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2.4. Third-Party Applications. Licensor may offer certain Third-Party Applications under Sales Orders. Any procurement of such Third-Party Applications by Licensee will be subject to the terms specified in such Sales Orders.
In addition, Licensor or Third-party providers may offer Third-Party Applications through the Service or otherwise related to Licensees’ use of the Service. Except as expressly set forth in the Sales Order, Licensor does not warrant any such Third-Party Applications, regardless of whether or not such Third-Party Applications are provided by a third-party that is a member of a Licensor partner program or otherwise designated by Licensor as “Built For Licensor,” "certified," "approved" or “recommended.” Any procurement by Licensee of such Third-Party Applications or services is solely between Licensee and the applicable Third-Party provider. Licensee may not use Third-Party Applications to enter and/or submit transactions to be processed and/or stored in the Service, unless Licensee has procured the applicable subscription to the Service for such use and access.
Licensor is not responsible for any aspect of such Third-Party Applications that Licensee may procure or connect to through the Service, or any descriptions, promises or other information related to the foregoing. If Licensee installs or enables Third-Party Applications for use with the Service, Licensee agrees that Licensor may enable such Third-Party providers to access Licensee Data as required for the interoperation of such Third-Party Applications with the Service, and any exchange of data or other interaction between Licensee and a Third-Party provider is solely between Licensee and such Third-Party provider pursuant to a separate privacy policy or other terms governing Licensee’s access to or use of the Third-Party Applications. Licensor will not be responsible for any disclosure, modification or deletion of Licensee Data resulting from any such access by Third-Party Applications or Third-Party providers. No procurement of such Third-Party Applications is required to use the Service. If Licensee was referred to Licensor by a member of one of Licensor’s partner programs, Licensee hereby authorizes Licensor to provide such member or its successor entity with access to Licensor’s business information related to the procurement and use of the Service pursuant to this Agreement, including but not limited to User names and email addresses, support cases and billing/payment information.
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2.7. Licensor’s Support Services and Professional Services.As part of the Service, Licensor will provide Licensee with On line help documentation and other online resources to assist Licensee in its use of the Service. Licensor also offers optional “for fee” Support Services and Professional Services including but not limited to Project Management, Training, and Configuration. The training of designated Licensee Contacts during initial implementation of the Service by e-PlanSoft or e-PlanSoft certified trainers as defined in the Sales Order.
Licensee shall ensure that one or more Designated Contacts have been trained and or certified in the use of Service supported by e-PlanSoft. Any training received by the Designated Contacts should be provided by either e-PlanSoft or e-PlanSoft certified trainers. In a case where the Licensee does not comply with the aforementioned requirement, the Licensee acknowledges that e-PlanSoft reserves the right to withhold certain services related to e-PlanSoft Support Services.
Only Designated Contacts in the Licensee agency/organization are authorized to communicate with e-PlanSoft support organization, including (but not limited to): opening Incidents, requesting resolution status, and requesting information about Service functionality.
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2.11. Ownership of Licensee Data. As between Licensor and Licensee, all title and intellectual property rights in and to the Licensee Data is owned exclusively by Licensee. Licensee agrees that Licensor may use Licensee data to perform necessary and reasonable activities during software engineering activities to ensure that the Service functionality continues to work with Licensee’s data.
2.12. Licensor Intellectual Property Rights.All rights, title and interest in and to the Service (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Service provided or developed by Licensor) are owned exclusively by Licensor or its licensors. Except as provided in this Agreement, the rights granted to Licensee do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Licensee grants Licensor a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Licensee or any Users related to the operation or functionality of the Service. Any rights in the Service or Licensor’s intellectual property not expressly granted herein by Licensor are reserved by Licensor. Licensee agrees not to display or use the Licensor trademarks, logos, and service marks in any manner without Licensor’s express prior written permission. The trademarks, logos and service marks of Third-Party Application providers (“Marks”) are the property of such third parties. Licensee is not permitted to use these Marks without the prior written consent of such Third-Party which may own the Mark.
2.13. U.S. Government Rights.The Service is a “commercial item” as that term is defined at FAR 2.101. If Licensee or User is a US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Licensor provides the Service, including any related software, technology, technical data, and/or professional services in accordance with the following: (a) if acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement; or (b) if acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative Agency or Federal Judicial Agency will obtain only those rights in technical data and software customarily provided to the public as set forth in this Agreement. If any Federal Executive Agency, Federal Legislative Agency, or Federal Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Licensor to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
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2.14. Dispute Resolution.
(a) The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. Except as provided in 2.14(b), each party agrees that before it seeks mediation, arbitration, or any other form of legal relief, it will provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are allegedly being breached). Within thirty days after such notice knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the dispute. Except as provided in 2.14(b), any and all disputes, claims or controversies arising out of or relating to this Agreement will be submitted to a mutually acceptable mediator for mediation before arbitration or any other form of legal relief may be instituted. Mediation may be commenced by a party providing a written request for mediation setting forth the subject of the dispute and the relief requested. The parties will cooperate by selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator will be a retired judge who has had experience with technology disputes. The parties agree that they will participate in the mediation in good faith and share equally in its costs. The mediation will take place in Orange County, California.
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that the number of Users is in compliance with this Agreement and any executed Sales Orders. The Licensee will notify Licensor If any additional Users will be added to use the Service. The Licensor at its sole discretion reserves the right to request Licensee records to determine if Licensee is in compliance with the terms of Master Agreement and any executed Sales Orders. If Licensor determines that Licensee has more Users than authorized by this Agreement and any executed Sales Orders, the fees for additional Users become immediately due.
4. Warranties
4.1. Warranty of Functionality.Licensor warrants that: (i) the Service will achieve in all material respects the functionality described in the User Guides applicable to the Service procured by Licensee, and (ii) such functionality of the Service will not be materially decreased during the then-current subscription term. Licensee’s sole and exclusive remedy for Licensor’s breach of this warranty will be that Licensor will be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the User Guides and if Licensor is unable to restore such functionality, Licensee will be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the then-current subscription term. Licensor will have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to billing@eplansoft.com. The warranties set forth in this Section are made to and for the benefit of Licensee only. Such warranties will only apply if the applicable Service has been utilized in accordance with the User Guides, this Agreement and applicable law.
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9.2 To Applicable Terms. If Licensor makes a material change to any applicable Terms, then Licensor will notify Licensee by either sending an email to the notification email address or posting a notice to the administrator in Licensee’s account. If the change has a material adverse impact on Licensee and Licensee does not agree to the change, Licensee must so notify Licensor via legalnotices@eplansoft.com within thirty (30) days after receiving notice of the change. If Licensee notifies Licensor as required, then Licensee will remain governed by the Terms in effect immediately prior to the change until the end of the then current subscription term for the affected Service. If the affected Service is renewed, it will be renewed under Licensor's then current Terms.
10. Entire Entire Agreement
This Agreement and its Exhibits, which are attached hereto and incorporated herein, constitute the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties. This Agreement cannot be amended or modified without a written signature on paper by both parties agreeing to the change.
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