Master Services Agreement
This Master Services Agreement (the “Agreement”) is between InnQuest Software Inc. (subsidiary of Valsoft acting herein as service provider on behalf of parent company Valsoft Corporation Inc., a Quebec corporation having its registered office address at 7405 Transcanada Highway, Suite 100, H4T 1Z2, Montreal, Quebec, Canada), a Florida corporation with its office at 500 North Westshore Boulevard, Suite 950, Tampa, FL 33609 collectively (“InnQuest Software”), and [Name of Client] (the “Client”). This Agreement incorporates by reference the Order Form executed by the parties and attached hereto, as may be amended from time to time.
InnQuest Software is a hospitality management software solution for resorts, hotels, and inns that is offered as a (i) Software as a Service, or SaaS, application (“Hosted Services”) or (ii) an on-premise application (“Premise Services”).
1. The Services.
Client subscribes to the InnQuest Software products and services selected on each Sales Proposal attached hereto (for purposes of the Agreement, either the Hosted Services or the Premise Services, as applicable, shall be referred to as the “Services”) on the terms set forth herein. The Services include the following:
- a. For Hosted Services Only. InnQuest Software shall provide access to the InnQuest Software solution and such other software for which Client subscribes on Sales Proposal solely for Client’s internal business purposes and solely for use by Authorized Users during the Term. All rights now expressly granted are reserved by InnQuest Software. The Hosted Services includes all updates during the Term which InnQuest Software makes generally available at no additional cost to its clients.
- b. For Premise Services Only. Client acknowledges that this purchase of InnQuest Software Products can only be used at the one location listed on Page 3 of the Order Packet. The software cannot be used by any other location and the name/address listed on Page 3 of the Order Packet will appear on all material printed from the application including reports, folios, receipts and sign-in sheets and cannot be changed or altered in any way at any time.
- c. Stayfull Channel Management and WebBook. We will provide Channel Management services as described in the Schedule A to this Agreement (the ‘Service’). The Service provides connectivity to the InnQuest WebBook Online Booking Engine and a list of certified third-party channel partners for delivery of hotel inventory, rates and restrictions as well as reservation message delivery to the roomMaster PMS on a timed cycle. The Service does not manage the Channel Management Account setup, the accommodation provider contracts directly with the desired third-party channel partner(s). The setup of the connection is performed by the InnQuest Implementation Team. It is the responsibility of the accommodation provider to carefully manage their bookings and inventory. InnQuest software shall not be responsible for over bookings. The accommodation provider agrees to indemnify InnQuest Software and hold InnQuest Software harmless against any and all claims made by third parties. The subscription fee is not in lieu of any booking fees or commissions that each third-party booking channel charges for their services. We reserve the right to upgrade, modify, alter, limit or terminate the Service at any time. We will endeavor to notify the accommodation provider of all significant changes to the Service.
- d. Implementation. For On Premise Services, Installation shall consist of loading the InnQuest Software solution and such other software purchased on the Computer System in such a manner that it will perform in accordance with the functional specifications and capabilities listed in the on-line user documentation for the Licensed Software. Loading of the InnQuest Software solution and such other software purchased does not include data migration, data entry. Client acknowledges that InnQuest Software’s ability to perform installation-related services is dependent upon Client’s timely and complete provision and access to all necessary personnel, equipment and facilities and Client’s failure or delay in providing or making available these items to InnQuest Software will result in delays in the installation and additional fees being due and payable to InnQuest Software. for costs associated with rescheduling installation or delays.
- e. Support. During the Agreement Term, InnQuest Software shall render services, as defined in the Maintenance Agreement, in support of the InnQuest Software solutions. Client acknowledges that for on Premise Services, the Maintenance Agreement is a separately purchased service as listed on Sales Proposal and that for Hosted Services, the cost of the Maintenance and Support is included in the per month SaaS for Hosted Services.
- f. Follow the Sun Support. InnQuest Software leverages the strength of a global team of support professionals to offer support 24 hours a day. We have a small window where only emergency support is available. This is from 6:00pm on Saturday to 6:00pm on Sunday. All times are Eastern Standard Time, but due to the global nature of the support team, this window may vary slightly due to Daylight Savings acceptance in different geographical regions. During this window, emergency support is defined as downtime of the roomMaster software application, or unable to perform day-end close because of software error. InnQuest Software will return emergency issue calls during this window within 1-hour but usually within 15 minutes. If the emergency support is accessed during the emergency support window, and it is not an emergency issue, the property will be charged $75 for the call. If there are past due invoices (45 days from original invoice date) with INNQUEST, this agreement can become suspended until past due invoices have been paid. In addition, if CLIENT contacts INNQUEST to attempt to resolve Shift4 batch, deposit, or settlement issues outside of regular office hours, a charge of $75 will apply.
2. Restrictions on Use.
Client may not (i) sell, resell, share, lease or make the Services, or any portion thereof, available to any third party, (ii) create internet “links” to the Services or “frame” or “mirror” any portions of the Services on any other server or wireless or internet-based device (iii) access the Services in order to create a copy, derivative work of, reverse engineer, reverse assemble, disassemble or decompile the Services or otherwise attempt to discover any source code, modify the Services in any manner or form, or use unauthorized modified versions of the Services, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service (iv) otherwise use the Services in any manner that exceeds the scope of use permitted under an Order Form or this Agreement. In addition, Client may not use the Services to (a) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material (b) send or store computer viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs (c) interfere with or disrupt the integrity or performance of the Services or the data contained therein or (d) attempt to gain unauthorized access to any InnQuest Software computers. Client shall, at all times, comply with all applicable laws in using the Services. Client shall not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Services. Client grants InnQuest Software or its agent the right to audit its use of the Services and provide access to the Computer Server or other servers, as applicable, and all books and financial records related to Client’s use of the Services to ensure compliance with this Agreement. Upon InnQuest Software’s written request, Client will certify in writing to InnQuest Software its compliance with the terms and conditions of this Agreement on an annual basis.
3. Database Limited Grant of Rights
InnQuest Software grants Client a limited license to access and use the roomMaster “SQL” database when using InnQuest Software products and services. For On Premise Services only, outside of using InnQuest Software products, Client is granted read-only access to all the tables, excluding the security and trade-secret tables, for Client’s own use. Client reserves ownership rights of the data and this agreement does not grant InnQuest Software ownership rights of the data. However, InnQuest Software reserves all ownership rights of the database source, structures, security, as well as exclusive and all access rights to DBA (Database Administrator) authority. By signing this agreement, Client acknowledges they will not be given DBA (full) authority to the database. InnQuest Software grants Client perpetual use of this database for the purposes of accessing their data, assuming Client does not breach any of the terms or agreements with InnQuest Software. Upon any breach, this grant of use is terminated, and Client is required to discontinue use of database. Altering the database tables in any manner, either structures or data, is prohibited, outside of the design by InnQuest Software. This license also grants Client restricted use of the Sybase SQL Anywhere product to be used for the purposes of InnQuest Software products only.
4. Reasonable Expectations
InnQuest Software products and services are provided “as-is”. As in the case with software, it is subject to possible “bugs” which may cause it to not perform as expected. InnQuest Software agrees to make a good faith effort to correct such “bugs” detected, but is not obliged to nor follow a specific time line to release corrections. By signing this, Client acknowledges full satisfaction of the functionality of the software and documentation. Client also acknowledges that with any computerized system, persons with limited technical computer experience may not be able to use the software as well as others and these factors may change the expectations after making this purchase and Client understands that InnQuest Software can then not be held responsible.
5. Miscellaneous Provisions
Client understands and agrees not to install or use this same license, software and/or registration code at another property or location, sell, resell or transfer this license to another property or in any other way violate this agreement. Should this agreement be compromised willingly or unwillingly by any owner, Officer, Director, Agent, Employee or vendor of the licensed property, once Client is notified, Client agrees to correct the compromised action within 7 (seven) days. Client’s permission to use the software terminates immediately without any further action by InnQuest Software if Client breeches any terms or conditions and fails to correct the action, and InnQuest Software reserves the right to cancel all contracts, services and licenses related to the software.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, United States of America, as such laws would apply to a contract fully negotiated, entered into, and performed in that state. You waive any claim that a court located in or serving Florida, lacks personal jurisdiction over you, is an improper venue, or is an inconvenient forum.
6. Fees and Payments.
- a. Payment Terms. In consideration of the on Premise Services provided by InnQuest Software, Client agrees to pay the fees set forth in the Sales Proposal. All fees are due and payable in full upon receipt in order to start the implementation process. In considerations for the Hosted Services provided by InnQuest Software, Client Agrees to pay the fees set forth on the Exhibit A (provided). InnQuest Software reserves the right to suspend and/or terminate access to the Hosted Services if any Fees payable hereunder are past due and Client fails to cure such non-payment within ten (10) days of receipt of written notice from InnQuest Software. Such a suspension of Services shall not relieve Client from its obligation to pay all amounts due under this Agreement.
- b. Calculation of Fees. Client acknowledges that the Fees payable by Client are based on options selected by Client and listed on the Sales Proposal and/or the Exhibit A. Client acknowledges for Hosted Services the monthly SaaS Rate shall be guaranteed for the initial term (see Exhibit A) and that InnQuest Software reserves the right to increase the SaaS Rate no more than 5% annually after the initial term.
- c. Taxes. Fees and all other amounts mentioned in this Agreement do not include any sales, property, use, value added or ad valorem taxes based upon this Agreement or any Services (collectively “Taxes”), all of which shall be paid by Client. In the event that InnQuest Software is required by applicable law to pay or remit such Taxes, Client shall reimburse InnQuest Software. Client shall not pay for taxes on InnQuest Software’s net income.
7. Client Data.
For Hosted Services, it is InnQuest Software’s practice to make backup copies of the Client Data in Client’s account and to store and maintain such data for 7 days. Subject to the terms and conditions of this Agreement, Client grants InnQuest Software a limited non-exclusive non-transferrable (except in connection with an assignment permitted under Section 17(a) herein) license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Client Data to the extent necessary to provide the Services to the Client and for approximately 30 days after termination of the Services for the sole purpose of storing backup Client Data at InnQuest Software’s offsite storage facility. Subject to the terms of this Agreement, InnQuest Software agrees that, as between Client and InnQuest Software, Client Data shall at all times be considered property of Client. Client is solely responsible for Client Data and will not provide, post or transmit any Client Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity or privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, or surreptitiously intercept or expropriate any system, data or personal information.
For On Premise Services, Client acknowledges sole responsibility for performing backups of data and maintaining backups and operation of third-party backup software or solutions. InnQuest Software does not perform backups or keep backup copies of your On Premise Data.
8. Hosted Monthly Uptime Commitment
InnQuest Software will use commercially reasonable efforts to make the Included Products and Services each available with a monthly uptime percentage of at least 99%. This will account for planned and announced database maintenance and operating system updates.
As between the parties, InnQuest Software (and its licensors, where applicable) will retain all right, title and interest in the Services, report formats generated by the Services and all InnQuest Software Confidential Information, as well as any revisions, modifications, enhancements and derivative works thereof (together with the intellectual property rights therein). InnQuest Software retains all rights not expressly granted herein to Client hereunder.
10. Third Party Web Sites, Content, Products and Services.
The Services may enable the Client to link to, transmit Client Data to, or otherwise access, other Web sites, content, products, services, and information of third parties. InnQuest Software does not control and is not responsible for such Web sites or any such content, products, services and information accessible from or provided through the Services, and the Client shall bear all risks associated with access to and use of such Web sites and third-party content, products, services and information (including integration of third party online applications into the Services). Client acknowledges that InnQuest Software is under no obligation to monitor or correct third party content, however, InnQuest Software reserves the right to take remedial action if any such content violates this Agreement, including the removal of, or disablement of access to, such content. Client acknowledges that the nature, type, quality and availability of third-party content and features of the Services that interoperate with third parties depend on continuing availability of such third parties’ applicable programming interfaces (“APIs”) for use with the Services. InnQuest Software may update, change or modify the Services under the Agreement or the Order Form as a result of a change in, or unavailability of, such third-party content or APIs. If any third party ceases to make its third-party content or APIs available on reasonable terms for the Services, as determined by InnQuest Software in its sole discretion, InnQuest Software may cease provided access to the affected third-party content or third party services. Any changes to third party content, third party services or APIs, including their availability or unavailability, does not affect the Client’s obligations under this Agreement or the Order Form.
The term “Confidential Information” shall mean any and all information which is disclosed by either party to the other verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary, including but not limited to this Agreement and the terms, conditions and pricing contained herein. InnQuest Software’s Confidential Information includes, but is not limited to, InnQuest Software’s proprietary technology, InnQuest Software trade secrets, computer programs, software, formulas, data, designs, know-how, inventions, techniques, marketing plans, documentation, strategies, and forecasts. Client’s Confidential Information includes, but is not limited to, Client Data, financial data, personnel records, marketing information and any other data or information in any form relating to the business affairs of Client. “Confidential Information” does not include information of the other party that is (i) publicly available, (ii) already in such party’s possession and not subject to a confidentiality obligation, (iii) obtained by such party from third parties authorized to make such disclosure, or (iv) independently developed by such party without reference to or use of the other party’s Confidential Information. Each party agrees that it will not disclose the other party’s Confidential Information to any third party, except as authorized by this Agreement. Each party agrees that it will disclose Confidential Information of the other party only to those of its employees and contractors who need to know such information and who have previously agreed to be bound by the non-disclosure terms and conditions of this Agreement. Each party agrees that it will treat all Confidential Information of the other party with the same degree of care as it accords its own Confidential Information; each party represents that it exercises reasonable care to protect its own Confidential Information. No violation of this Section shall occur by reason of a disclosure of Confidential Information in response to a valid order by a court or other governmental body, provided that the party subject to such order provides the other party with commercially reasonable prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information, and provided that the party subject to such order has been advised by counsel that such disclosure is required by law.
12. Term and Termination.
- a. Term. This Agreement shall remain in effect for the Initial Term (see Exhibit A), subject to subsections 12(b) and 12(c) below. Upon completion of the Initial Term, this Agreement shall renew for additional 12-month periods (each, a “Renewal Term”) unless either party provides written notice to the other party, at least one hundred twenty (120) days prior to the expiration of the then-current term, of its intention not to renew this Agreement.
- b. Termination of the Agreement for Convenience. Client may terminate the Agreement after the initial term with a 30-day written notice, which must be confirmed by InnQuest Software. Terminations become effective on the first day of the next billing cycle.
- c. Termination of Licenses for Convenience. Client may add Rooms at then current prices during the Agreement term, and Client may also remove Rooms during the term. However, client may not drop the number of Rooms below 80% of the initial number of Rooms in the Agreement. If the calculation of 80% of the initial number of Rooms yields other than a whole number, round up to the nearest whole number of Rooms if the resulting 80% figure ends with “.51” or greater, and round down to the nearest whole number if it ends with “0.50” or less. The minimum number of Rooms is four (4), meaning no Client can drop below four (4) Rooms.
- d. Termination with Cause. Either party may terminate this Agreement upon written notice to the other party if the other party defaults in the performance of any of its material obligations under this Agreement (except for a default in payments by Client), which default has not been substantially cured within thirty (30) days after written notice has been given to the defaulting Party specifying the default. InnQuest Software may suspend access to the Services in the event it reasonably believes Client to be in violation of Section 2.
- e. Termination for Nonpayment. If Client defaults in the payment when due of any amount due to InnQuest Software and does not cure such default, within ten (10) days after written notice has been given to Client, InnQuest Software may terminate the Agreement.
- f. Effect of Termination. Upon termination or expiration of this Agreement for any reason, each party shall return to the other party all property (including but not limited to any Confidential Information) of the other party in its possession or control. InnQuest Software will immediately cease performing all Services, the license granted under Section 1(b) shall be revoked, and all Client and Authorized User access to the Services shall be immediately terminated.
- g. Survival. The following provisions shall survive the termination or expiration of this Agreement: Section 2 (“Restrictions on Use”), Section 4 (“Reasonable Expectations), Section 5 (“Miscellaneous Provisions”), Section 6 (“Fees and Payments”), Section 9 (“Ownership”), Section 11 (“Confidentiality”), Section 12 (“Term and Termination”), Section 13(b) (“Disclaimer of Warranty”), Section 13(c) (“Internet Disruption”), Section 14 (“Limitation of Liability”), and Section 18 (“Definitions”), Section 19 (“General Provisions”).
13. Limited Warranties and Disclaimer of Warranty.
- a. Performance Warranty. InnQuest Software warrants that the Services will conform in all material respects to the specifications contained in the Sales Proposal, and that the Services shall be provided in a workmanlike and professional manner by competent personnel. Client’s sole remedy for breach of the foregoing warranty will be for InnQuest Software to use commercially reasonable efforts to re-perform the applicable Services at no additional charge to Client.
- b. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, NEITHER INNQUEST SOFTWARE NOR ITS SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Without limiting the generality of the foregoing, InnQuest Software does not warrant that (i) the Services will operate in combination with other hardware, software, systems or data not provided by InnQuest Software, except as expressly specified by InnQuest Software in such Order Form, (ii) that the operation of the Services will be uninterrupted or error free or (iii) that the Services will meet Client’s requirements. InnQuest Software will have no obligation under Sections 9(a) or 9(b) if any non-conformance or failure of, or error in, the InnQuest Software Services is caused by: (i) any modification of the Services by any person other than InnQuest Software or its agents, (ii) the use or attempted use of any software, hardware, attachment, feature or device other than that supplied by and/or approved by InnQuest Software, (iii) failure of Client to provide any information, data, support or assistance required under this Agreement or otherwise necessary for InnQuest Software to perform its obligations hereunder, (iv) failure of Client to meet the InnQuest Software minimum system requirements (as may be updated from time to time), or (v) any use of the Services that is not in accordance with this Agreement, the Order Form or related documentation provided by InnQuest Software.
- c. Internet Disruption. CLIENT’S ACCESS TO THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS OR OTHER DISRUPTIONS INHERENT TO USE OF THE INTERNET. IN NO EVENT SHALL INNQUEST SOFTWARE BE LIABLE FOR ANY DAMAGES (WHETHER IN CONTRACT OR IN TORT) ATTRIBUTABLE TO THE PUBLIC INTERNET INFRASTRUCTURE OR CLIENT’S ABILITY TO CONNECT TO THE INTERNET.
14. Limitation of Liability.
NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (UNDER ANY THEORY INCLUDING BUT NOT LIMITED TO NEGLIGENCE, CONTRACT OR STRICT LIABILITY), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL INNQUEST SOFTWARE’S TOTAL CUMULATIVE LIABILITY RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO INNQUEST SOFTWARE BY CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CLIENT MAY HAVE AGAINST INNQUEST SOFTWARE WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
15. Americans with Disabilities Act (“ADA”).
InnQuest Software is committed to ensuring the wide accessibility of its solutions and uses commercially reasonable efforts to work with its customers and provide accessible services. However, Client understands and agrees that it is not settled whether or how the ADA applies to commercial websites, and what standard, if applicable, must be applied to be considered “accessible” under the ADA. Client further understands and agrees that Client is fully responsible for determining the laws and regulations applicable to its website(s), which may vary based on Client’s jurisdiction. As such, InnQuest’s indemnification obligations under Section 16 of this Master Services Agreement exclude any claims, damages, costs, or expenses related in any way to the ADA or to equivalent legislation in other jurisdictions.
InnQuest Software shall at its own expense defend, or at its option settle any third party claim or action against Client of InnQuest Software to the extent alleging that the Services, when used by Client as provided in this Agreement, infringe a third party United States patent, copyright, trade secret or trademark, and InnQuest Software shall pay all costs (including reasonable attorney’s fees) arising therefrom and damages finally awarded against Client or paid in settlement by InnQuest Software thereof. InnQuest Software’s indemnification obligations under this Section are conditioned upon Client giving InnQuest Software: (a) prompt written notice of such claims; (b) reasonable assistance in defending the claim; and (c) sole authority to control the defense of such claim. InnQuest Software may, at its option and expense, and as Client’s exclusive remedy hereunder (i) replace the Services, without additional charge, with a functionally equivalent and non-infringing product; (ii) modify the Services to avoid the infringement; (iii) obtain a license for the Client to continue use of the Services at no additional charge to Client or (iv) cease providing the infringing portion of the Services and refund to Client a portion of the Fees paid for the infringing Services (as determined by InnQuest Software). InnQuest Software shall have no liability for (1) any third party claims arising from or caused by any use of the Services that is not in accordance with this Agreement, (2) any use of the Services with other programs, data, equipment or documentation not provided by InnQuest Software or (3) compliance with Client’s designs, specifications or instructions or for any Client Data. The indemnification rights of Client pursuant to this Section shall be the exclusive remedy of Client against InnQuest Software with respect to any infringement claims related to use of the Services.
Client acknowledges that the Services provide access to software and technology that may be subject to United States export controls. Client agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Services or any technical information about the Services, without fully complying with the United States Export Administration Act, any regulation thereunder, and any applicable similar law or regulation.
18. General Provisions.
- a. Assignment. Client may not assign its rights or delegate its duties hereunder without InnQuest Software’s prior written consent. This Agreement shall be binding on each party’s successors and permitted assignees.
- b. Subcontract of Services. Client agrees that InnQuest Software may subcontract certain portions of the Services to be performed by affiliates or other third parties in connection with this Agreement, provided that no such arrangement shall relieve InnQuest Software of any of its obligations hereunder.
- c. Change in Services. InnQuest Software has the right to change, modify, and otherwise convert the technology used to provide the Services and terms under which the Services are offered, provided that the basic functionality and quality of the Services will not be materially affected.
- d. Force Majeure. Except as otherwise provided, if performance hereunder (other than payment) is interfered with by any condition beyond a party’s reasonable control, including, but not limited to disruption of Internet access or services, the affected party, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such condition.
- e. Governing Law; Venue; Arbitration. This Agreement is made and shall be governed by and construed in accordance with the laws of the State of Florida, excluding its choice of law principles. Exclusive jurisdiction and venue of any actions connected with this Agreement shall be submitted to confidential arbitration in Palm Beach County, Florida except that, to the extent InnQuest Software determines in its sole discretion it is prudent to do so, InnQuest Software may seek injunctive or other appropriate relief in the state or federal courts residing in Palm Beach County, Florida. Arbitration shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
- f. Independent Contractors. The parties are independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement. Neither party shall make any warranties or representations on behalf of the other party.
- g. Notice. All notices shall be in writing and sent by regular mail, certified mail, overnight courier, facsimile (if confirmed by mail), electronic mail (e-mail) or delivered personally to the addresses indicated on the most recent Order Form executed by the parties, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notice will be effective on the date shown on the delivery receipt or facsimile confirmation or, in the case of regular mail, actual receipt. In case of e-mail, notice will be considered effective upon the date sent by e-mail (with confirmation of transmission), if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient.
- h. Non-Solicitation. Client shall not during the Term and for a period of one year following its expiration or termination, directly or indirectly, solicit, recruit, employ, retain or hire, either as an employee, agent, subcontract or independent contractor, any employee of InnQuest Software without InnQuest Software prior written consent.
- i. Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
- j. No Third-Party Beneficiaries. InnQuest Software and Client agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.
- k. Publicity. Neither party shall issue publicity or general marketing communications concerning the other party without such other party’s prior written approval.
- l. Entire Agreement; Modification; Waiver. This Agreement (including any attachments) sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of this Agreement (for avoidance of doubt, the foregoing includes any legacy InnQuest Software products). No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement will be valid or binding on either party unless the same is mutually agreed to in writing by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. The terms and conditions of any Order Form issued by Client in connection with this Agreement that are inconsistent with the terms and conditions of this Agreement shall not be binding and shall not be deemed to modify this Agreement unless agreed to in writing by an authorized representative of InnQuest Software.
- a. “Authorized Users” means the named employees or contractors of Client or a Client Affiliate authorized to use the Services pursuant to an Order Form and whose identity has been reported in writing to InnQuest Software (and in the case of contractors are not competitors of InnQuest Software).
- b. “Client Affiliate” means any legal entity that Client controls through Client’s beneficial ownership of more than 50% of the voting interests in that entity.
- c. “Client Data” means any data, information or other materials of any nature whatsoever, provided to InnQuest Software by Client in the course of implementing and/or using the Services.
- d. “Computer Server” means the single computer server supplied by the Client on which the licensed software is installed for use, as designated to Client.
- e. “Emergency Hours” means all times other than Normal Working Hours.
- f. “Initial Term” means the period indicated as the Initial Term in the first Order Form executed by InnQuest Software and Client.
- g. “Normal Working Hours” means Monday through Friday from 8:00 am to 7:00 pm, Eastern Standard Time.
- h. “Services” means the Hosted Services or the Premise Services, as applicable, subscribed for by Client on an Order Form, together with any documentation, tools, utilities, methodologies, specifications, techniques or other materials or know-how related thereto.
- i. “Order Form” means each ordering document, which when executed by authorized representatives of both Client and InnQuest Software entered into in connection with this Agreement.