Frontline EHS, Inc.
Terms and Conditions
Last Modified: June 1, 2023
These Terms and Conditions (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and Frontline EHS, Inc., a Texas Corporation (“Provider,” “we,” or “us”). This Agreement governs your access to and use of the Services.
This Agreement takes effect when you sign the associated Proposal or click the “I Accept” button (the “Effective Date”). By signing the associated Proposal or clicking on the “I Accept” button, you (A) acknowledge that you have read and understand this Agreement; (B) represent and warrant that you have the right, power, and authority to enter into this agreement and, if entering into this agreement for an organization, that you have the legal authority to bind that organization; and (c) accept this Agreement and agree that you are legally bound by its terms.
If you do not agree to this Agreement, please do not sign the associated Proposal and do not access the Services. If you do not accept this Agreement, you may not access or use the Services.
1. Definitions.
(a) “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(b) “Services” means the services provided by Provider under this Agreement that are detailed on the associated Proposal.
(c) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Services.
(d) “Documentation” means Provider’s end user documentation relating to the Services available to Customer with use of the Services.
(e) “Provider IP” means the Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
(f) “Proposal” means the Proposal presented to Customer by Provider, or the order submitted by Customer on Provider’s website, which includes information around the Services, any support offerings, order forms, implementation services and timeline, custom integration and data migration, and associated Fees.
(g) “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Services.
2. Access and Use
(a) Provision of Access. Subject to and conditioned on the terms and conditions of this Agreement, Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein and the applicable Proposal. Provider shall provide you the necessary passwords and access credentials to allow you to access the Services.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Services.
(c) Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Services, any software component of the Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services, any software component of the Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
(d) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use of the Services to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge that Provider may compile Aggregated Statistics based on Customer Data input into the Services. You agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
(e) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Provider IP.
(f) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any other Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer or any other Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Provider’s provision of the Services to Customer or any other Authorized User is prohibited by applicable law; or (F) Customer’s or Authorized User’s use of Services violates Provider’s Terms of Service (https://www.fldata.com/terms) or Privacy Policy (https://www.fldata.com/privacy-policy) which are hereby incorporated by reference to this Agreement; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
3. Customer Responsibilities.
(a) Terms of Service. The Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Provider’s acceptable use policy (“TOS“) located at https://www.fldata.com/terms, as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on https://www.fldata.com/terms from time to time, including the TOS.
(b) Account Use. You are responsible and liable for all uses of the Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
(c) Customer Data. You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
(d) Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
(e) Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
(f) Equipment. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You are also responsible for maintaining the security of the Equipment, your account, and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
4. Service Levels and Support.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels available in Exhibit A of this Agreement (“Service Levels”).
(b) Support. The access rights granted hereunder entitle Customer to the support services described on Provider’s website located in Exhibit A of this Agreement.
(c) Maintenance. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Provider or by third-party providers, or because of other causes beyond Provider’s reasonable control, but Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
5. Fees and Payment.
(a) Customer shall pay Provider the fees as described on the Proposal (“Fees“) within thirty (30) days from the invoice date without offset or deduction unless otherwise identified in the associated Proposal. Customer shall make all payments hereunder in US dollars on or before the due date. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend, in accordance with Section 2(g), Customer’s and all other Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
(b) For annual agreements, Provider reserves the right to change any and all charges. During the Initial Term, charges are subject to an annual increase equal to the greater of seven percent (7%) or the increase in United States Consumer Price Index (“CPI”) over the preceding twelve months. After the initial term, any changes other than the 7% or CPI price increase will be submitted to Customer in the form of a new price quote in a reasonable amount of time prior to the expiration of the current Agreement. Customer agrees that all such changes shall be effective immediately. If Customer does not agree with the changes, then Customer shall have 30 (thirty) days from the time of submittal of the price changes to continue under the terms and conditions or the Agreement will terminate. For Month-to-Month Agreements, Provider reserves the right to change any and all charges once annually as of the first anniversary of the Effective Date of the effective Proposal and each annual anniversary thereafter.
6. Confidential Information. From time to time during the Term, Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Privacy Policy. Provider complies with its privacy policy, available at https://www.fldata.com/privacy-policy (“Privacy Policy“), in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
8. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Services and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback. 9
9. Limited Warranty and Warranty Disclaimer.
(a) Provider warrants that the Services will conform in all material respects to the Service Levels when accessed and used by Customer in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in the Service Levels. The remedies set forth in the Service Levels are Customer’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 9(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Services are in compliance with the TOS.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE SERVICES ARE PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. Indemnification.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold Customer harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses“), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim.
(ii) If such a Third-Party Claim is made or Provider reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
(iii) This Section10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 10 EXCEED $10,000.
11. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The exclusions and limitations in this Section 11 do not apply to the parties’ obligations under Section 10.
12. Term and Termination.
(a) Term. The term of this Agreement begins on the Effective Date of the Proposal and continues until terminated, or the termination date of the Proposal (the “Initial Term”). Annual agreements for the Services that are specified to automatically renew will renew for additional successive one-year term unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 90 days prior to the expiration of the then-current services period. Month-to-Month agreements for Services will automatically renew for additional one-month terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current services period. For annual agreements, Provider will give Customer reasonable notice of an upcoming automatic renewal term for Annual Agreements.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) For Month-to-Month agreements, either Party may terminate this agreement, effective on written notice to the other party with 30 days notice.
(ii) Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
(iii) Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Termination or Expiration. Upon termination or expiration of this Agreement, Customer shall immediately discontinue use of the Provider IP. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund. Provider will make Customer Data available for Customer 30 days after termination, and will delete all Customer Data 30 days after termination.
(d) Survival. This Section 12(d), Sections 5, 6, 10, 11, 14, 15, 16, and 17, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
13. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts on our website or direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide at least 30 days’ advance notice of changes to any service level that Provider reasonably anticipates may result in a material reduction in quality or services.
14. Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or the software or technology included in the Services to, or make the Services or the software or technology included in the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the software or technology included in the Services available outside the US.
15. US Government Rights. Each of the software components that constitute the Services and the Documentation is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government customers and their contractors.
16.Governing Law Arbitration.
(a) This agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
(b) Any and all disputes, controversies or differences which may arise between the Parties out of or in connection with this Agreement, or the breach hereof, which cannot be amicably settled by negotiation between the Parties within 30 days from delivery of written notice of that dispute by one Party to the other Party, shall be finally determined by arbitration administered by the International Centre for Dispute Resolution (“ICDR”) in accordance with its International Arbitration Rules. The place of arbitration shall be Houston, Texas. All documents to be filed in the course of an arbitration shall be filed in the English language and all oral proceedings shall be conducted in the English language. Each Party shall bear its own costs of translation, without prejudice to a final determination on the allocation of costs. Except to the extent required by applicable law, neither Party may disclose the existence, content or results of any arbitration hereunder (other than to its accountants and attorneys) without prior written consent of the other Party. Each Party shall cause its representatives, witnesses and any arbitrators to assume confidentiality obligations no less stringent than those provided in this Agreement, during and after the Term, with respect to the existence, content or results of any arbitration hereunder. If you do not agree to arbitrate any disputes, controversies, or differences, please notify us within 30 days of execution of a Proposal.
(c) If arbitration is opted out of or otherwise not available, any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Houston and County of Harris, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
17. No Legal Advice. Customer acknowledges and agrees that Provider does not and shall not provide Customer with any legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which Customer uses the Services, including those related to data privacy or medical, pharmaceutical or health related data. Customer acknowledges that Services may be used in ways that do and do not comply with such laws, rules or regulations. It is Customer’s sole responsibility to monitor its compliance with all such relevant laws, rules or regulations. Customer is responsible for such Customer-specific use decisions and Provider disclaims all liability for such decisions.
18. Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address PO Box 37072, Houston, Texas, 77057 and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.
EXHIBIT A
SERVICE LEVEL AGREEMENT
UPTIME.
1. Uptime Service Level Agreement. Service Provider shall use all commercially reasonable efforts to ensure that the Service is available to Subscriber 99.9% of the time in any calendar month. If the Service falls below 99.9% in any calendar month, Service Provider will provide Subscriber the Service Credits described below (the “Uptime Agreement”).
| Monthly Uptime Percentage | Service Credit |
| Below 99.9% but above 99.0% | One day of Service credited to Subscriber’s account |
| Below 99.0% but above 95.0% | Ten days of Service credited to Subscriber’s account |
| Below 95.0% | Thirty days of Service credited to Subscriber’s account |
2. Service Credits Generated Upon Request. Subscriber is required to request Service Credits in order to receive them. Provider will monitor its Monthly Uptime Percentage, and credit Subscriber on its next invoice any Service Credits that are due upon request.
3. Maximum Service Credit. The aggregate maximum number of Service Credits Subscriber can claim for Downtime periods that occur in a single calendar month shall not exceed the equivalent of thirty days of Service value added to Subscriber’s account.
4. Exclusions. This Uptime Agreement does not apply to any performance issues: (a) caused by factors outside of Service Provider’s reasonable control; (b) that resulted from Subscriber’s actions or inactions, or the actions or inactions of a third party; or (c) that resulted from Subscriber’s equipment or third party equipment.
5. Definitions. The following definitions apply to this Uptime Agreement. Defined terms used here, but not defined here, are defined in the Agreement.
“Downtime”means, in a given calendar month, the number of minutes during which there is more than a ten percent user error rate. Downtime does not include Emergency Downtime or Scheduled Downtime.
“Emergency Downtime” means those times where Service Provider becomes aware of a vulnerability which, based on a risk assessment of the vulnerability, Service Provider determines requires immediate remediation and, as a result, the Service is made temporarily unavailable in order for Service Provider to address the vulnerability. Emergency Downtime is not considered Downtime for purposes of this Uptime Agreement.
“Monthly Uptime Percentage” means the total number of minutes in the calendar month minus the number of minutes of Downtime suffered in the calendar month, divided by the total number of minutes in the calendar month.
“Scheduled Downtime” means those times where Service Provider notifies Subscriber of Downtime at least seven days prior to the commencement of such Downtime, provided that there will be no more than twelve hours of Scheduled Downtime per calendar year. Scheduled Downtime is not considered Downtime for purposes of this Uptime Agreement.
HELP DESK.
1. Method of Contact. Service Provider shall use all commercially reasonable efforts to provide technical support for the Service (the “Help Desk”) to Subscriber’s authorized users pursuant to the terms set forth herein. The Help Desk acts as a central point of contact for all technical support issues. These include issues related to system configuration, consultation, installation and troubleshooting. Support requests may be submitted online via email or by phone. Please note that due to staffing limitations phone support may not be immediately available at all times and waiting in queue is normal.
Email: support@fldata.com
Phone: +1 (281) 313-8200 ext. 4
2. Hours of Operation. Regular business hours are 8:00 a.m. to 5:00 p.m. Central Time, Monday through Friday. Exceptions may be made for closures due to holidays, administration, or inclement weather. During closures and non-business hours, Help Desk requests shall be answered in Service Provider’s discretion.
3. Subscriber Responsibility.Before contacting the Help Desk for service interruptions please verify power to network equipment and internet services. When contacting the Help Desk please have complete contact information (first and last name, company ID/name, and phone number) and a clear, specific description of the problem or request including any error messages received.
4. Help Desk Responsibility.Service Provider’s Help Desk team members will, using tracking software, call logs, and email transactions, maintain records of incoming requests as they are received. When receiving a request by telephone the Help Desk team member will attempt to determine the nature of the problem, create a service ticket, and refer the query to the appropriate technician or staff member. All requests will be handled according to the Priorities and Response Times statement below; all requests will receive an initial response the same business day the request is received. Notwithstanding any terms contained herein to the contrary, Service Provider shall not have any obligation to expand the scope of the Service by reason of offering the Help Desk.
5. Priorities and Response Times.The Help Desk will use the following guidelines in handling requests and will make all reasonable attempts to respond and resolve all requests within the timeframe allotted. Actual response and resolution times may vary depending on the volume of requests at any given time. If a request cannot be handled within the allotted timeframe the reporter will be notified and provided an estimated time of completion.
| Classification | Acknowledgement/ Response | Severity | Target Resolution Time |
| High | Acknowledgement in 15 minutes and update every 60 minutes until completed | All users are affected and/or Service is substantially non-functional | As quickly as possible |
| Medium | Acknowledgment in 1 hour and updates every 24 hours until completed | Elevated support request involving multiple Customers of Provider. Some users are affected and/or Service is partially non-functional | Should be completed within one business day from receipt |
| Low | Acknowledgment in 1 business day and updates upon request until completed. | Standard support request involving Customer use of Service. Most users are unaffected and/or Service remains substantially functional | Should be completed within 1-14 business days depending on issue |