Software as a Service Agreement
Last updated: February 17, 2022
This Software as a Service Agreement (this “Agreement”) contains the terms and conditions that govern access to and use of the Services by the Customer (each as defined below), and is an agreement by and between Coursetune, Inc., a Utah corporation with offices located at 700 N. Pearl St. Suite 600, Dallas, Texas 75201 (“Coursetune”) and the Customer. Coursetune and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” The Parties agree as follows:
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Coursetune in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) “Customer” means the organization, company or other legal entity identified as the “Customer” in the Subscription Order.
(d) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(e) “Documentation” means user manuals, handbooks, guides, training and support materials (including but not limited to video tutorials) relating to the Services provided by Coursetune to Customer either electronically or in hard copy form/end user documentation relating to the Services available at coursetune.com, Coursetune help sites, Coursetune social media, and Coursetune video libraries.
(f) “Initial Subscription Term” means the initial term of the applicable Subscription Order, as specified therein.
(g) “Coursetune IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Coursetune IP includes Aggregated Statistics and any information, data, or other content derived from Coursetune’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
(h) “Renewal Subscription Term” means extension and renewal of the Initial Subscription Term or the then-current Renewal Subscription Term of the applicable Subscription Order, as specified therein.
(i) “Service Offering(s)” means the software-as-a-service offering(s) described at http://www.coursetune.com/software-as-a-service, as may be updated by Coursetune from time to time.
(j) “Subscription Order” means the subscription order that is agreed to by Coursetune and Customer and that includes terms that incorporate this Agreement by reference.
(k) “Subscription Term” means the Initial Subscription Term and the Renewal Subscription Term (if any) of the applicable Subscription Order.
- Subscription Orders; Access; Use; Data Protection Procedures and Changes.
(a) Subscription Orders. The specific Service Offerings to be provided (the “Services”) are as set forth in the Subscription Order. Once agreed to by the Parties, each Subscription Order is a unique agreement that incorporates the terms of this Agreement and stands alone from all other Subscription Orders. If there is a conflict between the terms of this Agreement and the terms of a Subscription Order, the terms of this Agreement will control unless the Subscription Order expressly states that a specific provision of this Agreement is superseded by a specific provision of the Subscription Order.
(b) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with the terms and conditions of this Agreement, Coursetune hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term. Such use is limited to Customer’s internal use. Coursetune shall use commercially reasonable efforts to provide Customer with access to the Services. Coursetune does not warrant that operation of the Services will be uninterrupted.
(c) Documentation License. Subject to the terms and conditions contained in this Agreement, Coursetune hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(d) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(e) Data Protection Procedures. Coursetune will, during the Term, maintain an information security program in accordance with its Data Protection Procedures described at https://coursetune.com/data-protection-procedures/, as may be updated by Coursetune from time to time.
(f) Reservation of Rights. Coursetune reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Coursetune IP.
(g) Suspension. Notwithstanding anything to the contrary in this Agreement, Coursetune may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Services if: (i) Coursetune reasonably determines that (A) there is a threat or attack on any of the Coursetune IP; (B) Customer’s or any Authorized End User’s use of the Coursetune IP disrupts or poses a security risk to the Coursetune IP or to any other customer or vendor of Coursetune; (C) Customer, or any Authorized End User, is using the Coursetune IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Coursetune’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law; (ii) any vendor of Coursetune has suspended or terminated Coursetune’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Coursetune shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Coursetune shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Coursetune will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(h) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Coursetune may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Coursetune and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Coursetune. Customer acknowledges that Coursetune may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Coursetune may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
(i) Changes. For the purposes of this Agreement, if at any time either Party requires a change in the Services (in each case, a “Change”), the requesting Party shall submit to the other Party a written proposal specifying the desired Changes (the “Change Request”). The receiving Party shall evaluate each Change Request and shall submit to the requesting Party a written response to each Change Request within a reasonable time following receipt thereof. Such written response shall include a statement of the impact the proposed Changes will have on the Services and Fees payable by Customer and/or other relevant terms under the applicable Subscription Order. If the Parties mutually agree to and execute such Change Request, the Services set forth in the applicable Subscription Order shall be amended in writing by the Parties to incorporate the desired Changes, whereupon Coursetune shall commence performance in accordance with the revised applicable Subscription Order. If the Parties do not agree in writing to the Change Request, the applicable unrevised Subscription Order will remain in effect. For greater certainty, no Change Request will be effective unless agreed by the Parties in writing.
- Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
(b) Communication; training. Customer is responsible for identifying a main contact to relay communication to the team(s) and proactively schedule and coordinate training meetings, which Coursetune will deliver. Virtual training will be planned between Customer and Coursetune to best fit the needs of the team and achieve the goals at hand. If a recurring training is established, Customer will commit to attending regularly and understands that missing or rescheduling two consecutive trainings will result in (i) losing the training time slot and (ii) establishment of new date and time when both Parties are available. There will be no loss of access to the tool for missing training; however, Coursetune provides no credit for missed training opportunities.
(c) Implementation milestones. Customer agrees to prioritize progress and completion around implementation milestones, which will be planned between Customer and Coursetune.
- Service Support. The access rights granted hereunder entitles Customer to the support services described on the help site article, “Coursetune Support Hours” at coursetune.com.
- Fees and Payment.
(a) Fees. Customer shall pay Coursetune the fees (“Fees”) as set forth in the applicable Subscription Order without offset or deduction. All Fees must be paid within 30 days of the invoice date. All Fees are subject to an annual increase of no more than 5%. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the applicable SubscriptionOrder. If Customer fails to make any payment when due, without limiting Coursetune’s other rights and remedies: (i) Coursetune may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Coursetune for all reasonable costs incurred by Coursetune in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Coursetune may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Coursetune’s income.
- Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the receipt of such Confidential Information and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Intellectual Property Ownership; Feedback.
(a) Coursetune IP. Customer acknowledges that, as between Customer and Coursetune, Coursetune owns all right, title, and interest, including all intellectual property rights, in and to the Coursetune IP.
(b) Customer Data. Coursetune acknowledges that, as between Coursetune and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Coursetune a non-exclusive, royalty-free, transferrable, sublicensable, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Coursetune to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to (i) reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the anonymized, Aggregated Statistics, and (ii) display Customer’s name and any Customer user stories, experiences, presentations, research or other materials that such user elects to share as contributions to their field(s) in connection with the software and Services provided under this Agreement.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Coursetune by mail, email, telephone, or otherwise, suggesting or recommending changes to the Coursetune IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Coursetune is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Coursetune on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Coursetune is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Coursetune is not required to use any Feedback.
- Limited Warranty and Warranty Disclaimer.
(a) Coursetune will provide its services and meet its obligations under this Agreement in a timely manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Coursetune’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Coursetune on similar projects. Coursetune does not make any representations or guarantees regarding uptime or availability of the Services. The remedy set forth in Section 10(b)(ii) is Customer’s sole remedy and Coursetune’s sole liability under the limited warranty set forth in this Section 8(a).
(b) THE COURSETUNE IP IS PROVIDED “AS IS” AND COURSETUNE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COURSETUNE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COURSETUNE MAKES NO WARRANTY OF ANY KIND THAT THE COURSETUNE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Limitations of Liability. IN NO EVENT WILL COURSETUNE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COURSETUNE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COURSETUNE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COURSETUNE UNDER THIS AGREEMENT IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Term and Termination.
(a) Term. This Agreement will continue in effect until the last day of the then in effect Subscription Term set forth in the applicable Subscription Order (or, if no such term is specified the Initial Subscription Term will be a 12-month period commencing on the effective date of the applicable Subscription Order and a Renewal Subscription Term of a 12-month period commencing on the one year anniversary of the effective date of the applicable Subscription Order), unless terminated in accordance with this Section 10 (“Term”).
(b) Termination of this Agreement. In addition to any other express termination right set forth in this Agreement:
(i) Coursetune may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount set forth in the applicable Subscription Order, and such failure continues more than 30 days after Coursetune’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(d) or Section 6;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Termination of a Subscription Order. Either Party may notify the other Party its desire not to renew the Initial Subscription Term or the then-current Renewal Subscription Term by providing the other Party with written notice at least sixty (60) days prior to the expiration of the Initial Subscription Term or the then-current Renewal Subscription Term.
(d) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Coursetune IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Coursetune IP and certify in writing to the Coursetune that the Coursetune IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(e) Survival. This Section 10(e) and Sections 1, 2(d), 2(f), 5, 6, 7, 8(b), 9 and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
- Insurance. Coursetune has secured and maintains at minimum A.M. Best Rating of A-VI insurance coverage. A certificate of insurance can be requested at [email protected] or from the main Coursetune contact for the Customer.
(a) Entire Agreement. This Agreement (including the Subscription Order), together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, any Subscription Order, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; (ii) second, the applicable Subscription Order; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Coursetune; provided, however, that either Party may assign or transfer this Agreement, without obtaining Party’s consent, pursuant to a merger, sale of all or substantially all the Party’s shares or of all or substantially all the Party’s assets. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, 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 users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.