Last Updated: September 26, 2018
THIS AGREEMENT GOVERNS YOUR USE OF GLOBALSEARCH C2 (THE SERVICE). THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY ADDITIONAL TERMS ENTERED INTO BY YOU AND SQUARE 9 SOFTWORKS INC. (“SQUARE 9) ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT.”
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR SIGNING OFF INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DAY THAT YOU CHECK THE “ACCEPT” BOX OR SIGN (EITHER MANUALLY OR ELECTRONICALLY) THE ONLINE OR WRITTEN FORM OF THIS AGREEMENT ISSUED TO YOU BY SQUARE 9 OR ITS AUTHORIZED RESELLER.
“Affiliate(s)” means any entity, including and without limitation, any individual, corporation, company, partnership, limited liability company, or group that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such party.
“Documentation” means the instructions, manuals or other materials regarding the use of the Services that Square 9 makes generally available to its Services users.
“Intellectual Property Rights” means rights in unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights in the broadest meaning of the term, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“License” means the limited grant by Square 9 to use the Service in accordance with this Agreement.
“Service(s)” means the products and services that are ordered by You and made available online by Us, including associated offline components.
“Square 9 Technology” means all of Square 9’s proprietary technology (including the Services and all proprietary software, hardware, products, processes, algorithms, user interfaces, reports, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by Square 9 in connection with this Agreement.
“User” means an individual who is authorized by You to use the Service, for whom you have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, your employees, consultants, contractors and agents, and third parties with which You transact business.
“Your Data” means any documents, files, information or data stored or processed by or for You to the Services or collected and processed by or for You using the Services, excluding Square 9 Technology.
2. Description of Services
GlobalSearch C2 is a hosted Enterprise Content Management (ECM) solution that provides a formalized means for organizing and storing an organization’s documents, and other content, that relate to the organization’s processes. The term Enterprise Content Management encompasses strategies, methods, and tools used throughout the lifecycle of the content.
3. Initiation of Service
Square 9 will initiate service and issue log in credentials to the registered user within 48 hours of order placement. The Effective Date of Service will commence with the initiation of services from Square 9.
4. Renewal of Service
You will receive notification of your service renewal within 90 days of the anniversary of your Effective Date of Service (The Renewal Date). If you elect to continue your Service, payment must be received by you or an Authorized Square 9 Reseller prior to the Renewal Date.
Payment of Services – In consideration for the Services provided by Square 9, You agree to pay for service renewal within thirty (30) days of the date of invoice.
- a) Late Fees – For any fees not paid within thirty (30) days of its due date, You shall be liable for late charges at the rate equal to the lesser of 1.5% per month, or the highest rate allowed by law, calculated from the due date until the amounts are paid, together with all costs and expenses incurred in collection, including reasonable attorneys’ fees.
- b) Payment Dispute – If You believe the Square 9 bill is incorrect, You must contact Square 9 at firstname.lastname@example.org within thirty (30) days of the invoice date stating the amount in question and the reason for non-payment of that amount to be eligible to receive an adjustment or credit. In any event, You must pay the undisputed amount based on the payment terms that were agreed on with Square 9.
5. Term and Termination
Unless terminated earlier pursuant to the conditions listed in the GlobalSearch C2 EULA, the initial term (“Initial Term”) of this Agreement shall be for a period of twelve (12) months from the Effective Date and may be renewed under this Agreement for subsequent twelve (12) month terms (“Subsequent Terms”) unless either Party provides notice of termination thirty (30) days prior to the expiration of any Term. The Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”
This Agreement can be terminated by either party upon written notice if the other party breaches any material term or condition of the Agreement and such breach remains uncorrected for thirty (30) calendar days following written notice from the non-breaching party specifying the breach. Termination of this Agreement shall be without prejudice to the survival of provisions in this Agreement which by their nature survive termination.
6. Rights to Data and Content
You shall have thirty (30) days from the termination of the Agreement to download a copy of your data and content from GlobalSearch C2 using the standard means provide. All data will be provided in an industry standard, nonproprietary format. You may also request that the Square 9 Professional Services Group provide a copy of that data as a service which will be charged for at the current billable per diem rate. After the 90-day period following the date of termination, Square 9 shall have no obligation to maintain or provide any of your data or content and shall thereafter, unless legally prohibited, delete all data and content in its systems or otherwise in its possession or under its control.
7. Your Responsibilities
You shall provide Square 9 with all necessary cooperation and all necessary access to such information as may be required by Square 9 to provide the Service. You shall comply with all applicable laws and regulations with respect to its activities under this Agreement. You shall: (i) notify Square 9 immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) suspend all user accounts for individuals who are no longer authorized to access those accounts, and (iii) comply with any instructions concerning access to and/or use of the Services that Square 9 may give from time to time.
8. Service Level Performance and Support
Square 9 endeavors to provide 99.9% uptime availability per month during Service Business Hours, not to include maintenance or upgrades on the system. “Uptime” is defined as time when You have the ability to access and use the Services and Square 9 measures Service Uptime by consecutive seconds over the period of a calendar month.
Downtime is defined as the inability of most users to access the servers and majority of applications of the Service. Specifically excluded from the definition of Downtime are:
- Downtime resulting from requests by You;
- Network errors and hardware failures outside the control of Square 9 or agents of Square 9;
- Server errors and limitations set by third-party service providers;
- Planned maintenance;
- Maintenance that is performed between 10:00 pm and 4:00am ET;
- Outages resulting from the actions of You, its employees and agents, other than normal operation of the Services;
- Any other unavailability caused by circumstances beyond Square 9’s reasonable control as specified in this Agreement; and
- Loss of functionality as a result of updates other than to the Services (i.e. operating systems, third party applications, etc.).
If Square 9 repeatedly fails to meet the stated service levels causing an interruption in your business operations, You will receive a 15% reduction in the following month’s service fee. Square 9 must be notified in writing of any request for compensation with details of the failure and resulting interruption of business hours. The above states Your sole remedy in relation to service availability.
9. Product Upgrades
GlobalSearch C2 is typically upgraded twice annually in accordance with the Square 9 development release schedule.
Square 9 shall provide You with at least forty-eight (48) hours’ notice of any scheduled maintenance on the Service and Square 9 will use commercially reasonable efforts to conduct maintenance during non-business hours. In the event Square 9 is unable to provide forty-eight (48) hours’ notice of any planned or unplanned outages or unavailability of Services, Square 9 shall use good faith efforts to promptly notify You that it anticipates or has discovered such outages or downtime.
10. Data Durability
The redundant nature of the GlobalSearch C2 platform delivers 99.999 data durability.
- No backup of your images are required and your database server structure is snapshotted daily with daily snapshots being retained for 90 days.
- Documents are versioned forever and can be restored to a previous point at any time with the assistance of Square 9 Software Support team as a billable service.
11. Software Support
Standard Business Hours: The support team is available Monday through Friday, 8:00 AM Eastern Time to 8:00 PM Eastern Time, excluding recognized U.S. holidays. Ample notice will be provided where Support is unavailable outside of these exclusions.
Once engaged, Square 9 will work with Your representative to resolve the problem by either providing a resolution, steps towards a resolution, workaround, configuration changes, or escalation of a defect report.
Square 9 will work continuously (24 x 7) using diligent efforts on an Urgent request until the issue is resolved, is determined to be unresolvable, or the issue is resolved with a work around sufficient to re-categorize to the Medium Level.
11.1. Case Severity Levels
Response Time is defined as the length of time Square 9 initiates contact on a logged issue with our Support Desk. Cases must be opened by voicemail, email request to email@example.com or through our Support website ticketing system.
All Acceptable Response Times are expected to fall within Square 9’s Business Hours. Cases not opened within Square 9’s Support hours of 8:00AM to 8:00PM Eastern will be picked up the following business day.
11.2. Case Priority Levels
11.3. Case Priority Examples
- Complete system failure
- All system processing has halted or is impacted
- Majority of the system is failing
- Majority of system processing has halted or is impacted
- Isolated occurrences with specific system users, majority of the user population unaffected
- A single step in a process is functioning incorrectly but doesn’t impact the overall process
- A how-to question related to future growth of the system
- An issue reported on a test or development server not impacting production
11.5. Case Escalation
After a case has been worked on for 30 minutes without progress or resolution, the case will be escalated according to the escalation schedule below. Please note that Critical and High priority cases automatically start in an escalated state.
11.6. Case Closure
Once it has been determined the question is answered or the problem solved, the Support team will mark the case closed. A closed case can be reopened at any time in the event an issue reoccurs or the recommended solution isn’t permanent.
If a workaround or solution is found independent of working with the Support team, all case emails from our Support team will contain a link to self close your case. It is appreciated when self close is utilized to allow our Support team to focus their efforts on open active cases.
If the case is initially deemed to be suitable for our Professional Services group, the case will be closed and information transferred to that group for project scoping and the potential quoting of billable hours.
12. Grant of License; Restrictions
12.1. Square 9 grants You a limited, non-exclusive, non-transferable License to use the Services on behalf of a limited number of Users solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. The number of unique Users licensed to use the Services pursuant to the terms hereof is set forth in the product registration form. All rights not expressly granted herein are reserved by Square 9.
12.2. Square 9 shall provide You with unique usernames and access passwords to the system however all licensing will be available on a concurrent basis.
12.3. With respect to the Services, You shall not: (i) sell, resell, transfer, assign, distribute or otherwise commercially exploit or make it available to any third party in any way (except that You may allow Your contractors to access the Services in order to perform their obligations towards You); (ii) transmit or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or upload, post, or transmit any unlawful, harassing, libelous, or abusive material on the Service; (iii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) reverse engineer, decompile, or disassemble the Services or any Square 9 Technology.
13.1. You shall defend, indemnify, and hold harmless Square 9 and its affiliates, and their officers, shareholders, employees, agents, successors and assigns (each a “Square 9 Indemnified Party”) from and against any and all damages, losses, costs and expenses (including any reasonable attorney’s fees and expenses) in connection with any claim, suit, action, or proceeding (“Claims”) brought against a Square 9 Indemnified Party to the extent arising out of: (a) Your use of the Services, (b) any gross negligent act or willful misconduct by Users and any agents, employees, or subcontractors of You, or (c) an allegation that the Your Data or any other content, data or information supplied by You, or the use thereof infringes the Intellectual Property Rights of a third party.
13.2. Square 9 shall defend, indemnify and hold You harmless against any loss or damage (including reasonable attorneys’ fees) incurred in connection with any Claim brought against You by a third party for: (a) any grossly negligent act or willful misconduct by agents, employees, or subcontractors of Square 9, or (b) alleging that the use of the Services as contemplated hereunder infringes any copyright, trademark or trade secret rights of a third party. In the event that the Services or any part thereof are likely to or do become the subject of an infringement related Claim, and Square 9 cannot, at its sole option and expense, procure for You the right to continue using the Services, or any part thereof, or modify the Services, or any part thereof, to make them non infringing, then Square 9 has the right to terminate this Agreement.
14. Your Data
14.1 You acknowledge that to use the Services, You will be required to provide Square 9 with Your Data for which the Services are to be provided. Square 9 acknowledges that Your Data shall be Your Confidential Information and that Square 9 does not own Your Data, information or material that You may submit to Square 9 or that Square 9 may store in the course of You using the Services. Square 9 may store and process Your Data through a third party hosting service in the United States as long as Square 9 and the third party execute a confidentiality agreement that protects Your Confidential Information to the same extent as this Agreement.
14.2 Square 9 will not sell, rent or lease any personally identifiable information included therein to third parties, without receiving Your prior explicit consent, except in any of the following instances:
- a) To operate the Services, including storing and processing Your Data through third party hosting services;
- b) If Square 9 is required by applicable law, rules or regulations to do so but only to the extent required by law upon notice to You;
- c) If Square 9 is acquired by, or merged with another entity, provided however, that those entities agree to be bound by the provisions of this Agreement.
15. IP Ownership and Confidentiality
15.1 Square 9 alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights in and to the Services and the Square 9 Technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Services. Square 9’s name, Square 9’s logo, and the product names associated with the Services are trademarks of Square 9 or third parties, and no right or license is granted to use them.
15.2 Square 9 and You shall preserve as confidential and not disclose to any party (other than employees with a ‘need to know’ or independent contractors bound by a written agreement of confidentiality no less restrictive than this Section), or use for any reason other than performance under the Agreement, all information and trade secrets related to the business of the other party that is indicated as confidential or which a party should reasonably know to be confidential given the nature of the information and/or the circumstances of its disclosure (“Confidential Information”). You acknowledges that any Square 9 pricing, source code and Documentation are Confidential Information of Square 9. The confidentiality obligations of this Section shall not apply to: (i) information that is publicly known prior to the disclosure or becomes publicly known through no wrongful act of the receiving party; (ii) information that was in lawful possession of the receiving party prior to the disclosure without any agreement of confidentiality restricting its use or disclosure, and was not received as a result of any breach of confidentiality with respect to the other party (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) becomes known by the receiving party from a third party and, to the receiving party’s knowledge, is not subject to an obligation of confidentiality to the disclosing party. Square 9 and You acknowledge that monetary remedies may be inadequate to protect their rights with respect to a breach of this Section and agree that, in addition to legal remedies otherwise available, injunctive relief is an appropriate judicial remedy to protect such rights, and each party hereby waives its right to assert that monetary remedies are adequate.
15.3 Square 9 and You agree that both companies have the right to express publicly their relationship, including the names of the entities and the Services involved. This includes the right to republish logos, company names, and software names.
16. Privacy & Security
16.1 Square 9 and third parties on its behalf shall implement security tools and procedures to secure Your Data. These tools include protection such as encryption for communication and user authentication to prevent unauthorized user access or other malicious activities. While such tools and procedures reduce the risk of security breaches, Square 9 cannot guarantee that the Services will be immune from any unlawful interceptions or unauthorized access.
17. Warranties and Disclaimer of Warranties
SQUARE 9 REPRESENTS AND WARRANTS THAT: (A) IT WILL PERFORM ALL SERVICES EXERCISING DUE CARE AND IN A GOOD, WORKMANLIKE AND PROFESSIONAL MANNER, (B) IT WILL EMPLOY COMMERCIALLY REASONABLE MEASURES TO SCREEN THE SERVICES FOR VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS AND OTHER SOFTWARE ROUTINES OR CODE DESIGNED TO PERMIT UNAUTHORIZED ACCESS TO, DISRUPT, DISABLE, ERASE, OR OTHERWISE HARM YOUR SOFTWARE, HARDWARE OR DATA, AND (C) IT HAS THE FULL AND UNRESTRICTED RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT AND TO PERFORM ITS OBLIGATIONS IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT. EXCEPT AS OTHER STATED IN THIS SECTION, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. SQUARE 9 (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNEES) AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES OR THE SQUARE 9 TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (B) THE SERVICES AND THE SQUARE 9 TOOLS AND/OR THEIR QUALITY WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
18. Limitation of Liability
IN NO EVENT WILL SQUARE 9 AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, RESELLERS, SUCCESSORS OR ASSIGNEES BE LIABLE FOR LOST REVENUE, PROFITS, BUSINESS OR DATA, OR FOR ANY COSTS OF COVER, INDIRECT, INCIDENTAL, CONSEQUENTIAL PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SQUARE 9 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SQUARE 9’S AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, RESELLERS, SUCCESSORS AND ASSIGNEES TOTAL AGGREGATE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY YOU FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE CLAIM FIRST AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT.
19. No Assignment.
This Agreement may not be assigned or otherwise transferred by You via sale, merger, change in control, by operation or law or otherwise, without Licensor’s prior written consent and any such purported assignment or transfer shall be void.
20. Governing Law; Dispute Resolution
This Agreement shall be exclusively governed by the laws of the State of Connecticut, without regard to the choice or conflicts of law provisions thereof, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service. Except for the right of either party to apply to a court of competent jurisdiction for an injunction or other equitable relief or for the collection of an account stated, any controversy, claim or dispute related to this Agreement will be settled by binding arbitration before a single arbitrator, who is an attorney with experience in the software industry. The arbitration will be conducted under the then current Commercial Arbitration Rules of the American Arbitration Association. The decision and award of the arbitrator will be final and binding, and the award rendered may be entered in any court having jurisdiction thereof. The arbitration will be held in New Haven, Connecticut. The arbitrator will enforce the terms of the Agreement and will have no authority to award punitive damages, non-compensatory damages or any damages other than direct damages, or to award direct damages in excess of the limitations and exclusions set forth in this Agreement. In the event that You initiate an arbitration for alleged breach of this Agreement, and You do not prevail in the arbitration, You agree that Square 9 shall be paid its reasonable attorneys’ fees and costs. The existence of the arbitration, the arbitration proceedings and the outcome of such arbitration will be treated as Confidential Information under this Agreement and will not be disclosed by either party.
21. No Waiver; Severability.
The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that
right or as a waiver of any other right. If any one or more of the provisions in this Agreement are determined invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provisions had never been contained in this Agreement; provided, however, if a court finds any provision of this Agreement may be rewritten to be valid, legal and enforceable, the parties agree that such court shall rewrite the provision.
22. Force Majeure
Neither party will be responsible to the other for any delay, failure in performance, loss or damage, unless through the exercise of reasonable diligence, the non-performing party was able to prevent interference with and/or interruption of its performance of this Agreement, due to fire, explosion, power blackout, earthquake, volcanic action, cable cuts by third parties, flood, severe weather elements, strike, embargo, labor disputes, civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond their reasonable control, except that You must pay for any Services used. Any such delay or failure shall suspend the Agreement until the force majeure event ceases, provided that such party gives the other party prompt written notice of the failure to perform, the reason for the failure to perform, its expected duration, and its anticipated effect on the ability to perform the obligations, and uses its reasonable efforts to limit the resulting delay in its performance. However, if such condition persists for a period of greater than thirty (30) days, the other party may, at its option, terminate this Agreement without penalty. This section does not excuse either party’s obligation to take reasonable steps to follow industry disaster recovery procedures.
No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable and where expressly stated that it amends or deviates from the terms of this Agreement) shall add to or vary the terms and conditions of this Agreement. This Agreement, together with any applicable Order Form, comprises the entire Agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. All terms and provisions of this Agreement which should by their nature survive the termination of this Agreement shall so survive, including without limitation those terms regarding payment of fees, ownership and confidentiality, disclaimer of warranties and limitations of liability. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Service. Section headings contained in this Agreement are for convenient reference only and shall not in any way affect the meaning or interpretation of this Agreement.