Software License Terms
(For Software Used Internally, Only)
BY EXECUTING A SOW THAT REFERENCES THESE TERMS AND CONDITIONS, VENDOR IS ACCEPTING ALL OF THESE TERMS AND CONDITIONS. VENDOR AGREES THAT THESE TERMS AND CONDITIONS ARE ENFORCEABLE LIKE ANY WRITTEN AGREEMENT BINDING ON, OR SIGNED BY, VENDOR.
These Software License Terms (“Software Terms”) are entered into by and between YTH! Taiwan Holdings Limited, Taiwan Branch (“YTH”) and you (“Vendor”) and are effective as of the Start Date. Except for terms defined in the body hereof, capitalized terms used herein are defined in Section 19 of these Software Terms.
Scope of Agreement; SOW. From time to time, YTH and Vendor may mutually execute written statements of work for the purchase of licenses to Software and any related Services (as defined below) (“Statement of Work” or “SOW”). These Software Terms together with any executed SOWs and exhibits and attachments to such SOWs are collectively referred to as the “Agreement.” Vendor will not make any Software available to YTH unless the parties have first executed an SOW and YTH has issued a Purchase Order to Vendor.
Software.
2.1 License Grant. Vendor grants YTH a worldwide, non-exclusive, irrevocable (except for YTH’s material breach), royalty-free license to make, use, reproduce, display, distribute, import and disclose the Software for YTH’s business purposes. Each license is perpetual unless otherwise specified in the applicable SOW. There are no user, copy, site, platform or other similar restrictions on use of the Software except as specified in the applicable SOW (and any such restrictions apply on a per-SOW basis).
2.2 Terms Applicable to All License Grants. For all licenses granted to YTH: (a) YTH may extend its license rights to contractors acting on YTH’s behalf, so long as YTH remains responsible for their compliance with the Agreement; YTH(b) YTH may transfer Software from one hardware platform or operating system to another hardware platform or operating system (or both) for which the Software is or becomes generally available (and upon request from YTH, Vendor will provide the applicable compatible version of the Software to YTH), at no additional charge; (c) YTH may relocate the Software, either temporarily or permanently, (i) to any replacement computer(s), server(s) or facility(ies) or and/or (ii) from one country or region to another, in each case without limitation or reason and at no additional charge; (d) YTH may make sufficient copies of the Software to support YTH’s authorized use and for backup and archival purposes; and (e) the Software licenses are made under all applicable intellectual property rights of Vendor worldwide, including patent rights, consistent with the scope of the license elsewhere described in this Section 2. Vendor acknowledges and agrees that if Vendor releases any Re-Branded Software, such Re-Branded Software will be deemed “Software” under the Agreement and YTH will not be required to purchase any additional licenses or pay additional fees for Maintenance and Support (as defined below).
2.3 License Restrictions. YTH agrees not to: (a) decompile, disassemble, or reverse engineer the Software (except to the extent these restrictions are limited by applicable Law); (b) except as permitted in the Agreement, distribute, sell, sublicense, rent, lease or use the Software on behalf of third parties; (c) remove any proprietary notices contained in the Software; or (d) modify or create a derivative work of the Software unless expressly authorized in writing by Vendor.
Delivery, Maintenance and Support, and Services.
3.1 Delivery. Unless otherwise specified in an SOW, Vendor will deliver the Software to YTH electronically within twenty four (24) hours of the Effective Date of each SOW. Vendor will not deliver any Software in a manner that will incur any tax charges under any law, regulation or order (“Law”), including any Law related to tax-free electronic delivery of software.
3.2 Maintenance and Support. Vendor will provide YTH with maintenance and support (“Maintenance and Support”) in accordance with the Maintenance and Support terms attached to an SOW. If no Maintenance and Support terms are attached to an SOW, the terms of Exhibit A(Maintenance and Support) will apply. In any event, Maintenance and Support will include, at a minimum, the same technical support services and the same access to Maintenance Releases offered by Vendor to any similarly situated licensee.
3.3 Termination of Maintenance and Support. YTH’s non-payment of any Maintenance and Support fees will in no event result in termination of the Agreement, or of any licenses granted hereunder, but will instead operate as an election on YTH’s part to discontinue such Maintenance and Support upon expiration of the Maintenance and Support term(s) for which YTH has paid. YTH may renew Maintenance and Support at the original prices set forth in the applicable PO or SOW with no reinstatement fee or penalty; provided, however, that if YTH has discontinued such Maintenance and Support for 24 months or more, then the parties will engage in good faith discussions regarding a mutually agreed upon reinstatement fee.
3.4 Services. Vendor will perform installation, implementation, configuration, training, or other professional services for the Software (“Services”) as specified in an SOW. Vendor must comply with the terms and conditions of Exhibit B if Vendor performs Services (or otherwise accesses any YTH Data, YTH Systems or YTH facilities, as each is defined in Exhibit B). Services and any associated deliverables are deemed included in the “Software” for purposes of Vendor’s representations, warranties and indemnification obligations.
Ownership of Intellectual Property. Except for the express licenses granted hereunder, as between the parties, Vendor and its suppliers retain all right, title and interest (including intellectual property rights) to the Software.
Representations and Warranties.
5.1 Mutual. Each party represents and warrants to the other that it has the full right and power to enter into and perform under the Agreement, without any third party consents or conflicts with any other agreement.
5.2 By Vendor. Vendor further represents, warrants and covenants that: (a) the Software will operate substantially in conformance with its Documentation (the “Performance Warranty”) (i) for Software provided on a subscription basis, at all times during the applicable subscription term and (ii) for all other Software, for ninety (90) days after delivery; (b) Vendor will perform the Services in a timely and professional manner in accordance with the requirements and specifications in the applicable SOW (and, in event of any breach of this warranty, promptly re-perform the Services, at no charge to YTH, to bring them into conformance with the warranty); (c) the Software and, if applicable, the media on which the Software is delivered will be free of viruses, Trojan horses, trap doors, backdoors, Easter Eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, disable, deactivate, or expropriate any YTH Information System(s); (d) the Software does not contain and is not provided with any open source software except as expressly disclosed in the Documentation and in any event (i) the Software contains no code licensed under any version of any GPL, Affero or other “copyleft” license and (ii) use of the Software will not subject YTH to the terms of any open source or other third-party license agreement; (e) except for any license keys or authorization codes disclosed to YTH in the Documentation, the Software will be free of software disabling devices, time-out devices, counter devices and devices intended to collect data regarding usage of the Software; (f) Vendor has all necessary rights to grant the rights and licenses granted hereunder; (g) the Software does not and will not infringe, violate, or misappropriate any third party intellectual property rights; (h) there are no pending or threatened claims pertaining to the Software or that would otherwise prevent Vendor from fulfilling its obligations under the Agreement (and Vendor will promptly notify YTH in event of such a claim); and (i) the Software and any Services performed hereunder will comply at all times with all Laws, including, without limitation, those relating to privacy and data protection.
5.3 Remedy of Defects. If YTH reports a breach of the Performance Warranty, Vendor will, without charge, correct or repair the Software to bring the Software into conformance with the Performance Warranty. If Vendor is unable to make the Software conform to the Performance Warranty within thirty (30) days after YTH’s notice, then YTH may terminate the Agreement and Vendor will refund to YTH (a) for Software provided on a subscription basis, any prepaid fees for the terminated portion of the subscription term and for the period in which the Software did not meet the Performance Warranty, as well as fees for related services and (b) for all other Software, all fees paid for the Software and related services. Other than any remedies available to YTH in any applicable Maintenance and Support terms, this Section 5.3 sets forth Vendor’s sole and exclusive liability, and YTH’s sole and exclusive remedy, for any breach of the Performance Warranty by Vendor.
5.4 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THE AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Payment; Taxes. YTH will pay the fees specified in the applicable SOW. Payment will be made ninety (90) days after YTH’s receipt and approval of an invoice referencing the applicable PO number and itemizing all of Vendors’ fees and charges (and subject to any agreed upon discounts). Vendor will be solely responsible for all taxes relating to the Software. YTH may withhold amounts disputed in good faith while the parties attempt to resolve the dispute, and this will not constitute a breach. Unless specified in the applicable SOW, if Vendor is providing Services, Vendor will not invoice YTH for either the Software or the Services (and YTH will not incur any fees) until YTH notifies Vendor that the Services have been successfully completed in accordance with the SOW and otherwise so as to enable YTH to use the Software as contemplated in the Agreement and the applicable SOW. No Vendor expenses will be reimbursed unless specified in the applicable SOW; in any event, all reimbursable expenses must be pre-approved in writing by YTH and meet any expense policy that YTH may provide. YTH will have no obligation to pay any fees that Vendor fails to invoice within one hundred twenty (120) days after the fees were incurred. There are no fees or other charges or amounts due to Vendor except as stated in this paragraph.
Term and Termination.
7.1 Term. The Agreement starts on the Effective Date and continues until expiration of all Software licenses (if term-licensed) or otherwise until terminated as provided herein. For term-licensed Software and Maintenance and Support, YTH is not obligated to enter into renewals, but Vendor will offer annual renewals to YTH so long as it makes the Software or Maintenance and Support (as applicable) generally available. Any renewal terms will be subject to the Agreement.
7.2 Termination. Either party may terminate the Agreement (including all SOWs) if the other party fails to cure any material breach of the Agreement within thirty (30) days after written notice of the breach. YTH may terminate the Agreement and/or any SOW at any time for convenience by giving Vendor thirty (30) days’ written notice. If Vendor is seeking to terminate based on YTH’s failure to pay undisputed fees due hereunder, (a) Vendor will provide a payment reminder with an additional thirty (30) days to cure before sending a breach notice as described above. If the Software is licensed on a subscription basis and YTH terminates for breach by Vendor, Vendor will promptly refund to YTH any prepaid fees for the terminated period. Except where an exclusive remedy may be specified, the exercise by either party of any remedy under the Agreement, including termination, will be without prejudice to any other remedies it may have under the Agreement, by Law, or otherwise.
7.3 Effect of Termination. Promptly after termination or expiration of the Agreement, each party (as recipient) will return the other party’s Confidential Information or destroy it and certify destruction. Sections 4 (Ownership of Intellectual Property), 5 (Representations and Warranties), 7.3 (Effect of Termination), 7.4 (Transition Period), and 8 (Insurance) through 19 (Definitions), and YTH’s rights to any Services deliverables (including Custom Deliverables, as defined in Exhibit B), will survive any termination or expiration of the Agreement. If YTH terminates the Agreement for Vendor’s material breach, then for any term-licensed Software or for Maintenance and Support, Vendor will provide a pro-rated refund of all fees applicable to the terminated period.
7.4 Transition Period. As exceptions to Section 7.3, YTH will have the rights upon termination or expiration of the Agreement for any reason: (i) to retain a reasonable number of archival copies of the Software; and (ii) if specified in the applicable SOW, at YTH’s election, to enjoy a transition period of up to nine (9) months from the termination date to continue to exercise all rights under the Agreement, subject to all conditions and obligations hereunder (including payment of applicable fees).
Insurance. Vendor will comply with the following insurance provisions:
8.1 Coverage. Vendor will obtain and keep in effect, at Vendor’s expense, insurance coverage as follows: (a) commercial general liability insurance, on an occurrence policy form, with policy limits equal to or greater than $2,000,000 per occurrence for bodily injury and property damage and $2,000,000 general aggregate, covering operations by or on behalf of Vendor, including coverage for: (i) premises and operations, (ii) products and completed operations, (iii) contractual liability, and (iv) personal injury liability/advertising injury; (b) (if Vendor has access to YTH’s financial systems, any financial data or physical assets, including money and securities), fidelity/ commercial crime insurance providing coverage for third party assets and naming YTH as a loss payee, with policy limits equal to or greater than $3,000,000; (c) (if Vendor has access to YTH confidential/proprietary information or such data relevant to YTH customers, or is providing any type of media services, professional liability/errors and omissions and cyber liability, with policy limits equal to or greater than $3,000,000 each claim, with coverage including: defamation, copyright infringement, trademark, and trade dress, loss of data, invasion of privacy, network security liability, theft, unauthorized disclosure, alteration, corruption, destruction or deletion of information stored or processed on a computer system, the failure to prevent the transmission of malicious code or malware (intentional or unintentional), data breach response, including remediation expenses, and infringement upon materials used in the project or provision of services (d) automobile liability insurance, covering all owned, hired and non-owned automobiles with policy limits equal to or greater than $2,000,000 combined single limit each accident for bodily injury and property damage; (e) statutory workers' compensation as required by the laws of the state(s) in which the services are provided and employer's liability insurance with limits equal or greater than $1,000,000 for bodily injury by accident, $1,000,000 each employee for bodily injury by disease and $1,000,000 policy limit by disease; (f) umbrella liability insurance, on an occurrence policy form, with policy limits of $5,000,000 per occurrence and in the aggregate; and (g) such other insurance coverage and policy limits, as may be requested by YTH.
8.2 Certificates and Policies of Insurance. A Certificate of Insurance evidencing all required coverage must be furnished to YTH before Vendor provides any Services, and annually thereafter upon expiration of policies, throughout the Term of the Agreement. Vendor will provide YTH thirty (30) days' prior written notice of cancellation, adverse material change in coverage or intent not to renew any insurance coverage(s) required to be maintained by the Agreement. All insurance policies will be written by financially viable companies rated by A. M. Best as A-VII or better and duly licensed and authorized to do business in the state, province or territory in which service is provided. YTH and its respective subsidiaries, directors and employees shall be included as an additional insured under Vendor’s policies, except for the fidelity/commercial crime and workers compensation/employers liability. A waiver of subrogation shall apply in favor of the above-referenced additional insured parties with respect to all required policies. Vendor's liability policies shall be primary and non-contributory with any insurance or program of self-insurance that may be maintained by YTH. Vendor agrees to indemnify and hold YTH harmless for covered losses and/or occurrences that fall within any applicable deductible or self-insured retention if such losses are Vendor's responsibility under the Agreement. YTH
8.3 Continuation of Insurance. If any of the insurance policies are written on a claims-made basis, coverage shall be maintained for at least one (1) year following expiration of this Agreement.
8.4 Obligations. In no event will the insurance coverage, deductible, self-insured retention or limits of any insurance maintained by Vendor under the Agreement, or the lack or unavailability of any other insurance, limit or diminish in any way Vendor’s obligations or liability to YTH under the Agreement.
Limitation of Liability. EXCEPT FOR ANY CLAIMS OR LIABILITIES ARISING UNDER SECTION 10 (CONFIDENTIAL INFORMATION) OR VENDOR’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT OR, IF APPLICABLE, SECTION 1 (YTH DATA, SYSTEMS AND FACILITIES) OF EXHIBIT B: (A) NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) NEITHER PARTY’S AGGREGATE LIABILITY UNDER THE AGREEMENT WILL EXCEED THREE MILLION U.S. DOLLARS (U.S. $3,000,000).
Confidential Information. “Confidential Information” means information disclosed by one party to the other that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. Confidential Information excludes information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was rightfully obtained by the recipient from a third party. The recipient agrees not to disclose Confidential Information except to its Affiliates, employees and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under the Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by Law after providing reasonable notice to the disclosing party and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information.
No Publicity. Vendor will not publicly announce the Agreement or the parties’ relationship or use YTH’s name, logo or marks without YTH’s written pre-approval in each case.
Indemnification. Vendor will indemnify, defend and hold harmless YTH (including its and their respective directors, officers, employees and agents) from and against any and all third party claims, demands, losses, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) (“Claims”) arising from or relating to: (a) any infringement or alleged infringement by the Software or YTH’s use thereof of any third-party intellectual property right, (b) Vendor’s failure to comply with any Laws or its breach of the representations and warranties in Section 5.2(d) (regarding open source) or its obligations (if applicable) in Paragraph 1 (YTH Data, Systems and Facilities) of Exhibit B, and (c) any personal injury or property damage caused by the negligence or willful misconduct of Vendor (including its employees, agents and subcontractors). YTH will give Vendor prompt written notice of any Claim and will cooperate in relation to the Claim at Vendor’s expense. Vendor will have the exclusive right to control and settle any Claim, except that Vendor may not settle a Claim without YTH’s prior written consent (not to be unreasonably withheld) if the settlement requires YTH to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials). YTH may participate in the defense of any Claim at its expense. If an infringement claim is asserted, or if Vendor believes one likely, Vendor will: (i) procure a license from the person(s) claiming or likely to claim infringement or (ii) modify the Software to make it non-infringing. If neither of these options is reasonably available to Vendor, then the Agreement may be terminated at the option of YTH or Vendor, in which case Vendor will promptly refund to YTH all fees paid by YTH to Vendor under the Agreement with respect to the affected Software, as depreciated on a five-year straight-line basis. For the avoidance of doubt, none of the foregoing actions will relieve Vendor of its indemnity obligations above.
No Gratuity. Vendor represents, warrants, and covenants that no officer, director, or employee of YTH, or any of their immediate family members: (a) has received or will receive anything of value of any kind from Vendor in connection with the Agreement; or (b) has a business relationship of any kind with Vendor.
Anti Corruption Compliance. Vendor agrees to comply with the Foreign Corrupt Practices Act, UK Anti-Bribery Act, and other applicable anti-corruption laws. Vendor represents and warrants that neither Vendor nor any of its directors, officers, employees, agents, or other third parties performing services for or on behalf of Vendor will make or has made or offered, or caused to be made or offered, any bribe, payment, commission, gift, inducement, or anything of value, directly or indirectly, to anyone, including but not limited to: 1) any official or employee of any government or any agency or instrumentality thereof, including state-owned or state-sponsored businesses or public international organizations; 2) any political party, employee thereof, or any candidate for political office; 3) any individual who holds a legislative, administrative, judicial, or other public authority; or 4) any non-governmental entity in order to: influence any official act or decision related to the subject of this Agreement or the business of YTH, secure any improper advantage, obtain or retain business, or direct business to any person or entity in violation of applicable anti-corruption laws. Vendor agrees to keep complete, accurate records in relation to this Agreement and will make them available for inspection upon YTH’s request. Vendor agrees it will promptly report to YTH and cooperate in investigation of any potential or actual violation of any anti-corruption laws relating to this Agreement.
Trade Compliance. Vendor agrees to comply with the export laws and regulations of the United States and trade controls of other applicable countries, including without limitation the Export Administration Regulations of the U.S Department of Commerce, Bureau of Industry and Security and the embargo and trade sanction programs administered by the U.S. Department of Treasury, Office of Foreign Assets Control. Vendor will not nor cause the export, re-export, resale, diversion, directly or indirectly, of any export-controlled items, software, or technology to any country or entity for which the Government of the United States or other applicable countries requires an export license or other governmental approval without first obtaining such license or approval. Vendor represents and warrants that neither Vendor nor its agents are identified on any government export exclusion lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists. Vendor will provide YTH with all information that may be required for trade compliance purposes, including applicable export control classification numbers and documentation substantiating U.S. and foreign regulatory approvals. Under the U.S. export controls, transfers of certain export-controlled software and technology to foreign nationals are treated as exports to the foreign nationals’ home countries (otherwise known as “deemed exports”) and may require export licenses. Vendor will comply with U.S export controls regulating deemed exports, will obtain all export licenses that may be required before releasing export-controlled software and technology to its foreign national personnel, and ensure that none of its personnel working under this Agreement are identified on U.S. Government export exclusion lists.
YTH Notices. All notices will be in writing, and delivered by overnight courier or mailed, first-class postage prepaid, or sent by facsimile with confirmation of transmission, to the recipients as set forth on the applicable SOW.
Vendor Notice Address: at the address set forth on the applicable SOW. All notices will be deemed received as follows: (a) one (1) business day after deposited with a nationally recognized overnight carrier service, such as FedEx; (b) five (5) days after the day deposited with the postal service; or (c) the day transmitted by confirmed facsimile transmission, if transmitted during normal business hours. Either party may update its notice address by sending written notice of such change to the other party as set forth in this Section.
General. Neither party may assign the Agreement (in whole or in part) without the other party’s prior written consent, except that YTH without such consent may make such an assignment to an affiliate or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of YTH’s voting securities or assets. Non-permitted assignments are void. If any provision is found to be unenforceable, it (and related provisions) will be interpreted to best accomplish the parties’ intended purpose. In these Software Terms, “including” means “including without limitation” (and similar terms will be construed without limitation) and headings are for convenience only and will not affect interpretation. Waivers of any breaches of the Agreement must be signed by the waiving party and one waiver will not imply any future waiver. The Agreement will be deemed to have been made in, and will be construed pursuant to the laws of Taiwan, without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Vendor agrees to submit to the exclusive jurisdiction the Taipei District Court located in Taiwan. Any claim against YTH will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party. The Agreement is non-exclusive; nothing herein prohibits YTH from creating or offering any similar product or service or entering into any similar agreement with any other party. At YTH’s reasonable request, Vendor will cooperate in good faith and in a timely manner with YTH’s other vendors to allow them to efficiently perform services for YTH. The Agreement (which includes these Software Terms together with any executed SOWs and exhibits and attachments to such SOWs) is the parties’ entire agreement regarding its subject matter and supersedes and cancels all previous agreements and communications (written or oral) relating to its subject matter. No clickwrap or other Vendor license terms or any contractual terms referenced in Vendor quotes (or other Vendor ordering documents) apply to YTH or its users. The parties acknowledge and agree that, in the event of bankruptcy of Vendor, the licenses granted to YTH under the Agreement constitute a “license of intellectual property” subject to Section 365(n) of the United States Bankruptcy Code, and that YTH will be entitled to all rights and benefits of such Section 365(n) in accordance with its terms and conditions. In the event of a conflict between the provisions of these Software Terms and any PO or SOW, the provisions of these Software Terms will control. A PO or SOW may amend these Software Terms only if the amended terms contained in such PO or SOW (a) apply only to the individual PO or SOW and not to any other PO or SOW; and (b) specifically identify the provision(s) of these Software Terms they amend. YTH may amend these Software Terms at any time by posting such amended Software Terms on the applicable YTH Company Website or by email, and such revised Software Terms will supersede and replace the earlier Software Terms. Any provision of licenses of Software or receipt of payment from YTH after such amendment will be deemed to be acceptance by Vendor of the amended Software Terms. Any other amendments to these Software Terms must be in writing and signed by both parties.
Definitions.
“Documentation” means documentation made available to YTH in relation to the computer code described in an SOW (including any documentation made available by Vendor to similarly situated licensees).
“Effective Date” means the date that the parties mutually execute the initial SOW.
“Information System” means: (a) any information or communications system, including net-services, computer systems, data networks, software applications, broadband/satellite/wireless communications systems, and voicemail; and (b) the means of access to such systems, including all authentication methods.
“Maintenance Releases” means major releases, minor releases, upgrades, updates, modifications, improvements, enhancements and bug fixes to the Software.
“Re-Branded Software” means (a) Software that is re-branded by Vendor or that otherwise has its name changed by Vendor; and (b) software of Vendor or a Vendor Affiliate that, with YTH’s written approval, has been substituted for the Software described in an SOW and that has substantially similar functionality and features as such listed Software.
“Software” means the computer code described in an SOW, together with all Maintenance Releases and Documentation. The term “Software” includes any foreign language versions of the foregoing commercially released by Vendor.
Exhibit A
Maintenance and Support Terms
1. Vendor will provide all Maintenance Releases no later than the date on which they become available.
2. Vendor will provide 24 hours a day / 7 days a week telephone and email assistance for general advice and technical support, as well as technical assistance and remediation for operational issues as further described below.
3. Vendor will correct all problems that are reported by YTH or of which Vendor otherwise becomes aware in accordance with the following:
Priority 1: The Software is not working, a significant function of the Software is not properly working or a significant number of end users are unable to access or use some functionality.
Response and Fix Time: Vendor will respond to and Vendor’s senior engineers will commence efforts to fix Priority 1 problems no later than one (1) hour after YTH’s report of such problem or Vendor’s detection of such problem, whichever is earlier. Vendor will use best and continuous efforts, twenty-four (24) hours per day, seven (7) days per week to provide an acceptable work-around for the Priority 1 problem, and will provide a permanent fix for the Priority 1 problem no later than thirty (30) days after YTH’s report of such problem or Vendor’s detection of such problem, whichever is earlier.
Priority 2: Functionality of the Software is impaired or some end users are unable to access or use some functionality.
Response and Fix Time: Vendor will respond to and Vendor’s senior engineers will commence efforts to fix Priority 2 problems no later than one (1) hour after YTH’s report of such problem or Vendor’s detection of such problem, whichever is earlier. Vendor will use reasonable and continuous efforts to fix Priority 2 problems during normal business hours, and if an acceptable work-around is provided, will provide a permanent fix of the Priority 2 problem no later than thirty (30) days after YTH’s report of such problem or Vendor’s detection of such problem, whichever is earlier.
Priority 3: Low impact to end users of the Software.
Response and Fix Time: Vendor will respond to Priority 3 problems within four (4) hours after YTH’s report of such problem or Vendor’s detection of such problem, whichever is earlier, during YTH’s regular business hours (or on the next business day, if the problem is reported outside of YTH’s regular business hours). Vendor will fix Priority 3 problems no later than thirty (30) days after YTH’s report of such problem or Vendor’s detection of such problem, whichever is earlier, and if an acceptable work-around is provided, will provide a permanent fix of the Priority 3 problem in the next Maintenance Release.
The priority level of the problems reported by YTH will be determined by YTH. If Vendor fails to comply with this Paragraph 3 in any given month, YTH, at YTH’s option, will be entitled to (a) promptly receive a credit or refund of Maintenance and Support fees attributable to the month of such noncompliance or (b) terminate Maintenance and Support and receive a refund of the prorated portion of any prepaid, unearned fees.
4. Vendor agrees that support will, at a minimum, include technical assistance and remediation for (a) the current release of the Software and (b) the two immediately preceding releases of the Software and any release of the Software that was generally available at any time during the twelve (12) month period immediately prior to the commercial introduction of the most recent release of the Software.
5. Vendor will provide Maintenance Releases for the Software to enable the Software to operate on any new release of the underlying operating system software within six (6) months after the new release of the underlying operating system software is made generally available. As new releases of the underlying operating system software become generally available and supported by Vendor, Vendor will continue to support the Software for the prior releases of the underlying operating system software for a period of at least twelve (12) months.
6. Vendor will, in accordance with industry best practice, maintain detailed and comprehensive contingency plans against events which could affect the ability of Vendor to provide Maintenance and Support in accordance with this Exhibit, including, without limitation, loss of production, loss of systems, loss of equipment, industrial relations problems with Vendor’s or Vendor’s subcontractors’ personnel, failures in the supply chain, failure of carriers and the failure of Vendor’s or its subcontractors’ equipment, computer systems or business systems.
7. Vendor will provide such additional technical assistance and remediation services to YTH as Vendor may provide from time to time to its other licensees of any of the Software.
Exhibit B
Additional Terms for Services and Access to YTH Resources
1. YTH Data, Systems and Facilities.
a. For any data provided by YTH or otherwise collected or accessed by Vendor in connection with the Services (“YTH Data”), Vendor will (a) use the YTH Data solely as necessary to provide the Services to YTH and for no other purpose, (b) use industry standard safeguards (at technical, administrative and physical levels) that protect the YTH Data from unauthorized disclosure, (c) promptly notify YTH of any security breach affecting YTH Data, and (d) at YTH’s request at any time, make available the YTH Data to YTH in a standard format (as requested by YTH) and thereafter destroy all YTH Data in Vendor’s possession or control. Vendor will (a) not transmit, store or provide access to any third party to any YTH Data incorporating Personal Information without YTH’s express written consent, and (b) comply at all times with Law and with YTH’s then-current data security, data collection, and privacy policies relating to YTH Data (including, without limitation, Personal Information).“Personal Information” shall mean any information about YTH, its personnel, or its users that can be used to identify, contact or locate a specific individual; that can be used in conjunction with other personal or identifying information to identify or locate a specific individual (e.g., persistent identifier, such as a customer number held in a “cookie” or processor serial number); or that is defined as “personal information” by applicable Laws relating to the collection, use, store, and/or disclosure of information about an identifiable individual.
Access, if any, to any software, systems or hardware of YTH contractors (“YTH Systems”) is granted solely to allow Vendor to provide the Services and is limited to those specific YTH Systems, time periods, and personnel as are separately designated by YTH in writing from time-to-time. In connection with access to YTH Systems, Vendor will comply with all business control and information protection policies, standards, and guidelines as may be provided by YTH, including, without limitation, YTH’s Network Security Terms, available at https://legal.yahootwec.com/en/NetworkSecurityTerms.html, which are incorporated by reference into these Software Terms. Vendors will not use YTH Systems during other time periods or allow use by individuals not authorized by YTH. Any other use of any YTH System is expressly prohibited.
b. Vendor represents and warrants that it has and will maintain adequate security measures in place to comply with the above obligations and to ensure that its use of YTH Systems or YTH Data will not impair the integrity and availability of YTH Systems or YTH Data.
c. Without YTH’s prior written consent, Vendor may not subcontract any Services if the subcontractors would receive access to any YTH Data, YTH Systems or Sites (as defined below).
d. If any Vendor employee or subcontractor (collectively, “Vendor Personnel”) is granted access to any YTH buildings, facilities or sites and related premises (“Sites”), the following provisions apply:
i. Vendor will comply with any safety, control, protection, and other policies and guidelines as YTH may provide from time to time.
ii. Vendor will provide YTH a list of all Vendor Personnel that require access to the Site(s) and will maintain a current list, which will be available to YTH at all times. In the event Vendor is granted Site access, Vendor represents, warrants, and covenants that Vendor will perform its obligations without interfering with YTH’s operations in or around the Site.
iii. All Vendor Personnel working at Sites will wear a visible YTH issued identification. Immediately upon the termination of Vendor Personnel who worked at a Site, Vendor will promptly provide written notice to the YTH Security Office, and return all security badges and access cards issued to Vendor for such Vendor Personnel. Vendor will pay YTH a fee of one hundred dollars ($100.00) (or the foreign equivalent thereof) for each non-returned or lost security badge or access card. YTH reserves the right to charge Vendor for expenses incurred by YTH in recovering any security badge or access card.
iv. Vendor will conduct (and YTH may elect to conduct) a background check on all Vendor Personnel (including criminal records and civil judgments, professional license verifications, motor vehicle records, social security number, court records, military service records, other public records reports, and verifications of employment and education) prior to such Vendor Personnel undertaking any action in connection with the Agreement. Any Vendor Personnel failing a background investigation will be denied access to any Sites.
e. Notwithstanding Section 18 (General) of the Agreement, Vendor may not transfer or disclose any YTH Data to any Vendor assignee or other third party without YTH’ express prior written consent.
f. Vendor will ensure YTH Data is handled subject to each of the following guidelines, except to the extent otherwise specifically permitted by the Agreement:
i. us will not commingle YTH Data with any other data.
ii. Prior to first handling YTH Data, Vendor will resolve all identified security issues with Vendor’s systems, unless otherwise expressly specified by YTH in writing.
iii. Vendor will not store or prompt for YTH user ID and password pairs.
iv. Vendor will always use a user identifier provided by YTH when storing and retrieving user specific data.
v. After expiration or termination of the Agreement, Vendor will return or securely destroy YTH Data, unless otherwise expressly permitted by YTH in writing. Prior to destroying YTH Data, Vendor will give YTH advance written notification specifying the means of destruction, which method must be approved by YTH in writing.
2. Services Deliverables. Unless otherwise specified in the applicable SOW, rights to any Services deliverables will be as follows: (a) Vendor grants YTH a worldwide, non-exclusive, royalty-free, perpetual, sublicenseable (through multiple tiers) license to use, modify and otherwise exploit any Services deliverables for any purpose and (b) further, to the extent Services deliverables consist of or incorporate any YTH Data or any materials, content or code that is unique to YTH or based on YTH’s specifications (“Custom Deliverables”), YTH will own the Custom Deliverables, and Vendor hereby assigns and agrees to assign any such Custom Deliverables to YTH, including all intellectual property rights. If Vendor has rights in the Custom Deliverables that cannot be assigned to YTH, Vendor licenses such rights under the same terms in (a) above and further agrees to forever quitclaim and waive such rights to YTH and its sublicensees. All Services deliverables are subject to YTH’s acceptance.
3. Independent Contractor. Vendor will be solely responsible and liable for any employment-related taxes, insurance premiums or other employment benefits in relation to Vendor’s performance of the Services. Neither Vendor nor any of Vendor’s employees will be eligible for any benefits (including stock options, health insurance or retirement benefits) normally provided by YTH to its employees. Vendor will perform Services on behalf of YTH in the capacity of independent contractor, and not as an employee, partner, agent or joint venture partner. YTH will not be responsible for the payment of any duties or taxes imposed on the income or profits of Vendor. Neither party will make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so.
4. Records and Audit. Vendor will keep and maintain complete and accurate records in connection with its provision of the Services (including its compliance with this Exhibit B) and all fees charged to YTH under the Agreement and will retain the records for at least one (1) year after the amounts documented in the records become due. YTH may audit those records during regular business hours upon reasonable advance notice and subject to reasonable confidentiality procedures. YTH may not audit Vendor more than twice per year unless any audit reveals a noncompliance.