Akumina End User License Agreement
This Agreement is a legal agreement between Akumina Inc., a Delaware corporation ("Akumina"), and the Subscriber named above. By executing this Agreement, or by accessing or utilizing the Platform, Subscriber agrees to be bound by the terms of this Agreement and agrees that these terms may be incorporated by reference into any other associated agreement, statement of work or purchase order entered into by and between Akumina and Subscriber.
1. Product(s) Purchased. This Agreement shall apply to the Platform and any other product(s) or associated Services specifically identified in this Agreement which Subscriber is licensing or purchasing hereunder. As used in this Agreement, the "Platform" means Akumina’s Employee Experience Software Platform including all proprietary technology incorporated therein or related thereto (including, but not limited to, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) owned, developed or licensed by Akumina.
2. License Rights. During the Term (as defined in Section 10) and subject to compliance with the terms of this Agreement, including timely payment of all fees, Akumina grants to Subscriber a non-exclusive and nontransferable right and license to use the Platform solely for Subscriber's internal business purposes. Subscriber's license is limited to a specific number of users, a specific number of internal site experiences (instances as further specified in Section 19(2) below) and a specific set of functionalities as defined in the Agreement. Additionally, the Platform is licensed for (a) use of the Platform in one production cloud deployment in Office 365 or Azure and (b) use of the Platform in one non-production deployment of the Platform (unless otherwise specified herein) solely for staging, internal testing, development or quality-assurance purposes. Subscriber agrees that Akumina may audit Subscriber's use of the Platform, up to once per calendar year, upon reasonable notice to Subscriber and in a manner minimizing disruption to Subscriber's business operations, to ensure compliance with the use restrictions, user levels and software level contained in the preceding sentences.
3. Fees and Payment. Subscriber agrees to pay the fees set forth in any invoice delivered directly from Akumina or indirectly from an authorized reseller for the Platform and any associated services selected by Subscriber. With the exception of an incurable material breach by Akumina (as further discussed in Section 10), all payments made to Akumina, directly or indirectly, are nonrefundable. In addition to any other rights granted to Akumina herein, Akumina reserves the right to suspend or terminate this Agreement and Subscriber’s subscription, upon ten (10) business days’ written notice, if Subscriber’s account becomes delinquent (falls into arrears) and such delinquency is not cured within such notice period. Subscriber is liable to pay all costs and expenses of Akumina in collecting any delinquent amounts due under this Agreement, including all collection agency fees, court costs and reasonable attorney’s fees.
4. Intellectual Property Rights. Subscriber acknowledges that (a) as between Akumina and Subscriber, all right, title and interest in and to the Platform, and any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied in or associated with any of the foregoing, are and will remain the property of Akumina, and this Agreement in no way conveys any right or interest in the Platform or any such proprietary rights other than a limited right and license to use the Platform in accordance herewith, (b) the Platform contains works protected by the copyright and other laws of the United States and international treaties, and (c) Akumina asserts that the Platform embodies valuable confidential and proprietary information of Akumina, the development of which required the expenditure of considerable time and money. Subscriber agrees not to challenge or otherwise attempt to assert any rights in the Platform except those rights provided to Subscriber under this Agreement. The Platform may include software or functionality the rights to which are owned by third parties (collectively "Third-Party Owners"), and Subscriber agrees that such Third-Party Owners are third-party beneficiaries of this Agreement to the extent of their interest in such software or functionality. No work product, including, but not limited to, computer code or documentation, generated from Services provided by Akumina hereunder shall be considered “work made for hire” under applicable copyright law unless such work product is specifically identified as such in this Agreement or a statement or work executed by the parties pursuant to this Agreement, but to the extent so identified by the parties (a “Deliverable”), all rights, title and interest (including all copyrights) in such Deliverable shall vest in Subscriber, and shall be deemed a “work made for hire” (as defined in the U.S. Copyright Act of 1976, as amended). Akumina waives any and all paternity, integrity, moral or other similar rights that Akumina may have now, or in the future, in and to the Deliverables. To the extent that title to any Deliverable may not, by operation of law, vest in Subscriber, or the Deliverables may not be considered a work made for hire, Akumina irrevocably assigns and transfers to Subscriber, in perpetuity all of Akumina’s worldwide rights, title and interest in and to the Deliverable, whether such rights are vested or contingent, including, but not limited to, all copyrights, patents, trade secrets, trademarks and any other proprietary rights therein. All patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights of Subscriber, and all Subscriber Data, shall remain the property of Subscriber, and this Agreement shall not be interpreted as giving Akumina any rights thereto except to the extent specifically set forth herein or in a statement of work or other writing executed by both parties.
5. Subscriber's Obligations and Restrictions. Subscriber may not license, sublicense, sell, resell, transfer, assign, distribute or otherwise exploit, commercially or otherwise, the Platform or make the Platform available to any third party other than Subscriber's employees and any other persons that Subscriber has authorized, with the prior consent of Akumina, to have access to the Platform, who have been supplied user identifications and passwords by Subscriber (collectively, "Subscriber's Authorized Users"). Subscriber shall at all times remain solely responsible for the content of any and all data, information or material that is provided or submitted by Subscriber to the Platform, whether created by Subscriber or a third party, in the course of using the Platform (“Subscriber Data”). Subscriber shall indemnify and hold harmless Akumina from and against any claims by third parties arising from or related to Subscriber Data, including claims that Subscriber Data infringes or violates such parties’ rights.
6. Confidentiality. Each party acknowledges that during the Term, it may have access to or otherwise obtain non-public information that is confidential and proprietary to the other party ("Confidential Information"). The parties agree that any and all Akumina intellectual property (including the Platform) and Subscriber Data are Confidential Information. Each party agrees that it will (a) only use the other party's Confidential Information for the purposes contemplated by this Agreement; (b) not use for its own benefit or knowingly disclose to, or use for the benefit of, any other person any Confidential Information of the other party without the other party's prior written consent; (c) use at least the same degree of care and caution to protect the other party's Confidential Information from disclosure that it employs with respect to its own confidential information, but in no event less than a reasonable degree of care and caution; (d) disclose the other party's Confidential Information only to those of its employees, agents, consultants or contractors who require access to it in order for the party to be able to perform its obligations under this Agreement; and (e) ensure that any such persons allowed such access agree in writing to satisfy the foregoing obligations or are otherwise bound by a similar legal obligations to keep such information confidential. This Section will not apply to any information which (i) is or becomes publicly available through no fault of the receiving party; (ii) is already in the receiving party's possession without restriction on disclosure when disclosed by the disclosing party to this Agreement; (iii) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (iv) is rightfully obtained by the receiving party from a third party without violating the rights of the disclosing party.
7. Limited Warranty, Indemnification, and Limitation of Liability.
7.1 Limited Warranty. Akumina warrants, for the benefit solely of Subscriber, that the Platform that is provided to Subscriber will conform in all material respects to Akumina's published documentation relating to that edition of the software and that the Services will be provided in a competent and professional manner in accordance with the practices and quality standards generally accepted in the industry. Akumina’s published documentation can be found on the Akumina Community Site found at http://community.akumina.com. Akumina's sole obligation and Subscriber's exclusive remedy regarding the warranty contained in this Section 7.1 shall be to repair the Platform and/or to re-perform the Services, as applicable, to bring the Platform and Services into compliance with such warranty.
7.2 Indemnification for Infringement. If a claim is made that the Platform or Subscriber's use of the same as permitted by this Agreement directly infringes a valid United States patent, copyright, trademark or trade secret, Akumina will indemnify Subscriber and hold it harmless against such claim and resulting costs, damages and reasonable attorney's fees finally awarded or agreed to in settlement, provided that (a) Subscriber promptly notifies Akumina in writing of the claim, and (b) Akumina has sole control of the defense and all related settlement negotiations, provided that Akumina shall not enter into any settlement that adversely affects Subscriber without Subscriber's written approval. Subscriber may be represented by separate counsel at its own expense. Akumina's obligations under this Section 7.2 are conditioned on Subscriber's agreement that if the Platform, or the use or operation thereof, becomes, or in Akumina's opinion is likely to become, the subject of such a claim, Akumina may at its option and expense, either procure the right for Subscriber to continue using the Platform, or replace or modify the same so that it becomes non-infringing (provided such replacement or modification does not materially adversely affect Subscriber's intended use of the Platform as contemplated hereunder). If neither of the foregoing alternatives is available on terms that are commercially reasonable in Akumina's judgment, Subscriber will discontinue its use of the Platform on written request by Akumina. Akumina will have no liability for any claim based upon the combination, operation or use of the Platform with equipment, software or data not supplied or expressly recommended in writing by Akumina if such claim would have been avoided by use of other equipment, software or data. THE FOREGOING STATES THE ENTIRE REMEDY OF SUBSCRIBER AND THE SOLE OBLIGATION OF AKUMINA WITH RESPECT TO INFRINGEMENT CLAIMS.
7.3 Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE PLATFORM, THE SERVICES OR ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED TO SUBSCRIBER HEREUNDER OR IN CONNECTION HEREWITH. AKUMINA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, WHETHER MADE BY AKUMINA OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY AKUMINA FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF AKUMINA WHATSOEVER. AKUMINA DOES NOT WARRANT THAT THE PLATFORM WILL MEET SUBSCRIBER'S REQUIREMENTS OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS WILL BE CORRECTED. THE LIMITED WARRANTY CONTAINED IN SECTION 7.1 IS VOID IF FAILURE OF THE PLATFORM HAS RESULTED FROM MODIFICATION OR MISUSE OF THE PLATFORM BY SUBSCRIBER OR ANY THIRD PARTY.
7.4 Limitation of Liability. REGARDLESS OF THE FORM OF ACTION, IN NO EVENT SHALL AKUMINA'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID TO AKUMINA BY SUBSCRIBER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFIT OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE PLATFORM OR THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PLATFORM, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE PLATFORM, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FOR WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY SUCH DAMAGES. IN NO EVENT WILL AKUMINA HAVE ANY LIABILITY FOR THIRD PARTY PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION THOSE BUNDLED, INTEGRATED OR OTHERWISE ASSOCIATED WITH AKUMINA PRODUCTS OR SERVICES.
8. Internet or Other Delays. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE THE INTERNET OR INHERENT WITH THE USE OF THE SUBSCRIBER’S OFFICE 365 AND/OR SHAREPOINT AND/OR AZURE ENVIRONMENT AND/OR SUBSCRIBER’S NETWORK CONNECTIVITY AND INFRASTRUCTURE AND/OR ANY OTHER ELECTRONIC COMMUNICATIONS. AKUMINA IS NOT RESPONSIBLE FOR ANY DELAYS, PERFORMANCE ISSUES, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
9. Export Control. Subscriber may not export, ship, transmit, or re-export the Platform in violation of any applicable law or regulation, including, without limitation, the Export Administration Regulations issued by the United States Department of Commerce, or any such similar law or regulation issued by such other governmental entity which may have jurisdiction over such export.
10. Term and Termination. This Agreement shall become effective upon download and use of the Akumina software by Subscriber or when a copy of this Agreement is signed by Subscriber and is returned to Akumina, whichever comes first, and shall remain in effect until expiration of the initial term selected by the Subscriber, provided that the term shall automatically renew for additional terms each equal in length to the expiring term (the initial term and any renewal term(s) are referred to herein as the “Term”). This Agreement may be terminated by either Subscriber or Akumina effective upon the expiration of the then-current term, by notifying the other party in writing at least sixty (60) days prior to the expiration of the then-current term. In addition, either party may terminate this Agreement in the event of a material breach of this Agreement by the other party, by giving written notice to the other party specifying such material breach in reasonable detail, provided that if such material breach is capable of cure, the other party shall have thirty (30) days from the date of delivery of such notice to cure such material breach, and provided further that if the other party can demonstrate that it is diligently pursing such cure at the end of such 30-day period, the other party shall have an additional thirty (30) days to completely cure the material breach. Notwithstanding the foregoing, any breach of Subscriber's payment obligations or unauthorized use of the Platform will be deemed a material breach by Subscriber and will not be subject to the cure periods set forth above. Except in the event of a material breach of this Agreement by Akumina, Subscriber shall not be entitled to any refund of the fees associated with this Agreement. In the event of a termination by Subscriber because of a material breach by Akumina that cannot be cured or has not been cured after all applicable cure periods have elapsed, Akumina shall refund to Subscriber a prorated portion or any prepaid and unused fees specific to this Agreement. If Subscriber gives notice that it will not renew its subscription, or Subscriber’s subscription ends for any other reason, and Subscriber subsequently wishes to re-activate its subscription, Akumina will invoice a one-time administrative fee of $10,000 to re-activate the subscription. All support Services (except for a monthly retained advanced support service) purchased with the Akumina software subscription must be used during the twelve-month period immediately following contract execution date. Upon termination of this Agreement for any reason, Subscriber’s access to the Platform shall cease.
11. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors or permitted assigns. Either Subscriber or Akumina may assign this Agreement and the rights granted hereunder either (i) with the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, or (ii) in connection with a Change of Control Transaction. As used herein, a "Change of Control Transaction" shall mean: (i) a merger or consolidation of such party with or into another entity with respect to which less than a majority of the outstanding voting power of the surviving or consolidated company immediately following such event is held, directly or indirectly, by persons who held such power immediately prior to such event; (ii) a sale or transfer of more than 50% of the consolidated properties and assets of such party; or (iii) an acquisition of a majority of the voting power of such party by persons who were not security holders of such party immediately prior to such event.
12. Relationship of the Parties. Akumina and Subscriber are independent contractors, and nothing in this Agreement will be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party will make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party's name or on its behalf.
13. Force Majeure. In no event will either party be liable for any delay or failure to perform under this Agreement (except obligations to make payments as and when due) that is due to causes beyond the reasonable control of such party.
14. Notices. All notices given under this Agreement will be given in writing, will reference this Agreement and will be deemed to have been delivered and given when delivered (a) by registered or certified U.S. mail, return receipt requested, postage and charges prepaid; (b) by a commercial courier, with written verification of receipt; or (c) by email with electronic delivery confirmation. All notices will be sent to the following addresses or to any replacement address of which the other party has been given notice in accordance with this Section: (i) in the case of Akumina, to it at Akumina Inc., 30 Temple St., Nashua, NH 03060, or email@example.com; and (ii) in the case of Subscriber, to it at the address provided by Subscriber in Exhibit D attached to this Agreement.
15. Entire Agreement; Amendments. This Agreement contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. In the event of any conflict between the terms of this Agreement and the terms of any other agreement, this Agreement shall prevail. This Agreement may not be amended or modified except by a written instrument signed or electronically acknowledged and accepted by duly authorized representatives of both parties.
16. Severability. In the event that any provision of this Agreement is for any reason void or unenforceable in any respect, such provision will be without effect to the extent of the voidness or unenforceability without affecting such provision in any other respect and without affecting any other provision.
17. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire without giving effect to any choice or conflict of laws provision that would cause the application of the laws of any other jurisdiction. Any mediation, arbitration, or judicial action commenced under the terms of this Agreement shall take place in the State of New Hampshire.
18. Publicity. Each of Akumina and Subscriber consent to the use by the other party of its name and logo, including any proprietary marks incorporated therein, on or in the other party's website and/or marketing materials and the identification of it as a customer of or service provider to such other party, as applicable.
19. Additional Purchase Terms. Akumina will provide Subscriber with a license for the Platform for the term selected by Subscriber. Licensing of the Platform to Subscriber is subject to the following additional terms:
- 1. If Subscriber chooses a subscription Term Commitment of more than one-year Subscriber must pay subscription fees in full in advance for the chosen subscription term in order to receive the pre-pay discount.
- 2. Subscriber’s license will entitle Subscriber to use of the Platform for a specific number of employees, for a specific set of features of the software (as defined in the Agreement) and for a specific number of site experiences (instances). A site experience (or an instance) is defined as any single, stand-alone, web-based experience leveraging the Platform that is delivering an experience to a single dedicated audience. For example, a corporate intranet to Subscriber’s employees would be considered one site experience (one instance). A separate site experience to Subscriber’s customers as an extranet would be considered a separate site experience (instance). Any Subscriber licensing Akumina’s Intelligent Activity Stream Engine, Subscriber is limited to one (1) corporate Activity Stream deployment for their organization. Additional Activity Stream deployments may be purchased for an additional subscription fee.
- 3. Subscriber’s users are required to be correctly licensed from Microsoft for Office 365 and/or SharePoint and/or Power Automate and/or Microsoft Azure and/or Microsoft Active Directory (or other supported identity provider). Akumina is not providing any third-party licenses as a part of this Agreement.
- 4. Use of the Platform grants Subscriber the right to the software installation package for all major and minor product releases, updates, and service packs. Services to install/complete the upgrade are not included in the maintenance but can be purchased for an additional fee on a per customer basis.
- 5. Akumina’s Platform supports and ensures testing compatibility with the latest versions of the following web Browsers: Microsoft Edge, Google Chrome and Apple Safari. Legacy Browsers can be supported for an additional charge.
- 6. All support Services purchased (except for a monthly retained advanced support service) with the Akumina software subscription must be used during the twelve-month period immediately following purchase.
20. Native Mobile App Support. Akumina provides complete support for native iOS and Android mobile applications. To take advantage of this, Subscriber must have (or acquire) an enterprise developer license for iOS and Android mobile application development. Enterprise deployments require Subscriber to have a distribution mechanism for the App inside its enterprise. These solutions, usually called MDM (Mobile Device Management) or MAM (Mobile Application Management), allow for the testing and distribution of the mobile app, delivery of the appropriate mobile device certificate and downloading of the App itself. This also represents the mechanism for delivering updates to the native App. Akumina fully supports Subscriber’s use of conditional access inside of their MDM/MAM application. Browser session restriction must be turned off for the Akumina mobile application. The Akumina native mobile app solutions require a 4G/5G/LTE or Broadband Internet connection due to the dynamic integration with Subscriber’s Office 365 (and other technology) environment(s). Biometric Authentication (Face & Fingerprint ID) is not included in the license fees quoted above unless selected under license upgrades.
21. Training. Akumina offers two training courses that are recommended for every Subscriber. The first course is a Certified Developer course designed to train technical users on building and operating the Platform. The second course is a Certified Content Author and Admin course designed to target content authors, administrators and power users who will be using the software daily to execute the business strategy. These training sessions each run as classroom style and can be done via a Microsoft Teams meeting or in person. Akumina highly recommends in-person training, however it is not required, and travel expenses are not included in the quoted price.
Certified Developer Training course is for unlimited users per training session. Certified Content Author and Admin Training course is for unlimited users per training session.
22. Best Practices Services. Best Practices Services is an advisory professional service offered by Akumina designed to give our customers or our implementation partners guidance on approach and architecture, help on configuration, and customization of the use of the Platform. This supporting service is provided by a dedicated best practices manager who knows Subscriber’s goals and strategic initiatives and can work with Subscriber’s team on aligning the use of the Platform to match those goals. Depending on Subscriber’s needs, Best Practices can be used by the Subscriber as a stand-alone, in conjunction with supporting a Subscriber’s internal development team or in conjunction or supporting a Subscriber’s selected Akumina implementation partner. Unless otherwise specified in a launch plan or statement of work, the following assumptions shall be in effect for every best practice engagement:
- 1. Akumina assumes that Subscriber’s Active Directory (or other supported identity provider) and user profiles are up to date and accurate. If work is required on Akumina’s part to clean-up or fix these elements, a separate launch plan or statement of work will be created and executed.
- 2. The launch plan or statement of work identified in this Agreement is based on the work that Akumina has completed in the pre-sales process to understand the goals and desires of the project. Both parties recognize that during discovery certain items will be affirmed, changed, modified, added or removed and a final project plan will be assigned, and a change order and additional fees may be required.
- 3. Unless specifically listed in the project plan, Akumina will be executing no content migration as a part of this Agreement.
- 4. Akumina’s work is all on a time and materials basis.
- 5. All travel expenses are billed as actual expenses and are not included in the cost.