This software as a service subscription agreement (the “Agreement”) governs your use of the Felix Condition Reporter Software service (“Felix”) and any related services provided by Felixhub P/L (“Felixhub”), Victoria Australia, a limited liability company.
If you subscribe to or in any way use Felix, then you have agreed to these terms. If you are an agent or employee of the intended subscriber or user, you individually represent and warrant to Felixhub that you are authorized to bind that party to this Agreement. If you do not agree to this Agreement, then you are not authorized to use the Felix software.
(a) Company. A “Company” is defined as a Felix account granted by a Felix site administrator, having its own unique Company code, and its own subscription.
(b) Company Data. “Company Data” means specifically all condition assessment records, their related assessment drawings and diagrams, assessment feedback records, Asset information, survey records and documents or drawings files uploaded to Felix as survey documentation or assessment documentation. Any information not listed above is not deemed Company Data.
(c) Token. A “Token” means a right to use Felix for one Asset for one 365 day calendar year.
(d) Error. “Error” means any reproducible material failure of Felix to function in accordance with its user manual.
(e) Maintenance Windows. “Maintenance Windows” means collectively, standard maintenance and emergency maintenance. Standard maintenance windows will be published in advance on Felixhub’s website www.felixhub.com at least 72 hours in advance of the start of the maintenance window. Emergency maintenance will occur as needed. Felixhub will make reasonable efforts to publish emergency maintenance windows on Felixhub’s website in advance of the emergency maintenance window, but it is possible that advanced notification of an emergency window may not occur.
(f) Company Administrator. “Company Administrator” means the person(s) that Company designate(s) to; purchase on behalf of Company subscription to the Service, authorize Users under the Agreement, create accounts for additional Users and otherwise administer Company’s use of Felix.
(g) Support. “Support” means the ongoing services by Felixhub to support Felix as defined in Section 3 below.
(h) Update. “Update” means any patch, bug fix, release, version, modification or successor to Felix.
(i) User. “User” means a named individual to whom Company Administrator has granted access to use Felix on Company’s behalf, regardless of whether or not the User actually accesses the Software. Users may be Company’s employees, consultants, contractors or agents.
(j) Edition. “Edition” means the numbered configuration of Felix that has been licensed to Company. An Edition defines what, features are provided in the Felix software service. From time to time, new features will be introduced to Felix, and those features may be restricted to specific Editions. New numbered Editions may also be introduced from time to time.
(k) Effective Date. “Effective Date” is the date on which the Company’s subscription to Felix starts. Effective Date is the beginning of the contract term. The yearly anniversary of the Effective date will be the subscription renewal date.
(l) Asset. “Asset” refers to an entity in Felix against which Condition Assessments can be recorded. Felix subscriptions are licenced by the number of Active Assets in the Felix Company account.
2. Use Rights
(a) Use Rights. During the term and subject to the terms of this Agreement, Felixhub hereby grants to Company a nonexclusive right to permit Company’s Users to use the licensed Edition of Felix for Company’s business purposes. The use right is limited to use governed by the number of Assets for which Company has a current paid subscription. All rights in and to Felix not expressly granted herein are reserved to Felixhub. Felix is delivered as Software as a Service. A Company Administrator may create any reasonable number of users who may access the software if the software has a current valid subscription. The company code granted to Company is unique, and cannot be changed. Felix is licenced for use by subscription on the basis of the number of active Assets used by a Company “Company”. In order to use the use Felix software you must be subscribed for the number of active Assets in use, otherwise access to the software will be denied. A single subscription token entitles the user to manage a single Asset for 12 months from the initial subscription billing date. Expiration of the subscription, or exceeding the Asset count will result in you not being able to login. Subscription asset counts can be extended any time by purchasing further tokens against for the current, or a future subscription. Once a subscription has expired for 12 months, the Company account will be deleted, and Felixhub will be under no obligation to retain Company data,
(b) License and Use Restrictions. Company shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile Felix; (ii) modify, create derivative works based upon, or translate Felix; (iii) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit Felix in any form to any other party, nor shall Company attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder. You acknowledge and agree that Felixhub shall own all right, title and interest in and to all intellectual property rights (including any customisations derivatives or improvements thereof) in Felix and any suggestions, enhancement requests, feedback, recommendations or other information provided by Company or any of Company’s Users relating to Felix.
(c) Company Administrator; User Access. Company shall designate one or more Company Administrators. Company Administrators shall be responsible for managing User access, including adding, deleting, or disabling Users.
(d) Company Data. Company owns all right, title and interest in the Company Data. Felixhub shall not use the Company Data except to improve Felix and as necessary to perform its obligations hereunder. All Company Data remains the exclusive property of the Company having purchased a valid subscription to Felix. A company administrator can export out of Felix Company Data any time. It is the responsibility of Company to take extracts of data.
(e) No Sensitive Data; Company Responsibilities. Company acknowledges that Felix is not intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or other similarly sensitive personal information, and that Company assumes all risk arising from use of any such sensitive information with Felix, including the risk of any inadvertent disclosure or unauthorized access thereto. Company is responsible for ensuring that Company and Company Users’ use of Felix is in compliance with all applicable laws and governmental regulations and Company acknowledges that Company assumes all risk arising from any such use that is not compliant with applicable laws and regulations.
(f) Security. Company is solely responsible for maintaining the security of all user names and passwords granted to it, for the security of its information systems used to access Felix, and for its Users’ compliance with the terms of this Agreement. Felixhub will act as though any electronic communications it receives under Company’s user names have been sent by Company. Company will immediately notify Felixhub if it becomes aware of any loss or theft or unauthorized use of any of Company’s passwords or user names. Felixhub has the right at any time to terminate or suspend access to any User or to Company if Felixhub believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of Felix or Felixhub’s network.
(a) Services Generally. Subject to the terms of this agreement, Felixhub shall use commercially reasonable efforts to make Felix available to Company.
(b) Updates. Felixhub shall deliver Updates to Felix that apply to the Company’s currently licensed Edition at no additional charge. From time to time, new Components or features may be released that are applied selectively to different Editions of Felix. Only those Updates that apply to the Company’s currently licensed Edition will be delivered automatically to the Company at no additional charge.
(c) Support. Felixhub shall provide general support to the Company in the form of e-mail service requests. General support means a Felix representative will respond to a service request within 24 hours. Service requests are raised via the distributer you purchased the subscription through.
(d) Error Correction. Felixhub shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during Felixhub’s normal business hours. Company shall provide such access, information, and support as Felixhub may reasonably require in the process of resolving any Error. This paragraph is Company’s sole and exclusive remedy for Errors.
(e) Support Exclusions. Felixhub is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by:
(i) the acts, omissions, negligence or wilful misconduct of Company, including any unauthorized modifications of Felix or its operating environment;(ii) any failure or defect of Company’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of Felixhub’s firewall); (iii) Company’s use of Felix other than in accordance with the Felix documentation; or (iv) a Force Majeure Event.
(f) Support Fees. Included in the subscription fee is general support.
(g) Limitation of Remedies. Correction of Errors as defined in this Agreement are Company’s sole remedies for any Errors in Felix.
4. Financial Terms
(a) Fees. In return for the products, services and use rights provided by Felixhub to Company hereunder, Company shall pay to Felixhub the subscription fees in the amount set forth. All fee amounts will be in the currency allocated to Company at the time of account creation.
(b) Payment Terms. Company must purchase subscription in advance.
(c) Taxes. Company shall pay or shall reimburse Felixhub for all sales taxes and other taxes, however characterized by the taxing authority, based upon the subscription fees or other charges under this Agreement or otherwise incurred on account of Company’s use of Felix, except for any taxes based upon Felixhub’s net income or gross receipts or for any franchise or excise taxes owed by Felixhub. If Company is a tax exempt organization, then, upon Felixhub’s receipt of proof of such status, then Felixhub shall not charge Company for any taxes from which Company is exempt.
(d) Pricing Changes. Company will receive notice of changes in pricing at least 45 days before each anniversary of the Effective Date.
5. Term and Termination
(a) Term. The term of this Agreement commences on the Effective Date hereof, after which the term will continue until the one year anniversary of the Effective Date. Warning will be sent by e-mail to Company Administrators 30 days before the Effective Date by which subscription will need to be renewed. Company Data shall be retained by Felixhub for 12 months from the date the subscription has expired.
(b) Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party: (i) if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within 10 days of written notice by the other party specifying the amounts owed;in the case of Felixhub, immediately upon any breach by Company of Section 2(b) and/or Section 2(e) above; (ii) immediately upon any breach of any confidentiality obligations owed to such party by the other party; (iii) if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the Nonbreaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or (iv) upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
(c) Obligations Upon Termination. Upon termination of this Agreement: (i) provided that Company has paid all amounts owed to Felixhub hereunder, Felixhub shall, upon written request received within 30 days of termination, provide any Company who purchased subscription to Felix for a fee with access to Felix for a period of 48 hours for the limited purpose of exporting Company Data; (ii) Felixhub shall immediately terminate access to Felix by Company; and (iii) Company shall immediately pay Felixhub any amounts payable or accrued but not yet payable to Felixhub, including any deferred payments or payments originally to be made over time. COMPANY ACKNOWLEDGES THAT IF COMPANY IS USING AN EDITION OF FELIX PROVIDED FREE OF CHARGE, UPON TERMINATION OF THIS AGREEMENT, FELIXHUB IS UNDER NO OBLIGATION TO EITHER MAINTAIN COMPANY DATA OR TO PROVIDE COMPANY WITH ACCESS TO OR A COPY OF THE COMPANY DATA.
(a) Confidential Information. “Confidential Information” means any and all tangible and intangible information (whether written or otherwise recorded or oral) of a party that: (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; or (B) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation: (i) non-public information relating to a party’s technology, Company’s, business plans, promotional and marketing activities, finances and other business affairs; (ii) third party information that Company or Felixhub is obligated to keep confidential; (iii) the material terms and conditions of this Agreement; and (iv) any non-public information relating to any activities conducted hereunder.
(b) Exclusions. Notwithstanding the above, the term “Confidential Information” does not include any information that is either: readily discernible from publicly available products or literature; or approved for disclosure by prior written permission of an executive officer of the disclosing party.
(c) Use of Confidential Information. Each party shall only use Confidential Information furnished to it hereunder in furtherance of the activities contemplated by this Agreement, and, except as authorized in this Agreement, it shall not disclose the Confidential Information to any other persons without the disclosing party’s express written authorization.
(d) Required Disclosures. A receiving party may disclose Confidential Information of the
disclosing party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
(e) Return of Information. Except as set forth otherwise in the specific provisions concerning Company Data set forth in Section 5(c) above, if a disclosing party so requests at any time, the receiving party shall return promptly all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession.
(f) Survival. The parties hereto covenant and agree that this Section 6 will survive the expiration, termination, or cancellation of this Agreement for a period of 3 years, except for Confidential Information constituting a trade secret, with respect to which this Section will survive the expiration, termination, or cancellation of this Agreement for so long as such Confidential Information remains a trade secret.
(a) Indemnification by Felixhub. For Companies using Felix, Felixhub shall defend, indemnify and hold harmless Company from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third party claim, suit or proceeding that arises from Company and/or the Company’s Users’ use of Felix in accordance with this Agreement that, to Felixhub’s knowledge, infringes or misappropriates any trademark, or copyright. Felixhub will have no indemnity obligation to Company if the alleged infringement or misappropriation is based on (i) any combination, operation, or use of Felix with products, services, information, materials, technologies, business methods or processes not furnished by Felixhub to the extent the infringement or misappropriation is based on such combination, operations or use; (ii) any modification (other than by Felixhub) to Felix to the extent the infringement or misappropriation is based on such modification; or (iii) the Company’s failure to promptly install any Update that is provided by Felixhub that would have eliminated the actual or alleged infringement or misappropriation.
(b) Indemnification by Company. Company shall defend, indemnify and hold harmless
Felixhub from and against all damages, liabilities, losses and expenses, including reasonable
attorneys’ fees and expenses, resulting from any thirdparty claim, suit or proceeding that arises from the Company and/or the Company’s Users’ use of Felix (other than to the extent indemnified by Felixhub under Section 7(a) or, in the case of a Company using only a free Edition of Felix, other than to the extent the third party claim would have been subject to indemnification by Felixhub under Section 7(a) if Section 7(a) applied to Company.
(c) Indemnification Process. The indemnified party shall promptly notify the indemnifying party in writing of any third party claim, stating the nature and basis of the third party claim, to the extent known. The indemnifying party shall have sole control over the defence and settlement of any third party claim, provided that, within fifteen (15) days after receipt of the above described notice, the indemnifying party notifies the Indemnified Party of its election to so assume full control. The foregoing notwithstanding, the indemnified party shall be entitled to participate in the defence of such third party claim and to employ counsel at its own expense to assist in the handling of such claim, except that the indemnified party’s legal expenses in exercising this right shall be deemed legal expenses subject to indemnification hereunder to the extent that (i) the indemnifying party fails or refuses to assume control over the defence of the third party claim within the time period set forth above; (ii) the indemnified party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or (iii) representation of both parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. The indemnifying party shall not settle any such third party claim without the written consent of the indemnified party, except for a complete settlement requiring only the payment of money damages to be paid by the indemnifying party.
(d) Sole Remedy. Indemnification pursuant to this Section is the parties’ sole remedy for any third party claim against the other party in the nature of intellectual property infringement or misappropriation.
8. Service Level Commitments, Disclaimers and Limitations
(a) Service Level Commitments; Credits. Felixhub guarantees that Felix and all Services provided on Felix will be accessible to Company’s authorized Users 99.5% of the time in any given calendar month, excluding Maintenance Windows. Notwithstanding the foregoing, Felixhub does not guarantee network availability between Company and the Felixhub hosting servers, as such availability can involve numerous third parties and is beyond the control of Felixhub. Felixhub will not be liable for nor provide any service credits hereunder for any downtime caused in whole or part by a third party data center provider nor for any downtime that Company experiences as a result of Company or Company’s Users’ own network connectivity issues. If Company experiences a System or Service outage and is unable to access Felix or any Service, Company must immediately contact Felixhub support, providing any/all necessary information that may assist Felixhub in determining the cause of the outage. Felixhub will determine in good faith whether the outage was within Felixhub’s reasonable control. If Felixhub determines that a timely reported outage was attributable to Felix, then Felixhub will credit Company 1 day of Service subscription fees for every 2 hours of downtime Company experienced, up to a maximum of half of that month’s Service fees. This shall be Company’s sole remedy, and Felixhub’s sole liability, for Felixhub’s failure to provide the guaranteed availability set forth in this Section 8(a).
(b) Disclaimer of Warranties. EXCEPT FOR THE LIMITED SERVICE LEVEL COMMITMENTS SET FORTH IN SECTION 8(A), FELIXHUB MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO FELIX, SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF FELIX. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH IN THE LIMITED SERVICE LEVEL COMMITMENTS IN SECTION 8(A), FELIXHUB DISCLAIMS ANY WARRANTY THAT FELIX, THE SERVICES PROVIDED BY FELIXHUB, OR THE OPERATION OF FELIX ARE OR WILL BE ACCURATE, ERRORFREE OR UNINTERRUPTED. FELIXHUB MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
(c) Disclaimer of Consequential Damages. FELIXHUB HAS NO LIABILITY WITH RESPECT TO FELIX, SERVICES, OR IT’S OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF FELIXHUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) Limitations of Remedies and Liability. FELIXHUB’S TOTAL AGGREGATE LIABILITY TO COMPANY FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO FELIXHUB BY THE COMPANY IN RESPECT OF USER LICENSES FOR FELIX DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
(a) Notices. Notices regarding this Agreement to Felixhub shall be in writing and sent by first class mail or overnight courier at the address provided at that time on Felixhub’s website. Felixhub may give notice by means of electronic mail to Company’s email address on record with Felixhub, or by written communication sent by first class mail or overnight courier to Company’s address on record in Felixhub’s account information. All notices shall be deemed to have been given three days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or 12 hours after either sending by email or posting on Felix.
(b) Promotional Materials. Either party may include statements, and may use the other party’s name and logos, in its website, commercial advertisements and promotional materials for the sole purpose of indicating that Company is a user of Felix.
(c) 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 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 shall 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.
(d) Assignment. Felixhub may assign any of its rights or obligations under this Agreement at any time; provided, however, that Felixhub shall not assign the rights granted to Company Data in Section 2(d) except in connection with the sale (whether by merger, Asset sale, equity sale or otherwise) of (i) Felixhub, (ii) Felix or (iii) a portion of Felixhub or Felix that would reasonably require the acquirer of said portion to be assigned such rights to the Company Data. Company shall not assign any of its rights under this Agreement, except with the prior written approval of Felixhub, which shall not be unreasonably withheld. The preceding sentence applies to all assignments of rights, except in the event of a voluntary transfer of substantially all Assets by Company to a transferee which executes Felixhub’s form of agreement agreeing to be bound all of the terms and conditions of this Agreement. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section is void.
(e) Governing Law; Venue. The laws of the State of Victoria Australia (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Victoria, Australia and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court sitting in Victoria, Australia; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
(f) Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the successful party its reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which the successful party may be entitled.
(g) Entire Agreement. This Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement.
(h) Amendments. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
(i) Survival of Certain Provisions. Each party hereto covenants and agrees that the provisions in Sections 1, 2(b), 5(c), 6, 7, 8, and 9 in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.