Effective September 21, 2020
PLEASE READ THE HELIX TERMS OF SERVICE (“AGREEMENT”) BEFORE LOGGING IN OR USING THE HOSTED SOFTWARE (AS DEFINED BELOW). THIS IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND HELIX BUSINESS SOLUTIONS, LLC (“HELIX”). BY PROVIDING HELIX ACCESS TO INTEGRATION SOURCE SYSTEMS USING THE HOSTED SOFTWARE, YOU ACCEPT AND AGREE TO COMPLY WITH ALL TERMS AND CONDITIONS OF THE AGREEMENT. THIS AGREEMENT GOVERNS YOUR USE OF THE HOSTED SOFTWARE, UNLESS YOU ARE SUBJECT TO HELIX’S WRITTEN SOFTWARE AS A SERVICES AGREEMENT. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE TERMS OF HELIX’S WRITTEN SOFTWARE AS A SERVICES AGREEMENT, THE WRITTEN SOFTWARE AS A SERVICES AGREEMENT SHALL GOVERN.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IN SUCH EVENT, THE TERM “YOU” SHALL INCLUDE SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE HOSTED SOFTWARE.
HELIX RESERVES THE RIGHT TO CHANGE THE AGREEMENT IN ITS DISCRETION, PROVIDED HOWEVER, HELIX WILL PROVIDE NOTICE OF ANY CHANGES. IF YOU DO NOT AGREE WITH A CHANGE IN THIS AGREEMENT YOU MUST, WITHIN THIRTY DAYS OF NOTICE OF THE CHANGE FROM HELIX, STOP USING THE HOSTED SOFTWARE. CONTINUED USE OF THE HOSTED SOFTWARE AFTER NOTICE OF CHANGES FROM HELIX WILL BE DEEMED YOUR ACCEPTANCE TO ANY CHANGES IN THE AGREEMENT. THIS AGREEMENT WILL GOVERN ALL UPDATES AND UPGRADES TO THE HOSTED SOFTWARE.
Each party agrees as follows:
- HELIX SERVICES. This Agreement and an applicable Ordering Document (each an “Ordering Doc”) provide You access to Helix’s cloud-based hosted software and related services (“Hosted Software”). Helix will provide this Hosted Software through the web from its cloud-based hosting environment.
- USE OF HOSTED SOFTWARE.
- Grant of Rights. Upon Helix’s acceptance of an Ordering Doc and for the duration of the Order Term, Helix grants You a non-exclusive, non-assignable, royalty-free, worldwide limited right to use the Hosted Software solely for Your business operations subject to the terms of this agreement. You may make the Hosted Software available for the use described within, to Your employees, agents, contractors (each an “Authorized End User”), and Your customers or end users (each an ”End User”). As applicable, you are responsible for each Authorized End User’s compliance with the Agreement. Helix will host the Hosted Software, has no delivery obligations, and will not ship copies of the Helix programs to You as part of the Hosted Software.
- Ordering Docs. This Agreement contemplates one or more Ordering Docs for the Hosted Software, and each Ordering Doc will describe the Hosted Software ordered in more detail.
- Your Responsibilities and Acceptable Use. You must: (i) must keep Your access credentials secure and confidential where applicable; (ii) use commercially reasonable efforts to prevent unauthorized access to the Hosted Software, and notify Helix promptly of any such unauthorized access; and (iii) comply with all applicable laws; and (iv) Helix has no responsibility for any data that transmits from an End User through the Helix Hosted Software to You. You may not: (vii) sell, resell, rent or lease the Hosted Software; (v) use the Hosted Software unlawfully or to store or transmit infringing, libelous, or otherwise unlawful or tortious material or to store or transmit material in violation of third-party rights; (vi) interfere with or disrupt the integrity or performance of the Hosted Software, including without limitation any performance, benchmark, load, scalability, stress, security, or penetration testing; (vii) attempt to gain unauthorized access to the Hosted Software or its related systems or networks; (viii) reverse engineer the Hosted Software; (ix) remove or modify any proprietary marking or restrictive legends in the Hosted Software; or (x) access the Hosted Software to build a competitive product or service, or copy any feature, function or graphics of the Hosted Software.
- Security. Helix will maintain and enforce reasonable technical, administrative, and physical security procedures with respect to its access and maintenance of Customer and End User data transmitted through the Hosted Software, and to safeguard against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of such End User data (a “Security Incident”). In the event of a confirmed Security Incident, Helix will provide You notice within twenty-four hours. Helix will thereafter promptly provide You with notice of Helix’s remediation plan.
- Feedback. You shall, and hereby do, grant Helix a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Hosted Software any suggestions, enhancement requests, recommendations or other feedback provided by You, Your Authorized End Users or Your End Users relating to the Hosted Software.
- PAYMENT TERMS.
- Fees. You must pay all undisputed fees that are due as set forth in the Ordering Doc, plus applicable transaction based taxes.
- Expenses. With approval in advance, You will reimburse Helix for all standard and reasonable travel and related expenses, for any on-site meetings. You agree to pay expense reimbursements within 30 days of the date of invoice for such expenses.
- MUTUAL CONFIDENTIALITY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Disclosing Party) to the other party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Helix’s Confidential Information includes the Hosted Software, the Documentation, the terms of this Agreement, all Ordering Docs.
- Protection of Confidential Information. The Receiving Party must use the same degree of care to protect the Confidential Information that it uses to protect its Confidential Information and in no event less than reasonable care, and not disclose or use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations within the scope of this Agreement. The Receiving Party must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party with substantially similar confidentiality terms. Any breach by Receiving Party of the Disclosing Party’s Confidential Information could cause irreparable injury or harm to the Disclosing Party. The Disclosing Party may seek a court order to stop any breach or avoid any future breach.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will reasonably endeavor to provide Discloser with advance notice to seek a protective order.
- PROPRIETARY RIGHTS.
- Reservation of Rights by Helix. The Hosted Software and other technologies and materials developed or provided by Helix under this Agreement are the proprietary property of Helix and its licensors. Helix grants no rights unless expressly provided in this Agreement.
- Your Data. All uploaded data from Authorized End User and End Users (“Your Data”), under Your account remains the sole property of You. You grant Helix a non-exclusive term license to use, host, modify, copy, and share with authorized third parties, Your Data solely for purposes of Helix performing under this Agreement.
- EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.
- Exclusion of Certain Damages. NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED MATERIAL) ARISING UNDER OR RELATING TO THIS AGREEMENT AND ALL ORDERING DOCS.
- Limitation of Liability. EXCEPT FOR HELIX’S INDEMNIFICATION OBLIGATIONS, HELIX’s MAXIMUM LIABILITY FOR ALL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT AND ALL ORDERS (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY YOU TO HELIX UNDER SUCH RELEVANT ORDERING DOC DURING THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.
- TERM, TERMINATION AND SUSPENSION OF HOSTED SOFTWARE.
- Term. This Agreement continues for the duration of all Ordering Docs plus any no charge extensions pursuant to Section 2(c) of this agreement (“Term”). Upon the end date of the Order Term End Date, Your rights to access or use the Hosted Software shall terminate.
- Mutual Termination for Material Breach. In the event of a material breach of this Agreement, the non-breaching party shall provide written notice to the breaching party. The breaching party will have thirty days to cure the breach; if upon thirty days after written notice the breach is uncured, the non-breaching party may terminate this Agreement upon written notice to the breaching party. Upon Your termination for Helix’s breach, Helix shall refund any prepaid fees for unused Hosted Software covering the remainder of the Order Term.
- Return or Destroy Helix Property Upon Termination. Upon termination or expiration of this Agreement for any reason, You must pay Helix for any unpaid amounts, and destroy or return all property of Helix. You will confirm Your compliance with this requirement in writing upon request of Helix.
- Return of Your Data. If applicable, upon request of You within 30 days after the effective date of termination of the Order, Helix will make available for download all Your data in the Hosted Software. After a 30-day period after the effective date of termination, Helix has no obligation to maintain any data.
- Suspension of Hosted Software for Violations of Law or Policy. In addition to Helix’s termination rights under 7.b., Helix may temporarily suspend access to the Hosted Software for Customer’s breach of this Agreement. Helix will promptly restore access to the Hosted Software after the breach is cured.
- Defense of Third-party Claims. Helix will indemnify, defend or settle any third-party claims against You alleging that the Hosted Software (excluding Your Data) used in accordance with this Agreement violates a copyright, US patent, or trademark.
- You agree to indemnify, defend or settle any third-party claims against Helix arising out of Your use of the Hosted Software.
- The indemnified party shall
- Promptly notify the indemnifying party of the claim in writing;
- Reasonably cooperate with the indemnifying party in the defense; and
- Allow the indemnifying party to solely control the defense or settlement of the claim.
- The indemnifying party will pay the defense costs of the attorneys the indemnifying party hires to defend the indemnified party and will pay the indemnifying party’s negotiated settlement amounts and the court awarded damages.
- Remedies. For Helix’s indemnification claim, Helix may modify the Hosted Software, procure the necessary rights, or replace it with the functional equivalent. If Helix determines that none of these are reasonably available, then Helix will terminate the Hosted Software and provide a refund of any prepaid fees for unused terminated Hosted Software.
- Exclusions. Helix has no obligation for any claim arising from:
- Helix’s compliance with Your designs, specification, instructions, or technical information;
- Modifications made other than by Helix;
- A combination of the Hosted Software with other technology where the infringement would not occur but for the combination; or
- Technology not provided by Helix.
- This section contains Your exclusive remedies and Helix’s sole liability for intellectual property infringement claims.
- GOVERNING LAW. This Agreement will be governed by the laws of Tennessee (excluding its choice of law rules.) The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Tennessee for any claim relating to this Agreement. Nothing in this Agreement prevents any party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any litigation or arbitration is entitled to recover its attorney’s fees and costs from the other party.
- MISCELLANEOUS OTHER TERMS. This Agreement and all Ordering Doc(s) and SOW’s constitute the entire Agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it. Neither party may assign or transfer this Agreement or an Ordering Doc to a third-party, except that the Agreement with all Ordering Docs may be assigned as part of a merger, a sale of all or substantially all of the business or assets, a corporate reorganization, of a party or by operation of law. The parties are independent contractors with respect to each other. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. If there is an inconsistency between this Agreement and an Ordering Doc, the Ordering Doc prevails. Any terms that by their nature survive termination or expiration of this Agreement, will survive, including without limitation Sections 3, 5, 6, 7, 8(c), 8(d), 9, 10 and 11. Helix may use Your name and logo in customer lists and related promotional materials describing You as a customer of Helix. For U.S. Federal Government users, The Hosted Software and Documentation provided to the U.S. Government are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, within the meaning of 48 C.F.R. 12.212 or 48 C.F.R.227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in FAR 12.212, and DFARS 227.7202-1(a), 227.7202-3(a), 227.7202-4, as applicable.