THIS CLIENT SERVICES AGREEMENT (THE “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN TRIGGER TRANSFORMATION INC, A DELAWARE CORPORATION (“TRIGGER”), WITH A PRINCIPAL PLACE OF BUSINESS LOCATED AT 1801 PORTER STREET, STE 100, BALTIMORE, MD 21230, AND THE CUSTOMER LISTED ON THE COVER SHEET (THE “CUSTOMER”). CUSTOMER AND TRIGGER ARE EACH A “PARTY,” AND TOGETHER, THE “PARTIES” TO THIS AGREEMENT. CAPITALIZED TERMS NOT DEFINED IN THIS AGREEMENT SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE DOCUMENTATION.
1. INTELLECTUAL PROPERTY RIGHTS
1.1 License Grant. During the Term and subject to the terms and conditions of this Agreement, Trigger hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use the Software Services, Additional Services, and Training Content solely for Customer’s internal operations. Customer may use the Software Services, Additional Services, and Training Content in compliance with applicable laws and regulations, including without limitation laws and regulations applying to privacy and personal information.
1.2 Ownership. Except as otherwise expressly provided in this Agreement, as between Trigger and Customer, Trigger retains all ownership and Intellectual Property Rights in the Software Services, Additional Services, and Training Content, and in all source code pertaining thereto, including all technology, software, graphical user interfaces, workflows, processes, algorithms, know-how and other trade secrets, methodologies, tools, techniques, designs, inventions, works of authorship, trademarks, and other branding elements, documentation, and information contained in them. Customer does not acquire any rights in the Software Services, Additional Services, or Training Content, express or implied, other than those expressly granted in this Agreement.
1.3 Use Restrictions. Customer will not: (a) reverse engineer, reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code (or the underlying ideas, algorithms, structure, or organization) of the Software Services; (b) provide, lease or lend the Software Services to any third party except as expressly authorized hereunder; (c) access or use the Software Services in a way intended to avoid incurring fees or exceeding usage limits; (d) remove any proprietary notices or labels displayed on the Software Services, Documentation, Additional Services, or Training Content; (e) create a derivative work of any part of the Software Services; (f) create Internet “links” to or from the Software Services, or “frame” or “mirror” any of Trigger’s content which forms part of the Software Services; (g) use the Software Services, Documentation, Additional Services, or Training Content to develop an offering or product directly or indirectly competing with an offering or product from Trigger; (h) violate any applicable local, state, national or international law; (i) upload, post, e-mail, otherwise transmit or post links to any content used on or in connection with the Software Services that is materially false, misleading, or inaccurate or that the Customer does not have a right to transmit under any law or regulation or under contractual or fiduciary relationships; or (j) upload, post, e-mail, otherwise transmit, or post links to any material used on or in connection with the Software Services that contain software viruses, worms, trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy, impair or limit the functionality of, interfere with the performance of any computer software or hardware or telecommunications equipment used to provide the Software Services. Trigger reserves the right to take any action that it deems necessary to ensure the security of the Software Services, Documentation, Additional Services, and Training Content and to enforce its rights under this Agreement, including without limitation terminating or suspending Customer or its Users’ access to the Software Services and any Additional Services.
1.4 User Accounts. Customer is responsible for maintaining the confidentiality of Customer’s User Accounts and passwords and shall cause its Users to maintain the confidentiality of their User Accounts. Customer will be solely responsible for the acts of its Users, and all User actions shall be imputed to Customer. Customer agrees to immediately notify Trigger of any unauthorized use of User Accounts of which Customer becomes aware.
1.5 Employee Identification. Customer is responsible for the provision of a unique Employee Identification for each of its Employees registered with the Software Services. Company warrants that each EEID used is uniquely associated with an individual employee and shall not substitute or otherwise use the EEID for any other employee.
1.6 Subcontractors. Customer understands and agrees that Trigger may utilize subcontractors for the performance of its obligations hereunder and may transfer Confidential Information of Customer to such third parties.
2. ADDITIONAL SERVICES
2.1 Additional Services. During the Term and upon request, Trigger may provide additional services to Customer subject to and in accordance with a mutually agreed upon statement of work or order form executed between the Parties (the “Additional Services”).
2.2 Scope of Additional Services. Additional Services may include, without limitation:
2.3 Onboarding Support. To facilitate the provision of the Software Services, Trigger offers data migration services of Customer Data into the Software Services (the “Onboarding Support”). Upon request and subject to a mutually agreed upon statement of work or order form executed between the Parties, Customer may elect to receive the Onboarding Support at any time during the Term.
2.4 Training Support. To maximize the value and effectiveness of the Software Services, Trigger offers onsite or offsite training of the essential tools, resources and know-how of the Software Services (the “Training Support”). The Training Support may include, without limitation: Training Content, orientation sessions of the Software Services, “five minute” videos, and other online resources related to human resource management. The Training Support will be delivered through virtual access to Trigger hosted websites, through Webex (or similar hosted platforms) facilitated by Trigger Personnel (as hereinafter defined), and/or onsite training sessions in which Trigger Personnel will perform Training Support on Customer’s premises.
2.5 Additional Support. Upon request and subject to a mutually agreed upon statement of work or order form executed between the Parties, Trigger may provide additional support to facilitate the use of the Software Services.
2.6 Modification. Trigger reserves the right to modify, update, or discontinue any Additional Services or Training Content without prior notice to Customer. Customer acknowledges and agrees that the Additional Services and Training Content may include third party content or material.
2.7 Trigger Obligations. Trigger will provide all Additional Services in accordance with this Agreement and in a professional and workmanlike manner. The Additional Services and any related deliverables provided hereunder are not “work for hire” and Customer acknowledges that Trigger may perform the same or similar Additional Services for others.
2.8 Personnel. All personnel performing Additional Services shall be employees, subcontractors, or independent contractors of Trigger (hereinafter referred to individually or collectively, as appropriate, as “Trigger Personnel”). For all Trigger Personnel performing Additional Services at a Customer location or with direct access to Customer Confidential Information, Trigger will perform or arrange for a background investigation at a level consistent with Trigger’s standard policies. Such background investigation shall, at a minimum, consist of the following: confirmation of identity and social security verification; verification of all education beyond high school; employment history verification; and state/county criminal background check.
3.1 Service Fees. Trigger will invoice and Customer shall pay the fees for the Software Services and any Additional Services, as applicable, in accordance with the terms set forth in the Cover Sheet and this Agreement (collectively, the “Service Fees”).
3.2 Payment Terms. All payments shall be made in U.S. dollars. Trigger accepts the following forms of payment: Automated Clearing House transactions, online payments, credit cards, or debit cards. Customer will provide Trigger with all information required to process the selected payment method, and Customer will notify Trigger of any changes to such payment methods prior to the due date of the then current invoice. Customer acknowledges and agrees that it is solely responsible for any required authorizations to allow Trigger to process payment for the selected payment method.
3.3 Taxes. The Service Fees are exclusive of taxes. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Trigger’s net income.
3.4 Service Fees Invoices. Trigger will present the Customer with a monthly invoice itemizing the Monthly Service Fee and any Additional Services Fee in accordance with the terms set forth in this Agreement. The Monthly Service Fees shall be calculated based on the maximum number of Active EEIDs in the Software Services during the then current month. Customer hereby authorizes Trigger to initiate and process payment of the invoiced amount on the due date of the invoice; provided, however, that Trigger will not process any portion of an invoice that Customer reasonably disputes in accordance with the dispute resolution process set forth in this Section 3.
3.5 Prior Period Adjustments. Each monthly invoice will itemize any adjustments (credits and or debits) for any prior periods for which a discrepancy exists between invoiced “maximum number of Active EEIDs” and recorded “maximum number of Active EEIDs” in the Software Services. If such a discrepancy occurs the prior period Monthly Service Fee will be re-calculated in accordance with the terms set forth in this Agreement, and the difference to the prior period monthly invoice will be the adjusted dollar amount itemized in the current monthly invoice.
3.6 Prepayment Plan. If and to the extent Customer opted to participate in the Prepayment Plan on the Cover Sheet, the following provisions shall apply to the Prepayment Plan.
3.7 Prepayment Plan Invoices. The Prepayment Plan provides the Customer the option to pay Trigger a nonrefundable deposit as further set forth in the Cover Sheet (“Deposit”) in return for additional discounts applied to the Service Fees (“Prepayment Discount”). Customer can select a quarterly prepayment option (“Quarterly Pre-Payment”) or an annual prepayment option (“Annual Prepayment”). Trigger will present Customer with a monthly invoice as set forth in this Section 3.4 and 3.5, and will additionally itemize (i) the application of the Prepayment Discount, (ii) the resulting deduction from the Deposit, and (iii) the remaining balance of the Deposit. Upon depletion of the Deposit, Customer can either replenish the Deposit to maintain the Prepayment Discount, or Customer may elect to transition to payment of the Monthly Service Fees in accordance with the terms set forth
in this Agreement, without the continued benefit of the Prepayment Discount.
3.8 Deposit Amount. The Deposit will be based on the projected Service Fees over a three month period for the Quarterly Prepayment or a twelve month period for the Annual Prepayment, as applicable. The initial Deposit shall be payable to Trigger upon the execution of this Agreement, and at any time during the Term in the event the Deposit is depleted and Customer elects to continue utilizing the Prepayment Plan. Customer must pay the Deposit prior to the application of any Prepayment Discount.
3.9 Termination. In the event the Agreement is terminated prior to the depletion of the Deposit, the balance of the Deposit shall be retained by Trigger, without any further recourse by Customer.
3.10 Late Payment. All payments are due within the time period(s) specified herein. In event of late payment, Trigger will notify Customer, and if Customer is not disputing the past-due invoice or amounts, Trigger will provide Customer with an additional seventy-two (72) hour period to pay the undisputed amounts due (“Initial Cure Period”). If Customer disputes any invoiced amount, it must notify Trigger of such dispute and provide Trigger with documentation reasonably supporting such dispute within the Initial Cure Period. In the event of any such dispute, Trigger and Customer agree to cooperate in good faith to resolve and settle such dispute to the mutual satisfaction of both Parties within seven (7) business days (“Dispute Resolution Period”) after receipt of written notice to Trigger. In the event Customer does not comply with the terms of the Initial Cure Period or the Parties cannot settle the dispute within the Dispute Resolution Period, then either Party may terminate this Agreement in accordance with Section 7.
3.11 Late Payment Charges. Past due balances on undisputed amounts due shall be subject to an interest charge of one and one half percent (1.5%) per month computed from the due date of each undisputed payment, or the maximum rate permitted by applicable law, whichever is less.
3.12 Fee Increases. All Service Fees may be increased by Trigger once per calendar year; provided, that (i) any such increase shall not exceed six percent (6%); and (ii) Trigger shall provide no less than thirty (30) days prior written notice to Customer of any such increase. Notwithstanding the foregoing, Trigger reserves the right to adjust pricing in order to pass through any Third-Party Supplier fee increases.
4. CUSTOMER DATA
4.1 Customer Data. Customer acknowledges that Customer Data may be located outside the United States, and Customer will provide any required notices and will have sole responsibility for obtaining any required consents acknowledging that Customer Data may be processed and/or stored in foreign jurisdictions and that applicable laws in those foreign jurisdictions might permit foreign governments, courts, law enforcement or regulatory agencies to access the Customer Data in those jurisdictions.
4.2 Ownership of Customer Data. As between Trigger and Customer, Customer owns and will continue to own all right, title and interest in and to the Customer Data. In order to provide the Software Services to the Customer, Customer grants Trigger the limited right to view, reproduce, publish, transmit, modify, collect and use Customer Data, solely for the purpose of providing the Software Services. Notwithstanding the foregoing: Trigger may use or disclose general or anonymized information derived from Customer Data and aggregate it with information from other customers (collectively, the “Non-Identifiable Aggregated Data”) for Trigger’s business purposes, including without limitation for analyzing customer needs and improving its services, and Trigger will own all right, title and interest in any such Non-Identifiable Aggregated Data.
4.3 Restrictions. Customer is solely responsible for the accuracy, quality, consistency, validation, cleansing, maintenance, integrity, and legality of any and all Customer Data. Customer Data is used by Customer or its Users at its sole risk.
5.1 Disclosure. The Parties acknowledge that, in the course of performance of this Agreement, one Party (the “Disclosing Party”) may find it necessary to disclose or permit access to Confidential Information to the other Party (the “Receiving Party”) and its personnel. Disclosing Party's disclosure of or provision of access to, Confidential Information to Receiving Party’s personnel is solely for the purposes agreed under this Agreement.
5.2 Confidential Treatment. Confidential Information disclosed to a Receiving Party will be held in confidence by the Receiving Party and not disclosed to others or used except as expressly permitted under this Agreement or as expressly authorized in writing by the Disclosing Party. Each Party will use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own information of like nature, but in no circumstances less than reasonable care to prevent the unauthorized use, dissemination, or publication of the Confidential Information. If the Receiving Party discloses or uses, or threatens to disclose or use, any Confidential Information of the Disclosing Party in breach of this Section 5.2, the Disclosing Party shall have the right, in addition to any other remedies available to the Disclosing Party, to seek injunctive relief to enjoin such acts without the posting of any bond or surety, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
5.3 Allowances. Notwithstanding anything to the contrary in this Section 5.3, Confidential Information may be disclosed by a Receiving Party: (a) to those of its employees, agents, and consultants who require it to fulfill the purpose of this Agreement and who are contractually or legally obligated to hold such Confidential Information in confidence and restrict its use consistent with the Receiving Party’s obligations under this Agreement; (b) to the Receiving Party’s auditors, outside counsel, accountants and other similar business advisors, or in connection with an actual or prospective sale or transfer of assets; and (c) to the extent required by law, pursuant to a duly authorized subpoena, court order or government authority, provided that: (i) the Receiving Party provides the Disclosing Party with sufficient advance notice of such disclosure requirement or obligation to permit Disclosing Party to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure; and (ii) Receiving Party limits the release of the Confidential Information to the greatest extent possible under the circumstances.
5.4 Exceptions. Obligations under Section 5 will not apply to information which: (a) was in the public domain or generally available to the public prior to receipt thereof by the Receiving Party from the Disclosing Party, or which subsequently becomes part of the public domain or generally available to the public before any wrongful act of the Receiving Party or an employee or agent of the Receiving Party; (b) is later received by the Receiving Party from a third party, unless the Receiving Party knows or has reason to know of an obligation of secrecy of the third party to the Disclosing Party with respect to such information; or (c) is developed by the Receiving Party independent of such information received from the Disclosing Party. The terms of confidentiality under this Agreement will not be construed to limit Trigger’s ability to use for any purpose the residuals resulting from access to or work with the Confidential Information. The term “residuals” means information in a non-tangible form which may be retained by persons who have access to the Confidential Information, including ideas, concepts, know-how, or techniques contained therein.
5.5 Non-disclosure of Reports and Output. The The Software Services, Additional Services, and Training Content, and any related reports or other output (“Reports”) are intended to be used solely for Customer’s internal business purposes. As such, Reports are not to be disseminated to any person outside of Customer or any regulatory body without the express written consent of Trigger. Any reliance on such Reports are at Customer’s or such third party’s risk.
Trigger will use commercially reasonable efforts to maintain industry standard safeguards reasonably designed to protect the confidentiality and integrity of, and to prevent unauthorized access to or use of Customer Data.
7.1 Term. The term of this Agreement shall begin on the date of execution by Trigger (the “Effective Date”) and shall remain in effect for an initial period as agreed (the “Initial Term”). This Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term”, and, together with the Initial Term, the “Term”) unless notice is given at least sixty (60) days before the end of the then-current term.
7.2 Termination for Cause. This Agreement may be terminated for a breach of this Agreement by either Party upon thirty (30) days’ prior written notice to the other Party if such breach is not cured within such thirty (30) day period. If such notice is provided by Trigger to Customer, Triggers reserves the right to suspend Customer’s and its Users’ access to the Software Services and any applicable Additional Services during the thirty (30) day notice period. 7.3.
7.3 Termination by Trigger. The Customer acknowledges and agrees that Trigger has agreed to enter into this Agreement under applicable law as of the Effective Date, and that Trigger has not accepted the risk of changes in law. In the event of a change or changes in the law that alone or in the aggregate increase Trigger’s costs, or makes it commercially impractical for Trigger, to provide the Software Services to the Customer in accordance with this Agreement, Trigger shall be, at Trigger’s option, excused from its obligation to provide the Software Services.
7.4 Obligations on Termination. Upon Upon termination or expiration of this Agreement: (a) Customer agrees to pay Trigger Subscription Fees through the effective date of termination or expiration of this Agreement; (b) Trigger will terminate Customer’s and its Users’ access to the Software Services and any applicable Additional Services; and (c) Customer shall, and shall require Users to, cease all access to and use of the Software Services; and (d) upon request and subject to any Trigger fees applicable to data extracts or retrieval, each Party will deliver to the other Party all Confidential Information subject to any backup copies necessary to comply with Trigger’s document retention policies.
9.1 Indemnification of Trigger. Customer shall indemnify and hold harmless Trigger and Third-Party Suppliers, and their officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend Trigger and Third-Party Suppliers against, pay any final judgments awarded against Trigger and Third-Party Suppliers, and pay all reasonable costs and attorneys’ fees resulting from any claims, liabilities, fines, fees, costs, losses, suits, and damages asserted by a third party based on (a) Customer’s or any User’s use or misuse of the Software Services, Additional Services, or Training Content (including without limitation, in violation of applicable laws, rules or regulations or this Agreement); (b) Trigger’s compliance with Customer’s instructions; (c) Trigger’s use of trademarks, Customer Data or other materials supplied by Customer, (d) any breach or alleged breach by Customer or its Users of this Agreement, or (e) the conduct of any business in connection with use of the Software Services, Additional Services, or Training Content, or with respect to any human resource decisions related thereto.
9.2 Infringement. Trigger will have the obligation and right to defend any third party claim, suit, or proceeding brought against Customer so far as it is based on a claim that the Software Services, Additional Services, or Training Content infringe a United States copyright existing as of the Effective Date or a United States patent issued as of the Effective Date. Trigger’s obligation specified in this paragraph will be conditioned on Customer notifying Trigger promptly in writing of the claim or threat thereof and giving Trigger full and exclusive authority for, and information for and assistance with, the defense and settlement thereof. If such claim has occurred, or in Trigger’s opinion is likely to occur, Customer agrees to permit Trigger, at its option and expense, either to: (a) procure for Customer the right to continue using the Software Services, Additional Services, or Training Content; (b) replace or modify the same so that it becomes non-infringing; or (c) immediately terminate Trigger’s obligations (and Customer’s rights) under this Agreement with regard to such Software Services, Additional Services, or Training Content, and grant to Customer a credit for the unused portion of any fees for the Software Services, Additional Services, or Training Content giving rise to the claim.
9.3 Limitation. Notwithstanding any other provisions hereof, neither Trigger nor Third-Party Suppliers will be liable for any claim to the extent that it is based on: (a) any use of the Software Services, Additional Services, or Training Content other than as specified in this Agreement; or (b) the combination, use, or operation of the Software Services with any products not specifically authorized by Trigger. THE FOREGOING STATES THE ENTIRE OBLIGATION OF TRIGGER AND ITS THIRD-PARTY SUPPLIERS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN TO CUSTOMER SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND TRIGGER AND THIRD-PARTY SUPPLIERS DISCLAIM ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE SERVICES, ADDITIONAL SERVICES, AND TRAINING CONTENT.
10. DISCLAIMERS AND LIMITATIONS
10.1 Reliance on Content. Nothing contained in the Software Services shall constitute professional advice. Trigger assumes no responsibility for the use of any information provided through the Software Services, the Additional Services, the Training Content, or the Reports. Except as otherwise stated in this Agreement, use of the Software Services and/or Reports is at Customer’s own risk.
10.2 Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TRIGGER AND ITS THIRD-PARTY SUPPLIERS MAKE NO, AND HEREBY DISCLAIM ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE SERVICES, THE ADDITIONAL SERVICES, AND THE TRAINING CONTENT OR THE AVAILABILITY, SECURITY, COMPATIBILITY, FUNCTIONALITY, PERFORMANCE, LOSS OR CORRUPTION OF DATA OR RESULTS OF USE OF THE SOFTWARE SERVICES, THE ADDITIONAL SERVICES, OR THE TRAINING CONTENT. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, TRIGGER AND THIRD-PARTY SUPPLIERS DISCLAIM ANY WARRANTY THAT THE SOFTWARE SERVICES, THE ADDITIONAL SERVICES, OR THE TRAINING CONTENT WILL BE ACCURATE, ERROR-FREE, OR UNINTERRUPTED. TRIGGER AND THIRD-PARTY SUPPLIERS MAKE NO, AND HEREBY DISCLAIM ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, NONINFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE. TRIGGER MAKES NO WARRANTIES WITH RESPECT TO AND HEREBY DISCLAIMS ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY THIRD PARTY MATERIAL CONTAINED IN THE SOFTWARE SERVICES, THE ADDITIONAL SERVICES, OR THE TRAINING CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRIGGER SHALL NOT BE LIABLE FOR CUSTOMER MISUSE OF THE SOFTWARE SERVICES, THE ADDITIONAL SERVICES, OR THE TRAINING CONTENT OR USE INCONSISTENT WITH THIS AGREEMENT. TRIGGER DOES NOT WARRANT THAT ALL DEFECTS WILL BE CORRECTED.
10.3 Disclaimer of Consequential Damages. OTHER THAN FOR DAMAGES ARISING OUT OF A BREACH OF SECTION 1 AND CUSTOMER’S OBLIGATIONS UNDER SECTION 9.1, NEITHER PARTY, INCLUDING ANY THIRD-PARTY SUPPLIERS, WILL HAVE LIABILITY WITH RESPECT TO THE SOFTWARE SERVICES OR THE ADDITIONAL SERVICES, THE TRAINING CONTENT OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE, FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, THE COST OF COVER, SECURITY AND DATA BREACHES, AND FAILURE TO ACCESS THE SOFTWARE SERVICES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.4 Limitation of Liability. OTHER THAN FOR DAMAGES ARISING OUT OF A BREACH OF SECTION 1 AND CUSTOMER’S OBLIGATIONS UNDER SECTION 9.1, EACH PARTY'S TOTAL LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, EXCEPT FOR CLAIMS FOR PAYMENT OF SERVICE FEES OR OTHER FEES REQUIRED BY THE AGREEMENT, IS LIMITED TO ALL FEES PAID TO TRIGGER BY THE CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
10.5 Other Limitations. Trigger may add new functionality and/or features to the Software Services from time to time. Notwithstanding the foregoing, Customer acknowledges and agrees that its execution of this Agreement is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by Trigger with respect to future functionality or features. The obligations of Trigger under this Agreement run only to Customer and not to its affiliates, its customers, or any other persons. Under no circumstances will any other person be considered a third-party beneficiary of this Agreement or otherwise entitled to any rights or remedies under this Agreement. Customer will have no rights or remedies against Trigger except as specifically provided in this Agreement. No action or claim of any type relating to this Agreement may be brought or made by Customer more than one (1) year after Customer first has knowledge of the basis for the action or claim.
11. GENERAL TERMS
11.1 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. Trigger may assign or otherwise transfer its interest or any part thereof under this Agreement to another party without the consent of Customer except that such party must expressly assume responsibility for all obligations hereunder in writing. Customer may assign or otherwise transfer its interest or any part thereof under this Agreement to any person or entity with written consent from Trigger.
11.2 Use of Name. Trigger may use Customer's name and logo in advertising, publicity, or otherwise publicize the fact that Customer is a customer of Trigger.
11.3 Feedback. All Customer or User feedback pertaining to Trigger or the Software Services, including ideas or suggestions for customizations, corrections, changes, additions, or extensions are the exclusive property of Trigger, and Customer assigns all rights in and to any feedback to Trigger without any restriction or payment to Customer or User.
11.4 Compliance with Legal Requirements. Each Party shall be responsible, at its expense, for complying with all applicable laws and regulations of each jurisdiction where the Software Services are used, including laws and regulations pertaining to access or use of the Software Services. Without limiting any other obligation of the Customer hereunder, Customer is responsible for ensuring that the collection, storage, and use of Customer Data complies with all applicable laws and regulations.
11.5 Force Majeure. “Force Majeure Event” means any act or event that: (a) prevents a party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other party’s (the “Performing Party”) obligations under this Agreement; (b) is beyond the reasonable control of and not the fault of the Nonperforming Party; and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented, other than any payment obligations, and from satisfying any conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party will immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
11.6 Notices. All notices required to be given in writing under this Agreement shall be in writing and shall be given or made by delivery in person, by courier service, by confirmed facsimile, or by registered or certified mail (postage prepaid, return receipt requested) at the address provided by Customer to Trigger. Notices to Trigger shall be addressed to: Trigger Transformation Inc,1801 Porter Street, Suite 100, Baltimore, MD 21230.
11.7 Audit. Trigger, or its designee, will have the right to perform audits regarding Customer's use of the Software Services, at reasonable intervals, upon reasonable notice during the term and a period of one (1) year after termination of this Agreement. Customer agrees to make all relevant information available to Trigger, and as appropriate, to Trigger's designee.
11.8 Superseding Effect and Amendment. This Agreement and any addenda constitute the entire agreement of the Parties, superseding all prior written and oral understandings and Agreements between the Parties and will not be modified except in writing and signed by both Parties.
11.9 Heading and Captions.The headings and captions contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
11.10 No Partnership, Joint Venture, or Fiduciary Relationship Created. This Agreement does not constitute a joint venture or partnership arrangement between the Parties and it does not create any relationship of principal and agent, or otherwise between the Parties. Neither Party will be liable for obligation incurred by the other, except as might otherwise be expressly provided in this Agreement. All employees of each Party will remain the employee of that Party, and will not be subject to any direction or control by the other Party. Each Party will maintain its own professional liability and workers’ compensation insurance for its own employees will withhold and pay all applicable payroll and other taxes, and obligations of an employer with respect to its employees. Nothing contained in this Agreement will be interpreted as creating a partnership, joint venture, or employment relationship of the Parties, it being understood that the sole relationship created hereby is one of independent contractor.
11.11 Applicable Law. This Agreement is to be interpreted, construed and governed according to the laws of the State of Maryland as those laws are applied to contracts entered into and to be performed entirely in that State. Any claim or controversy arising out of or related to this Agreement or any breach hereof shall be submitted to a court of applicable jurisdiction in the State of Maryland, Baltimore County, and each Party hereby consents to the jurisdiction and venue of such court.
11.12 Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY COVER SHEET, ADDENDA, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.13 Attorneys’ Fees. If either Party prevails in any suit or proceeding relating to this Agreement, the prevailing Party will have the right to recover from the non-prevailing Party its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment.
11.14 Severability. Except as provided below, each provision of this Agreement will be interpreted in such a manner and to such an extent as to be effective and valid under applicable law. If any provision is prohibited by or invalid under applicable law, that provision will be ineffective only to the extent of such prohibition or invalidity.
11.15 Survival. The terms, provisions, representations, and warranties contained in this Agreement whereby their sense and context are intended to survive the performance and termination of this Agreement, shall so survive the completion of
performance and termination of this Agreement, including, but not limited to, the making of any and all payments due hereunder and Sections 1 (Intellectual Property Rights), 2 (Payment), 5.1 (Disclosure), 5.2 (Confidential Treatment), 5.3 (Allowances), 5.4 (Exceptions), 5.5 (Non-disclosure of Reports and Output), 7.4 (Obligations on Termination), 9.1 (Indemnification of Trigger), 10 (Disclaimers and Limitations), 11.7 (Audit), 11.11 (Applicable Law), 11.12 (Waiver of Jury Trial), 11.13 (Attorneys’ Fees), and 12 (Definitions).
12.1 “Active” means for any User or EEID registered in the system and designated as Active in the Software Services. A User or EEID remains Active until Customer updates the status of that User or EEID to “Inactive” in the Software Services.
12.2 “Customer Data” means all information provided, entered, or uploaded for use by or with the Software Services by Customer or its Users.
12.3 “Confidential Information” means information and technical data derived from or disclosed to a Receiving Party or Affiliates of the Receiving Party by the Disclosing Party or its employees, vendors, customers, representatives, Affiliates, agents and other independent contractors during the performance of obligations under this Agreement and which is not generally known to the public, including the Disclosing Party’s customers or competitors or any customers or competitors of any Affiliate of the Disclosing Party. Confidential Information of Trigger includes, without limitation, the Software Services, the Documentation, any Additional Services, and the Training Content. Examples of Confidential Information include, but are not limited to Customer Data, any information or data disclosed in oral, written, graphic or machine-readable form, or in forms otherwise embodying or displaying such information, including, but not limited to, business plans, specifications, designs, methods, processes, ideas, concepts, drawings, software, pricing, operational plans and know-how, employee information, shareholder information, vendor information, customer information, and consumer information.
12.4 “Documentation” and “Training Content” means all user guides, videos, and any training materials currently located at https://knowledge.trigger123.com/user-guide or any other resource to which Trigger may grant Customer access.
12.5 “Employee Identification” or “EEID” means the unique identification provided by the Customer for each Company employee registered for the Software Services. The EEID may be, for example, the Company employee identification number or employee email address, provided such EEID is uniquely associated with each individual employee.
12.6 “Intellectual Property Rights” means all of the following, whether protected, created, or arising in law: (a) patents, patent disclosures, patent applications, rights in patent improvements, statutory invention registrations, divisions, continuations, continuations-in-part, and extensions, reissues, restorations, and re-examinations of the above, and all rights in the foregoing provided by international treaties or conventions; (b) copyrights, works of authorship, moral rights, neighboring rights, mask work rights, database rights, and design rights, whether registered, published, or unpublished, and registrations and applications for registration of them, and all rights in them whether provided by international treaties or conventions or otherwise; (c) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names or other indicia of source or origin together with associated goodwill; (d) rights in trade secrets, proprietary information, and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, bills of materials and component layouts, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals); (e) all unique rights in computer software (including data and related documentation) and all copies and tangible embodiments of them (in whatever form or medium), including source code, and (f) all other applications and registrations related to any of the intellectual property rights set forth in clauses (a) – (e) above.
12.7 “Software Services” means the products and services, excluding any Third-Party Software that are ordered by Customer under this Agreement and made available online by Trigger.
12.8 “Third-Party Software” means any third-party software not embedded in the Software Services that Trigger uses in connection with the delivery of the Software Services or the performance of its obligations hereunder.
12.9 “Third-Party Supplier” means a third-party whose software products have been made available to Trigger under the terms of its agreement with Trigger.
12.10 “User” means, any individual that Customer authorizes to use the Software Service for or on behalf of Customer.
12.11 “User Account” means the arrangement under this Agreement authorizing online access of a User to the Software Services.