Cloud Services Agreement

      Cloud Subscription Services Agreement

       

      L2L LLC, A DELAWARE LIMITED LIABILITY COMPANY WITH AN OFFICE AT 4001 South 700 East, Suite 500, Salt Lake City, UT 84107 (“L2L” OR “WE”), IS WILLING TO PROVIDE CERTAIN SOFTWARE AND SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO A WRITTEN ORDER FORM, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH L2L THAT REFERENCES THIS AGREEMENT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (“AGREEMENT”).  READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SOFTWARE OR SERVICES FROM L2L.  THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND L2L. BY ENTERING INTO A WRITTEN ORDER FORM, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH L2L THAT REFERENCES THE AGREEMENT BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

       

      FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A "CORPORATE ENTITY"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM "YOU" OR "CUSTOMER" REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.

       

      L2L and Customer shall herein be referred to each as a “Party” and collectively as the “Parties”.  In consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

       

      1. Background. L2L provides a proprietary software-based service and certain hardware solutions as a commercial offering for use in connection with manufacturing and production systems.  Customer desires to use the Subscription Service (as defined herein) at location(s) outlined in the Order Form.

      2. Definitions.  Capitalized terms shall have the meanings set forth in this Section, or in the Section where they are first used.
        • 2.1 “Connectivity Requirements” means the minimum hardware, software and connectivity configuration specified from time to time by L2L as required for use of the Subscription Service.
        • 2.2. “Content” means, without limitation, any and all information, data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), skills profiles, learning activites, guides, user manuals, checklists, work instructions, notes, works of authorship, articles, feedback, or other materials.
        • 2.3. “Customer” means the person or entity that enters into an Order Form, SOW or similar ordering document with L2L that expressly references this Agreement.
        • 2.4. “Documentation” means the designated user manuals, handbooks, or online materials furnished by L2L that describe the features, functionality or operation of the L2L System.
        • 2.5. “Customer Content” means any Content provided, imported or uploaded to, or otherwise used by or on behalf of Customer in connection with the Subscription Service.
        • 2.6. “Implementation Services” means implementation of the Subscription Service at a site or sites an provided under a separate Statement of Work (SOW).
        • 2.7. “Order Form” means each L2L ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Subscription Service and any Implementation Services ordered by Customer from L2L, sets forth the prices for the Subscription Service and Implementation Services and contains other applicable terms and conditions.
        • 2.8. “Subscription Service” means L2L’s proprietary solutions pursuant to which it makes available the L2L Software to Customer via the cloud (i.e. in a “software as a service” environment) as more fully set forth and described on the applicable Order Form.
        • 2.9. “L2L Hardware” means L2L’s proprietary sensorbot, edge device, and other hardware set forth and described on the applicable Order Form that Customer licenses from L2L for use in connection with the L2L Software.
        • 2.10. “L2L Software” means the proprietary or licensed softwaremade available by L2L to Customer in connection with the Subscription Service in accordance with this Agreement.
        • 2.11. “L2L System” means the technology, including L2L Hardware and software as the case may be, used by L2L to deliver the Subscription Service to Customer or otherwise provided by L2L to Customer for use with the Subscription Service in accordance with this Agreement.
        • 2.12. “SOC 2” means service organization control reports for assuring data security, system availability, processing integrity, confidentiality and privacy.
        • 2.13. “Third Party Content” means any Content that is either (a) provided by third parties (including other customers of the Subscription Service) to the Subscription Service; or (b) made available on third party websites and linked to on the Subscription Service.
        • 2.14. “Users” means Customer’s employees or agents, including technical agents, who are authorized to use the Subscription Service on behalf of Customer at the location(s) defined in the applicable Order Form by virtue of a UserID (defined below).

      3. PRIVACY AND OPERATING POLICIES.  Personal data and certain information about the Customer or within the Customer Content are subject to L2L’s Privacy Policy and if related to European Union personnel, may also be subject to the General Data Protection Regulation (“GDPR”).  L2L policies and protection procedures are outlined in https://www.L2L.com/security-overview/.

      4. Access to Subscription Service.  Subject to the terms of this Agreement, and without limitation, the payment of the Fees, L2L hereby grants to Customer a limited, non-sublicensable, non-transferable, non-exclusive right and license during the Subscription Term (as defined below), at the location(s) defined in the applicable Order Form to access and use the Subscription Service in accordance with the Documentation solely for Customer’s internal business purposes.  Except as expressly set forth herein, L2L has no obligations to create or include additional features, or future feautures or functionality for the Subscription Service.  L2L’s SOC 2 Audit reports can be made available on request and shall be considered the Confidential Information of L2L (as Confidential Information is defined below).  Only Users may access the Subscription Service.  Customer will be responsible for managing access to the System by its Users and for changing settings in accordance with the Documentation, and will designate a named super-User (which Customer may change upon prior written notice to L2L) to serve as Customer’s administrator for such purposes.   The Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Subscription Service.  The Customer agrees: (a) that only Users are permitted to use the Subscription Service; (b) that it is responsible for Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service from unauthorized use and/or access.

      5. Customer’s Use of the Subscription Service.
        • 5.1. Access and Security Guidelines.  Customer and each User will be assigned a unique user identification name and password (“UserID”) for access to and use of the Subscription Service through a unique URL.  The super-User will be assigned a unique UserID for management and administration of the Users and the Subscription Service.  Customer will ensure that each username and password issued to a User will be used only by that User.  Customer is responsible for maintaining the confidentiality of all Users’ usernames and passwords, and is solely responsible for all activities that occur under these usernames.  Customer agrees (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify L2L promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement.  L2L reserves the right to terminate any username and password, which L2L reasonably determines may have been used by an unauthorized third party or by any User or individual other than the User to whom such username and password was originally assigned. Customer will provide browser enabled device(s) with access to the internet for use of the solutions. 
        • 5.2. Restrictions.  Customer will not, and will not attempt to: (i) permit any party to access and/or use the Subscription Service, other than the Users authorized under this Agreement; (ii) rent, lease, loan, or sell access to the Subscription Service; (iii) interfere with, disrupt, alter, translate, or modify the Subscription Service or any part thereof, or create an undue burden on the Subscription Service or the networks or services connected to the Subscription Service, including without limitation, any external websites that are linked to on the Subscription Service; (iv) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the L2L System; (v) without L2L’s express written permission, introduce software or automated agents or scripts to the Subscription Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Subscription Service; (vi) perform or publish any performance or benchmark tests or analyses relating to the Subscription Service or to the use thereof; (vii) transfer, export, or re-export, directly or indirectly, the Subscription Service, the L2L Software, L2L Hardware and/or the L2L System in violation of U.S. export controls including, but not limited to, the U.S. Export Administration Regulations (“EAR”) at 15 C.F.R. Parts 730-774, the International Traffic in Arms Regulations (“ITAR”) at 22 C.F.R. Parts 120-130, and Office of Foreign Assets Control sanctions regulations as revised from time-to-time, or (viii) cover or obscure any page or part of the Subscription Service via HTML/CSS, scripting, or any other means, if any.
        • 5.3. Support.  During the Subscription Term, L2L will provide Customer with the support services set forth in Exhibit A.  L2L will have no obligation beyond what’s described in Exhibit A to provide support and these support services will be delivered remotely with no obligation on L2L to provide on-site support.  For the Subscription Term, L2L may, in its sole discretion, provide Customer access to certain modifications, updates and/or upgrades (collectively, “Updates”) to the Subscription Service and associated documentation in order to improve the performance thereof.  Updates will be considered to be part of the Subscription Service.
        • 5.4 L2L Hardware.  Customer shall use the L2L Hardware during the Subscription Term solely in connection with its use of the Subscription Service and shall promptly (within no more than thirty (30) days) return such L2L Hardware to L2L upon termination or expiration of the Subscription Term in the same condition as provided by L2L (reasonable wear and tear excepted).  Customer is responsible for all damage to the L2L Hardware while in its possession or control and Customer hereby assumes and bears the entire risk of loss, theft, damage to or destruction of the L2L Hardware until such time as the L2L Hardware is purchased or returned.   Title to the L2L Hardware shall remain with L2L at all times, and Customer shall have no right, title or interest therein except as expressly set forth in this Agreement.  Customer at its expense will protect and defend L2L's title and the interest to the L2L Hardware and will keep the L2L Hardware free and clear from any and all claims, liens, encumbrances, security interests and legal processes of Customer' creditors and other persons.  Customer shall not move any L2L Hardware from the location set forth in the applicable Order Form without in each instance obtaining L2L's prior written consent thereto.  All items of the L2L Hardware shall at all times be and remain personal property.  Customer shall keep all L2L Hardware free from any marking or labeling which might be interpreted as a claim of ownership thereof by Customer or any party other than L2L or anyone so claiming through L2L. Without the prior written consent of L2L, Customer shall not make any alterations, modification or attachments to the L2L Hardware. All such permitted alterations, modifications and attachments made to the L2L Hardware which cannot be removed readily without materially damaging the functional capabilities or economic value of the L2L Hardware shall become the property of L2L and a part of the L2L Hardware for all purposes hereof.

      6. Fees, Payment and Suspension of Services.  As consideration for the subscription to the Subscription Service provided by L2L under this Agreement, Customer will pay L2L the fees (“Fees”) set forth in and in accordance with the applicable Order Form. All Fees will be invoiced at the time of the execution of the Order Form by Customer and are due within thirty (30) days of receipt of invoice, unless otherwise agreed to in the Order Form. Travel expenses, if applicable, for onsite consulting services will be additional and invoiced separately. All Fees are expressed in and all payments will be made in U.S. dollars.  Overdue amounts shall accrue interest at the rate of 1 ½% per month, or at the highest legal interest rate, if less.  All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, or other transactions contemplated under this Agreement, except for employment taxes and taxes based on L2L’s net income.  L2L reserves the right (in addition to any other rights or remedies L2L may have) to discontinue the Subscription Service and suspend all UserID’s and Customer’s access to the Subscription Service if any Fees set forth in the Order Form that are more than thirty (30) days overdue until such amounts are paid in full.

      7. Confidential Information
        1. 7.1. General Obligations. For the purpose of this Agreement, “Confidential Information” means non-public information disclosed by either Party to the other Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other Party may have access, or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing Party or which is of a confidential nature even though not specifically so designated. L2L’s Confidential Information includes all information made available to Customer through the Subscription Service (including all Documentation) and all feedback.  Customer’s Confidential Information includes Customer Content.  Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party, as shown by the receiving Party’s files and records; (iv) is obtained by the receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession.  Each of the Parties agrees: (a) not to disclose any of the other Party’s Confidential Information to any third parties except as mandated by law and except to those agents, advisors, or subcontractors who have a reasonable need to access such information, and who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (b) not to use any of the other Party’s Confidential Information for any purposes except carrying out such Party’s rights and responsibilities under this Agreement; and (c) to keep the other Party’s Confidential Information confidential using the same degree of care such Party uses to protect its own confidential information; provided, however, that such Party shall use at least reasonable care. If a Party is required by law to disclose the other Party’s Confidential Information, it will promptly notify the other party (providing notice prior to disclosure if permitted by law), and provide reasonable assistance in seeking protection of such Confidential Information. Upon termination or expiration of this Agreement the receiving Party will promptly return or destroy all of the disclosing Party’s Confidential Information in its possession.  The obligations to protect Confidential Information shall survive any termination or expiration of this Agreement for a period of five (5) years following such termination or expiration.

        8. Content
        • 8.1. Customer Content. Customer represents and warrants that any Customer Content shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes able to damage the Subscription Service, any third party content, or other data of the Subscription Service; or (e) otherwise violate the rights of a third party.  L2L will provide regular backup any Customer Content that is posted on the Subscription Service.  Customer agrees that any use of the Subscription Service contrary to or in violation of the representations and warranties of Customer in this Section constitutes improper and unauthorized use of the Subscription Service.  Customer is solely responsible and liable for all Customer Content, data and information, including personal data, and activites conducted through or via the Subscription Service. Customer shall abide by any and all applicable laws in Customer’s provision or use of Customer Content hereunder.
        • 8.2. Third Party Content.  L2L makes no representations or warranties regarding any Third-Party Content found on or through the Subscription Service or that is otherwise available using the Subscription Service.  Customer represents and warrants that any Third Party Content that it uses or has access to shall not (a) be copied, altered, or redistributed by Customer without the prior written consent of the owner of such Third Party Content; or (b) be used in any documents, reports, presentations or publications by Customer without the prior written consent and without attribution to the owner and/or author of such Third Party Content or to any other sources of such Third Party Content as may be appropriate.

        9. Intellectual Property Rights
        • 9.1. L2L System and Technology. Customer acknowledges that L2L and any of its licensors retains all right, title and interest in and to the L2L Software, L2L Hardware and L2L System and all software, materials, formats, interfaces, information, data, content and L2L proprietary information and technology used by L2L or provided to Customer in connection with the Subscription Service (the “L2L Technology”), and that the L2L Technology is protected by intellectual property rights owned by or licensed to L2L.  Other than as expressly set forth in this Agreement, no license or other rights in the L2L Technology are granted to Customer, and all such rights are hereby expressly reserved by L2L.
        • 9.2. Customer Content. Customer retains all right, title and interest in and to the Customer Content.  L2L will only use Customer Content to provide the Subscription Service under this Agreement.  Customer will be solely responsible for providing all Customer Content required for the proper operation of the Subscription Service.  Customer grants to L2L a non-exclusive, fully-paid and royalty-free license to store and use such Customer Content as necessary for L2L to provide the Subscription Service to Customer.
        • 9.3. Anonymous and Aggregated Data. Notwithstanding anything else to the contrary in this Agreement, L2L may aggregate and de-identify the information provided by Customer including, without limitation, Customer Content (“Anonymous Data”) and use the Anonymous Data without restriction for its business purposes (provided that L2L does not use any specific Customer Content, or Anonymous Data in a manner that could identify Customer).  In addition, L2L collects information and data on how the Subscription Service is used by customers and reserves the right to disclose to and share such information and data with third parties in an anonymous and aggregate form at its discretion.

        10. Term and Termination
        • 10.1. Term. This Agreement will continue in effect until otherwise terminated in accordance with Section 10.2 below.  The initial term of each Order Form shall be set forth on the Order Form (“Initial Term”), and will automatically renew for successive one (1) year terms (each a “Renewal Term”; the Initial Term and all Renewal Terms collectively the “Subscription Term”), unless otherwise agreed to in the Order Form. Either Party may provide written notice of non-renewal at least sixty (60) days prior the expiration of the then-current Subscription Term.  L2L reserves the right to modify this Agreement by posting a new Agreement online and notifying Customer of such new agreement provided that such new Agreement will only be applicable for any Order Form entered into after the date such new Agreement goes into effect.
        • 10.2. Termination. Either Party may terminate rights granted under a particular Order Form or this Agreement (i) if the other breaches any material term of this Agreement and the breach is not cured within 30 days of written notice or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing.  L2L reserves the right to suspend Customer’s access to and/or use of the Subscription Service: (i) if any payment is overdue and L2L has provided Customer with a delinquency notice, and at least thirty (30) days have passed since the delivery of such notice or (ii) if L2L reasonably concludes that Customer’s access to the Subscription Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or is causing immediate, material and ongoing harm to L2L or others.
        • 10.3. Payment on Termination. If L2L terminates this Agreement because of non-payment by Customer, all unpaid fees for the remainder of the Subscription Term immediately become due for payment.
        • 10.4. Effects of Termination or Expiration.  Upon termination of Customer’s Subscription Service, L2L will reasonably cooperate with Customer in effecting the transfer of the Customer Content. The parties shall mutually agree in writing on scope and cost of such transfer to Customer.  On termination, Customer shall promptly (a) discontinue use of the Subscription Service and any other L2L Confidential Information; (b) return, at Customer’s expense, any L2L Confidential Information (including all print copies thereof) in Customer’s possession or control; (c) destroy all electronic copies of any L2L Confidential Information; and (d) certify that Customer has complied with the foregoing requirements.  The provisions of this Agreement which by their nature are reasonably intended to survive the termination or expiration of this Agreement including, without limitation, Sections 5.4, 6, 7, 10.4 and 11 through 14 will survive the termination or expiration of this Agreement.

        11. Disclaimer.  L2L makes no warranty concerning the L2L System or Subscription Service, the L2L System and all other data, materials, and documentation provided in connection with this Agreement by L2L and its suppliers are provided “as is” and “as available,”. L2L make no warranties regarding the accuracy of any data collected or provided via the L2L System or Subscription Service. L2L and its suppliers disclaim any and all warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of noninfringement, merchantability or fitness for a particular purpose or any implied warranties arising out of course of performance, course of dealing or usage of trade.  L2L does not warrant that the Subscription Service will be provided error-free, uninterrupted, completely secure, or virus-free.  Customer acknowledge that the Subscription Service is provided over the internet, and where applicable by means of personal devices and/or technical intrastructure of the Customer for which L2L is not responsible, and thus the quality and availability of the Subscription Service may be affected by factors outside L2L’s reasonable control.  Customer is solely responsible for the Customer Content that is uploaded using the Subscription Service.  L2L is not responsible nor liable for (the use of) any Customer Content uploaded by the Customer or consequences arising out of errors, omissions or use of such Customer Content.  L2L is not liable for the incorrectness or incompleteness of the processed data or Customer Content.
      2.  
      3. 12. Indemnity
        • 12.1. By Customer. Subject to Section 12.3, Customer will defend L2L, including its affiliates, contractors and employees (the “L2L Indemnified Parties”) from and against any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) arising out of the Customer Content, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Customer Content (each a “Claim Against L2L”) and will indemnify the L2L Indemnified Parties from any damages, reasonable attorney fees and costs finally awarded against them as a result of, or for any amounts paid under a court-approved settlement of a Claim Against L2L.
        • 12.2. By L2L.  Subject to Section 12.3, L2L will defend Customer, including its affiliates, contractors and employees (the “Customer Indemnified Parties”) from and against any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) arising out of a claim against that Customer’s  use of the Subscription Service as permitted under this Agreement infringes any patent, copyright, trademark or trade secret owned or controlled by the third party (“Infringement Claims”); and will indemnify the Customer Indemnified Parties from any damages, reasonable attorney fees and costs finally awarded against them as a result of, or for any amounts paid under a court-approved settlement of any Infringement Claims.  In the event an Infringement Claim is or if L2L believes that an Infringement Claim is likely to occur, L2L will, at its option, either (i) obtain a license from the third party claimant; (ii) modify the Subscription Service so that they no longer infringe; or (iii) if neither of these options is commercially feasible or practicable, terminate the relevant Subscription Term under this Agreement, in which case L2L shall refund to Customer all fees pre-paid to L2L under the relevant Subscription Term for the terminated portion of the then current Term.   L2L has no obligation under this Section 12.2 if (i) the Subscription Service(s) has been modified by Customer or any third party, unless the modification has been approved in writing by L2L; (ii) the Infringement Claim is for a version of the Subscription Service that has passed its end-of-life date; (iii) the Infringement Claim was based on Customer’s use of the Subscription Service in violation of this Agreement or (iv) the Infringement Claim is caused by any combination of the Subscription Service with other products, processes or materials not provided by L2L (where the alleged damages, costs or expenses arise from or relate to such combination).  This section sets forth Customer’s exclusive remedy and L2L’s sole liability with respect to Infringement Claims.
        • 12.3 Indemnification Procedure.  The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is materially prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).

       

      13. Limitation of Liability.  Except for breaches of Section 6 OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, each party’s total cumulative liability to the other party for any and all claims arising from or in connection with this Agreement (under any legal theory including claims in contract or tort), the Subscription Service and the L2L System, will not exceed the amounts actually paid AND PAYABLE to L2L by Customer in the twelve (12) month period immediately preceding Customer’s formal written notice of the claim for liability hereunder.  Except for breaches of Section 6 OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, in no event will either party be liable for special, incidental, indirect or consequential damages arising out of or in connection with this agreement (under any legal theory including claims in contract or tort), including, but not limited to, interrupted communications, lost data or lost profits, even if L2L has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy provided herein.

      14. General Provisions

        • 14.1. Publicity.  No public announcements by either party concerning this Agreement will be made without complying with either party’s brand guidelines and policies regarding use of branding or logos or required written approval by Customer and L2L, which approval shall not be unreasonably withheld.  Customer agrees to allow L2L to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of L2L and a user of the Subscription Service.
        • 14.2. Assignment.  Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or business to which this Agreement relates.  This Agreement shall inure to the benefit of and shall be binding on the permitted successors and assignees of the parties.  Any attempted transfer of assignment of this Agreement in violation of this Section 14.2 is null and void.
        • 14.3. Governing Law and Venue.  This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to principles of conflict of laws that would require the application of the laws of a different jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court sitting in Delaware, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.  If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.
        • 14.4. Miscellaneous.  Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth in the applicable Order Form (each party may change its address from time to time upon written notice to the other party of the new address).  Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent by email to the email address set forth on the applicable Order Form provided receipt of such email is confirmed or (d) sent by recognized air courier service. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof.  Except as set forth in Section 10.1, only a writing signed by both parties may modify it.  In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  All waivers must be in writing.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.  The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
        • 14.5. Commercial Items.  The Subscription Service and Documentation provided to the U.S. Government are "Commercial Items", as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", within the meaning of 48 C.F.R. 12.212 or 48 C.F.R.227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in FAR 12.212, and DFARS 227.7202-1(a), 227.7202-3(a), 227.7202-4, as applicable.
        • 14.6  Export Controls.  To the extent Customer is subject to this Section, Customer agrees to comply with any export laws and regulations with respect to any Customer Content disclosed or provided hereunder, such as the U.S. Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”), Office of Foreign Assets Control sanctions regulations and other national export control or sanctions regulations. Customer shall identify and inform L2L of any export controlled Customer Content prior to providing it to L2L through the Subscription Service or otherwise.  Customer also will inform L2L of any additional Department of Defense or other U.S. Government agency instructions, directives, or restrictions placed on the Customer Content.  L2L agrees that only U.S. Persons will have access or exposure to Customer’s export controlled information, unless otherwise authorized by license or applicable exemption.  “U.S. Persons” means United States citizens or persons who have been granted permanent resident alien status as defined by 8 U.S.C. § 1101(a)(20) or U.S. protected individual status as defined by 8 U.S.C. § 1324b(a)(3).  L2L also agrees not to export outside the United States (including transfer to non-U.S. Persons located in the United States) Customer’s export controlled information, unless otherwise authorized by license or applicable exemption.
        • 14.7. Force Majeure.  Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is delayed or affected by strike, fire, acts of god, governmental acts or orders or restrictions, recognized health threats as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies (including but not limited to the health threats of COVID-19, H1N1, or similar infectious diseases), curtailment of transportation facilities, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party (each a “Force Majeure Event”).

      This Agreement may be executed in counterparts, which taken together shall form one legal instrument.

      Accepted By: L2L LLC

          Accepted By: Customer [Insert Company Name]

      Signature:

       

      Signature:

       

      Name:

       

      Name:

       

      Title:

       

      Title:

       

      Date:

       

      Date:

       

       

      EXHIBIT A

      SUPPORT SERVICES

      Support Services.  L2L and its contractors shall provide under this Agreement the following services to Customer, as further detailed below.  The support services are not intended to replace the Implementation Services.

      1. Emergency Support Assistance.  L2L shall provide 24 hours a day by 7 days a week emergency assistance to any customer employee calling our normal support   telephone number. Emergency support is provided to ensure the Subscription Service is accessible by the Customer from the Internet. Both parties understand that outages or downtime are unacceptable, and that time is of the essence.
      2. Non-Emergency Telephone/email Assistance.  L2L shall provide assistance by facsimile, email or scheduled telephone calls.  Level 1 support hours are 6 am to 6 pm MST Monday to Friday (excluding statutory holidays); Level 2 support hours are 8 am to 5 pm MST Monday to Friday (excluding statutory holidays). 
        • 2.1.Such support shall consist of:
          • 2.1.1.Clarification of functions and features of the Subscription Service
          • 2.1.2.Clarification of the Documentation;
          • 2.1.3.Guidance in operation of the Subscription Service;
          • 2.1.4.Supply examples of API programming;
          • 2.1.5.Assistance in identifying and verifying the causes of suspected Errors in the Subscription Service; and
          • 2.1.6.Advice on bypassing identified Errors in the Subscription Service, if reasonably possible.
        • 2.2.Non-Emergency Error Handling Process.  Customer shall report to L2L any reproducible defect in the Subscription Service that causes the Subscription Service not to operate substantially in accordance with the Documentation (an “Error”).  Upon receipt of such a report, L2L will preliminarily classify the Error in one of the three classes:
          • 2.2.1.  Code Red.  No further execution is possible and there are no workarounds.
          • 2.2.2.  Code Yellow.  No further execution is possible but there is a workaround or execution is significantly impacted
          • 2.2.3.  Bug.  The issue does not affect the system in a hazardous way.
        • 2.3.Non-Emergency Error Classification:  The Error handling process shall only be valid for Errors that occur in the Subscription Service as delivered.  Customer shall provide L2L with detailed error information in order to prove that the Error originates from the Subscription Service and not caused by Customer’s failure to meet the Connectivity Requirements. The Error Classification is done by L2L in accordance with the Error class definition, as detailed above.  In order for L2L to classify the reported Error, Customer will provide L2L with such information regarding the Error as is necessary in order for L2L to review and reconstruct the reported Error. Customer will fully cooperate and assist L2L in the provision of support services, including allowing full and free access to relevant hardware, software and other information L2L reasonably requires in order to provide such support services. Customer will use any tools provided by L2L, in order to track and resolve any issues. After Customer has provided such sufficient information, L2L will classify the Error and report back to Customer as set out in the Guide on Response Times below.
        • 2.4.Non-Emergency Response Times:  For errors in the functionality of the service, not including emergency outages as defined in section 1 of this Exhibit, L2L will perform a “commercially reasonable best effort” in working to achieve the response times goals set out in the following table. Due to the variability in potential issues and corrective actions, both parties will work in good faith on an issue-by-issue basis. 

      Non-Emergency Fault Class

      Analysis

      Corrections

      Comment

      Code Red

      The problem report will be analyzed within three (3) working days. Then an analysis report will be delivered.

      Within five (5) working days after analysis, an acceptable solution for both Customer and L2L, and a time plan for the implementation of such solution, will be agreed upon.

      If there is no action taken within three (3) working days the management of L2L will be informed. Customer will be updated on the progress of the work on the problem.

      Code Yellow

      The problem report will be analyzed within three (3) working days. Then an analysis report will be delivered.

      Within ten (10) working days after analysis, an acceptable solution for both Customer and L2L, and a time plan for the implementation of such solution, will be agreed upon.

      If there is no action taken within three (3) working days the management of L2L will be informed. Customer will be updated on the progress of the work on the problem.

      Bug

      The problem report will be analyzed within ten (10) working days. Then an analysis report will be delivered.

      The Error will be corrected, at L2L’s discretion, and the solution made available to Customer in a future release.

      Customer will be updated on the progress of the work on the problem.

       

      In the table above, the term “working days” and “working hours” shall mean between 0900 and 1630, local time, Monday to Friday (excluding statutory and L2L holidays, the latter as notified to Customer at least thirty (30) days in advance).

      3. Updates.  L2L may provide updated functionality for the Subscription Service for the modules being subscribed in this Agreement as part of the provision of support services hereunder.  The functionality of these and future releases is dependent on the outcome of the standardization work within the relevant standardization forums and L2L’s product roadmap.  L2L shall be free in its own opinion to decide whether or not to include new functionality in future releases.\

      4. Customer’s Staff.  Where participation by, or access by L2L to Customer’s own staff is necessary in relation to the Support Services, Customer agrees that such staff shall be available at the times reasonably agreed by the Parties. Customer will designate one of its employees as L2L’s primary contact (“Primary Customer Contact”).  Customer may redesignate its Primary Customer Contact provided that Customer notifies L2L in writing.  The Primary Customer Contact will be responsible for working with L2L to resolve any support-related issues arising from the use of the Subscription. The Primary Customer Contact will also be responsible for resolving conflicting support requests from Customer employees.  Customer will also designate up to 5 additional employees as secondary contacts (“Secondary Customer Contact”).  The Secondary Customer Contacts will be able to contact L2L and request information relating to technical information and questions concerning functions and features of the Subscription Service. This section does not preclude any of the customer’s employees from contacting L2L for Emergency Support Assistance as defined in section 1 above.

      5. Exclusions from Support Services.  Support services will not include services requested as a result of, or with respect to: (a) improper use of the Subscription Service that substantially deviates from any operating procedures established by L2L in the Documentation; (b) any alteration, adaptation, or modification to the Subscription Service not made by or under the supervision or direction of L2L; or (c) Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of L2L.  Support services are not provided for alternation, modification or significant configuration of the Subscription Service, but these bespoke services can be obtained under specific project SOWs with mutually agreed Professional Services fees.

       

      Reviewed and Updated: March 4, 2025