.
“Services” means any Application Services, Professional Services, Support Services or other services provided by Simpson Strong-Tie pursuant to any SOW.
“Simpson Strong-Tie Confidential Information” means Simpson Strong-Tie’s Confidential Information, including the Simpson Strong-Tie Technology, Simpson Strong-Tie Solutions, Work Product, Software, Documentation, trade secrets, formulas, data, designs, ideas, concepts, know-how, inventions, techniques, methodologies, marketing plans, strategies, forecasts and other confidential information about Simpson Strong-Tie’s business.
“Simpson Strong-Tie Marks” means trademarks, service marks, trade names and logos used by Simpson Strong-Tie to identify its products and/or services.
“Simpson Strong-Tie Solutions” means the Application Services and Licensed Software.
“Simpson Strong-Tie Technology” has the meaning ascribed to it in Section 10.
“Software” means any complete sequence of automatic data processing equipment instructions and all other computer software, programs or code of any kind, including Source Code, Object Code, application programs and software, mobile applications and apps, systems programs and software, modules, routines, graphical user interfaces, application programming interfaces, databases, libraries, subdivisions such as assemblers, compilers, routines, generators and utility programs, test programs, scripts, macros, and any other executable code or instructions, including any Updates related to any of the foregoing.
“Source Code” means any Software written by any Person, including a text listing of program instructions or commands.
“Statement of Work” or “SOW” means any document signed by both Parties that sets forth the Services to be performed by Simpson Strong-Tie, including any Exhibit or Order Form.
“Support Services” means the Services set forth on any Exhibit, Order Form or other Statement of Work that requires Simpson Strong-Tie to perform Services related to support or maintenance of the Simpson Strong-Tie Solutions.
“Support Telephone Number” means the telephone number for support that shall have been designated by Simpson Strong-Tie through written Notice to Client.
“Taxes” has the meaning ascribed to it in Section 8(d). “Term” means the Initial Term and any Renewal Term, unless earlier terminated pursuant to Section 12(b) or 12(c). “Third Party” means any Person other than Simpson Strong-Tie and Client.
“Third Party Hardware and Software” means any computers, servers, network components, cabling, peripherals, hardware, devices, parts, equipment, and any Software other than the Simpson Strong-Tie Solutions, including any operating systems, database products and application software.
“Third Party Rights” means any Third Party’s Intellectual Property Rights, property rights, privacy rights, rights of publicity or any other rights protected by Law.
“Update” means any update, new release, new version, module, enhancement, improvement, modification, addition, bug fix, patch, correction, or derivative work related to Software that Simpson Strong-Tie makes generally available as part of its standard Support Services to other licensees of the same Software.
“Upload” means to communicate, process, send, store, upload, input, provide, post or transmit.
“User ID” means a unique user identification name and password for access to and use of the Simpson Strong-Tie Solutions.
“Work Product” means any Software, inventions, designs, creations, tools, processes, methods, technical developments, improvements, enhancements, ideas, concepts, discoveries, formulas, engines, tools, algorithms and any other work of authorship conceived, originated, made, developed, authored or reduced to practice by Simpson Strong-Tie, alone or with others, in connection with the Simpson Strong-Tie Solutions and Services provided pursuant to this Agreement; provided, however, that Work Product does not include any Client Information.
- In General
- Support Services. In consideration of payment of all Fees, Simpson Strong-Tie shall provide the Support Services described in this Exhibit for the Simpson Strong-Tie Solutions. Client may request Support Services by telephone or by e-mail. Simpson Strong-Tie shall use commercially reasonable efforts to provide responses to Client’s questions; however, Support Services are not intended to be a substitute for fee-based Professional Services, such as implementation, training, on-site assistance, or custom programming, all of which may be furnished by Simpson Strong-Tie subject to staff availability at Simpson Strong-Tie’s then-current rates and expenses.
- Support Hours. Support Services shall be available only during Live Support Hours. Except as otherwise provided in this SOW, any request for Support outside of Live Support Hours will be processed and handled by Simpson Strong-Tie the next business day.
- Error Correction
- Error Reports. Client’s requests for Support Services may include submission to Simpson Strong-Tie of Error Reports. Prior to submitting any Error Report, Client shall first attempt reasonable steps to confirm that the problem is being caused by an Error in the Simpson Strong-Tie Solutions.
- Classification of Errors. Simpson Strong-Tie shall process each Error Report by classifying the alleged Error into one of the following severity levels. (i) Level 1 Severity. Level 1 Severity means that: (i) there is an Error in the Simpson Strong-Tie Solutions that causes a site outage such that the Application Services are unavailable for access or log in, or that causes the Licensed Software to completely fail or lose data (i.e., “crash”), or the Software is not able to communicate with external systems; and (ii) there is no Work Around Solution. “Work Around Solution” shall mean a solution that, when implemented, causes the Simpson Strong-Tie Solutions to function in a substantial conformity with the Documentation, but may require Client to take additional steps. (ii) Level 2 Severity. Level 2 Severity means that: (i) there is an Error in the Simpson Strong-Tie Solutions that causes a material service performance degradation or that impacts the performance or functionality of the Software; and (ii) there is no Work Around Solution. (iii) Level 3 Severity. Level 3 Severity means that: (i) there is a Work Around Solution for what would otherwise be classified as a Level 1 or Level 2 Severity Error; or (ii) there is an Error in the Simpson Strong-Tie Solutions that is minor or cosmetic in nature and which does not impact the performance or functionality of the Software.
- Response to Error Reports. Simpson Strong-Tie shall acknowledge receipt of an Error Report by Client in accordance with the following schedule: (i) One (1) hour after processing an Error Report involving a classification of a Level 1 Severity problem, (ii) Four (4) hours after processing an Error Report involving a classification of a Level 2 Severity problem, or (iii) One (1) business day after processing an Error Report involving a classification of a Level 3 Severity problem.
- Error Correction. If Client submits an Error Report to Simpson Strong-Tie, Simpson Strong-Tie will perform issue analysis to determine whether such alleged Error is an Error. If Simpson Strong-Tie confirms the existence of an Error, Simpson Strong-Tie will use reasonable efforts to perform Error Correction as follows: (i) Level 1 Severity. After processing a Level 1 Severity problem, Simpson Strong-Tie will promptly begin and continue to use reasonable efforts on a 24-hour basis to identify and Correct the Error. Simpson Strong-Tie will endeavor to Correct the Error within two (2) hours after processing and confirming the existence of a Level 1 Error. If the Error Correction is not complete within twenty-four (24) hours following processing of the Error Report, Simpson Strong-Tie will inform Client of the status of such Error Correction efforts and will continue such Error Correction efforts until Error Correction is complete. (ii) Level 2 Severity. After processing a Level 2 Severity problem, Simpson Strong-Tie will promptly begin and continue to use reasonable efforts during Live Support Hours to identify and Correct the Error. Simpson Strong-Tie will endeavor to Correct the Error within seventy-two (72) hours following processing and confirming the existence of a Level 2 Error. If additional time is required, Simpson Strong-Tie will inform Client of the status of such Error Correction efforts and will continue such Error Correction efforts until Error Correction is complete. (iii) Level 3 Severity. After processing a Level 3 Severity problem, Simpson Strong-Tie will use reasonable efforts during Live Support Hours to identify and correct the Error in the next release.
- Additional Support Terms.
- Updates. Simpson Strong-Tie may, in its absolute discretion, provide Client with Updates to the Licensed Software; provided, however, that Simpson Strong-Tie shall provide to Client any Update that Simpson Strong-Tie makes generally available as part of its standard Support Services to other licensees of the same Licensed Software.
- Limitations and Exclusions. Simpson Strong-Tie shall provide Support Services, including Error Correction, only if: (i) Client shall have paid all Fees and Expenses related to the Simpson Strong-Tie Solutions; (ii) no modifications, additions or changes to the Simpson Strong-Tie Solutions shall have been made by any Person other than Simpson Strong-Tie; (iii) Client shall have provided any information, data or assistance reasonably requested by Simpson Strong-Tie; (iv) the Licensed Software shall have been used only on the Designated Systems; (v) the Simpson Strong-Tie Solutions shall have been used only in accordance with this Agreement and the Documentation; and (vi) Client shall have installed the current or immediately preceding version release of the Licensed Software and any Updates thereto.
- Additional Fees. Simpson Strong-Tie may charge Client on a time and materials basis at its then-current hourly rates for any Services performed by Simpson Strong-Tie in response to any Error Report if the alleged Error shall have been caused by any: (i) Third Party Hardware and Software or any interoperability of the Simpson Strong-Tie Solutions with any Third Party Hardware and Software; (ii) any problem attributable to the Internet, public infrastructure or any environmental or other problems not directly related to the Simpson Strong-Tie Solutions; or (iii) any of the conditions set forth in Section 3(b) of this Exhibit.