Akumina Digital Workplace Software License Agreement
This Agreement is a legal agreement between Akumina Inc., a Delaware corporation (“Akumina“), and the legal entity or person on behalf of which or whom you are accepting this Agreement (“Subscriber“). By purchasing, downloading, accessing or utilizing the Platform, Subscriber agrees to be bound by the terms of this Agreement and agrees that these terms are incorporated by reference into any other associated agreement or purchase order entered by and between Akumina and Subscriber.
Capitalized terms not defined elsewhere in this Agreement are defined in the last of this agreement.
1. Product(s) Purchased. This Agreement shall apply to the product(s) identified in the Agreement and to any other Akumina products which Subscriber has subscribed for or licensed or may subscribe for or license from Akumina in the future, unless Akumina and Subscriber execute a separate agreement for such other or additional products.
2. License Rights. During the term of this Agreement and subject to compliance with the terms of this Agreement and the Purchase Agreement, including timely payment of all fees, Akumina grants to Subscriber a non-exclusive and nontransferable right and license to use the Platform solely for Subscriber’s internal business purposes. Subscriber’s license is limited to a specific number of users, a specific number of internal site experiences (instances) and a specific level of the software (Standard or Premium). Additionally, the Platform is licensed for (a) use of the Platform in production cloud deployment in Office 365 or in a production on-premises deployment in Microsoft SharePoint Server 2016 or 2019, (b) use for up to three additional non-production deployments of the Platform solely for internal testing, development or quality-assurance purposes. Subscriber agrees that Akumina may audit Subscriber’s use of the software platform, up to once per calendar year, upon reasonable notice to Subscriber and in a manner minimizing disruption to Subscriber’s business operations, to ensure compliance with the use restrictions, user levels and software level contained in the preceding sentences.
3. Intellectual Property Rights. Subscriber acknowledges that (a) as between Akumina and Subscriber, all right, title and interest in and to the Service (including without limitation the Platform), and any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied in or associated with any of the foregoing, are and will remain the property of Akumina, and this Agreement in no way conveys any right or interest in the Platform other than a limited right and license to use them in accordance herewith, (b) the Platform are works protected by the copyright and other laws of the United States and international treaties, and (c) Akumina asserts that the Platform embodies valuable confidential and proprietary information of Akumina, the development of which required the expenditure of considerable time and money. Subscriber agrees not to challenge or otherwise attempt to assert any rights in the Platform except those rights provided to Subscriber under this Agreement. The Platform may include software or functionality the rights to which are owned by third parties (collectively “Third-Party Owners”), and Subscriber agrees that such Third-Party Owners are third-party beneficiaries of this Agreement to the extent of their interest in such software or functionality.
4. Subscriber’s Obligations and Restrictions. Subscriber may not license, sublicense, sell, resell, transfer, assign, distribute or otherwise exploit, commercially or otherwise, the Platform or make the Platform available to any third party other than Subscriber’s employees and any other persons that Subscriber has authorized, with the prior consent of Akumina, to have access to the Platform, who have been supplied user identifications and passwords by Subscriber (collectively, “Subscriber’s Authorized Users“). Subscriber shall at all times remain solely responsible for the content of Subscriber Data and shall indemnify and hold harmless Akumina from and against any claims by third parties arising from or related to Subscriber Data, including claims that Subscriber Data infringes or violates their rights.
5. Confidentiality. Each party acknowledges that during the term of this Agreement, it may have access to or otherwise obtain non-public information that is confidential and proprietary to the other party (“Confidential Information“). The parties agree that any and all Akumina intellectual property (including without limitation the Akumina Technology) and Subscriber Data are Confidential Information. Each party agrees that it will (a) only use the other party’s Confidential Information for the purposes contemplated by this Agreement; (b) not use for its own benefit or knowingly disclose to, or use for the benefit of, any other person any Confidential Information of the other party without the other party’s prior written consent; (c) use at least the same degree of care and caution to protect the other party’s Confidential Information from disclosure that it employs with respect to its own confidential information, but in no event less than a reasonable degree of care and caution; (d) disclose the other party’s Confidential Information only to those of its employees, agents, consultants or contractors who require access to it in order for the party to be able to perform its obligations under this Agreement; and (e) ensure that any such persons allowed such access agree in writing to satisfy the foregoing obligations or are otherwise bound by similar obligations to keep such information confidential. This Section will not apply to any information which (i) is or becomes publicly available through no fault of the receiving party; (ii) is already in the receiving party’s possession without restriction on disclosure when disclosed by the disclosing party to this Agreement; (iii) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (iv) is rightfully obtained by the receiving party from a third party without violating the rights of the disclosing party.
6. Limited Warranties, Limitations of Liability, and Indemnity.
6.1 Limited Warranty. Akumina warrants, for the benefit solely of Subscriber, that the Platform that is provided to Subscriber conform in all material respects to Akumina’s published documentation relating to that edition of the software and that the portion of the Service that consists of services will be provided in a competent and professional manner in accordance with the practices and quality standards generally accepted in the industry. Akumina’s published documentation can be found on the Akumina Community Site found at http://community.akumina.com. Akumina’s sole obligation and Subscriber’s exclusive remedy regarding the warranty contained in this Section 6.1 shall be to repair the Service to bring it into compliance with such warranty. Any repaired Service shall be warranted under this Section 6.1 for the remainder of the original warranty period.
6.2 Indemnification for Infringement. If a claim is made that the Service or Subscriber’s use of the same as permitted by this Agreement directly infringes a valid United States patent, copyright, trademark or trade secret, Akumina will indemnify Subscriber and hold it harmless against such claim and resulting costs, damages and reasonable attorney’s fees finally awarded or agreed to in settlement, provided that (a) Subscriber promptly notifies Akumina in writing of the claim, and (b) Akumina has sole control of the defense and all related settlement negotiations, provided that Akumina shall not enter into any settlement that adversely affects Subscriber without Subscriber’s written approval. Subscriber may be represented by separate counsel at its own expense. Akumina’s obligations under this Section 6.2 are conditioned on Subscriber’s agreement that if the Service, or the use or operation thereof, becomes, or in Akumina’s opinion is likely to become, the subject of such a claim, Akumina may at its option and expense, either procure the right for Subscriber to continue using the Service, or replace or modify the same so that it becomes non-infringing (provided such replacement or modification does not materially adversely affect Subscriber’s intended use of the Service as contemplated hereunder). If neither of the foregoing alternatives is available on terms that are commercially reasonable in Akumina’s judgment, Subscriber will discontinue its use of the Service on written request by Akumina. Akumina will have no liability for any claim based upon the combination, operation or use of the Service with equipment, software or data not supplied or expressly recommended in writing by Akumina if such claim would have been avoided by use of other equipment, software or data. THE FOREGOING STATES THE ENTIRE REMEDY OF SUBSCRIBER AND THE SOLE OBLIGATION OF AKUMINA WITH RESPECT TO INFRINGEMENT CLAIMS.
6.3 Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE SERVICE OR TO ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO SUBSCRIBER HEREUNDER OR IN CONNECTION HEREWITH. AKUMINA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, WHETHER MADE BY AKUMINA EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY AKUMINA FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF AKUMINA WHATSOEVER. AKUMINA DOES NOT WARRANT THAT THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS WILL BE CORRECTED. THE LIMITED WARRANTY CONTAINED IN SECTION 6.1 IS VOID IF FAILURE OF THE SERVICE HAS RESULTED FROM MODIFICATION OR MISUSE OF THE SERVICE BY SUBSCRIBER OR ANY THIRD PARTY.
6.4 Limitation of Liability. REGARDLESS OF THE FORM OF ACTION, IN NO EVENT SHALL AKUMINA’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID TO AKUMINA IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFIT OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PURCHASE AGREEMENT, THIS AGREEMENT OR THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FOR WHICH DAMAGES ARE BEING SOUGHT HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY SUCH DAMAGES. IN NO EVENT WILL AKUMINA HAVE ANY LIABILITY FOR THIRD PARTY PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION THOSE BUNDLED, INTEGRATED OR OTHERWISE ASSOCIATED WITH AKUMINA PRODUCTS OR SERVICES.
7. Internet Delays. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE THE INTERNET AND ELECTRONIC COMMUNICATIONS. AKUMINA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8. Export Control. Subscriber may not export, ship, transmit, or re-export the Platform in violation of any applicable law or regulation, including, without limitation, the Export Administration Regulations issued by the United States Department of Commerce, or any such similar law or regulation issued by such other governmental entity which may have jurisdiction over such export.
9. Term and Termination. This Agreement shall become effective upon execution of this Agreement or when electronically acknowledged/downloaded, installed or otherwise used or acknowledged in writing by Subscriber and shall remain in effect until expiration or termination as provided herein. The Agreement, and Subscriber’s access to the Platform, may be terminated by either Subscriber or Akumina effective upon the expiration of the then-current term, by notifying the other party in writing at least sixty (60) days prior to the expiration of the then-current term. In addition, either party may terminate the Purchase Agreement and this Agreement, effective upon the giving of written notice, in the event of a material breach of this Agreement, provided that if such breach is capable of being cured and is cured within thirty (30) days of the aggrieved party’s written notice, this Agreement shall remain in effect. Except for agreement by Akumina and Subscriber in the event of a material breach of this Agreement, Subscriber shall not be entitled to any refund of the fees associated with this Agreement or the Purchase Agreement. Without limitation, any breach of Subscriber’s payment obligations or unauthorized use of the Platform will be deemed a material breach. In the event of a successful termination by Subscriber as a result of a material breach that cannot be cured, Akumina shall refund a prorated portion or any prepaid and unused fees specific to this Agreement.
10. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors or permitted assigns. Either Subscriber or Akumina may assign this Agreement and the rights granted hereunder and thereunder either (i) with the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, or (ii) in connection with a Change of Control Transaction. As used herein, a “Change of Control Transaction” shall mean: (i) a merger or consolidation of such party with or into another entity with respect to which less than a majority of the outstanding voting power of the surviving or consolidated company immediately following such event is held, directly or indirectly, by persons who held such power immediately prior to such event; (ii) a sale or transfer of more than 50% of the consolidated properties and assets of such party; or (iii) an acquisition of a majority of the voting power of such party by persons who were not security holders of such party immediately prior to such event.
11. Relationship of the Parties. Akumina and Subscriber are independent contractors, and nothing in this Agreement will be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party will make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf.
12. Force Majeure. In no event will either party be liable for any delay or failure to perform under this Agreement (except obligations to make payments as and when due) that is due to causes beyond the reasonable control of such party.
13. Notices. All notices given under this Agreement will be given in writing, will reference this Agreement and will be deemed to have been delivered and given when delivered (a) by registered or certified U.S. mail, return receipt requested, postage and charges prepaid; (b) by a commercial courier, with written verification of receipt; or (c) by email with electronic delivery confirmation. All notices will be sent to the following addresses or to any replacement address of which the other party has been given notice in accordance with this Section: (i) in the case of Akumina, to it at Akumina Inc., 30 Temple St, Nashua, NH 03060, or firstname.lastname@example.org; and (ii) in the case of Subscriber, to it at the address provided by Subscriber for such notice purposes in its Purchase Agreement or in any other writing provided to Akumina.
14. Entire Agreement; Amendments. This Agreement contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. In the event of any conflict between the terms of this Agreement and the terms of any other agreement, this Agreement shall prevail. This Agreement may be amended or modified except by a written instrument signed or electronically acknowledged and accepted by duly authorized representatives of both parties.
15. Severability. In the event that any provision of this Agreement is for any reason void or unenforceable in any respect, such provision will be without effect to the extent of the voidness or unenforceability without affecting such provision in any other respect and without affecting any other provision.
16. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire without giving effect to any choice or conflict of laws provision that would cause the application of the laws of any other jurisdiction. Any mediation, arbitration, or judicial action commenced under the terms of this Agreement shall take place in the State of New Hampshire.
17. Publicity. Each of Akumina and Subscriber consent to the use by the other party of its name and logo, including any proprietary marks incorporated therein, on or in the other party’s website and/or marketing materials and the identification of it as a customer of or service provider to such other party, as applicable. Akumina shall announce via social media channels, upon successful execution of this Agreement and/or the Purchase Agreement, that Subscriber has purchased Akumina’s Technology in a press release such as the sample included herein in Exhibit C. Acceptance of this publicity clause, and the template press release in Exhibit C will generate a 5% discount on the entire value of this contract up to a maximum of $50,000 divided across all purchased line items equally.
Subscriber Accepts Section 17 (“Publicity”) and opts for a 5% discount. Discount will be reflected as a single line item on the invoice.
18. Purchase Terms. Akumina will provide Subscriber with a license for the Platform for the term selected by Subscriber. Licensing of the platform grants Subscriber with the following:
1. An option to purchase a multi-year agreement and receive preferential pricing in return for upfront payment.
2. Use of the Platform for a specific number of employees, for a specific license level of the software (as defined herein) and for a specific number of site experiences (instances). A site experience (or an instance) is defined as any single, stand-alone, web-based experience leveraging the Platform that is delivering an experience to a single dedicated audience. For example, a corporate intranet to Subscriber’s employees would be considered one site experience (one instance). An extranet to Subscriber’s customers as an extranet would be considered a separate site experience (instance).
3. Use of the Akumina software grants Subscriber the right to the software installation package for all major and minor product releases, updates and service packs. Services to install/complete the upgrade are not included in the maintenance but can be purchase for an additional fee on a per customer basis.
4. Akumina requires every Subscriber to purchase the standard “Setup & Configuration” service for each hosting environment which includes the installation and setup of the Platform in Subscriber’s environment(s).
5. Subscriber has the option to self-host the Akumina AppManager & ServiceHub environments. If Subscriber chooses to self-host, they are responsible for 100% of the monthly hosting costs for AppManager/ServiceHub environment. Note: Akumina relies on a series of Azure Services to power performance inside the AppManager/ServiceHub environment. This cost is included in the hosting cost when Akumina is providing managed hosting services, however, it would need to be added by the customer in a self-hosting scenario.
6. Akumina’s Platform supports and ensures testing compatibility with the latest versions of the following web Browsers: Microsoft Edge, Google Chrome and Apple Safari. Legacy Browsers can be supported for an additional charge.
19. Native Mobile App Support: Akumina provides complete support for native iOS and Android mobile applications in certain license levels. To take advantage of this, Subscriber must have (or acquire) an enterprise developer license for iOS and Android mobile application development. Enterprise deployments require each customer to have a distribution mechanism for the App inside their enterprise. These solutions, usually called MDM (Mobile Device Management), allow for the testing and distribution of the mobile app, delivery of the appropriate mobile device certificate and downloading of the App itself. This also represents the mechanism for delivering updates to the native App. The Akumina native mobile app solutions requires a 4G or Broadband Internet connection due to the dynamic integration with Subscriber’s Office 365 (and other technology) environment(s). Biometric Authentication (Face & Fingerprint ID) is not included in the license fees quoted above. Biometric Authentication can be added by selecting the add-on below.
Subscriber elects to add Biometric Authentication functionality and support at an annual cost of $10,000.
20. Training: Akumina offers two training courses that are recommended for every Subscriber. The first course is a Certified Developer course designed to train technical users on building and operating the Platform. The second course is a Certified Content Author and Admin course designed to target content authors, administrators and power users who will be using the software daily to execute the business strategy. These training sessions each run as classroom style and can be done via a Microsoft Teams meeting or in person. Akumina highly recommends in person training, however it is not required, and travel expenses are not included in the quoted price.
Certified Developer Training course is for unlimited users per training session. Certified Content Author and Admin Training course is for unlimited users per training session.
21. Best Practices Services: Best Practices Services is an advisory professional service offered by Akumina designed to give our customers or our implementation partners guidance on approach and architecture, help on configuration, and customization of the use of the Akumina software platform. This supporting service is provided by a dedicated best practices manager who knows your goals and strategic initiatives and can work with your team on aligning the use of Akumina to match those goals. Depending on Subscriber’s needs, Best Practices can be used by the Subscriber as a stand-alone, in conjunction with supporting a Subscriber’s internal development team or in conjunction or supporting a Subscriber’s selected Akumina implementation partner. Unless otherwise specified in a launch plan or statement of work, the following assumptions shall be in effect for every best practice engagement:
1. Subscriber’s users are correctly licensed from Microsoft for Office 365 / SharePoint. Akumina is not providing Microsoft licenses as a part of this engagement.
2. Akumina assumes that Subscriber’s Active Directory and user profiles are up to date and accurate. If work is required on Akumina’s part to clean-up or fix these elements, a separate launch plan or statement of work will be created and executed.
3. The launch plan or statement of work identified in this Agreement is based on the work that we have completed in the pre-sales process to understand the goals and desires of the project. Both parties recognize that during Discovery certain items will be affirmed, changed, modified, added or removed and a final project plan will be assigned, and a change order and additional fees may be required.
4. Unless specifically listed in the project plan, Akumina will be executing no content migration as a part of this engagement.
5. Akumina’s work is all on a time and materials basis.
6. All travel expenses are bill as actual and are not included in the cost.
22. Term. The term of this Purchase Agreement will begin when a copy signed by Subscriber is returned to Akumina and will end at the completion of the initial term selected by the Subscriber, provided that the term shall automatically renew for additional terms each equal in length to the expiring term. Should subscriber allow subscription to lapse and then choose to renew, Akumina shall invoice a one-time administrative fee of $10,000 to re-activate the subscription. All supporting services purchased with the Akumina software subscription must be used during twelve-month period after purchase.
23. Fees and Payment: Subscriber agrees to pay the fees set forth above for the Platform and any associated services selected by Subscriber. Akumina will issue invoices to Subscriber and all invoices will be due and payable upon receipt. Travel expenses incurred by Akumina personnel in providing services to Subscriber are not included in the fees quoted above and will be invoiced separately. With the exception of an incurable material breach by Akumina, all payments are nonrefundable and exclusive of all taxes or duties, and Subscriber shall be responsible for payment of all such taxes or duties, excluding only U.S. (federal or state) taxes based solely on Akumina’s income. Subscriber will be invoiced and will pay in U.S. dollars unless otherwise negotiated. In addition to any other rights granted to Akumina herein, Akumina reserves the right to suspend or terminate this Agreement and Subscriber’s subscription, upon ten (10) business days’ written notice, if Subscriber’s account becomes delinquent (falls into arrears) and such delinquency is not cured within such notice period. Subscriber is liable to pay all costs and expenses of Akumina in collecting any delinquent amounts due under this Agreement, including all collection agency fees, court costs and reasonable attorney’s fees. All Supporting Services are invoiced and due with the payment of the software. All Best Practices Services are delivered on a time and materials basis and are invoiced, and payment is due with the payment of the software. All work created or provided, sample code supplied, or documentation generated shall be considered work-made-for-hire.
24. Definitions. As used in this Agreement: “Agreement” means this Akumina Employee Experience Software Platform Agreement and all associated exhibits; the “Platform” means all of Akumina’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Subscriber identified during the ordering process, developed, operated, and maintained by Akumina and/or ancillary services rendered to Subscriber by Akumina, to which Subscriber is being granted access under this Agreement, including the Platform, as further described in this Agreement; “Subscriber Data” means any data, information or material created by Subscriber that is provided or submitted by Subscriber to the Service in the course of using the Platform.