§6 Documentation

The App Documentation is only available online on the Supplier's website, at the following links:  

• YOUDESIGN: https://docs.youdesign.app

Supplier has the right to update and remove articles and functionality without notifying Customer.

§7 APP License

Upon acceptance of this Agreement, Supplier hereby grants to the Customer, an App License for the use of the subscribed Application within the specified Term of the App subscription as outlined in the SOW/PO. Such App License includes the right to:

1. install and run the Application on a single authorized production instance of the ServiceNow Platform;
2. install and run the Application on any number of non-production instances associated with the ServiceNow production instance;
3. to receive full product features, updates, Technical Support, and online Documentation within the subscription Term; and
4. access the Application through an Embedded Platform Runtime User License to perform read, create, write, update, and delete data required for each End-User.

Supplier acknowledges that the App License also allows Customer’s Service Providers and Contractors access to the Application as necessary to enable their provision of Services to Customer, provided that Customer shall be responsible for ensuring compliance with the Agreement by such Service Providers and Contractors. The App License shall include unlimited Viewer access to the Customer End-Users.

Under the terms specified in Section 2, every End User of the Customer performing editing, creation, or deletion tasks must have an Embedded Platform Runtime User License (EPRL). This Editor license is necessary to operate the App and can be acquired via the Supplier as part of the App Subscription. Should there be a need for extra production instances of the ServiceNow Platform, each additional instance necessitates an extra App Subscription and corresponding App License.

§8 Software Dependencies

1. ServiceNow Requirements: This App necessitates a compatible version of the ServiceNow Platform, including at least the basic ServiceNow Platform installation. No additional paid ServiceNow modules are required for the App's operation.
2. ServiceNow and Open-Source Components: The ServiceNow Platform incorporates various open-source software components. While the App may rely on these components, the Supplier does not offer warranties and explicitly disclaims any liability for damages arising from the use of the ServiceNow App, the ServiceNow Platform, or its embedded Open-Source software components. Additionally, the App may utilize embedded open-source features or components integrated within the ServiceNow Platform. The Supplier delivers the App "as is," disclaiming any warranties and liability for damages related to the use of these open-source components.
3. App's Open-Source Software Components: The App incorporates specific Open-Source software components provided by the Supplier, including GOJS, REACT, @emotion, @mui, @reduxjs, i18next, and lodash. A comprehensive list of all Open-Source software used is available upon request.
4. Source Code Accessibility: Access to the App's source code by the Customer is strictly prohibited. Additionally, the Supplier does not permit source code escrow or any similar services involving the source code.

§9 Fees and Payment

Customers rights under Section 2 (Subscription) are conditioned upon payment by Customer of the applicable subscription fees to Supplier (either directly or through the ServiceNow Store). Subscription fees are payable annually in advance. Fees are payable within 30 days of receipt unless otherwise specified in the agreement by Customer of a valid invoice.  Such invoice may include a buyer code, if one is provided by Customer to Supplier. 

ALL FEES ARE NON-REFUNDABLE AND NON-CANCELABLE, except as expressly provided in this Agreement and do not include sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, withholding tax, shipping, or customs duties and similar transactional taxes and fees, all of which Customer are responsible for paying above and beyond the subscription fees due to Supplier. Failure to pay fees when due may result in the withdrawal of Customers App from Customers ServiceNow instance(s).

§10 Warranty, Indemnity and Disclaimer of Warranty

Supplier warrants that: 

1. the App and Supplier developed App components—excluding third-Party open-source software components (see Section 8.3)—will perform in accordance with the App Documentation and the ServiceNow certification results alongside the ServiceNow Platform;
2. the App does not contain anything or device (including any software, code, file, program, worm, Trojan horse, virus, or other similar things) which may
   1. prevent, impair or otherwise adversely affect the operation of any of Customer’s computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; or 
   2. prevent, impair or otherwise adversely affect access to or the operation of any program or data (whether by re-arranging, altering or erasing the program or data in whole or in part or otherwise);
3. use of the App by Customer in accordance with this Agreement will not adversely affect the performance of the ServiceNow Platform; and
4. the provision and use of the App in accordance with this Agreement will not infringe or contribute to the infringement of any third-party Intellectual Property Rights. The Supplier agrees to indemnify Customer and hold harmless Customer and Affiliates harmless against any loss, liability, damage, cost, or expense, including reasonable legal fees, arising from any claim that the provision and use of the App in accordance with this Agreement infringes the Intellectual Property Rights of a third Party.

EXCEPT AS SET OUT ABOVE, THE APP IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. SUPPLIER EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE APP IS ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. CUSTOMER ASSUMES THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF THE APP. TO THE EXTENT THAT SUPPLIER MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

§11 Limitations of Liability

EXCEPT TO THE EXTENT THAT DISCLAIMER OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, IN NO EVENT WILL SUPPLIER, SERVICENOW, OR ANY OF THEIR ITS RESPECTIVE AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTRACTORS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE TO CUSTOMER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES ARISING FROM LOSS OF REVENUE, USE, DATA, OR PROFITS, INJURY TO REPUTATION OR GOODWILL, OR THE COST OF SUBSTITUTE GOODS OR SERVICES) WHETHER SUCH DAMAGES ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. IF, UNDER APPLICABLE LAW, LIABILITY FOR DIRECT DAMAGES CANNOT BE EXCLUDED (NOTWITHSTANDING THE FOREGOING), THEN THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT AND THE APP, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES (IF ANY) THAT CUSTOMER PAID TO SUPPLIER IN ANY PREVIOUS 12 MONTH PERIOD. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. EITHER PARTY ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SERVICENOW WILL HAVE NO LIABILITY TO CUSTOMER UNDER THIS AGREEMENT OR IN RELATION TO THE APP. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION WILL APPLY EVEN IF AN EXCLUSIVE REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.

§12 Term and Termination

The term of this Agreement (“Term”) will commence on the Effective date and will remain in effect for a period of one (1) year; thereafter the Term shall automatically terminate unless actively renewed by Customer. Unless Supplier notifies Customer in writing of its intention not to renew at least 60 days prior to expiration of the then-current Term, Supplier shall, not less than 30 days before the expiration of any renewal term, provide Customer with a quotation detailing the pricing for the subsequent renewal term. The Parties shall negotiate the pricing for any renewal term in good faith. Where the Parties were not able to agree on pricing for a renewal term, the pricing during any renewal term shall be aligned with (1) the prior year’s subscription fee plus the percentage change over the prior year’s U.S. Consumer Price Index for Urban Consumers, All U.S. Cities Average, published by the Bureau of Labor Statistics of the Department of Labor, (2) Supplier’s then current published subscription fee applicable to the renewal term, but shall not increase by more than 10% above the applicable pricing in the prior term, irrespective of the length of any applicable renewal term. Customer may terminate this Agreement at any time and for any reason by giving written notice to Supplier latest (30) days before the intended date of termination; provided, however, that Customer will not be entitled to a refund of any fees paid hereunder except as set out below. 

Either Party may terminate this Agreement, effective immediately upon written notice to the other Party:

1. For Supplier, if Customer fails to pay any portion of the subscription fees when due and fails to cure such non-payment within thirty (30) days after receipt of notice of same; or
2. If either Party otherwise breaches any provision of this Agreement or fails to remedy such breach within 30 days after receipt of notice of the same.

Upon expiration or termination of this Agreement, Customer’s License and right to use or access the App terminate, and the App must be removed from the Customer’s instance of the ServiceNow Platform.  In the event Customer terminates this Agreement for Supplier’s breach, which is not cured as set forth above. Supplier shall refund to Customer a pro-rata share of any fees which Customer paid in advance beginning from the termination date to the end of the Term.

Sections 1, 7, 8, 10 - 11 and 13 - 22 will survive expiration or termination of this Agreement for any reason.

§13 Confidential Information

Supplier will not have access to Customer’s data during the term of the agreement should Customer grant Supplier access to Customer’s data, all data processed or accessed by Supplier in connection with this Agreement, shall be treated as Confidential Information. The Parties acknowledges that either Party’s Confidential Information may be disclosed to the other Party under or in connection with the Agreement are Confidential information of the other Party. For the purposes of the Agreement, “Confidential Information" means all information, in whatever form transmitted, referring or relating to a Party hereto including without limitation, technical drawings, algorithms, know-how, formulas, tools, methodologies, processes, ideas, inventions (whether patentable or not), schematics and other technical information, computer programs (including source code and object code), business, financial, customer and product development plans, quotes, forecasts, strategies and information, client lists or other information concerning either Party’s, product or service pricing, revenue, overhead, profit margins which is disclosed by such Party (in such circumstances "Disclosing Party") to the other Party hereto (in such circumstances, “Receiving Party”). Confidential Information includes but is not limited to (i) information belonging to, provided by, or pertaining to Customer or any of the Customer's affiliates; (ii) information belonging to, provided by, or pertaining to any Customer’s clients or any of Customer's affiliates; and (iii) personal information. Confidential Information shall not include any information that (a) is already known by the Receiving Party without an obligation of confidentiality other than under this Agreement; (b) is publicly known or becomes publicly known without any breach of obligation not to disclose that information by the Receiving Party; (c) is rightfully received by the Receiving Party from a third Party having no obligation not to disclose that information; or (d) is independently developed without use of the Disclosing Party’s confidential information.

The Receiving Party agrees that it and its Affiliates will maintain all Confidential Information received directly or indirectly from the Disclosing Party or its Affiliates in confidence and not disclose any such Confidential Information to any person or entity, except employees and advisors of the Receiving Party and its Affiliates who have a need to know, who have been informed of the confidential nature of the information, and who agree to be bound by the obligations imposed on Receiving Party and its Affiliates under the Agreement with regard to nondisclosure and use of such Confidential Information. The Receiving Party and its Affiliates will use at least the same degree of care to avoid disclosure of such Confidential Information as they use for their own confidential information of like importance and in any event will use no less than a reasonable degree of care. Without the prior written consent of the Disclosing Party, neither the Receiving Party nor any of its Affiliates will use any Confidential Information for any purpose whatsoever, except for the purpose of carrying out this Agreement. Receiving Party and its Affiliates shall be strictly liable for any disclosure or use of the Confidential Information in violation of the Agreement, including any disclosure or use of the Confidential Information made by any employee or advisor of Receiving Party and its Affiliates.

Confidential Information may be disclosed by the Receiving Party if required to be disclosed by the Receiving Party or its Affiliates pursuant to any law, rule or regulation or pursuant to a valid order of a court or other governmental body, provided that the Disclosing Party is given reasonable notice of that requirement by the Receiving Party and the Receiving Party or its Affiliates has made a reasonable effort to obtain a protective order requiring that the information disclosed be used only for the purposes for which the order of the court or other governmental body was issued.

All Confidential Information that is disclosed by the Disclosing Party to the Receiving Party or its Affiliates under this Agreement will be and remain the property of the Disclosing Party. Receiving Party and its Affiliates shall not reverse engineer, decompile, disassemble, or use in contravention to this Agreement any software, hardware, or tangible objects which embody the Disclosing Party’s Confidential Information.

Upon the Disclosing Party’s written request or the termination of the Agreement for any reason, whichever occurs earlier, all Confidential Information that is in the possession or control of the Receiving Party or its Affiliates in a tangible form, including electronic, optical or magnetic form, and all copies thereof, shall be immediately returned to the Disclosing Party, or alternatively destroyed, and Receiving Party or its Affiliates shall provide written verification of such return or destruction and the date thereof. Notwithstanding the foregoing, the Receiving Party will not be obligated to return or destroy any Confidential Information to the extent of the Receiving Party’s requirement to retain e-mail on an archival system or relating to the safeguarding or backup storage of electronic data. The rights and obligations of the Parties under this Agreement shall survive any such return or destruction of Confidential Information.

§14 Compliance with Laws

Customer will comply with all applicable export and import control laws and regulations in Customer’s use of the App and, Customer will not export or re-export the App without all required government licenses. Regardless of any disclosure made to Supplier of an ultimate destination of the App and accompanying technical documentation, Customer acknowledges that all such materials are being released or transferred to a Customer in the United States and may be subject to U.S. export control laws and regulations including regulations of the U.S. Bureau of Industry and Security. Customer will defend, indemnify, and hold harmless Supplier and its licensors, suppliers, and resellers from and against any violation of such laws or regulations by Customer.

§15 U.S. Government Rights

If Customer is a branch or agency of the U.S. Government, then Customer acknowledge that the App is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined and used in FAR 2.101 and 12.212. Any technical data provided with such App is commercial technical data as that term is used in FAR 12.211 and is the same data customarily provided to the public with such App. Consistent with FAR 12.211 through 12.212 and if applicable DFARS 227.7202-1 through 227.7202-4, and DFARS 252.227-7015, all U.S. Government end users acquire the App with only those rights set forth in this Agreement.

§16 Relationships between the Parties

The Parties are independent contractors. Neither Party is the agent, partner, employee, fiduciary, or joint venturer of the other Party under this Agreement.

Neither Party shall have any authority to and agree to not enter into, incur, make, change, enlarge or modify any contract, liability, agreement, obligation, representation, guarantee, warranty, or commitment on behalf of the other Party unless expressly requested to do so in writing by a duly authorized representative of the other Party.

§17 Assignments

Neither Customer nor Supplier may assign or transfer, by operation of law or otherwise, any of Customer’s or Supplier’s rights under this Agreement (including Customer licenses with respect to the App) to any third-Party without the other Party’s prior written consent which will not be unreasonably withheld. Any attempted assignment or transfer in violation of the foregoing will be void.

§18 Language

This Agreement is in the English language and its English-language version will be controlling over any translation, except and to the extent when required by applicable law.

§19 Remedies

Except as otherwise provided herein, the Parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the App contains valuable trade secrets and proprietary information of Supplier, that any actual or threatened breach of this Agreement by Customer will constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing Party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

§20 Waivers

All waivers must be in writing. 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.

§21 Choice of Law and Severability

The substantive laws of the State of Florida shall govern this Agreement as though this Agreement was entered into and was to be entirely performed within the State of Florida. The Parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act, the United Nations Convention on the Sale of Goods, and the Convention on the Use of Electronic Communications in International Contracts. In case of disputes arising from or in connection with this Agreement or regarding its validity, the exclusive legal jurisdiction and venue shall be any court of competent jurisdiction within the State of Florida. Any legal action between Customer and the Supplier arising out of this Agreement or Customer’s use of the App must be instituted exclusively in the courts of Florida, and the Parties consent to the jurisdiction and venue in such courts. If any provision of this Agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force, and effect. Without limiting the generality of the foregoing, Customer agrees that Sections 10 and 11 will remain in effect notwithstanding the unenforceability of any other provision of this Agreement.

§22 Entire Agreement

This Agreement, and any Statements of Work issued hereunder, constitutes the final and entire agreement between the Parties regarding the subject of this Agreement and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both Parties. The terms of any purchase order or similar document submitted by Customer to Supplier will be considered for negotiation purposes and will not be effective to alter the terms of this Agreement unless specifically incorporated therein.