HomeMy WebLinkAboutCAG2021-1006 - Original - Kaseya US LLC dba IT Glue - 3 Year Subscription for 10x Seats of IT Glue - 02/26/2021 FOR CITY OF KENT OFFICIAL USE ONLY
Sup/Mgr: LS/JE
Agreement Routing Form DirAsst:
• For Approvals,Signatures and Records Management Dir/Dep: IMC
KENT This form combines&replaces the Request for Mayor's Signature and Contract Cover (Optional)
W A S H I N G T O N Sheet forms.
Originator: Department:
Lyn nette Smith IT
Date Sent: Date Required:
> 03/24/2023 03/27/2023
0
QAuthorized to Sign: Date of Council Approval:
Q Director or Designee
N/A
Budqet Account Number: Grant? Yes�✓ No
52001740.64260.1800
Budget?R]YesEl No Type: N/A
Vendor Name: Category:
Kaseya US LLC dba IT Glue Contract
Vendor Number: Sub-Category:
= 2426781 Original
0
Project Name: IT Glue
E
i Project Details:Procurement of 3-year subscription for 10x seats of IT Glue a technical document
p t
Y P ,
= solution used by the IT Department, confirmed to vendor by PO issuance, under
a;, vendor's terms.
C
Agreement Amount: $11 329.29 Basis for Selection of Contractor: Direct Negotiation
GJ
*Memo to Mayor must be attached
Start Date: 02/26/2021 Termination Date: 02/25/2024
a Local Business?E]Yes ]No* If meets requirements per KCC3.70.100,pleose completeVendor Purchose-Local Exceptions'form on Cityspoce.
Business License Verification:Yes El In-Process Exempt(KCC 5.01.045)
Notice required prior to disclosure? Contract Number: CAG202 1— 1006
F TesZ No
Comments:
C
3
3 0 Mike CarringtoW, IT Director
a
N
Date: 03/24/2023
�a
c
Vf
Date Routed to the City Clerk's Office: 3/3 0/2 3
adccW22373_1_20 Visit Documents.KentWA.gov to obtain copies of all agreements
rev.20210513
M
I ��I�� ITG Software Inc.
700 - 128 W Pender Street
Vancouver, BC V613 1R8
+1-844-235-4583 • itglue.com
Quote:#Q-387527 Bill To: Ship To:
Prepared By:Judy Huang James Endicott James Endicott
Date: 10-Feb-2021 City of Kent City of Kent
Quote Valid Until: 26-Feb-2021 220 Fourth Avenue South 220 Fourth Avenue South
Payment Terms: Upon Receipt Kent,WA 98032 Kent,WA 98032
United States United States
Start Date:26-Feb-2021
Billing Price Per
SKU Name Effective Dates List Price Discount Effective Price Quantity Term Total j
Frequency Period i
S-CLD- IT Glue-Enterprise Monthly 26-Feb-2021- 39.00 35.9% 25.0000 10 250.00 36 Months 9,000.00
ITG-ENT 25-Feb-2024
Description:
IT Glue-Enterprise
CNS- IT Glue 360 One Time N/A 1,349.00 4.37% 1,290.0000 1 1,290.00 One Time 1,290.00
ITG-360
Description:
Premier Onboarding+GlueX Ticket
SubTotal: USD 10,290.00 Ili
--------------------------------------------------------------------------------------------
Total Quote Amount: USD 10,290.00
*Applicable Taxes will be applied upon invoicing
By clicking the "I Accept this Quote" button below, I confirm that
(i) I am placing an order,and I have read and agree to all of the terms and conditions set forth in the IT Glue Subscription
End User Software License Agreement("EULA"),which can be found at: https://www.itglue.com/terms/; and,
(ii) I acknowledge and agree that any terms and conditions in my purchase order, procurement,or similar
document not sent by IT Glue will not apply and will have no force or effect.
2/17/2021 Terms of Service I IT Glue
■
•
Subscr*iption n ser
Software
Agreement
This End User License Agreement (this "Agreement") is between the legal entity or entities that
accept(s) this Agreement by physical or electronic signature, or by a click-through acceptance
("Licensee"), and ITG Software ULC. as licensor ("IT Glue").This Agreement is effective as of the
earlier of the date set forth on the signature page hereto or the date on which this Agreement is
accepted through an accompanying Order Form, as applicable (such date,the "Effective Date").
This Agreement applies to all Software licensed from or any Service provided by IT Glue, including
any pre-release or beta versions of the Software, any Support Services or Professional Services
performed by IT Glue,any Hardware provided by IT Glue with Software pre-installed, any
demonstration or trial versions of the Software, and the Documentation. If Licensee is bound to more
than one agreement with IT Glue with respect to the Software or the Service(s), and if those
agreements terms vary,then the order of precedence of those agreements is as follows: an
agreement executed by IT Glue and Licensee that expressly supersedes all other agreements, an
electronic version of an agreement accepted pursuant to an Order Form, IT Glue purchase order or
formal written quote provided by IT Glue, and any other electronic agreement provided with the
Software.
1. Definitions.The terms in this section shall have the meanings described below,and other
terms may be defined within the context of this Agreement.
1.1. "Confidential Information" means information that is designated in writing as "confidential"
at the time of disclosure,or which constitutes the trade secrets of a party under the governing
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law of this Agreement.Confidential I nformation also includes the Object Code of the 14
Software,the pricing structure for the Software and Services provided to Licensee, and any
other proprietary information owned by IT Glue and which is provided or disclosed to
Licensee at anytime. Notwithstanding the foregoing,Confidential Information does not
include information that the receiving party can demonstrate: (a) is in the public domain or is
generally publicly known through no improper action by the receiving party; (b)was rightfully
in the receiving party's possession or known by it prior to receipt from the disclosing party; (c)
is rightfully disclosed without restriction to the receiving party by a third party without
violation of any confidentiality covenant by such third party; or (d) is independently developed
by the receiving party without use of the Confidential Information of the disclosing party.
1.2. "Customer Data" means any and all of Licensee's and its User's data, information, and
materials that are uploaded by or on behalf of Licensee or that are accessed by IT Glue in
connection with Licensee's or its User's use of the Software.
1.3. "Documentation" means any documentation distributed by IT Glue or its authorized resellers
pertaining to the Software, including without limitation any accompanying or online user
guides,technical information relating to the Software, user documentation, and technical data
sheets in effect on the Effective Date, in each case, as may be updated or amended by or on
behalf of IT Glue from time to time. Documentation also includes any applicable Order Form
and SOW.
1.4. "Fees" means the subscription and other fees set forth in this Agreement or any Order Form
or SOW for the purchase of Software licenses, Hardware, or Services.
1.5. "Hardware" has the meaning set forth in Section 10.
1.6. "Licensee's Customers" has the meaning set forth in Section 2.
1.7. "Object Code" means computer programming code in the form not readily perceivable by
humans and suitable for machine execution without the intervening steps of interpretation or
compilation.
1.8. "Order Form" means any IT Glue form detailing an order which is incorporated into and
becomes a part of this Agreement. Depending on the Software ordered,the Order Form may
be completed online or may take the form of a written order form, invoice,quote, billing
statement,or SOW. In the event of any discrepancy between this Agreement and an Order
Form,this Agreement shall govern.
1.9. "Professional Services" means implementation and other services requested by Licensee
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with respect to the Software or the Service.
1.10. "Service"means the use of the Software as offered by IT Glue on a hosted basis.
1.11. "Software" means the Object Code form of the IT Glue software licensed under this
Agreement, including any updates,upgrades,or other modifications thereof delivered or
made accessible to Licensee as part of the Services or otherwise pursuant to this Agreement.
1.12. "SOW" means a IT Glue-originated, mutually executed statement of work,work order,or
other similar document that references this Agreement and which, upon its mutual execution
by Licensor and Licensee,will be automatically incorporated by reference into, and governed
under,this Agreement.
1.13. "Term" has the meaning set forth in Section 12.1.
1.14. "Third Party Materials" means software, interfaces, and firmware, licensed by IT Glue from
third parties and which are incorporated into and/or distributed as part of the Software.
1.15. "User" means an individual who is authorized by Licensee to use the Software within its
organization or, if applicable,within a multi-tenant or managed services environment, and to
whom Licensee has supplied a user identification and password. Users may include,for
example, Licensee's employees, consultants and contractors.
2. Grant of Limited License (the "License").Subject to the terms of this Agreement, including
any restrictions set forth in the applicable Order Form and the payment of Fees in accordance
with the applicable Order Form, IT Glue grants Licensee during the Term, a non-sublicensable,
nonexclusive, revocable, nontransferable right to use the Software in Object Code as provided
by IT Glue or the Service as made available by IT Glue,for the number of authorized Users (or
"Seats") as specified on the applicable Order Form.Such use shall be limited to authorized
Users,shall not exceed the number of purchased Seats, and shall be used for Licensee's
internal business purposes only. If the Software is authorized to be used in a multi-tenant
environment or as part of a managed services solution (a "Managed Service"),then Licensee
hereby agrees that the Software will be used solely in furtherance of Licensee's provision of
the Managed Service and not for any other purpose by any unauthorized third party and, if
required by IT Glue from time to time in IT Glue's sole discretion,each User shall accept the
terms of an end user license agreement for the Software.
Except for one copy made solely for back-up or test purposes with respect to on-premises
Licenses, Licensee may deploy or possess only the number of copies of the Software as
expressly specified on the Order Form, and only in accordance with the applicable
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Documentation:otherwise, Licensee shall not copy or distribute the Software,the
Documentation or any other written materials accompanying the Software. Licensee will be
responsible for ensuring that any and all use of the Software by its Users, MSPs and
customers is permitted by this Agreement.The Software licensed or the Service provided
hereunder is licensed or provided, as applicable,solely for use in connection with Licensee's
internal business requirements,or the provision of any permitted MSP services provided by
Licensee to its customers (the "Licensee's Customers") and may not be used for any other
purpose, and any and all such uses shal I be subject to all of the terms and conditions of this
Agreement applicable to Licensee.
3. Restrictions. Licensee will not remove, alter,or obscure proprietary notices that appear on or
in the Software and Documentation,and will reproduce them on or in any copies. Licensee will
not (and will not allow any User or other third party, including Licensee's Customers,to) (i)
decompile,disassemble, reverse compile,or reverse engineer or attempt to discover any
source code or underlying ideas or algorithms of any Software (except to the extent that
applicable law prohibits such restrictions), (ii) modify, or create derivative works based on the
Software (iii) provide,sell,give, rent, lease, lend, loan,distribute,transfer, use for timesharing
or service bureau purposes or otherwise use or al low others to use the Software for the
benefit of any third party(except to the extent that the Software forms part of the services
being provided by Licensee to Licensee's Customers), (iv) use any Software,or allow the
transfer,transmission,export, or re-export of any Software or portion thereof, in violation of
any U.S.or any other applicable export control laws or regulations, (v) develop keys or license
codes other than license keys provided by IT Glue for the Software or attempt to defeat or
circumvent any such keys or any other access restrictions included in the Software or
determine how any such keys are developed,or (vi) use or copy the Software except as
expressly permitted in Section 2.All the limitations and restrictions on Software in this
Agreement also apply to Documentation.
4. Usage Limits. Licensee's usage of the Software is subject to usage limits, including,for
example,the quantities specified in an Order Form. Unless otherwise specified, (a) a quantity
in an Order Form may refer to sets, users,devices, storage or other metrics as applicable to
the Software or Service, and such usage of the Software or Service may not exceed the
applicable usage metric, (b) a User's password may not be shared with any other User or
person,or used simultaneously with multiple instances of the Software, and (c) a User
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identification may be reassigned to a new individual replacing one who no longer requires use
of the Software or Service. If Licensee exceeds a contractual usage limit, Licensee will execute
an Order Form for additional quantities of the applicable Software promptly upon IT Glue's
request,and/or pay any invoice far excess usage in accordance with the payment terms and
pricing set forth in this Agreement and any Order Form.
5. Responsibilities. Licensee will (a) be responsible for its Users'compliance with this
Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data and the
means by which Licensee acquires and uses any Customer Data, (c) use commercially
reasonable efforts to prevent unauthorized access to or use of the Software,Services and
Customer Data,and notify IT Glue promptly of any such unauthorized access or use, (d) use
the Software only in accordance with its Documentation and applicable laws and government
regulations,and (e) comply with terms of service of IT Glue as published from time to time on
IT Glue's website(s),which are hereby incorporated into this Agreement by reference.
6. Third Party Materials.Some Third Party Materials may be subject to other terms and
conditions,which may be found in a "Read Me"or "About"or similar file in the Software or
Software documentation. If Licensee does not agree to such terms, Licensee agrees not to use
the Software or any Third Party Materials.
7. Customer Data. Licensee hereby grants to IT Glue a nonexclusive,worldwide, royalty-free,
fully-paid,transferable license to host,cache, record,copy,view, and display Customer Data
for the purpose of providing the Software and Services to Licensee: (a) internal use by IT Glue
and its affiliates; (b) any purpose related to the billing, activation, provision, maintenance,
upgrades, updates,deactivation and/or use of the Service or the Software and/or related
products and/or services; (c) any purposes permitted by any applicable law. Except as set forth
in this Agreement, as between IT Glue and Licensee, Licensee retains all right,title, and
interest in and to Customer Data. Licensee shall have sole responsibility for the accuracy,
quality, integrity, legality, reliability, appropriateness, and right to use Customer Data, and
Licensee agrees that,except for IT Glue's gross negligence or willful misconduct, IT Glue shall
not be responsible or liable for the unauthorized access to, alteration of, or deletion,
correction,destruction,corruption, damage, loss or failure to secure or store Customer Data.
Licensee acknowledges and agrees that it bears sole responsibility for adequately controlling,
processing,storing and backing up its Customer Data. IT Glue reserves the right, but not the
obligation,to refuse to post or to remove any information or materials, in whole or in part,that
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IT Glue believes to be unacceptable,undesirable,or in violation of this Agreement or the
rights of third parties. Licensee represents,warrants,and covenant that: (a) it is the owner or
authorized licensee of Customer Data and has the right to grant the rights set forth herein; (b)
it has obtained all consents necessary under applicable law to disclose Customer Data to IT
Glue; and (c) it will not publish, post, upload, record,or otherwise distribute or transmit any
data or other material that: (i) infringes or would infringe any copyright, patent,trademark,
trade secret or other proprietary right of any party,or any rights of publicity or privacy of any
party; (ii) violates any law, statute,ordinance, or regulation; (iii) is inappropriate, profane,
defamatory, libelous,obscene, indecent,threatening, harassing,or otherwise unlawful; (iv) is
harmful to minors or otherwise pornographic; (v) contains any viruses,Trojan horses,worms,
time bombs,cancelbots,corrupted files,or any other similar software,data,or programs that
may damage,detrimentally interfere with, surreptitiously intercept, or expropriate any
system,data, Personal Information,or property of another; (vi) is materially false, misleading,
or inaccurate; and/or (vii) contains information for which Licensee does not have the right to
permit IT Glue to access and process any Customer Data.
8. Support and Maintenance.While the license for Software remains effective and the
applicable fees have been paid in accordance with this Agreement, IT Glue or any of its
affiliates will use commercially reasonable efforts to provide the Licensee with the support
and maintenance services for the Software or the Service as described in IT Glue's then-
current support and maintenance program, a copy of which is located on IT Glue's web site
("Support Services"). IT Glue may elect to change the fees for and the terms of its Support
Services or terminate Support Services for the Software or the Service.
9. Proprietary Rights.The Software is licensed, not sold,to Licensee. Similarly,the Services are
provided on a subscription basis only, and are not sold to Licensee. IT Glue and its affiliates,
suppliers and licensors own and retain all right,title and interest in and to: (a) the Software,
Service,and Documentation (including all copies,components thereof and all upgrades,
modifications, enhancements and derivative works thereof); and, (b) all copyrights, patent
rights,trade secret rights,trademark and other intellectual property and other proprietary
rights embodied in or relating to the Software, Service or Documentation. Licensee
acknowledges and agrees that it shall have no rights with respect to any of the foregoing other
than the limited rights expressly set forth in this Agreement. IT Glue expressly reserves all
rights in the Software, Service and Documentation not specifically granted to Licensee. It is
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acknowledged that all right,title and interest in and to the Software, Service and
Documentation will remain vested exclusively with IT Glue.
10. Hardware. Delivery to Customer of any hardware and software pre-installed on the
hardware(together,the "Hardware") shall be made FCA(Incoterms 2010) our or our
affiliate's or subcontractor's designated facility in Libertyville, IL or Canton, MA or any other
location as designated by us from time to time or according to the applicable trade term
specified on the Order Form. Risk of loss or damage to such hardware and pre-installed
Software and title to any such Hardware shall pass to Customer upon delivery.
11. Fees and Payment.
11.1 Payment Terms. Licensee shall pay to IT Glue the Fees due for the Software in accordance
with terms of this Agreement and any applicable Order Form. Except as otherwise specified
herein or in an Order Form, (a)fees are based on Software licensed and Services purchased
and not actual usage, (b) all payment obligations under this Agreement are non-cancelable and
non-refundable,and (c) quantities purchased cannot be decreased during the relevant
subscription term.Any payments more than thirty (30) days overdue will bear a late payment
fee of 2.0% per month,or, if lower,the maximum rate allowed by law.All amounts payable by
Licensee are exclusive of any taxes,fees,duties,shipping, or other charges, however
designated, now or hereafter levied. Licensee will be responsible for all taxes (other than IT
Glue income taxes),fees, duties,shipping or other such charges under this Agreement.
Licensee agrees to be responsible for payment for all activity by third parties who access or
use the Software through Licensee's account regardless of whether such activity was
authorized by Licensee or not. Licensee is responsible for all incidental charges related to
using the Software such as charges for Internet access,third party software licenses,text
messaging, or other data transmission.
11.2 Payment method; Credit Card Authorization. Until all amounts due have been paid in full,
Licensee agrees to keep its payment information current at all times and authorizes IT Glue to
charge such payment method (including but not limited to credit card, debit card,wire
transfer and/or automated clearing house) provided by Licensee, all amounts due under this
Agreement, including without limitation, usage beyond the amount specified in the applicable
Order Form.All prices are given and must be paid in the currency listed on the applicable
Order Form.
11.3. Invoicing. IT Glue may invoice Licensee electronically or by paper invoice. Licensee must
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notify IT Glue within ninety (90) days of the receipt of the invoice of any billing errors there
❑If Licensee does not notify IT Glue within this time, IT Giue will not be required to correct the .
error and/or make adjustments to Licensee's account and Licensee hereby waives any claim,
allegation or contention with respect to such invoice.
12. Term;Termination;Suspension.
12.1. Term.The Licensee will be bound for the entire Term of this Agreement. "Term" is defined as
the period of time beginning on the Effective Date and ending on the date set forth in the
Order Form,or, if later,the expiration date of any SOW. If the Order Form does not contain a
termination date,the Term shall be deemed to end on the later of the three-year anniversary
of the Effective Date and the expiration date of any SOW. Except as otherwise specified in an
Order Form, at the end of any Term, subscriptions will automatically renew for additional
Terms equal to the greater of the expiring Term length or three (3) years, unless either party
gives the other party notice of non-renewal at least 30 days and no more than 60 days before
the end of the relevant Term. Except as otherwise specified in an Order Form, pricing during
any automatic renewal Term will be the same as that during the immediately preceding Term
plus an increase not to exceed five percent (5%) plus any increase in the Consumer Price Index
published by the U.S. Bureau of Labor Statistics during the immediately prior year, in IT Glue's
sole discretion.
12.2. Termination; Suspension.This Agreement and all rights and licenses granted hereunder will
automatically terminate upon the earlier of(a) the date that is thirty (30) days following a
party's receipt of written notice of any material breach delivered by either party to the other
party provided that any such breach remains uncured at the end of such notice period or
immediately in the case of any breach of Sections 2 or 3 by Licensee and (b) the end of a Term
that is not renewed. Furthermore, and without derogating from any rights or remedies of IT
Glue, IT Glue shall be entitled to suspend any Service and the use of the Software by Licensee
should Licensee breach any term of this Agreement, including without limitation failing to pay
any amounts due in a timely manner,or if continued provision of Services poses a risk to IT
Glue in its sole discretion. Upon termination of this Agreement,or if the license ceases to be
effective, Licensee shall immediately cease all use of all Software and Documentation and
return or (upon IT Glue's request) destroy all copies of all Software and Documentation and
all portions thereof and so certify in writing to IT Glue and immediately pay all amounts due to
IT Glue hereunder. Except as otherwise expressly provided herein,the terms of Sections 2, 11,
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13, 15 and 16 shall survive any termination or non-renewal of this Agreement.Termination is
not an exclusive remedy and all other remedies available under applicable law or in equity will
be avai table to IT Glue whether or not termination occurs.
13. Indemnification.
13.1. IT Glue Indemnification. IT Glues ha I I defend Licensee against any third party claims that the
Software infringes any patent or copyright or misappropriates any trade secret (to the extent
it qualifies as a trade secret under British Columbia law), and pay any costs and damages
finally awarded by a court of competent jurisdiction or agreed upon in settlement with respect
to such claims, provided IT Glue is promptly notified of any and all threats,claims and
proceedings related thereto and given reasonable assistance and sole control over defense
and settlement. IT Glue will not be responsible for any settlement it does not approve in
writing.The foregoing obligations do not apply with respect to Software or portions or
components thereof(a) not supplied by IT Glue, (bi) made in whole or in part in accordance to
Licensee's specifications, (c) that are modified after delivery by IT Glue, (d) combined with
other products, processes or materials where the alleged infringement relates to such
combination, (e) where Licensee continues allegedly infringing activity after being notified
thereof or after being informed of modifications that would have avoided the alleged
infringement, or (f) where Licensee's use of the Software is not strictly in accordance with this
Agreement or with the Documentation.
13.2. Licensee Indemnification. Licensee agrees to defend, indemnify, and hold harmless each of IT
Glue, its affiliates and respective officers,employees,consultants, shareholders and
representative from and against any and all claims, liabilities,damages,and/or costs (including
attorneys' and expert witness fees,costs and other expenses) arising out of or related to: (a)
any actual or alleged violation of this Agreement or applicable law, rule or regulation by
Licensee or any person accessing or using the Software or services by or through Licensee; (b)
any actual or alleged infringement or misappropriation by Licensee,or any person accessing
or using the Software by or through Licensee,of any intellectual property or privacy or other
right of any person or entity(except claims of infringement or misappropriation arising solely
from use of the Software as provided under this Agreement); (c) any claims by any of Licensee
Customers (except claims of infringement or misappropriation arising solely from use of the
Software as provided under this Agreement), or arising out of or relating to Licensee's
relationship with any of Licensee Customers; or (d) Customer Data.
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14. Limited Warranty and Disclaimer. IT Glue warrants to Licensee for a period of thirty (30)
days from Licensee's first use of the Software (the "Warranty Period") that the Software will
operate substantially pursuant to the Documentation for the Software.This warranty covers
only problems reported to IT Glue in writing during the Warranty Period,and which are
capable of being observed or reproduced by IT Glue.SOFTWARE OR ANY PART THEREOF
WHICH HAS BEEN SU BJ ECT TO ABUSE, M ISUSE,ACCI DENT,ALTERATION,
MODIFICATION, NEGLECT, OR UNAUTHORIZED REPAIR OR INSTALLATION IS NOT
COVERED BY TH IS WARRANTY.ANY LIABILITY OF IT GLUE UN DER THISWARRANTY
WILL BE LIMITED EXCLUSIVELY TO REPAIR OR REPLACEM ENT OFTHE SOFTWARE OR,
IF REPAIR OR REPLACEMENT IS I INADEQUATE ASA REM EDY OR,AT ITGLUE'S
DETERMINATION, IMPRACTICAL,TO REFUND OF THE LICENSE FEE PAID FOR SUCH
SOFTWARE. EXCEPT FOR THE FOREGOING,ALL SOFTWARE IS PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION,ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FORA PARTICULAR PURPOSE,
TITLE, OR NON INFRINGEMENT. FURTHER, IT GLUE DOES NOT WARRANT RESULTS OF
USE,THAT THE SOFTWARE IS BUG FREE OR THAT THE SOFTWARE WILL PROVIDE ANY
PROTECTION AGAI NST VI RUSES OR ANY NETWORK INTRUSION ORSECURITY
BREACH, OR THAT THE USE OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR
FREE.THE SOFTWARE AND/OR SERVICE ARE NOT FAU LT TOLERANT AN D ARE NOT
DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN LIFE-DEPENDENT OR
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN
THE OPERATION OF NUCLEAR FACILITIES,AIRCRAFT NAVIGATION OR
COM M U N ICATIONS SYSTEMS,Al R TRAFFIC CONTROL, DIRECT LI FIE SUPPORT
MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE OR
SERVICE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSI CAL OR
ENVIRONMENTAL DAMAGE.TO THE EXTENT LICENSEE USES THE SOFTWARE OR
SERVICE IN SUCH ENVIRONMENT, IT EXPRESSLY ASSUMESALL RISK THEREFOR.
15. Limitation of Liability. NOTWITHSTANDINGANYTHING ELSE INTHISAGREEM ENT OR
OTHERWISE,AND EXCEPT FOR BODILY INJURY CAUSED BY GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT BY ITGLUE'S EM PLOYEES,AN D TO TH E FULLEST EXTENT
PERMITTED UN DER APPLICABLE LAW, IT GLUE AND ITS SUPPLIERSAND LICENSORS
SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF
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THIS AGREEMENT(INCLUDING WITHOUT LIMITATION INDEMNIFICATION
OBLIGATIONS) OR UNDER ANY CONTRACT, NEGLIGENCE,STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY(1) FOR ANY AMOUNTS IN EXCESS IN THE
AGGREGATE OF THE FEES PAID TO IT BY LICENSEE FOR THE SOFTWARE LICENSED
HEREUNDER DURING THE SIX MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, (II)
FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS,TECHNOLOGY,
SERVICES OR RIGHTS, OR (III) FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES (INCLUDING,WITHOUT LIMITATION, LOSS OF
PROFITS, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, BUSINESS
INTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF
THE DELIVERY, PERFORMANCE OR USE OF THE SOFTWARE, DOCUMENTATION,ANY
OTHER MATERIALS PROVIDED BY IT GLUE OR OTHERSERVICES PERFORMED BY IT
GLUE,WHETHERALLEGED AS BREACH OF CONTRACT OR TORTIOUS CONDUCT,
INCLUDING NEGLIGENCEAND STRICT LIABILITY, EVEN IF IT GLUE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).YOU ACKNOWLEDGE AND
AGREE THAT IT GLUEWOULID NOT ENTER I NTO TH IS AG REEM ENT U N LESS IT COULD
RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH.
16. Miscellaneous.
16.1. Licensee Representations. Licensee represents and warrants that: (a) the individual signing or
accepting this Agreement has all necessary corporate or other authority to bind the entity
that it purports to make party hereto, (b) Licensee has all necessary corporate or other
authority or licenses to perform its obligations hereunder.
16.2. Confidentiality,Each party agrees to hold the other party's Confidential Information in
confidence and not to use it for any purpose other than the purposes permitted under this
Agreement. Each party agrees to use the same standard of care to protect Confidential
Information as it uses to protect its own similar confidential and proprietary information, but
not less than a reasonable standard of care.The terms of this Agreement constitute
Confidential Information. Confidential Information of the other party may only be disclosed to
those Affiliates, employees,contractors and advisors of Company or of IT Glue, as applicable,
on a need-to-know basis and who agree to be bound by confidentiality restrictions at least as
restrictive as those contained in this Agreement; provided,that nothing shall prevent or
prohibit a party from using or disclosing Confidential Information as may be required by law,
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rule, regulation or legal process. Confidential Information remains at all times the property o
the disclosing party. Unless otherwise explicitly set forth herein,no licenses or rights under
any patent,copyright,trademark,or trade secret are granted or are to be implied with respect
to Confidential Information. IT Glue may identify Licensee as a customer when referring to
lists of customers. Furthermore, IT Glue may automatically extract and use Licensee's data
and information internally for the limited use of its research and analysis as may be necessary
to enhance and improve the software and services it provides to its customers, provided
always that any such retained data or information of Licensee shall be for internal use only
and shall be used in a de-identified manner only.
16.3. Monitoring;Auditing. Licensee understands that the Software is programmed to track the
number of deployed copies of the Software, authorized devices, users and other usage related
data, and Licensee consents to such operations and shall not engage in any activity designed
to circumvent or obstruct,or which has the effect of circumventing or obstructing,the
Software's tracking capabilities. Licensee grants to IT Glue the right to monitor usage by all of
its users and to audit its books, records and accounts, at IT Glue's expense, during Licensee's
normal business hours to verify compliance with this Agreement, and Licensee agrees to make
available to IT Glue or its representatives any records pertaining to this Agreement. If any
audit reveals that any additional amounts are owed in excess of five percent (5%) of the total
Fees paid during the audited time period,then such owed amounts will be paid immediately
and the cost of such audit shall be reimbursed by Licensee. Furthermore, in the event that
Licensee uses any Software other than as licensed under this Agreement (or under another
agreement executed by the parties), in addition to any other remedies available to IT Glue,
Licensee agrees to pay IT Glue the then current subscription Fees and any related Service
fees for such unauthorized use.
16.4. Assignment. Neither this Agreement nor the rights and licenses granted hereunder are
assignable or transferable by Licensee without the prior written consent of IT Glue; any
attempt to do so shall be null and void ab initio. IT Glue may assign this Agreement in whole or
in part.
16.5. Notices and Electronic Communications. IT Glue may give notice by means of a general notice
on the Software,electronic mail to Licensee's e-mail address on record in IT Glue's account
information,or by written communication sent by first class mail or pre-paid post to Licensee's
address on record in IT Glue's account information. Such notice shall be deemed to have been
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given 48 hours after delivery by first class mail or pre-paid post or 12 hours after sending by
email. Licensee shall give notice to IT Glue (such notice shall be deemed given when received
by IT Glue) by confirmed mail delivery to its office at 700-128 West Pender Street,Vancouver,
BC V613 1R8,Attn: General Counsel.
16.6. Compliance With Laws and Export Control. Licensee shall abide by all applicable local,state,
provincial, national and foreign laws, rules,treaties and regulations in connection with its use
of the Software, including those related to data privacy, international communications and the
transmission of technical or personal data. Licensee acknowledges that IT Glue may
discontinue provision or performance of the Software or Services or terminate the license to
the Software granted hereunder following any changes in any relevant applicable law,which in
the sole discretion of IT Glue, makes performance impossible,or illegal. Licensee further
acknowledges that the Software and related technology and technical data (collectively
"Controlled Technology") may be subject to the import and export laws of any country where
Controlled Technology is imported or re-exported, including U.S. Export Administration
Regulations. Licensee agrees not to export, re-export, import or provide any Controlled
Technology to any prohibited country(such as embargoed countries),entity,or person (such
as designated nationals) for which a license or other governmental approval is required or is
otherwise prohibited.All Controlled Technology is prohibited for export or re-export to
prohibited countries as listed at: http://www.treasury.gov/resource-center/sanctions/SDN-
List/Pages/default.aspx or to any country subject to similar trade sanctions. Licensee further
agrees that it will not use,export or sell any Controlled Technology for use in connection with
chemical, biological, or nuclear weapons, or missiles,drones or space launch vehicles capable
of delivering such weapons.
16.7. Governing Law; Jurisdiction.This Agreement shall be governed by the laws of the State of
New York and controlling United States federal law,without regard to the choice or conflicts
of law provisions of any jurisdiction, and any disputes, actions,claims or causes of action
arising out of or in connection with this Agreement or the Software shall be subject to the
exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan,
New York, New York.The 1980 United Nations Convention on Contracts for the
International Sale of Goods and its related instruments will not apply to this Agreement.This
choice of jurisdiction and venue does not prevent either party from seeking injunctive relief in
connection with any breach or threatened breach of this Agreement or enforcement or
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recognition of any award or order in any appropriate jurisdiction. In addition, the parties agre
that they may only bring claims against the other in their individual capacities and not as a
plaintiff,class representative or member in any purported class or representative proceeding.
The parties hereby agree that each is waiving all respective rights to a trial byjury regarding
any disputes,actions,claims or causes of action arising out of or in connection with this
Agreement or the Software.Any claim by either party arising out of or related to this
Agreement must be brought no later than two (2)years after it has accrued. If IT Glue
commences litigation in connection with this Agreement, it will be entitled to recover its
reasonable attorneys'fees,costs and other expenses.
16.8. Government End Users.The Software and Documentation are comprised of"commercial
computer software" and "commercial computer software documentation" as such terms are
used in 48 C.F.R. 12.212 and are provided to any civilian or military branch or agency of the
U.S.government in accordance with the policies set forth in 48 C.F.R. 12.212 or 28 C.F.R.
227.7202-1 and 227.7202-3, respectively.
16.9. Remedies. Licensee acknowledges that the Software contains valuable trade secrets and
proprietary information of IT Glue and are protected by applicable intellectual property laws
and treaties and by international copyright law and that any actual or threatened breach of
the licenses granted herein will (a) constitute infringement or misappropriation of IT Glue's
intellectual property rights and (b) cause immediate, irreparable harm to IT Glue for which
monetary damages would be an inadequate remedy and for which injunctive relief is an
appropriate remedy, in addition to any other remedy available to IT Glue.
16.10. Entire Agreement; Severability. Subject to the other terms and conditions of this Agreement
or an applicable Order Form, IT Glue purchase order or formal written quote provided by IT
Glue,this Agreement is the entire agreement between IT Glue and Licensee regarding
Licensee's use of the Software, and supersedes and replaces any previous communications,
representations,or agreements, or Licensee's additional or inconsistent terms,whether oral
or written. In the event any provision of this Agreement is held invalid or unenforceable the
remainder of the Agreement will remain enforceable and unaffected thereby.This Agreement
may not be modified nor any rights under it waived, in whole or in part,except in writing,
signed by both parties. No terms, provisions or conditions of any purchase order,
acknowledgement or other business form that Licensee may use in connection with the
licensing of the Software will have any effect on the rights,duties or obligations of the parties
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under,or otherwise modify,this Agreement, regardless of any failure of IT Glue to object to
such terms, provisions or conditions.Orders are non-cancelable, non-refundable, non-
returnable.
16.11. Force Maieure. Each party's obligation (other than Licensee's obligation to pay Fees when
due) shall be suspended during any period that the party is rendered incapable of performing
by virtue of any criminal acts of third parties,war,viruses,acts of public enemies,severe
weather conditions, utility failures,strikes or other labor disturbances,fires,floods,other
natural disasters,other acts of God, unforeseeable acts of employees,telecommunication or
interruption of Internet service,or any causes of like or different kind beyond any reasonable
control of the party.
16.12.Waiver.The failure of either party to insist in any instance upon any payment or performance
when due by the other party,shall not relieve such other party of any of its obligations with
respect to such performance,or constitute a waiver of such party's right to insist upon the full
and timely performance in the future of any of the other party's obligations under this
Agreement.
16.13.Counterparts.This Agreement may be executed in counterparts,each of which will be
deemed an original.This Agreement is intended for the sole and exclusive benefit of the
signatories and is not intended to benefit any third party.
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