Terms and Conditions
Agreement consists of these Terms and Conditions, and one or more Order Forms
(collectively, the “Agreement”).
This Agreement is entered into as of the Effective Date (as set forth in the Order Form) by and between Proforma Technologies, Inc. d/b/a Logica (“Logica”) and the client identified
in such Order Form (“Client”). Logica and Client agree that these Terms
and Conditions shall apply to each Order Form executed by Logica and
Client. Any capitalized terms
not defined herein will have the meaning set forth in the applicable Order
BY EXECUTING AN ORDER FORM,
SUBMITTING A PURCHASE ORDER OR SIMILAR ORDERING DOCUMENT TO LOGICA, OR CLICKING
“I ACCEPT”, “I AGREE”, “SIGN UP”, “SUBMIT”, OR SIMILAR ORDERING LANGUAGE, CLIENT
EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THE AGREEMENT. IF YOU ARE AN
INDIVIDUAL AGREEING TO THE TERMS OF THE AGREEMENT ON BEHALF OF AN ENTITY, SUCH
AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT
ENTITY AND “CLIENT” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH
AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THE AGREEMENT, YOU MUST NOT
EXECUTE THE ORDER FORM OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THE ORDER FORM
AND MAY NOT USE THE SERVICES.
1.1. “Affiliates” shall mean any entity which directly
or indirectly controls, is controlled by or is under common control with the
subject entity. “Control,” for purposes of this definition, means direct or
indirect ownership or control of more than 50% of the voting interests of the
1.2. “Authorized Users” shall
mean Client’s employees, consultants,
and agents authorized by Client and Logica to access
and use the Software Platform, who have been requisitioned access by Logica. Authorized
Users shall not include: (i) Client’s suppliers; (ii)
employees, consultants, contractors or suppliers of any of Client’s Affiliates
or other entities; or (iii) any
parties who are neither affiliated with Client nor using the Software Platform
on Client’s behalf.
1.3. “Client Data” shall mean
all Client Confidential Information (as defined below in Section 7.1) and other data
generated, uploaded or transmitted by Authorized Users using the Software
1.4. “Order Form” shall mean
the ordering documents that represent the initial purchase of the Subscription
to the Software Platform, and any subsequent ordering documents that from time to time are
executed hereunder by Client and Logica and which expressly refer to the
Agreement. All Order Forms shall be deemed incorporated into the Agreement.
1.6. “Software Platform”
shall mean an on-demand, web-based version
of Logica’s platform for budgeting, forecasting, and financial planning. Logica will host and operate the Software Platform on computer
servers accessible by Client over the Internet.
1.7. “Subscription” shall
mean the right of Authorized Users to access the Software Platform during the
Subscription Term and any Trial
Term, as set forth in an Order Form signed by Logica
2.1. Changes. Logica
may from time to time develop enhancements, upgrades, updates, improvements,
modifications, extensions and other changes to the Software Platform (“Changes”). Client hereby authorizes Logica to implement
2.2. Updates. Logica
shall provide new feature functionality, enhancements, and other changes, which
are logical improvements to a Software Platform and which Logica makes
generally available on a commercial basis, without charge, to other clients of the Software
Platform (“Updates”). Updates do not
include any new software products that are then made generally available on a
commercial basis as separate, price-listed options or additions to a Software
Platform nor do they include any professional services that may be required for
2.3. Cooperation. Client acknowledges that the successful and
timely providing of the Services shall require the good faith cooperation of Client. Logica shall not be liable for any failure to
provide the Services that arises from Client’s failure to cooperate in good faith with Logica.
2.4. Terms. Logica shall provide the Services to Client
pursuant to these Terms and Conditions and any specific limitations set forth
in Order Forms, as executed hereunder from time to time. At Client’s request, Logica may provide
technical, operational or other assistance or consulting at Logica’s standard
hourly rate then in effect or as
otherwise set forth in an Order Form.
3.1. Proprietary Rights. This is
a subscription agreement for use of the Software Platform. The Agreement is not
a sale, or assignment and transfer, of any software. Client agrees that Logica,
its licensors or its suppliers retain all right, title and interest (including
all patent, copyright, trade secret and other intellectual property rights) in and to the Software Platform and any and all related and
underlying software (including interfaces created by Logica), databases,
technology, reports and documentation, and any adaptation, modification,
derivation, addition or extension to the Software Platform. Except for the
Subscription granted hereunder, nothing in the Agreement gives the Client any
right, title or interest in or to the Software Platform or any related
3.2. Access to Software
Platform. During the Subscription
Term and any Trial Term, Client shall have a nontransferable, non-exclusive right to allow
Authorized Users to access and use the Software Platform for its internal
Use. If an Order Form indicates that Client will receive
access to the Software Platform on a
beta, trial, or evaluation basis (“Trial
Access”), then Client may use the Software Platform solely
for the designated time period, and subject to any
additional usage restrictions specified on the applicable Order Form. Client acknowledges
that Trial Access may be
automatically disabled upon expiration of the designated period (at the end of
which Client’s right to use
the Software Platform
under the applicable Order Form also expires),
and that any data stored on the Software Platform may
become unavailable at that time.
3.5. The Software Platform is provided to Client for use
only as expressly set forth in the Agreement, and Client will not use the Software
Platform in whole or in part for any other use or purpose. In particular, Client will not, and will not
allow any third party to: (i) decompile, disassemble,
reverse engineer or attempt to reconstruct, identify or discover any source
code, underlying ideas, underlying user interface techniques or algorithms of
the Software Platform by any means, or disclose any of the foregoing; (ii),
rent, lease, lend, or use the Software Platform for timesharing, subscription,
or service bureau purposes; (iii) sublicense, transfer or assign the Software
Platform or any of the rights or licenses granted under the Agreement; (iv) remove or obscure any trademark, product identification,
proprietary marking, copyright or other notices provided with the Software
Platform or related documentation;
or (v) authorize any users who are not directly using the Software Platform on
Client’s behalf or affiliated with Client.
3.6. Client shall not: (i) use the Software Platform for storage, possession, or
transmission of any information, the possession, creation or transmission of
which violates any state, local or federal law; (ii) transmit Client Data using
the Software Platform that infringes upon or misappropriates the intellectual property
or privacy rights of any third party; (iii) perform any load testing of the Software Platform or attempt to
probe, scan or test the vulnerability of the Software Platform without proper
authorization; or (iv) log into a server or account that Client is not
authorized to access.
3.7. Client Responsibilities. Client is responsible for all activity occurring under Authorized
User accounts and for each Authorized User’s compliance with all terms and
conditions of the Agreement. Client shall have sole responsibility for the
accuracy, quality, integrity, legality, reliability and appropriateness of all
Client Data generated, uploaded and transmitted by Client and Authorized Users.
Client shall use commercially reasonable efforts to prevent unauthorized access
to, or use of, the Software Platform and notify Logica immediately of any
unauthorized use of any password or account or any other known or suspected
breach of security.
3.8. Authorized Users.
3.9. The Services are granted solely to the
party(ies) (including any Affiliates) stated in the
Order Form and their Authorized Users and shall not be shared with any third
parties other than Authorized Users.
3.10. Client acknowledges that
the price of the Services purchased hereunder is based on Client’s access
requirements as provided to Logica as of the Effective Date of the Agreement.
In the event Client wishes to subsequently expand access to additional users or
Affiliates, Client may purchase additional Services,
to the Software Platform, by executing separate Order Forms hereunder.
3.11. Client Data. Client hereby grants to Logica a worldwide, non-exclusive, fully
paid-up license to use the Client Data (i)
in any manner reasonably necessary to provide
the Software Platform and related services and (ii) to improve the Software
Platform and Logica’s other products and services.
Client represents and warrants that Client owns all right, title and interest
in and to the Client Data or has a license granting it the rights necessary to
permit it to grant the foregoing license. Logica may use the Client Data in an
aggregated format with data provided by other third parties for various
business purposes, provided that it is not possible to identify Client, or any
individual Client transaction from the data.
Logica may periodically request that Client provide, and Client agrees to
provide to Logica, feedback
regarding the use, operation and functionality of the Services (“Feedback”). Such Feedback shall include, without
limitation, any information about operating results, known or suspected bugs,
errors or compatibility problems, suggested modifications, and user-desired
features. Logica is hereby granted a non-exclusive, world-wide, perpetual,
irrevocable, royalty-free, fully paid-up, fully sublicensable and transferable
right and license to use and incorporate Feedback into any products and
services, to make, use, sell, offer for sale, import, and otherwise exploit
such products and services, and to otherwise use, copy, distribute, and
otherwise exploit the Feedback without restriction.
4.1. Fees; Payment. Client agrees to pay Logica all of the fees agreed to in the Order
Form(s). Fees for the Services will be
invoiced in advance in accordance with the terms of the Order Form. Unless
otherwise stated in the Order Form, all payments shall be made in United States
dollars no later than thirty (30) days after the date of invoice, payable in
full, without reduction for any offset, withholding or other claims (except
with respect to charges then under reasonable and good faith dispute as
evidenced in a writing promptly sent by Client to Logica prior to the payment
due date). All payments not received
when due shall accrue interest at a rate per month of one and one-half percent
(1.5%). Payment obligations are non-cancellable and all fees are non-refundable.
Client shall remit payment via electronic funds transfer to the account
designated in the Order Form.
4.2. Taxes. The fees payable under the Agreement shall
not include local, state, federal or foreign sales, use, value-added, excise or
personal property or other similar taxes or duties now in force or enacted in
the future imposed on the transaction, all of which Client shall be responsible
for and pay in full except those taxes based on the net income of Logica. If
Client is exempt from the payment of any such taxes, upon execution of the
Agreement, Client shall provide Logica with a valid tax exemption certificate
authorized by the appropriate taxing authority.
4.3. Suspension of Service. If any Client account is thirty (30) days or more overdue (except
with respect to charges then under reasonable and good faith dispute), in
addition to any other rights and remedies (including the termination rights set
forth in the Agreement), Logica reserves the right, upon ten (10) days prior
written notice to Client, to suspend Services without liability to Logica until such
account is paid in full.
TERM AND TERMINATION.
5.1. Term of the Agreement. The Agreement commences on the Effective Date and continues until
the Subscription to the Software Platform granted in accordance with the
Agreement has expired or the Agreement is terminated earlier, pursuant to the
Terms and Conditions set forth herein.
5.2. Term of Subscription. The Subscription term (the “Subscription Term”) and any limited beta, trial, or evaluation
term (“Trial Term”) to the Software Platform
shall be as set forth in the Order Form. Unless otherwise set forth in an Order
Form, upon the expiration of the Subscription Term, the Subscription Term to
the Software Platform shall automatically renew for additional one (1) year
periods, unless either party notifies the other of its intent not to renew at
least sixty (60) days prior to the end of the Subscription Term.
5.3. Termination. Either party may
terminate the Agreement by written notice if the other party commits a material
breach and fails to cure such breach within thirty (30) days following receipt
of written notice of such breach. Logica may terminate this Agreement
on seven (7) days’ notice.
5.4. Effect of Termination. Upon any termination or
expiration of the Agreement (i) Logica will terminate
Client’s access to the Services; (ii) Client shall immediately cease any and
all use of and access to any Services; and (iii) each party hereunder shall
return to the other party any and all Confidential Information of the other
party in its possession. Termination shall not relieve Client of the obligation
to pay Logica the fees agreed in the Order Form.
6. DISCLAIMER OF WARRANTIES. LOGICA MAKES NO
WARRANTIES REGARDING THE SERVICES. LOGICA SPECIFICALLY DISCLAIMS ANY AND ALL
OTHER WARRANTIES, WHETHER EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, OR NONINFRINGEMENT. LOGICA DOES NOT WARRANT THAT ACCESS TO THE SERVICES
WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE
SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL MEET CLIENT’S PARTICULAR
REQUIREMENTS OR EXPECTATIONS. LOGICA
DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION
PROVIDED BY THIRD PARTIES. LOGICA SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY
DELAYS, INTERRUPTIONS, SERVICE FAILURES AND ANY OTHER PROBLEMS ARISING FROM
CLIENT’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN
LOGICA AND CLIENT. LOGICA’S PRICING
REFLECTS THIS ALLOCATION OF RISK AND THE LIMITED WARRANTIES SPECIFIED HEREIN.
7.1. Obligations. During the term of the Agreement and for a period of three (3) years
after the date of termination or expiration of the Agreement, each party: (i) shall treat as confidential all Confidential Information
(as defined below) provided by the other party; (ii) shall not use such
Confidential Information except as expressly permitted under the terms of the
Agreement or otherwise previously authorized in writing by the disclosing
party; (iii) shall implement reasonable procedures to prohibit the disclosure,
unauthorized duplication, reverse engineering, disassembly, decompiling, misuse
or removal of such Confidential Information; and (iv) shall not disclose such
Confidential Information to any third party. Without limiting the foregoing,
each party shall use at least the same degree of care to prevent the disclosure
of the other party’s Confidential Information as it uses to prevent the
disclosure of its own Confidential Information, and shall in any event use no
less than a reasonable degree of care. “Confidential Information” shall mean all
confidential information of a party, whether written or oral, and whether in
paper or electronic format, disclosed to a receiving party that is designated
in writing or identified as confidential at the time of disclosure or should be
reasonably known by the receiving party to be Confidential Information due to
the nature of the information disclosed and the circumstances surrounding the
disclosure. Confidential information related to either party’s customer lists, customer information, products,
technical information, pricing information, pricing methodologies, or
information regarding the disclosing party’s business planning or business
operations shall be deemed Confidential Information without any marking
or further designation.
7.2. Exceptions. Notwithstanding the above, the
receiving party’s nondisclosure obligations shall not apply to information that:
(i) was generally available to the public at the time
it was disclosed, or becomes generally available to the public through no fault
of the receiving party; (ii) was known to the receiving party at the time of
disclosure as shown by written records in existence at the time of disclosure;
(iii) was developed independently by the receiving party prior to the
disclosure, as shown by written records in existence prior to the disclosure;
(iv) is disclosed with the prior written approval of the disclosing party; (v)
becomes known to the receiving party from a source other than the disclosing
party without breach of the Agreement by the receiving party and in a manner
which is otherwise not in violation of the disclosing party’s rights; or (vi)
is disclosed pursuant to the order or requirement of a court, administrative
agency, or other governmental body, provided that the receiving party shall
provide reasonable advance notice to enable the disclosing party to seek a
protective order, and that such information remains Confidential Information
for all other purposes.
8. LIMITATIONS OF LIABILITY. NEITHER PARTY, ITS
AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS, SHALL BE
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL
PUNITIVE OR EXEMPLARY DAMAGES OR LIABILITY (INCLUDING REASONABLE ATTORNEYS’
FEES) THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT OR ANY OF THE SERVICES,
WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF THE
OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY.
THE AGGREGATE LIABILITY OF LOGICA RELATED TO OR ARISING OUT OF THE AGREEMENT OR
ANY OF THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF
LIABILITY, SHALL NOT EXCEED THE AMOUNTS RECEIVED BY LOGICA FROM CLIENT IN THE
TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES. THE LIMITATIONS OF LIABILITY UNDER THIS
SECTION SHALL NOT APPLY TO ANY OBLIGATIONS AND LIABILITIES ARISING FROM
VIOLATIONS BY EITHER PARTY HEREUNDER OF SECTIONS 3 OR 7 OF THE AGREEMENT.
9. GENERAL PROVISIONS.
9.1. Governing Law. The Agreement
shall be governed by and construed in accordance with the laws of the State of Delaware, without
application of Delaware conflicts of laws principles and without application of the United
Nations Convention on the International Sale of Goods, and both parties consent to the exclusive
jurisdiction and venue of the state and federal courts located in Nebraska.
9.2. Severability. If any provision of the Agreement is held to be invalid or
unenforceable for any reason, it shall be deemed omitted and the remaining
provisions will continue in full force without being impaired or invalidated in
any way. The parties agree to replace
any invalid provision with a valid provision that most closely approximates the
intent and economic effect of the invalid provision.
9.3. Waiver. The waiver by either party of a breach of any provision of the
Agreement will not operate or be interpreted as a waiver of any other or
9.4. Assignment. The Agreement shall be binding upon the parties’ respective
successors and permitted assigns.
Neither party shall assign the Agreement, and/or any of its rights and
obligations hereunder, without the prior written consent of the other party,
which consent shall not be unreasonably withheld. Notwithstanding the above, Logica
may assign or transfer the Agreement upon a change of control or pursuant to a
sale of all or substantially all the stock or assets of the assigning party
related to this Agreement.
9.5. Independent Contractors. The parties to the Agreement are independent contractors. There is
no relationship or partnership, joint venture, employment, franchise or agency
created hereby between the parties. Neither party will have the power to bind
the other or incur obligations on the other party’s behalf without the other
party’s prior written consent.
9.6. Publicity. Logica may use the name, brand, or logo of Client for the purpose of identifying Client as
a licensee or Client of Logica in a ‘Client’ section of Logica’s website, brochures,
or other promotional materials, or as part of a list of Logica’s Clients in a
press release or other public relations materials and may include any testimonials provided by Client. Any such limited use by Logica shall include proper attribution
to Client or its parent Logica of any trademark or logo of Client or its parent
Logica, and shall in no way suggest that Logica is affiliated with, or speaking
on behalf of, Client or Client’s parent Logica. Any other press releases or
marketing materials referring to the trademarks or logos of Client shall
require mutual approval in writing prior to public dissemination thereof.
9.7. Notices. Unless otherwise stated in the Agreement, any notices required to
be given under the terms of the Agreement, shall be in writing and either
delivered personally, delivered by a nationally or internationally recognized
overnight courier service or sent by registered or certified mail. Notices to
either party hereunder shall be sent to those addresses set forth in the Order
Form. Notices shall be deemed to have been received: (i)
on the day given if delivered by hand (securing a receipt evidencing such
delivery); (ii) on the second day after notice is sent, if sent by an overnight
courier service; or (iii) on the fifth day after notice was mailed, if sent by
registered or certified mail.
9.8. Survival. The following
Sections shall survive any expiration or termination of the Agreement: 1, 3.1,
3.3, 3.6, 3.7, 4 (with respect to unpaid amounts), 5.4, and 6 to 9.
9.9. Facsimile, Email
Transmission; Counterparts. The Agreement
(including any Order Form) may be executed and delivered by facsimile or email
and each full reproduction, including reproductions by photocopy or scan, shall
be deemed an original. Receipt of any such reproduction by facsimile or email
transmission shall be deemed delivery of an original. The Agreement (including
any Order Form) may be executed in several counterparts each of which when
executed shall be deemed to be an original, and such counterparts shall each
constitute one and the same instrument and notwithstanding their date of
execution shall be deemed to be effective as of the Effective Date.
9.10. Force Majeure. Neither party
will be liable to the other for any failure to meet its obligations under the
Agreement where such failure is caused by events beyond its reasonable control
including, but not limited to, such as failure of communications networks,
inability to timely obtain instructions or information from the other party,
governmental action, fire, storms, floods or other acts of God, provided that
the party seeking to rely on such circumstances gives written notice of such
circumstances to the other party hereto and uses reasonable efforts to overcome
9.11. Subsequent Modifications. No amendment, alteration or
modification of the Agreement shall be effective or binding unless it is set
forth in a writing signed by duly authorized representatives of both parties.
9.12. Entire Agreement. The Agreement,
including these Terms and Conditions, the Order Form(s), and all schedules
attached hereto, constitutes the entire agreement between the parties in
connection with the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, negotiations and discussions, whether
oral or written, of the parties, and there are no warranties, representations
and/or agreements among the parties in connection with the subject matter
hereof except as set forth in the Agreement.
In the event of any inconsistency between the terms and conditions of
the Agreement and an Order Form, now or hereafter appended hereto, the terms of
the Order Form shall govern.