Business Case Builder Terms & Conditions

SOFTWARE LICENSE AND CONSULTING SERVICES AGREEMENT

This Software License and Consulting Services Agreement (the “Agreement”) is made and entered into by and between You and Architelos, Inc. (“Architelos”) and governs (i) the software license of the Architelos business case builder tool (the “BCB Tool”) and (ii) other consulting services provided by Architelos (collectively, the “Services”) on a dedicated website (“Site”) hosted by Adaptive Planning, Inc. (“Adaptive”). This Agreement is between You and Architelos only. You will enter into a separate end user subscription agreement with Adaptive (“Your Adaptive Agreement”), which will govern the relationship between You and Adaptive. You and Architelos are each, individually, a “Party” and collectively, the “Parties.” The term “You” and “Your” refer to the person accessing or using the Site or our Services, or the company or organization on whose behalf that person accesses the Site or our Services.

To use the Services, You must first submit an order form (“Order”) to Architelos from the Architelos web site, the terms of which are incorporated into and made part of this Agreement and provide payment in accordance with Section 5. If there is a conflict between this Agreement and a Order, the terms of this Agreement will prevail, except that an Order may amend or override the terms of this Agreement provided that the Order specifically identifies (i) the provision(s) of this Agreement the Order is intended to amend or override, and (ii) the nature of the modification.

YOU ARE REQUIRED TO INDICATE YOUR AGREEMENT TO THESE TERMS AND CONDITIONS IN ORDER TO ACCESS AND USE THE SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, AND ACCESSING AND USING THE SERVICES, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU OR YOUR EMPLOYER HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH ARCHITELOS GOVERNING YOUR USE OF THE SERVICES, THEN THE TERMS AND CONDITIONS OF THAT SEPARATE AGREEMENT WILL PREVAIL AND GOVERN, AND ANY CONFLICTING TERMS OF THIS AGREEMENT WILL NOT BE GIVEN EFFECT.

1. Term. This Agreement will commence on the date Architelos receives Your payment in accordance with Section 5 (the “Effective Date”) and run for a duration of twelve (12) months (“Initial Term”). After the Initial Term, the Agreement will then renew for successive terms each having the same duration as the Initial Term (each, a “Renewal Term” and, together with the Initial Term, the “License Term”), provided that You (i) provide Architelos with written notice of Your intent to renew the Agreement and (ii) remit payment for all the applicable fees at least thirty (30) calendar days prior to the next scheduled expiration.
2. Licensed Services. Subject to Your compliance with the terms and conditions of this Agreement, including Your payment of the fees set forth in each Order for the use of the Services (“License Fees”), Architelos grants You a nonexclusive, nontransferable, revocable, limited license during the License Term to use the Services for which You have paid the applicable License Fees, for Your internal business purposes and subject to any other restrictions identified in Your Order, including access and use by the number and type of users identified in Your Order.
3. Restrictions. You agree: (i) not to use the Services except as expressly authorized in this Agreement and Your Order; (ii) not to use any device, software, or routine that (a) interferes with any application, function, or use of the Services, or (b) is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iii) not to resell, sublicense, time-share, or otherwise share the Services with any third party; (iv) not to frame or mirror the Site; (v) not to attempt to or actually decompile, disassemble, reverse engineer or otherwise access the underlying software that is part of the Services (x) to build a competitive product or service, (y) to build a product using similar ideas, features, functions, or graphics of the Services, or (z) to copy any ideas, features, functions or graphics of the Services; (vi) not to use the Services either directly or indirectly to support any activity that is illegal; (vii) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; and (viii) not to authorize , permit or encourage any third parties to do any of the above.

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR OF ARCHITELOS OR FOR THE PURPOSES OF PROVIDING ANY SERVICES THAT ARE SUBSTANTIALLY SIMILAR TO SERVICES PROVIDED BY ARCHITELOS TO ITS CLIENTS, EXCEPT WITH ARCHITELOS’ EXPRESS WRITTEN CONSENT.

1. Ownership. Architelos and/or its licensors own all worldwide right, title and interest in and to the Services, including all worldwide intellectual property rights therein. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the BCB Tool, the Site, or any other intellectual property rights owned by Architelos or Adaptive. You may not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing in or on the Services as provided.
2. Fees and Payment.
   1. In order to access and use the Services, You are required to pay Architelos the License Fees set forth in the Order. License Fees are due and payable before the commencement of the Initial Term. Before Architelos grants You access to the Services, You must wire transfer the applicable License Fees to Architelos in accordance with the instructions set forth in the Order.
   2. If you wish to add users to your account (“Additional Seats”), You must notify Architelos, and Architelos will send You an Order specifying (i) the amount of License Fees for the Additional Seats (“Additional Seat Fees”), which will be prorated for the balance of the then-current License Term, and (ii) the wire instructions for transferring the Additional Seat Fees. Upon its receipt of the Additional Seat Fees, Architelos will promptly contact you to set up the login information for the Additional Seats.
   3. Payments are made in US dollars. All fees are exclusive of all taxes, levies, and duties imposed by taxing authorities, and You are responsible for all such taxes, excluding taxes based solely on Architelos’ income. All fees are non-refundable once paid, even in the event of a premature termination of this Agreement. Architelos reserves the right to charge a reconnection fee if Your Services are suspended or if You terminate this Agreement and re-order Services within three (3) months from the termination date.
3. Your Responsibilities. You are responsible for all activity occurring under Your user account(s) and will: (i) maintain the accuracy, completeness, and timeliness (within thirty (30) days of any change) of the information You provide in connection with Your account registration, Your Order, and your authorized user(s); and (ii) notify Architelos immediately of any unauthorized use of any password or account or any other known or suspected breach of security. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed for its access to the Services. Except for Your log-in information, all data provided in connection with Your use of the Services (“Customer Data”) will be stored on Adaptive servers. You own all Customer Data. You are solely responsible and liable for the Customer Data, and You will control access to and the management of the Customer Data through Your account and authorized users. You must comply with all material terms and conditions in Your Adaptive Agreement in connection with Your use of the Site. You must abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Services, including those related to export regulations, data privacy, international communications and the transmission of technical or personal data. You may not impersonate another user of the Services or provide false identity information to gain access to or use the Service. The Services may not be exported or re-exported directly or indirectly in violation of any applicable export laws or used for any purposes prohibited by such export laws. Neither Architelos nor its licensors have knowledge of the location from which You will access the Services or the individual users You will permit to access the Services. Therefore, You agree that You are solely responsible for compliance with such export laws.
4. Architelos Responsibilities. Architelos will use industry standard security measures to maintain Your authorized users’ login information (e.g., User IDs and passwords) for the Services in confidence. Architelos will not have general access to Customer Data, however, if You provide Customer Data to Architelos, then:
   1. Architelos will not use Customer Data for any purpose other than to provide support services; and
   2. Architelos will use commercially reasonable efforts to maintain the confidentiality of Customer Data,

provided that, notwithstanding any other provision, Architelos may disclose Customer Data if Architelos determines that such action is reasonably necessary: (x) to comply with the law, regulatory requirements, or legal or regulatory process; (y) to enforce this Agreement; or (z) to respond to claims that You are using the Services to perform or support activities that violate the law or the rights of third parties. Unless prohibited by law or legal process, Architelos will use its commercially reasonable efforts not to disclose Customer Data without giving You notice of the request for such disclosure and a reasonable period of time to respond to such request.

1. Confidentiality.
   1. Confidential Information. “Confidential Information” means any oral, written, graphic, electronic, machine-readable, or other information furnished or made available directly or indirectly by one Party (including by its affiliates, agents, and contractors) to the other Party that is designated as confidential or proprietary or which, under the circumstances surrounding disclosure, ought to reasonably be treated as confidential. Confidential Information includes without limitation (i) business policies or practices, marketing plans, product or service plans, business strategies, financial information, and customer lists, (ii) trade secrets, inventions, formulas, processes, databases, and software (including source and object code), and (iii) Customer Data. Each Party’s Confidential Information will remain the property of that Party except as expressly provided otherwise by the other provisions of this Agreement. Each Party will each use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent disclosing to third parties the Confidential Information of the other as it employs to avoid unauthorized disclosure, publication, or dissemination of its own information of a similar nature. Each Party will use Confidential Information of the other Party only as permitted by this Agreement. A Party’s Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third Party without restriction on disclosure; or (iv) is independently developed by the other Party. A Party may disclose Confidential Information of the other Party as required by operation of law, regulation, or court order, provided that, to the extent legally able, the receiving Party gives reasonably prompt notice to the disclosing Party prior to the receiving Party making any such disclosure of the disclosing Party’s Confidential Information, and the receiving Party uses commercially reasonable efforts to limit the scope of the disclosure.
   2. Return of Confidential Information. Upon the expiration or termination of this Agreement for any reason, each Party will promptly return all Confidential Information of the other Party (including copies thereof) in a form reasonably requested by such other Party, provided that each Party may retain copies of Confidential Information of the other Party as may be reasonably required for internal accounting or audit purposes or in connection with the resolution of any dispute between the Parties.
2. Data Storage. You are provided with up to 1 GB of disk space for the storage of Your data at no extra charge. If You require or use additional storage space, You will be charged an additional storage fee for excess storage of one thousand five hundred dollars ($1,500) per year per additional 1 GB (or any fraction thereof) of storage space used.
3. Configuration Services and Support. Architelos will provide up to two (2) hours of configuration support regarding the set-up and use of the BCB Tool (“Configuration Services”), which is included in the Services. If You require additional Configuration Services, upon reasonable notice to Architelos, Architelos will provide such Configuration Services and Architelos will separately invoice You for the additional hours of Configuration Services at Architelos’ then current time and materials rate. Architelos will also provide level 1 support and escalate any level 2 or level 3 incidents to Adaptive as necessary. Architelos will provide all support as follows: (a) if You contact Architelos support before 5:00 PM local time, You will receive a response by or on the next Business Day; and (b) if You contact Architelos support after 5:00 PM local time, You will receive a response by or on the second Business Day. “Business Days” means Monday through Friday, excluding regularly observed holidays.
4. Internet Delays. The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Architelos is not responsible for any delays, delivery failures, or other damage resulting from such limitations, delays, or problems.
5. Termination. You may terminate this Agreement at any time with prior written notice. Without limiting any other remedies available to it, Architelos may immediately suspend access to the Services and/or terminate this Agreement if: (a) You breach any material provision of this Agreement that, (if it is capable of being cured) is not cured within thirty (30) days from written notice to You (and ten (10) days in the case of non-payment); (b) Architelos determines that Your actions are likely to cause legal liability for Architelos or its suppliers and other customers; or (c) Adaptive files for bankruptcy, becomes insolvent, or initiates any other process signaling its inability to provide its hosted services. If Your Adaptive Agreement is terminated for any reason, this Agreement will immediately and automatically terminate.
6. Effects of Termination. Upon any expiration or termination of this Agreement, and upon expiration of the License Term, the rights and licenses granted hereunder will automatically terminate, and You may not continue to use the Service. Architelos will have no liability for any costs, losses, damages, or liabilities arising out of or related to Architelos’ termination of this Agreement. Upon expiration or termination of this Agreement, to the extent any Customer Data has been provided to Architelos, Architelos will either (i) delete such Customer Data, or (ii) provide a backup file of such Customer Data if requested within thirty (30) days of termination or expiration, and Architelos will have no other further obligation to maintain or provide access to Your Customer Data. The provisions of Sections 3, 4, 5, and 12 through 18 will survive termination of this Agreement.
7. Indemnity. Architelos will defend, indemnify, and hold You harmless from and against any loss, damage, liability or cost (including reasonable attorneys’ fees) to the extent that it is based upon a third party claim that the Services, as provided by Architelos and used within the scope of this Agreement, infringes or violates any third party’s U.S. copyright or trademark rights; provided that You promptly notify Architelos in writing of any and all such claims. In the event of any loss, damage, liability or cost for which Architelos is obligated to indemnify You hereunder, Architelos will have sole control of the defense and all related settlement negotiations, and You will reasonably cooperate with Architelos in the defense and/or settlement thereof at Architelos’ expense; provided that You may participate in such defense using Your own counsel, at Your own expense. If Your use of the Services is, or in Architelos’ opinion is likely to be, enjoined due to a claim specified above, Architelos may, at its sole option and expense: (a) procure for You the right to continue using the Services under the terms of this Agreement; (b) replace or modify the Services so that they are non-infringing; or (c) if options (a) and (b) above cannot be accomplished despite Architelos’ reasonable efforts, then Architelos may terminate the license rights and Architelos’ obligations hereunder with respect to the Services and refund You the unused portion of the applicable License Fees paid for the Services. You will defend, indemnify and hold Architelos and its licensors harmless from and against any loss, damage, liability or cost (including reasonable attorneys’ fees) resulting from any third party claim based on: (i) Your use of Customer Data that infringes the rights of, or has caused harm to, a third party; (ii) a violation by You of Your representations and warranties; or (iii) a breach by You or Your authorized users of this Agreement; provided that Architelos promptly notifies You in writing of any and all such claims. In the event of any loss, damage, liability or cost for which You are obligated to indemnify Architelos hereunder, You will have sole control of the defense and all related settlement negotiations, and Architelos will reasonably cooperate with You in the defense and/or settlement thereof at Your expense; provided that Architelos may participate in such defense using its own counsel, at its own expense.
8. Disclaimer. Architelos does not offer financial or accounting advice. Architelos may provide general information about standard accounting principles, but such general information is intended for informational purposes only, and is not intended to be relied upon as professional accounting advice. The Services are provided “AS IS” and the entire risk as to satisfactory performance, accuracy, and effort is with You. Architelos does not warrant that the operation of the Services will be error free or uninterrupted. ARCHITELOS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
9. Limitation of Liability. IN NO EVENT WILL ARCHITELOS’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU DURING THE CALENDAR YEAR IN WHICH SUCH DAMAGES WERE INCURRED. IN NO EVENT WILL ARCHITELOS AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF ARCHITELOS (OR ITS LICENSORS) HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing limitations will not apply to breach of Section 3.
10. Usage Data. In addition to certain information about You, including Your account information, authorized user information, and services and support information, that is needed to provide You with the Services, Architelos and/or its service providers may maintain other information about You, including the duration and frequency of Your use of the Services, the pages viewed and searches performed, and other such anonymous usage data (collectively “Usage Data”). Architelos uses the Usage Data for internal business purposes only, including improving, testing and providing the Services and additional services. Architelos and/or its service providers may disclose Usage Data in aggregate form (e.g., data aggregated from Your and other customers’ use of the Services, but does not identify You or any other customer) for promotion, statistical analysis, market analysis, financial analysis, and other such purposes.
11. General. This Agreement is intended for the sole and exclusive benefit of the Parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. This Agreement will be governed by and construed in accordance with the laws of the State of New York, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York, and the Parties hereby consent to personal jurisdiction and venue therein. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. You may not assign this Agreement, in whole or in part, without Architelos’ prior written consent, except that, in the situation of a business, You may assign this Agreement without Architelos’ consent, in connection with a merger, acquisition, or sale of all or substantially all of Your assets, provided that You provide Architelos with prior notice. Any attempt to assign this Agreement other than as permitted above will be null and void. This Agreement and any Orders constitute the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. The terms of the Order will take precedence over any inconsistent terms in this Agreement. This Agreement has been written in the English language. You waive any rights You may have under the law of Your country to have this Agreement written in the language of that country.

Architelos Confidential Information