Terms Of Service 0.2

These are the Terms of Service (the “Terms” or “Terms of Service”) by which HeroDevs, Inc. (“we,” “our”) provides support services relative to the software identified in the corresponding subscription agreement(s) (each, a “Subscription Agreement”).

The services we describe below (the “Services”) are based on the following facts:

1. We provide supported versions of certain software applications (the “Original Software”) that are no longer maintained by those who previously offered and supported the Original Software (the “Originator”).
2. We certify that we have the right to license the Original Software, to which we have added our proprietary fixes or patches to allow the Original Software to continue to operate in its normal environments (“Updates”). The Original Software together with the Updates is defined as the “Software.”
3. Because we did not create the Original Software, we do not make any warranties relative to ownership or non-infringement of the Original Software. During the period of our paid Services (“Support Term”), we warrant that our Updates will not infringe the intellectual property rights of third parties.
4. As part of the Services, we grant customers a free, non-exclusive, non-sublicensable license to the Software including our Updates (the “License”) which continues perpetually after the end of the Support Term (“Perpetual License Term”). The License is described in Section 13. For the sake of clarity, the grant of the License is contingent upon (i) signing a Subscription Agreement, and (ii) the receipt of your first year’s subscription fees.
5. Our warranties relative to the Software pertain only during the Support Term. At the time the Support Term ends, we do not warrant the Software or our Updates thereafter during the Perpetual License Term.
6. The Services are the same for all of our customers. The Software is a Commercial Off the Shelf product and thus the same for all our customers. We do not provide custom services for customers under these Terms of Service, and such custom services are seldom necessary. In the event you need or require alternative but similar services, please consult with us about a separate Professional Services Agreement.
7. In order to access our Services, you will download an updated version of the Software by following the instructions we provide upon your execution of the Subscription Agreement. As you download the Software, we receive none of your Confidential Information. We do not receive access to or process your data or personal information. This is not a SaaS arrangement. We provide the Services remotely and do not require access to your systems or your premises. Therefore, in view of the extremely limited risk associated with our Services, we do not enter into separate data security agreements or master agreements that are designed for services we do not provide, unless you are also entering into a Professional Services Agreement with us.

 

2. ACCEPTANCE

By agreeing to the Subscription Agreement(s), you acknowledge and agree that you have read, understand and agree to be bound by these Terms and our Privacy Policy referred to in the Subscription Agreement.

By accepting these Terms, you represent that you have the legal power to do so. If you accept these Terms on behalf of an organization, (a) “you” and “your” will refer to that organization and any individual accessing the Services through your account will be referred to as a “User”; and (b) you understand and agree that the organization will be responsible for ensuring that each of its Users complies with these Terms.

You may not use the Services and may not accept the Terms if you are barred from receiving the Services under the laws of the United States or other countries, including the country in which you are a resident or from which you use the Services.  If you represent an organization, you will ensure that: (a) your Users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on any restricted lists.

 

3. DESCRIPTION OF SERVICES.

We undertake to do the following:

1. Scan the Software regularly, and monitor the Software for security issues, and create Updates to fix any problem(s);
2. Identify and fix compatibility issues so that the Software will continue to run in the same environment as the Original Software; and
3. Provide an appropriate Service Level Agreement (SLA) to allow you to reasonably operate the Software in a commercial capacity.
   
   

4. SERVICE LEVEL AGREEMENT. 

The Subscription Agreement for each different Software that we support will provide you a link to a SLA as appropriate. All SLAs are (i) specific to each Software, (ii) the same for all customers, (iii) non-negotiable, and (iv) of commercial grade to enable our customers to operate with even the most regulated or scrutinized markets.

5. PAYMENT AND RENEWAL.

a. The fees we charge to set up the Software (the “Setup Fees”) are payable upon the first establishment of a legal relationship with you. The fees we charge to provide the Services (the “Support Fees”) are payable yearly in advance of the start of any Support Term. The amount of the Setup Fees and the Support Fees (collectively, the “Fees”) is as stated in your Subscription Agreement.

b. Unless otherwise indicated in a Subscription Agreement, we reserve the right to modify pricing at any time for renewal terms; provided, that we will notify you of any increase in the Fees no later than forty-five (45) days prior to the end of the then current Term.

c. Unless otherwise indicated in a Subscription Agreement, all payments due are in U.S. dollars. Payments for invoices are due thirty (30) days after the invoice date, unless otherwise specified in the Subscription Agreement, and are considered delinquent thereafter.

d. Unless otherwise indicated in a Subscription Agreement, your subscription will automatically renew at the end of each Support Term for any Subscription Agreement unless you notify us that you choose not to renew within 30 days of the end of the Support Term.

e. If you fail to make payment as set forth in the Subscription Agreement, we may charge delinquent interest at the rate set forth in the Subscription Agreement.  If Fees and delinquent interest are not paid, we may terminate the Services immediately. If you require a purchase order, vendor registration form, or other documentation, such requirement will in no way relieve, affect or delay your obligation to pay amounts when due.

f. You are responsible for any taxes, duties, and customs fees associated with the sale of the Services (other than our U.S. income tax) (collectively “Taxes”), and you will pay us for the Services without any reduction for Taxes. If we are obligated to collect or pay Taxes, the Taxes will be invoiced to you in addition to the Fees, unless you provide us with a valid tax exemption certificate.

g. If you are required by law to withhold any Taxes from your payments to us, even if we have provided at your request a United States Residency Certificate (“TRC”), you must notify us in writing in advance, setting forth the law or rule that requires you to withhold any portion of the Fees, which we may review and must approve before any Taxes may be withheld. For the avoidance of doubt, you agree that no withholding will be allowed unless we have agreed in writing to such withholding in advance, and we reserve the right to increase the Fees to cover any diminution of Fees or extra costs incurred as a result of any such withholding. If we approve any such withholding, you will provide us with an official tax receipt or other appropriate documentation to support such withholding. If you fail to do so, you agree to reimburse us for any amount withheld from the Fees.

 

h. Except in the event that you terminate the Services upon our default pursuant to the termination provisions set forth in Section 15, all Fees are non-refundable.

 

6. CONFIDENTIALITY

1. “Confidential Information” means non-public, proprietary, business, technical, security, legal, or financial information that is either marked or identified as Confidential Information or would reasonably be understood to be confidential, including source code, processes, services, trade secrets, marketing and business plans, client lists, financial information, system architecture, security programs, and intellectual property. Notwithstanding the foregoing, Confidential Information does not include information that: (a) the receiving party possesses without a duty to keep confidential prior to acquiring it from the disclosing party; (b) is or becomes publicly available through no violation of this Agreement by the receiving party; (c) is given to the receiving party by a third-party not under a confidentiality obligation to the disclosing party; or (d) is developed by the receiving party independently of, and without reliance on, confidential or proprietary information provided by the disclosing party.
2. Each party may be given access to Confidential Information of the other party in connection with these Terms of Service. The receiving party may only use this Confidential Information as provided for in these Terms or to exercise its rights hereunder and may only share this Confidential Information with its employees, agents, advisors and service providers who need to know it, provided they are subject to similar confidentiality obligations. The receiving party will use the same degree of care, but no less than a reasonable degree of care, as such party uses with respect to its own Confidential Information to protect the disclosing party’s Confidential Information and to prevent any unauthorized use or disclosure thereof. Neither party will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third-party.  If the receiving party is compelled by law to disclose the other party’s Confidential Information, it will use commercially reasonable efforts to give the disclosing party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
3. The Confidential Information shall be protected against disclosure for such time as the same qualifies as a “trade secret” under Utah law.

 

7. WARRANTIES. 

We warrant the Services as follows:

1. We will perform the Services described in Section 3 and any Subscription Agreement in a workmanlike manner consistent with best business practices relating to the industry.
2. We will abide by all laws to which we are subject (“Applicable Law”).
3. We will provide a support center by which you may access technical support as set forth in the SLA.
4. Our Updates will be free of viruses, worms, Trojan horses, spyware or other malicious code (“Malicious Code”). In addition, we will make commercially reasonable best efforts to find or prevent introduction of Malicious Code in the Original Software.
5. We will make commercially reasonable efforts to ensure that the servers that provide our Updates are accessible with an uptime of 99.5% or better.

8. EXCLUSION OF WARRANTIES

1. Nothing in these Terms of Service will exclude or limit warranties not lawfully excludable by Applicable Law. Only the limitations which are lawful in your jurisdiction will apply to you and our liability will be limited to the maximum extent permitted by Applicable Law.
2. Except as expressly provided herein, neither party makes any representation or warranty of any kind, whether written, oral, express, implied, or statutory, including, without limitation, the implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose, to the maximum extent permitted by applicable law. We make no representation or warranty of any kind regarding the Original Software. We do not warrant that the Services will be error-free or operate without interruptions or downtime or that defects in the operation or functionality of any Software provided to you as part of the services will be corrected. 
3. We will not be liable for any content you create, provide or deliver which is made possible by use of the Software (“Content”).

 

9. LIMITATION OF LIABILITY

1. To the extent permitted by law, neither party will be liable to the other party (regardless of the basis or type of claim and even if advised of the possibility of such damages) for any lost profits, revenues or data, business interruption, depletion of goodwill, cover, or indirect, special, exemplary, punitive, incidental or consequential damages arising out of or related to these terms. Each party’s aggregate liability for damages arising out of or related to this Agreement (whether in contract, tort or otherwise) will not exceed the amount of Support Fees paid within the twelve (12) months prior to any such claim.
2. We will not be liable for any loss or damage which may be incurred by you as a result of (i) any changes which we may make to the Services or any features within the Services; (ii) your failure to keep your password or account details secure and confidential; (iii) claims from third parties relating to your Content; or (iv) your failure to back up your Content.
3. Notwithstanding the foregoing, there shall be no limit of liability in the event you release our source code unbundled to third parties.
4. The parties acknowledge and agree that the limitations of liability, disclaimer of warranties, and any exclusion of damages included herein represent an allocation of risk between the parties (including the risk that a remedy may fail of its essential purpose) which is reflected by the Fees paid.

 

10. AUDIT

No more than once yearly, at our reasonable request, you will conduct an audit of your use of the Software(s) and provide us a certification in writing that your use of the Software(s) does not exceed the number of Users allowed by any Subscription Agreement. In the event that your use exceeds the allowed use, you will forthwith pay additional Fees relating to the excess usage for that Support Term. Any additional Fees for excess Users will be calculated pro-rata, which timeframe will start on the date that the excess usage began, and will end at the end of the current Support Term.

 

11. NOTICE

You agree that we may provide you notices by email, courier mail, or postings on the Services. You may provide notice to us by email addressed to legal@herodevs.com. Physical addresses, email addresses or other contact information of the Parties shall be as set forth in the Subscription Agreement.

 

12. INDEMNIFICATION

1. We will defend you, your officers, directors and employees (the “Customer Indemnified Parties”) against any claim, demand, suit or proceeding (each, a “Claim”) made or brought against the Customer Indemnified Parties by a third-party alleging that the Updates infringe upon the intellectual property rights of such third party. We will indemnify the Customer Indemnified Parties from any finally awarded damages or settlement amount and reasonable expenses (including attorneys’ fees) to the extent arising from such Claim.  Notwithstanding the foregoing, we will not be obligated to indemnify the Customer Indemnified Parties if an infringement or misappropriation claim arises from: (a) your Content; (b) your misuse of the Services or the License; (c) your use of the Services or License in combination with any products, services, or technology provided by a third-party, if the use would not infringe without such combination or modification; or (d) continued use of the Services if we notify you to discontinue use. If an infringement or misappropriation Claim is made or threatened, we may, in our sole discretion: (i) replace or modify the infringing Services to be non-infringing (but functionally equivalent); (ii) procure the right for you to continue using the Services, or terminate the Services and License and refund any prepaid fees for the balance of the Support Term.  
2. You will indemnify us in the event that you misuse or grant unauthorized access to our source code, or in the event that any third party makes a Claim against us as a result of your use of the Software.
3. A party seeking indemnification (the “Indemnified Party”) will provide the other party (the “Indemnifying Party”) prompt written notice upon becoming aware of any Claim subject to indemnification hereunder (a delay in providing notice does not excuse these obligations unless the Indemnifying Party is prejudiced by such delay) and reasonable cooperation to the Indemnifying Party in the defense, investigation or settlement of any Claim at the Indemnifying Party’s expense. The Indemnifying Party will have sole control of such defense, provided that the Indemnified Party may participate in its own defense at its sole expense. The Indemnifying Party may not settle a Claim without the Indemnified Party’s consent if such settlement imposes a payment or other obligation on the Indemnified Party. This Section states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy for, any claim or action described in this Section.

 

13. LICENSE

The following defines the License for the Software defined in any Subscription Agreement. The grants and terms in this License apply for the Support Term as well as the Perpetual License Term.

1. We grant you a license to download and host copies of the Software on your own servers for use only by you and your approved affiliates as designated in and subject to the Subscription Agreement. We retain ownership in the Software. In your use or deployment of the Software, you will include appropriate notices of trademark, copyright, patent, and other intellectual property rights as contained in the Software and associated documentation. You may make modifications or derivative works of the Software. You will own the derivative works, subject to our continued ownership of the Software.
2. You will not rent, lease or sell the Software or any features or functions of the Software to any third parties. You will not remove or alter any trademark, copyright, or any other proprietary rights notices associated with the Software. You will make commercially reasonable efforts to prevent any unauthorized disclosure or use of the Software, Updates, assets, source code, documents, or any other deliverables, which may include compiling, bundling, obfuscating, or other standard industry practices. You will not use the Software, or any modification or derivative work, or associated documentation for purposes of competing with us or for any purpose in violation of Applicable Law.
3. As between the parties, we own all right, title, and interest in and to the Software and any (i) materials, ideas, and items that are conceived, made, discovered, written, or created by us in connection with providing the Services; (ii) all intellectual property, proprietary rights and underlying source code and object code in and to the foregoing; and (iii) all other intellectual property owned by us, including all copyrights, patents, trademarks and trade names, trade secrets, specifications, methodologies, documentation, algorithms, criteria, designs, report formats and know-how. Except as expressly set forth herein, we do not convey any rights to you or any User.
4. In the event that you have underpaid the Fees or not paid the Fees, or committed any other default which has not been cured, as a result of which the Agreement has been terminated, the License herein granted shall be deemed to be void ab initio.

 

14. DISPUTE RESOLUTION

1. The parties agree that most disputes can be resolved without resort to litigation. If you have any dispute with us, you agree that before taking any formal action you will contact us at legal@herodevs.com and provide a brief, written description of the dispute and your contact information. Except for the Excluded Disputes (defined below), the parties agree to use their best efforts to settle any dispute directly through consultation with each other, and good faith negotiations to settle shall be a condition precedent to either party initiating an arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time such cooperative resolution process is initiated, then either party may initiate binding arbitration as the sole means to resolve any dispute other than an Excluded Dispute defined in subsection d. below.
2. Any dispute, controversy, or claim relating to, connected with, or arising out of the subject matter of these Terms, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), shall be determined by arbitration in Salt Lake City, Utah before one arbitrator. The arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on an award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any demand for arbitration under these Terms shall be made before the statute of limitations applicable to such claim has expired. In any arbitration arising out of or related to these Terms, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages.
3. The failure of either party to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision or of any other right or provision. To the extent the arbitration provisions herein are void or unenforceable, and for all Excluded Disputes, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Salt Lake County, Utah, or the District of Utah to resolve any Dispute. Any legal or arbitration proceeding will be in the English language.
4. Notwithstanding the parties’ decision to resolve all Disputes through arbitration, the following Disputes may be brought in any court of competent jurisdiction: (a) disputes relating to or arising from misappropriation, infringement, validity and/or enforceability of a party’s intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights); (b) any action by a party seeking entry of a temporary restraining order, preliminary injunctive relief, or permanent injunctive relief; (c) any claims relating to a class action; or (d) any dispute as to which, as a matter of law, the parties cannot agree to arbitrate (collectively, the “Excluded Disputes”).

 

15. TERMINATION

1. For Convenience. You may terminate any Subscription Agreement for convenience, but in such event, you will not receive a refund of Fees for any current or previously terminated Support Term(s).
2. For Cause. Either party may terminate the Services if: (a) the other party is in material breach of these Terms (or has acted in a manner which clearly shows that the party does not intend to, or is unable to comply with, the provisions of the Terms) and (b) fails to cure such breach within 30 days following receipt of written Notice of Default and Demand to Cure from the non-breaching party. If you are the non-breaching party and we fail to cure, you will receive a refund of prepaid fees related to the period of the Support Term after the Notice of Default and Demand to Cure. You will receive no refund if you voluntarily terminate, or if we terminate for cause.
3. Immediate Termination. Either party may terminate immediately if the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 60 days; or it is required to do so by law. 

 

16. MISCELLANEOUS

1. In the event of any conflict between these Terms of Service and the Subscription Agreement, or between any order from you, the Subscription Agreement shall control.
2. No party to these Terms of Service and any Subscription Agreement shall have any liability under these Terms of Service or applicable Support Agreement for its failure or delay in performing any of the obligations imposed by these Terms of Service or the Subscription Agreement to the extent such failure or delay is the result of strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, equipment, loss and destruction of property, or any other circumstances or causes beyond that party’s reasonable control.
3. These Terms, together with the respective Subscription Agreement(s), constitute the whole legal agreement between us related to the use of the Services and supersede all prior or contemporaneous representations, agreements or understandings (written or verbal) relating to the subject matter hereof.  Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void and of no effect.  If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
4. Each party acknowledges that any breach, threatened or actual, of Sections 6, 10 and 13 may cause irreparable injury to the other party for which there may not be an adequate remedy at law. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
5. The parties are independent contractors. This Agreement does not create or imply any agency, partnership, or franchise relationship. This Agreement is intended for the benefit of the parties and not any third-party. Neither party has the authority to assume or create any obligation on behalf of the other party.
6. Neither party is liable for delay or default hereunder if caused by conditions beyond its reasonable control, including natural disasters, acts of God, hacker attacks, acts of terror or war, riots, actions or decrees of governmental bodies, changes in applicable laws, or communication or power failures.
7. Neither the rights nor the obligations arising under these Terms are assignable or transferable by either party without the other party’s prior written consent, which shall not be unreasonably withheld or delayed, and any attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may assign this agreement without the consent of the other party to a successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets in aggregate. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
8. The Software and the Software Documentation are “commercial items” as those terms are defined at 48 C.F.R. §2.101 and consist of “commercial computer software” and “commercial software documentation” as such terms are used in 48 C.F.R. §12.212. Accordingly, if the Customer is the U.S. Government or any contractor for the U.S. government, Customer shall receive only those rights with respect to the Software and the Software Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government Customers and their contractors.
9. If a customer is a U.S. government entity subject to either the Federal Acquisition Requirements (“FAR”) or Defense Federal Acquisition Regulation Supplement (DFARS), collectively referred to as Federal Requirements, the Subscription Agreement shall set forth the provisions of applicable Federal Requirements which override any provisions of this Agreement. Except as set forth in the Subscription Agreement, all of these Terms of Service shall apply.
10. Sections 6, 8, 9, 10, 12, 13 and 14 shall survive the termination of this Agreement.