SaaS Service Terms and Conditions
These ‘Software as a Service’ Terms and Conditions (“SaaS Terms”) apply to and are incorporated by reference into the ordering document (the “Order Form”) made by and between Fifth Domain and the Customer (as identified on the Order Form) and set forth the terms and conditions under which Fifth Domain will provide the Customer with access to certain applications and services as set forth on the Order Form (“Application(s)”) and user documentation that Fifth Domain makes generally available in hard copy or electronic form to its general customer.
IF A SEPARATE WRITTEN AGREEMENT ABOUT THE SERVICES EXISTS BETWEEN YOU (THE CUSTOMER) AND US (FIFTH DOMAIN), THE TERMS OF THAT WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY US) WILL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT YOU ARE BOUND BY THE TERMS OF THAT WRITTEN SERVICES AGREEMENT RATHER THAN THESE TERMS.
A1. Use of Services.
a. Acceptable Use Policy. Customer is responsible for use of the Services by those to whom Customer provides access. Fifth Domain reserves the right, at any time, to deactivate or suspend Customer’s or any Authorized User’s access if use of the Services is found or reasonably suspected, in Fifth Domain’s judgment, to violate the use restrictions set forth below.
b. Use Restrictions . Customer agrees not to:
Sell, lease, sublicense, assign or otherwise transfer its rights to access and use the Services.
Copy, modify, publish, sell, export, distribute, transfer or perform, or prepare derivative works of, reverse engineer, decompile or otherwise attempt to extract the source code or source data from the Services except and only to the extent permitted or required by law.
Disclose, display or grant access to any part of the Services to any person or entity who is not an Authorized User, including, without limitation, any consultant or customer of Customer.
Collect any information from the Services through the use of “web bots”, “scraping”, “crawling”, “spidering”, or any other method not explicitly approved in writing by Fifth Domain.
Provide, post, or transmit any data that infringes or violates any Intellectual Property Rights or publicity/privacy rights, or that contains any viruses or programming routines that may damage, interrupt or appropriate the Subscription or Services.
Use or make the Services available on a service bureau or time-sharing basis.
Use the Services or Documentation to create any service offering, computer software program, training materials or user documentation that is substantially similar to the Services or Documentation.
Use or facilitate use of the Services in any way that is harassing, harmful, obscene, threatening, libellous, or otherwise tortious, or for illegal, abusive or unethical activities (including violations of law or privacy, hacking or computer viruses; different to training purposes).
Use the Services in any application or situation where failure of the Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage.
Attempt to disable or circumvent any security mechanisms used by the Services or otherwise attempt to gain unauthorized access to any portion or feature of the Services.
Use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Services or any transaction being conducted on the Services.
Forge headers or otherwise manipulate identifiers in order to disguise Customer’s or any Authorized User’s identity, or the origin of any message or other communication that Customer or any Authorized User sends to Fifth Domain in connection with the Services.
Access or use the Services for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes.
Use the Services to process or store classified data. If Customer introduces classified data into the Services, Customer will be responsible for all sanitization costs incurred by Fifth Domain.
Permit any Authorized User or other third party to do any of the foregoing.
c. Fifth Domain Use of Services. Fifth Domain may access and use the Subscriptions at Customer’s request or to provide support. Fifth Domain users do not count towards Customer’s number of Authorized Users.
A2. Term; Termination; Add-Ons and Expansions.
a. Term of Agreement. This Agreement is effective as of the Effective Date and will expire at the end of all Subscription Periods specified in an Order Form and upon completion of all Consulting Services, unless otherwise terminated as set forth below.
b. Termination. Either party may terminate this Agreement as a result of a material breach by the other party, if (i) the non-breaching party provides written notice to the other party of the breach, and (ii) such breach is not cured within fifteen (15) days of receipt of notice. However, Fifth Domain may terminate this Agreement immediately upon written notification to Customer in the case of breach of the Use of Services Section. Upon termination by Fifth Domain for material breach by Customer, all unpaid fees are immediately due and payable. Upon termination by Customer for material breach by Fifth Domain, Customer shall be entitled to a refund of any prepaid, unused Subscription fees as of the date of termination.
c. Add-Ons and Expansions. Customer may add new or expand existing Subscriptions, which will be made coterminous with the anniversary date of the then-current Subscription Period and the fees will be prorated.
Neither party will issue any public materials that refer to the other party, this Agreement, or the subscribed Services without the other party’s prior written consent. However, Fifth Domain may identify Customer on its client list and may use Customer’s name and logo as well as a mutually-agreed general description of the nature of the relationship on its website and in promotional materials, presentations, and proposals to current and prospective clients. Either party may identify the other party or disclose the existence of this Agreement to its attorneys, auditors and in connection with regulatory filings.
a. Any information disclosed by one party (“Disclosing Party”) to the other party (“Recipient”) in connection with this Agreement that is marked confidential or that due to its character and nature a reasonable person under like circumstances would treat as confidential (the “Confidential Information”) will be protected and held in confidence by the Recipient. Confidential Information will be used only for the purposes of this Agreement. Recipient shall disclose Confidential Information only to the Recipient’s employees, contractors, or business partners which are bound by confidentiality obligations no less stringent than these prior to any disclosure on a “need to know” basis. Confidential Information does not include information that:
is already known to the other party at the time of disclosure;
is or becomes publicly known through no wrongful act or failure of the Recipient;
is independently developed without benefit of the other party’s Confidential Information; or
is received from a third party that is not under an obligation of confidentiality.
b. Recipient agrees to protect the Confidential Information at all times and in the same manner as it protects the confidentiality of its own proprietary and confidential material of similar kind, but in no event with less than a reasonable standard of care. A Recipient may disclose Confidential Information to the extent required by law, provided that the Recipient provides the Disclosing Party with notice as soon as reasonably practicable to allow the Disclosing Party an opportunity to respond to such requirement and provided further that such disclosure does not relieve Recipient of its confidentiality obligations with respect to any other party.
A5. Customer Data .
a. Customer owns all Customer Data and is solely responsible for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of any Customer Data and for adopting procedures to identify and correct errors and omissions in Customer Data. Fifth Domain has no obligation to review Customer Data for accuracy. Customer warrants to Fifth Domain that Customer Data has been collected, processed and provided to Fifth Domain in accordance with applicable laws on the protection of data subjects with regard to the processing of personal data and on the free movement of such data, including in particular any legislation implementing the EU Data Protection Directive 95/46/EC and the Privacy and Electronic Communications Directive 2002/58/EC (as amended by Directive 2009/136/EC) in the applicable EU member state (“Data Protection Laws”), and also including laws or regulations that will apply to the transfer of Customer Data by Fifth Domain to any of its affiliates, employees, contractors and business partners located anywhere in the world. The terms “personal data” and “process” shall have the meanings given to them in the applicable Data Protection Laws.
c. Customer hereby agrees that Fifth Domain is reliant on Customer for direction as to the extent to which Fifth Domain is entitled to use and process the personal data through the Services or Consulting Services. Consequently, Fifth Domain, in its capacity as data processor, will not be liable for any claim brought by a data subject (including Authorized Users) arising from any action or omission by Fifth Domain, to the extent that such action or omission resulted directly from the data controller’s instructions. As between Fifth Domain and Customer, Customer is solely responsible and liable for any and all Customer Data that Customer or any Authorized User stores, transmits, displays, or otherwise uses in connection with the Services or Consulting Services. Fifth Domain has no responsibility to Customer or to any third party in connection with such Customer Data and, as between Fifth Domain and Customer, Customer is solely responsible for any losses or damage suffered by Fifth Domain in connection with Customer Data. Customer hereby represents and warrants that neither Customer nor any Authorized User will store or otherwise use any Customer Data in connection with the Services that: (i) violates this Agreement; (ii) is defamatory, obscene, abusive, invasive of privacy, illegal or otherwise objectionable; (iii) violates any third party’s trade secrets, Intellectual Property Rights or other personal or proprietary right; (iv) invades or interferes with the rights of privacy or publicity of any person; or (v) contains a virus, malicious code or any other harmful component (Apart from training purposes only).
d. Fifth Domain reserves the right, at any time and without notice to Customer, to review, monitor, flag, filter, modify, refuse or remove any or all Customer Data from the Services which violate the terms of this Agreement, but Fifth Domain has no obligation to do so. Customer agrees to immediately remove or modify any Customer Data that violates this Agreement or any applicable laws, rules, or regulations, including pursuant to a removal or modification request from Fifth Domain; if Customer does not do so, Fifth Domain may take down, delete or modify such Customer Data. Fifth Domain assumes no liability or responsibility arising from Customer’s or any Authorized User’s activities in connection with the Services or Consulting Services, including, without limitation, any arising from Customer Data that Customer or any Authorized User stores or otherwise uses in connection with the Services or Consulting Services.
e. Fifth Domain respects the intellectual property and other proprietary rights of others and has a policy of removing content from the Services that infringes third party copyrights or other intellectual property rights and suspending the user ID of any user who uses the Services in violation of copyright law or other laws governing intellectual property rights, and where appropriate, blocking such user’s access to the Services.
f. Without limiting Customer’s ownership rights in Customer Data, Customer acknowledges and agrees that Fifth Domain shall have the right to utilize data capture, syndication and analysis tools and other similar tools to extract, compile, synthesize and analyse any non-personally and non-Customer identifiable data or information resulting from Customer’s use of the Services (“Statistical Data”). Statistical Data may be collected by Fifth Domain for any lawful business purpose without a duty of accounting to Customer, provided that the Statistical Data is used only in an aggregated form without specifically identifying the source of the Statistical Data.
Fees. Customer shall pay Service Provider the fees indicated on the Order Form. Unless otherwise provided in an Order Form, all fees are to be paid to Fifth Domain within thirty (30) days of the date of invoice. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer has set up a direct debit, Fifth Domain will not debit Customer’s designated account before seven (7) days have elapsed from the date of the invoice. If Customer is delinquent on a payment of fees for fifteen (15) days or more, Fifth Domain may suspend access to the Application. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by Customer, additional fees will apply.
Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties).
A7. Governing Law; Dispute Resolution.
Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the Australian Capital Territory, Australia, without regard to conflict of law principles.
A8. Limited Warranties.
a. Services. Fifth Domain warrants that the Services will substantially conform to the Documentation under normal use and circumstances in compliance with this Agreement. During the Subscription Period, at no additional cost to Customer and as Customer’s sole and exclusive remedy for failure to meet this limited warranty, Fifth Domain will use reasonable efforts to provide a Correction to any material fault in the Fifth Domain software used to provide the Services (“Defect”) in accordance with the Support guidelines, provided that Customer promptly notifies Fifth Domain in writing upon discovery of any such Defect and Fifth Domain’s investigation discloses that such Defect exists. Customer shall provide a listing of output and other such data as may be required to reproduce the Defect. This limited warranty will be void if the Defect is caused by (i) the use or operation of the Services with an application or in an environment other than that described in the Documentation or recommended in writing by Fifth Domain, (ii) modifications to the Services that were not made by Fifth Domain, (iii) Misuse, or (iv) failure to implement Corrections or Updates. This warranty does not apply to Evaluation Services.
b. Disclaimer. except for the express warranties specified in this section, Fifth Domain makes no warranties, either express, implied or statutory, including without limitation any implied warranties of merchantability, non-infringement, satisfactory quality or fitness for a particular purpose.
c. Information transmitted and received through the internet cannot be expected to remain confidential, and Fifth Domain does not guarantee the privacy, security, authenticity and non-corruption of any information so transmitted, or stored in any system connected to the internet. Fifth Domain shall not be responsible for any consequences whatsoever of customer’s connection to or use of the internet, and Fifth Domain shall not be responsible for any use by customer or its authorized users of any internet connection in violation of any rule, law or regulation.
A9. Limitation of Liability.
a. In no event shall Fifth Domain be liable to the Customer for incidental, special, or consequential damages arising out of, resulting from, or in any way connected with, the performance or breach of this Agreement (regardless of the form of action) even if Fifth Domain has been advised of the possibility of such damages. Fifth Domain’ liability to Customer for any cause whatsoever, and regardless of the form of action (including negligence), arising out of, resulting from, or in any way connected with, the performance or breach of this Agreement shall in no event exceed the amount actually paid for the portion of the services involved.
b. Customer shall at all times indemnify and hold harmless Fifth Domain and its officers, employees and agents (“those indemnified”) from and against any loss, including legal costs and expenses, or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such a loss was caused by either a breach by Customer of its obligations under this Agreement or any wilful, unlawful or negligent act or omission of the Customer. Provider shall not be liable for any loss or damage or be deemed to be in breach of this Agreement, to the extent that performance of such Party’s obligations under this Agreement are delayed or prevented as a result of any event or circumstance beyond its reasonable control, including without limitation, war, invasion, act of foreign enemy, hostilities, civil war or rebellion (whether war be declared or not), strike, lockout or other industrial dispute, or act of God; provided, that for the duration of such Force Majeure the Party claiming such force majeure must continue to use all reasonable efforts to overcome such Force Majeure.
a. Assignment. Customer may not assign any of its rights or obligations under or sublicense this Agreement without Fifth Domain’s prior written consent. For purposes of this Section, an assignment shall include any assignment or transfer of this Agreement by merger, reorganization, consolidation, sale of assets, stock sale or purchase or by operation of law or otherwise.
b. Compliance with Laws. Each party will be responsible for compliance with all legal requirements related to its use of the Services, including those related to the disclosure of data and anti-corruption laws.
c. Entire Agreement. This Agreement, including any attachments identified as incorporated into this Agreement, is the entire agreement between Customer and Fifth Domain relating to the Services and Consulting Services provided here under and supersedes all prior or contemporaneous oral or written communications. Any purchase order or other instrument issued by Customer (including any online terms as part of a required procurement process) will be for administrative purposes only and any such terms will not alter or supplement this Agreement. This Agreement will not be modified by any other act, document, usage, custom, or course of dealing unless it is signed by both parties. Notwithstanding the foregoing, this Agreement does not terminate any license and services agreement between the parties, nor does it terminate any subscription agreement between the parties for any Fifth Domain product or service other than the Services ordered hereunder. After execution of this Agreement, only Customer’s signature is required to agree to an unmodified Order Form or other transaction document provided by Fifth Domain. Specified terms in an Order Form or SOW will prevail over conflicting terms in the remainder of the Agreement for that transaction or engagement.
d. Excusable Delays. In no event shall either party be liable to the other for any delay or failure to perform its obligations under this Agreement (other than payment obligations) due to causes beyond the reasonable control of that party, including acts of a government, severe weather conditions, equipment failures, power surges or failures, acts or omissions of communications carriers, or unavailability of telecommunication services.
e. Counterparts. This Agreement may be executed in several counterparts each of which when executed shall be deemed to be an original.
f. Independent Contractor. The parties are independent contractors and may not make commitments or representations on behalf of one another.
g. Non-solicitation of Employees. During the term of this Agreement and for one year after its termination, Customer shall not solicit for hire as an employee, consultant or otherwise any of Fifth Domain’s personnel who have had direct involvement with the Services or Consulting Services or a proposal therefor, without Fifth Domain’s express written consent.
h. Right to Enforce. Any person who is not a party to this Agreement shall have no right to enforce any term of this Agreement.
i. Notices. Except for notices sent to Customer as part of Fifth Domain’s general customer base, notices to Customer shall be provided to Customer’s notice address in the initial Order Form. Notices to Fifth Domain shall be sent via email to firstname.lastname@example.org .
j. Severability. If a court holds any provision(s) of this Agreement to be illegal or unenforceable, the remainder of this Agreement will remain valid and enforceable.
k. Survival. Provisions anywhere in the Agreement regarding payment, termination, proprietary rights, Intellectual Property Rights, warranties, limitations of liability, governing law, dispute resolution, confidentiality, severability, export control, and waivers will survive the expiration or termination of this Agreement.
l. Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach of this Agreement. Any waiver must be in writing and signed by an authorized representative of the waiving party.
m. Language. All communications and notices pursuant to this Agreement, including Support, must be in the English language.
Some of the following definitions may not be applicable, depending on
a. “Administrator” means a specially appointed employee of Customer with the ability to make service requests plus rights to reset an administrative password with respect to the Services. Customer will have one Administrator.
b. “Affiliate” means any entity that is controlled by Customer or is under
common control with Customer through at least a 51% ownership (or through
board or directors’ control if a not-for-profit entity).
c. “Authorized User” means an individual who is authorized in accordance with this Agreement by Customer to access and use the Services.
d. “Consulting Services” means any set-up, configuration or consulting
services, including, without limitation, Customer-specific user interface
modelling, data interfaces or training, or providing Customizations.
e. “Correction” means, without limitation, workarounds, support releases, component replacements, patches and/or documentation changes made available by Fifth Domain.
f. “Custom” or “Customization” means creation of instructions using a programming language that enhances, adds to, or modifies software functionality or behaviour. This includes, but is not limited to (i) any modification to the core source code of software or reports that are not configurable, or (ii) a change to or the development of (1) Interfaces, (2) Integrations, and (3) enhancements.
g. “Customer Data” means all electronic data or information that Customer or any Authorized User loads or enters into the Services and all results from processing such data, including compilations and derivative works of such data or information.
h. “Documentation” means the technical documentation applicable to the Services, including manuals, user guides and education materials on any medium.
i. “Effective Date” means the date upon which this Agreement or an Order Form, as applicable, becomes effective.
j. “Employee” means:
i. for Fifth Domain related Services, any full-time, part-time, or seasonal employee who is accounted for in the employee master file contained in the Services;
ii. for Fifth Domain related Services, any active full-time, part-time or temporary/seasonal employee required by Customer to record time in the Services, excluding independent contractors, subcontractors, and inactive or terminated employees. Customer is required to have a Subscription for every person that enters data in the Services. An Employee is an Authorized User; or
iii. for Fifth Domain related Services, any active, or inactive full-time, part-time or seasonal employee who will be accounted for in the employee info centre, including subcontractor employees and excluding terminated employees. An Employee is an Authorized User.
k. “Evaluation Services” means the Services as made available to Customer on a trial basis for a period of time and for the fees specified in the Order Form.
l. “Intellectual Property Rights” means all copyrights, moral rights, database rights, patents, patentable ideas, inventions, patent applications, patent registrations, patent renewals, trade secrets, derivative works, know-how, Marks, all rights in the nature of unfair competition rights, and rights to sue in passing off, goodwill, confidentiality or any other similar proprietary right arising or enforceable under applicable law.
m. “Interface” means any standard functionality for providing input and
output to and from outside applications.
n. “Integration” means the translation of data from the format of one application directly into the format of another; a data and command conversion on an ongoing basis between two or more systems.
o. “ISV Supported Services” means Third Party Services which an independent software vendor partner (“ISV Partner”) supplies that may integrate with the Fifth Domain Services, and for which the ISV Partner solely and directly provides the license or software as a service subscription, maintenance and services terms (including warranty and liability limits) for ISV Supported Services to the Customer or subscriber.
p. “Marks” means registered or unregistered trademarks, service marks, trade names, logos, service names, or other proprietary markings.
q. “Misuse” means any use of the Services in disregard of any known or reasonably anticipated adverse consequences, warning messages, or other written instructions.
r. “Named User” means anyone Customer has authorized to use the Subscription by issuing an access code. A Named User is an Authorized User.
s. “Partner” means an entity with which Fifth Domain has an independent
contractor business relationship such as a reseller or supplier of software
and/or services. The parties acknowledge and agree that in this context,
the term “partner” shall not imply any legal or statutory partnership.
t. “SaaS Services” or “Services” means the Fifth Domain application or applications provided as a service by Fifth Domain that are ordered and purchased by Customer identified in the Order Form, including associated offline components but excluding any third party technology or applications and Consulting Services.
u. “SOW” means a statement of work, work order or any other document (except Customer purchase orders) authorizing Consulting Services.
v. “Subscription” means the right of a Customer and its Authorized Users to access the Services during the Subscription Period.
w. “Subscription Period” means the period during which Customer may use the Services, as specified in the Order Form. Unless otherwise specified in the applicable Order Form, the Subscription Period begins on the Effective Date of the Order Form.
x. “Support Contractor” means a third party with whom Customer has contracted to maintain or operate the Services for and on behalf of Customer subject to the terms and conditions of this Agreement. Customer must provide written notice to Fifth Domain identifying any Support Contractor that is given access to the Services.
y. “Third Party Services” means any third-party software made available as
a service listed in an Order Form that is produced by a party other than
Fifth Domain and is listed in an Order Form. Third Party Services are
supported by Fifth Domain unless otherwise indicated on the Order Form.
z. “Third Party Terms” means terms issued by a third party that govern Customer’s use of the Services. Fifth Domain may notify Customer of Third Party Terms by referencing them in this Agreement or future Order Forms or SOWs, or by providing other written notice from time to time.
All Third-Party Terms are incorporated into this Agreement by this
aa. “Updates” means upgrades, modifications, improvements, enhancements, extensions, new releases, and other changes to the Services or Documentation that Fifth Domain makes available.
SECTION C – TERMS FOR ALL SaaS Services
B1. Services Rights.
Upon the Effective Date and subject to compliance with this Agreement and Customer’s payment obligations, Fifth Domain grants to Customer and its Authorized Users a non-exclusive, non-transferable (except as provided in this Agreement), non-sublicensable right to access and use the Services described in the Order Form for Customer’s internal use (meaning for purposes which do not directly produce revenue for Customer) during the Subscription Period. Customer shall have no right to receive any object code or source code relating to the Services. Customer grants to Fifth Domain a non-exclusive, non-transferable right to access and use Customer Data as reasonably required to provide the Services to Customer and its Authorized Users. Customer may not copy or incorporate portions of the Documentation or “screen shots” of the Services except in training materials for Customer’s internal use only, provided that the incorporated materials shall bear a notice of Fifth Domain’s copyright.
B2. Authorized Users.
a. Authorized User IDs. Each Authorized User is issued a user ID and password which may not be shared or used by more than one person. However, a user ID and password may be reassigned from time to time to a new Authorized User replacing a former Authorized User. Customer will notify Fifth Domain when Customer no longer employs an Authorized User or if an Authorized User should otherwise be denied access to the Services.
b. Additional Authorized Users. Customer may add Authorized Users during a Subscription Period. The Subscription Period for any additional Authorized User Subscription shall end with the Customer’s current Subscription Period for that Service and the Subscription fee shall be prorated accordingly. Customer agrees to notify Fifth Domain if the number of Authorized Users increases and to pay the additional Subscription fees as specified in the Order Form for those additional Authorized Users. Unless otherwise provided, the number of Authorized Users cannot be reduced during any Subscription Period.
c. Limited Number of Users. Customer may not use or permit use of the Services or Documentation for more than the Customer’s current number of Authorized Users as specified in the applicable Order Form, as may be amended from time to time, and may not permit use of the Services by anyone other than Customer’s Authorized Users who may be (i) employees of Customer, (ii) employees of an Affiliate, or (iii) Support Contractor personnel. Customer must provide written notice to Fifth Domain identifying any Support Contractor that is given access to the Services.
B3. Excessive Usage.
In the event that Customer’s volume of use may degrade or otherwise interfere with the Services or other system performance, Fifth Domain will take appropriate measures, which may include immediate suspension or deactivation. Upgrades to the processing capacity are available at Fifth Domain’s option, but will be subject to an additional charge, even if it is related to Evaluation Services. Fifth Domain may monitor the external interfaces (e.g., ports) of Customer Data to verify Customer’s compliance with the terms of this Agreement and Customer shall not block or interfere with such monitoring. Customer will reasonably cooperate with Fifth Domain to identify the source of any problem with the Services that Fifth Domain reasonably believes may be attributable to Customer Data or excessive use of the Services.
B4. Service Upgrades.
Fifth Domain regularly provides upgrades, modifications, improvements, enhancements, extensions, new releases, and other changes to the Services, including Updates, and therefore the Services are continually evolving. Some changes to the Services may occur automatically, while others may require Customer to schedule and implement the changes.
B5. Changes to Services.
Fifth Domain reserves the right to change or discontinue the Services or features or functionality thereof from time to time and in its sole discretion. Fifth Domain will use reasonable efforts to notify Customer of material changes that occur during a Subscription Period.
Fifth Domain shall provide reasonable general technical support (“Support”) or a deeper level of support as outlined in an Order Form to allow Customer to report problems and to seek assistance in the use of the Services during Fifth Domain’s standard Support hours (9:00 am – 5:00 pm, Monday to Friday excluding public holidays).
B7. Renewal of Orders.
Unless either party has given the other party written notice of non-renewal of Services at least thirty (30) days prior to the end of the applicable Subscription Period or renewal Subscription Period, each Subscription will renew for an additional Subscription Period equivalent to the one stated in the Order Form at then-current Subscription fees; unless it corresponds to Evaluation Services. However, the parties may agree in writing to renew a Subscription for longer periods and/or at other mutually agreed upon rates.
B8. Third Party Claims.
a. Fifth Domain will indemnify, defend and hold harmless Customer against any damages finally awarded or agreed to in a settlement resulting from a third party’s claim (“Claim”) that the Services violate that third party’s copyright, patent or trademark, or misappropriate that third party’s trade secrets in the applicable jurisdiction provided that Customer has used the Services strictly in accordance with the terms of this Agreement, and only if Customer notifies Fifth Domain promptly in writing of such Claim and gives Fifth Domain full control of and assistance with the defence of such Claim. Fifth Domain shall not be responsible for Customer’s compromise or settlement of such a Claim without Fifth Domain’s written consent. Customer may retain its own counsel at its own expense, but such expense shall not be included in Fifth Domain’s indemnity obligation.
b. If a Claim is made or appears possible, Fifth Domain may, at its option, secure for Customer the right to continue to use the Services, modify or replace the Services so that they are non-infringing, or, if neither of the foregoing options is available in Fifth Domain’s judgment, terminate this Agreement and refund Customer any unamortized prepaid fees for use of the infringing Services. Fifth Domain shall have no liability or obligation with respect to any Claim if the infringement is caused by
i. modifications made according to Customer’s specifications,
ii. modifications by any person not authorized in writing by Fifth Domain,
iii. Customer’s failure to comply with Fifth Domain’s direction to cease
any activity that in Fifth Domain’s judgment may infringe a third party’s
Intellectual Property Rights,
iv. third party technology or content, including third party technology that is used to provide the Services, or the combination, operation or use of the Services with other product(s) or service(s) not supplied by Fifth Domain.
To the extent that a Claim has been caused by any attributable act or omission by Customer or any unauthorized modification or use of the Services, Customer’s indemnity claim shall be reduced by a comparative fault percentage that reflects its responsibility. Subsections (a) and (b) of this section state fifth domain’s entire obligation to customer with respect to any third-party claim.
c. Customer will indemnify, defend and hold harmless Fifth Domain, its affiliates and licensors, and each of their respective employees, officers, directors and representatives from and against any claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim (including claims by Authorized Users) that
i. Customer Data or Customer’s Misuse or unauthorized use of the Services, introduces a virus into the Services, harms any person, violates any law, or violates any third party’s Intellectual Property Rights, privacy or other rights,
ii. Customer has breached any Third-Party Terms, or
iii. Customer has violated the rights of the third party in posting, transmitting, storing, retaining or deleting Customer Data only if Fifth Domain notifies Customer promptly in writing of such Claim and gives Customer full control of and assistance for the defence of such Claim. Customer may settle any claim as Customer deems appropriate, provided that Customer obtains Fifth Domain’s prior written consent before entering into any settlement. Customer shall not be responsible for Fifth Domain’s compromise or settlement of such a Claim without Customer’s written consent.
B9. Return of Customer Data.
Upon Customer’s written request made within thirty (30) days of termination or expiration of a Subscription or this Agreement, Fifth Domain will return to Customer a single copy of all Customer Data then in Fifth Domain’s possession in Fifth Domain’s then-current industry standard data extract format. Additional Customer Data copies shall be available for a fee. After such thirty (30) day period, Fifth Domain shall have no obligation to maintain or provide any Customer Data and shall, unless legally prohibited, delete all Customer Data in its possession or under its control. Notwithstanding the foregoing, Fifth Domain may retain Customer Data in backup media for an additional period of up to twelve (12) months, or longer if required by law.