This End User License Agreement (EULA) is a commercial agreement under which xTuple ERP software is licensed. The EULA constitutes a binding legal agreement between xTuple, the author and owner of the software and commercial Customers granted access to xTuple ERP software, maintenance and support, and cloud hosting through a paid subscription that renews annually.
The EULA is a required component of a Customer’s individually defined Subscription OR Purchase Agreement. By electronically or manually signing the corresponding xTuple Subscription Agreement, the Customer accepts the terms of the EULA defined below and agrees to comply with its terms and conditions.
RECITALS:
A. Customer desires to obtain a software license from xTuple, as provided in this Agreement, and under the terms of the xTuple Master Services Agreement.B. xTuple is willing to provide a software license to Customer as provided in this Agreement and under the terms of the xTuple Master Services Agreement.
THIS SUPPLEMENTAL AGREEMENT (“Agreement”) exists between OpenMFG, LLC, doing business as xTuple (“xTuple”) and the “Customer” and is effective as of the signing date of the Purchase Agreement
In consideration of the mutual covenants and agreements set forth herein, the parties agree as follows:
1. Definitions
1.1. Any capitalized terms that are not defined herein shall have that meaning provided within the xTuple Master Services Agreement.
1.2. “Contribution” means any work derived from the Software by a Contributor, or authored by a Contributor and added to the Software, including, without limitation, any modification, addition, or deletion made to the Software by xTuple, another Contributor, or Customer.
1.3. “Contributor” means any party that develops a Contribution to the Software and includes, but is not limited to, xTuple and Customer.
1.4. "Documentation" means user manuals, technical manuals and any other materials provided by xTuple, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
1.5. “Fees” means all sums due to xTuple pursuant to this Agreement.
1.6. “Software” means the xTuple ERP Suite, and any other packages or interfaces that connect to the xTuple ERP Suite, including any additional packages or integrations as stated in the Customer’s defined Purchase Agreement, all accompanying tools and Documentation, and any Contributions added to the xTuple Software, tools, or Documentation.
1.7. “Software Maintenance” shall have that meaning provided in Section 3.5.
1.8. “xTuple Master Services Agreement” means that agreement between xTuple and Customer executed on the signing date of the Purchase Agreement, and which is hereby incorporated into this Agreement.
2. Rights Granted. Subject to the terms and conditions herein, and the xTuple Master Services Agreement, xTuple licenses Customer with the nonexclusive, non-transferable, and non-sublicensable right to do the following with the Software:
2.1. Copy, install, and modify the source code version of the Software; and
2.2. Use the Software for Customer’s own internal business purposes as an end-user of the Software to process Customer Data, with such use expressly limited to the number of individual concurrent users provided in Section 3.1.
This license grant of this Section 2 shall be for the period designated in Section 3.3, depending on the license fee paid (unless terminated earlier). In the case of an Annual License, the license grant shall be for the term provided in Section 11. In the case of a Perpetual License, the license grant shall be perpetual and shall survive expiration of the term, subject to Customer’s strict compliance with the terms and conditions herein.
3. License Fees and Maintenance Fees.
3.1. Number of Users. This Section 2 license is strictly limited to the number of concurrent users of the Software as stated in the Customer’s defined Purchase Agreement, and is licensed under a payment option for either an Annual License or a Perpetual License (each as defined below in Section 3.3). If at a later date, Customer elects to purchase additional users, to convert this license from Annual to Perpetual, or to convert from Perpetual to Annual, all other terms of this Agreement will continue to apply.
3.2. Audit. In addition to xTuple’s rights under Section 9 of the xTuple Master Services Agreement, xTuple reserves the right to audit Customer’s usage of the Software, and if Customer exceeds this specified number of concurrent users on more than three (3) occasions, Customer agrees that this Agreement will be amended to add such additional users as xTuple deems required by the audit. Such additional users will be added via notice to Customer and attached hereto as Attachment A to this Agreement, and will be billed to Customer at xTuple’s then-current published rates. Customer agrees to reasonably cooperate with xTuple in conducting such audit and to provide all access requested by xTuple that is reasonably needed to ascertain use of the Software and Documentation in accordance with this Agreement, including access to records, systems, equipment, information, and personnel. If Customer determines independent of any xTuple audit that it requires additional user licenses, Customer may notify xTuple via electronic mail, and such additional users will be billed to Customer at xTuple’s then-current published rates, less a courtesy discount of 10%.
3.3. Payment Options. Customer agrees to pay the Fees designated by checking below:
󠄁 3.3.1 “Annual License” means a license term under Sections 2 and 3.1 for a period of one (1) year from the Effective Date, subject to renewal pursuant to Section 11, subject to the terms and conditions herein.
󠄁 3.3.2 “Perpetual License” means a license term under Sections 2 and 3.1 for a perpetual period, subject to the terms and conditions herein.
The respective amount of the Annual License Fee or Perpetual License Fee shall be at xTuple’s amount invoiced or at xTuple’s then-current published rates at the time such Fees become due. All Fees are to be paid in advance in the manner set forth in the invoice and are non-refundable. Any renewal or Maintenance Support Fees shall be effective when paid in full. Customer will pay all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, state or local, however designated, which are levied or imposed by reason of the transactions contemplated hereby; excluding, however, taxes based upon the net income or gross receipts of xTuple.
3.3.1. Annual License Fees. In exchange for the license granted in Section 2, Customer agrees to pay to xTuple an initial Annual License Fee in the amount specified in the xTuple invoice.
Customer must pay the Annual License Fee upon execution of this Agreement and each subsequent anniversary thereof (provided that you are not in breach). Software Maintenance (as defined in section 3.5 below) is included in the Annual License. Renewal pricing of the Annual License shall be at xTuple’s then-current published rates (including any published discounts) unless Customer holds a multi-year license agreement; xTuple will invoice for the amount due, thirty (30) days before the due date. If Customer does not wish to renew the Annual License, Customer must notify xTuple in writing at least sixty (60) days prior to the anniversary date of this Agreement.
3.3.2. Perpetual License Fees. In exchange for the license granted in Section 2, Customer agrees to pay to xTuple a Perpetual License Fee, plus the first year’s Software Maintenance Fee, in the amount specified in the xTuple invoice. Customer must pay both Fees upon execution of this Agreement.
3.4. Monthly Billing Option. For either the Annual or Perpetual License, Customer may choose from a pre-authorized bank account draft, or a pre-authorized credit card charge. Customer acknowledges that this does not constitute or convert the license or this Agreement to a month-to-month term or basis, and represents a commitment for payment over a full twelve months following the Effective Date, subject to all the other terms contained in this Agreement.
3.4.1. Pre-authorized ACH bank account draft. Customer hereby authorizes xTuple to debit its account the current monthly Fee, with the first three (3) months’ payment due on the Effective Date, and monthly payments on the same day of the month as the Effective Date, starting three (3) months following the Effective Date. In the event that Customer’s account debit is declined, a fifty dollar ($50) fee will be assessed, and Customer must provide alternate billing information within seventy-two (72) hours of being notified by xTuple, or be subject to the Termination clause in Section 12 below.
3.4.2. Pre-authorized credit card charge. Customer hereby authorizes xTuple to charge its account the monthly Fee, plus an additional credit card service charge of 3% of the total invoice, with the first three (3) months’ payment due on the Effective Date, and monthly payments on the same day of the month as the Effective Date, starting three (3) months following the Effective Date. In the event that Customer’s card is declined, a fifty dollar ($50) fee will be assessed, and Customer must provide alternate billing information within seventy-two (72) hours of being notified by xTuple, or be subject to the Termination clause in Section 12 below.
3.5. Software Maintenance. Customers who are current on the Annual License Fee payments or current in the first year of the Perpetual License Fee payment as defined above shall be entitled to receive all updates and Fixes to the Software released generally by xTuple (“Software Maintenance”) for that year. Software Maintenance will generally be provided electronically. Software Maintenance Fee payments are due and payable each year on the anniversary date of the Perpetual License Fee, at xTuple’s then-current published rates, unless Customer holds a multi-year maintenance agreement. If Customer does not wish to renew Software Maintenance, Customer must notify xTuple in writing at least sixty (60) days prior to the anniversary date of this Agreement. If more than twelve (12) months have passed since Customer’s most recent Software Maintenance Fee payment, the Customer will be deemed to be “Out of Maintenance,” and xTuple reserves the right to treat any further updates or Fixes to the Software as entirely new license sale, subject to additional penalties and fees as explained on the xTuple website (xTuple.com). Installation of updates and Fixes is not covered under this Agreement (see Section 6, below). Customer agrees that all software delivered as Software Maintenance shall be deemed Software, and all related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement.
3.6. Manner of Payment. All Fees are to be paid in U.S. dollars. Any services performed by xTuple that are not covered under this Agreement shall incur Fees in amounts and on the schedule specified in a separate agreement executed by the parties or, if not so specified, in amounts computed at xTuple's standard hourly rate, based upon actual time spent. All invoices for additional Fees shall be paid by Customer within thirty (30) days of issuance of an invoice by xTuple.
3.7. Non-Payment. Notwithstanding anything herein to the contrary, xTuple reserves the right to refuse to provide Online Services when any Fees are unpaid. Fees remaining unpaid more than fifteen (15) days after the applicable due date shall be subject to interest at a rate of one-and-one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is less.
4. Licensee Obligations. Customer is required to do the following when using the Software or modifying the source code of the Software pursuant to Section 2.1:
4.1. Use the Software only in accordance with the Documentation, and only for Customer Data, with Documentation for the Software including, without limitation, applicable requirements on the xTuple website: www.xtuple.com;
4.2. Include all original copyright and trademark notices and disclaimers;
4.3. Include the text of this Agreement;
4.4. Deliver to xTuple or its authorized reseller in digital or electronic format all Contributions that Customer makes to the Software; and
4.5. Supervise, control, and be responsible for its use of the Software and Documentation through custody and control of access thereto directly or indirectly. Customer shall be responsible for its authorized users and any other person to whom Customer (or any of its users) may provide access to or use of the Software and/or Documentation, whether or not such access or use is permitted by this Agreement. Customer agrees to make reasonable efforts to safeguard the Software (including any copy and Contribution) from infringement, misappropriation, theft, misuse, or unauthorized access, and shall notify xTuple if it learns of any of the foregoing.
5. Prohibitions. Customer is not permitted to do any of the following with the Software:
5.1. Use the Software and Documentation in any way not expressly licensed within this Agreement, nor use the Software in any way not provided within the Documentation or any Use Right;
5.2. Distribute or disclose a source code version of the Software, whether or not containing Customer’s Contributions;
5.3. Include any third party software within a Contribution, or incorporate the Software or any portion thereof in, any other programs;
5.4. Distribute Contributions to any party other than xTuple or its designated authorized reseller;
5.5. Distribute or redistribute a compiled binary version of the Software, whether in its original or modified form;
5.6. Process or permit to be processed any other party’s data, whether free, for a fee, or for any other consideration;
5.7. Use the Software in the operation of a service bureau;
5.8. Provide consulting services related to developing, installing, implementing, or training for the use, modification, or distribution of the Software to any party outside of Customer’s business for a fee;
5.9. Develop or contribute to the development of a software application or online service that competes with the Software; or
5.10. Use the Software or Documentation in violation of any law, regulation, or rule.
6. No Additional Services. Under the terms of this Agreement, xTuple shall have no obligation for installing, supporting, maintaining, or updating the Software (except in the case of Software Maintenance as provided above), for training Customer to install, use, support, maintain, update, or modify the Software, or for converting, entering, or verifying any data. xTuple and its authorized partners provide installation, support, hosting, training, and consulting services for a fee under separate written agreements.
7. Ownership. Except for any license rights expressly granted in Section 2, xTuple reserves all right, title, and interest in and to the Software, including all copies thereof, and all intellectual property therein. The Software and Documentation are provided under license, and not sold to Customer. As between the parties, xTuple owns or shall own all right, title, interest, copyright, and patent rights in and to the original and all modified versions of the Software, including, without limitation, all Contributions made by the Customer or any other party. To the extent that xTuple does not own Customer’s Contributions, Customer hereby transfers and assigns to xTuple all right, title, interest in and to its Contributions and all intellectual property therein, including without limitation all copyright, and patent rights in and to such Contributions. xTuple reserves the right to sell or license the Software and any Contributions to any third party, and to collect fees or to provide other services, whether for support, maintenance, or consulting services.
8. Software Warranty Support. With respect to the Software and Documentation, the terms of this Agreement offer and provide no warranty; the Software and Documentation are provided AS IS. To the extent available, any warranty shall be pursuant to a separate supplemental agreement for support between Customer and xTuple.
9. Disclaimer of Warranties; Limitations on Liability. With any exception to be pursuant to Section 8 of this Agreement, xTuple disclaims any and all warranties for the Software and Documentation as provided in Section 6 of the xTuple Master Services Agreement. In no event will xTuple or any other Contributor be liable for any damages with respect to the Software, Documentation, and this Agreement beyond that provided in Section 8 of the xTuple Master Services Agreement. The parties agree that any third party software, product, or service that may be provided by xTuple, including any open source software, shall be provided only under the terms, conditions, license, and warranty of the Third Party Provider, and xTuple disclaims any and all warranties therein.
10. Reseller Approval. Parties interested in reselling the Software, or providing services related to the Software, are encouraged to contact xTuple about a reseller or consultant arrangement, which would include a separate agreement and license.
11. Term. The initial term of this Agreement shall be for one (1) year from the Effective Date. Unless terminated earlier, upon the expiration of the initial term, if an Annual License Customer has paid the Annual License Fee pursuant to Section 3.3.1 (or selected the monthly option of this Agreement pursuant to Section 3.4), then this Agreement shall automatically renew for successive one (1) year renewal terms. Unless terminated earlier, upon the expiration of the initial term, if a Perpetual License Customer has paid the Software Maintenance Fee pursuant to Section 3.4 (or selected the monthly option of this Agreement pursuant to Section 3.4), then this Agreement shall automatically renew for successive one (1) year renewal terms. Subject to the payment and timing requirements in Section 3, if a party does not wish to renew this Agreement, then that party must notify the other party in writing at least sixty (60) days prior to the anniversary date of this Agreement.
12. Termination for Cause. In addition to the right of termination under Section 10 of the xTuple Master Services Agreement, in the event that Customer (Annual License or Perpetual License) breaches any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then this Agreement will automatically terminate, unless Customer has cured the breach or failure to xTuple’s satisfaction within thirty (30) days of such breach or failure, or in the event of failure to provide alternate billing information pursuant to Section 3.4, within seventy-two (72) hours. Upon termination, Customer must immediately stop using, modifying, and distributing the Software, deliver to xTuple or its authorized reseller all of Customer’s Contributions (whether or not completed), and delete all versions of the Software and Contributions from its systems. Such a termination is in addition to any other remedy available to xTuple in law or equity, and xTuple may seek injunctive relief and money damages against Customer for such breach or failure.
xTuple Support Services
Customer has agreed to purchase Support Services. The Master Services Agreement, this Agreement, and this Statement of Work shall govern the provision of such xTuple Support Services.
1. SERVICE TERMS. Upon full execution of the Agreement, this Statement of Work, and Customer’s payment of the associated Fees, Customer shall be entitled to access to Support Services provided by xTuple on the following terms conditions, and subject to the following limitations and restrictions. This Agreement is to be entered into only by a Customer that has executed a valid End User License Agreement.
a. Method of Performing Services. xTuple shall furnish its Services to Customer on a by-Incident basis. Customer shall cooperate with xTuple in classifying requests for Services as separate Incidents, but xTuple shall make the final determination as to what constitutes an Incident.
b. Number of Eligible Incidents. During the Support Period, Customer is entitled to unlimited Services delivered by telephone [757-461-3022, #2], or the xTuple Customer support website [https://support.xtuple.com]. Customer may receive automated updates on Incident status via email, but shall not submit support requests via email.
c. Incident Procedures. During the Support Period, a Customer Contact shall submit its request for an Incident Response by contacting xTuple in the manner, and subject to the limitations, contemplated by this Agreement. xTuple shall determine the number of Incidents involved in the subject request and shall respond accordingly. Customer shall cooperate with xTuple’s investigation of the submitted Incident and shall make available to xTuple all related Customer Materials. Calls and inquiries of a purely administrative nature shall not be classified as an Incident.
d. Mode and Timing of Incident Responses. If xTuple determines that a submitted request is eligible for an Incident Response, xTuple shall use its commercially reasonable efforts to issue an Incident Response (or a report of any non-Incident determination) within four (4) business hours of Customer’s submission and request for the Incident Response. Incident Responses shall be communicated by xTuple to Customer in the same manner (e-mail or telephone) as the request. All requests for support and all Incident Responses shall be communicated in the English language.
e. Coverage Hours. Services will be made available, Monday through Friday (excluding major holidays), between 8:00 a.m. and 6:00 p.m. Eastern Standard Time.
f. Software Upgrades. If an updated version or new Release of the Software is made generally available by xTuple during the Support Period, and Customer has made current payments for software maintenance for the twelve-month period following the anniversary of Customer’s initial purchase of the Software, Customer shall be entitled to a free copy of the updated Software, to be transmitted in electronic format unless otherwise agreed by xTuple.
g. Accommodations. No accommodation or deviation by xTuple from any of the terms and conditions provided under this Agreement shall operate as a waiver or amendment unless expressly agreed in writing by xTuple.
2. SUPPORT CONDITIONS AND PERFORMANCE.
a. Support Conditions. Customer understands and agrees that the Software is intended to be operated only on an approved Platform, as defined on the xTuple website at https://www.xtuple.com/knowledge/compatibility-matrix. xTuple will not provide Support Services under this Agreement if Customer (i) is using any version of the Software other than one described as currently supported at https://www.xtuple.com/knowledge/supported-versions-and-end-of-life-policy; (ii) is operating, or attempting to operate, the Software on an unauthorized Platform; (iii) alters or modifies the Software, except as directed by xTuple pursuant to this Agreement; (iv) accepts a Software fix or correction from any party other than xTuple; (v) is using the Software in a manner for which it is not intended; (vi) fails to make available to xTuple any of the Customer Materials; (vii) materially breaches any of its obligations under this Agreement; or (viii) is no longer subject to a valid License Agreement. Services not covered by this Agreement will be made available to Customer only pursuant to a separate written agreement with xTuple.
b. Nature of Support Services/Unresolved Incidents. The Support Services offered by xTuple are intended to cover only attempted error corrections and resolution of Incidents. In that regard, Customer understands and agrees that no software is bug-free, and that despite xTuple’s commercially reasonable efforts xTuple may be unable to resolve Incidents or otherwise provide the specific Support Services sought.
c. Staffing/Non-exclusive Services/Derivative Knowledge. xTuple shall determine the method and details of performing the Support Services. xTuple, in its sole discretion, may engage subcontractors to perform any of the Support Services, and retains the right to perform similar such services for other customers. xTuple shall be free to use, in the performance of the Support Services and any services for other customers, any ideas, concepts, techniques, skills and know-how disclosed by Customer or developed in or related to the performance of the Support Services.
This Data Processing Addendum (“Addendum”), effective May 25, 2018, forms part of any agreement, including terms and conditions or Terms of Use (“Agreement”) by and between the organization signing or accepting below (“Data Controller”) and OPENMFG,LLC d/b/a xTuple. (“xTuple”), and sets forth the terms and conditions relating to the parties obligations to protect EU Personal Data associated with services rendered by xTuple to Data Controller pursuant to the Agreement.
All terms defined or used in the Agreement shall have the same meaning in this Addendum unless otherwise specified.
Whereas Data Controller may provide xTuple, a company located in the United States, with access to personally identifiable information about European Economic Area individuals to act as a Processor in connection with services performed by xTuple for or on behalf of Data Controller pursuant to the Agreement;
Now therefore, good and valuable consideration, the sufficiency of which is hereby acknowledged, Data Controller and xTuple agree as follows:
SECTION I — DEFINITIONS
1. “Controller” means any person or organization that, alone or jointly with others, determines the purposes and means of the Processing of EU Personal Data.
2. “EU Personal Data” means personally identifiable information about individuals located in the European Union and may include, but not limited to, the following: (i) categories of data subjects: customers, vendors, or employees and (ii) types of personal data: names, telephone numbers or email addresses.
3. “GDPR” means the European Union General Data Protection Regulation.
4. “Process(es)” or “Processing” of EU Personal Data means any operation or set of operations that is performed on EU Personal Data, whether by automated means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure or dissemination, and erasure or destruction.
5. “Processor” means any natural or legal person, public authority, agency, or other body that Processes EU Personal Data on behalf of Controller.
SECTION II — PRIVACY, CONFIDENTIALITY, AND INFORMATION SECURITY
1. Authority to Process EU Personal Data
(a) Data Controller and xTuple agree that Data Controller is the Controller and xTuple is the Processor of EU Personal Data, except in those instances when Data Controller is a Processor, in which case xTuple is a subprocessor.
(b) These Addendum terms do not apply where xTuple is a Controller of EU Personal Data.
(c) xTuple will Process EU Personal Data only with Data Controller’s written instructions and solely for the following purposes, (a) on behalf of and for the benefit of Data Controller in connection with the Agreement; and (b) to carry out its obligations pursuant to this Addendum, the Agreement, and (c) as required by applicable law.
(d) Data Controller will have the exclusive authority to determine the purposes for and means of Processing EU Personal Data.
(e) This Addendum and the Agreement are Data Controller’s complete instructions to xTuple for the Processing of EU Personal Data. All additional instructions shall be made as a written amendment to this Addendum signed by both parties.
2. Disclosure of and Access to EU Personal Data
(a) xTuple will hold all EU Personal Data in confidence.
(b) xTuple will (a) provide at least the same level of privacy protection for EU Personal Data received from Data Controller, as is required by the GDPR; (b) promptly notify Data Controller if at any time xTuple determines that it can no longer meet its obligation to provide the same level of protection as is required by the GDPR; and (c) take commercially reasonable steps to remedy any failures to properly Process such EU Personal Data if, at any time, Data Controller notifies xTuple that Data Controller has reasonably determined xTuple is not Processing the EU Personal Data in compliance with the GDPR.
(c) xTuple will only transfer EU Personal Data outside the country in which Data Controller or its personnel original delivered it to xTuple for Processing where adequate data privacy safeguards are in place, such as binding corporate rules, the Model Clauses, or the Privacy Shield principles, unless required by law, in which case, xTuple will, unless such prior disclosure is prohibited, notify Data Controller of such requirement before Processing.
(d) xTuple will not share, transfer, disclose, or otherwise provide access to any EU Personal Data to any third party or contract any of xTuple’s rights or obligations concerning EU Personal Data to a third party, unless Data Controller has authorized xTuple to do so in writing, except as required by law. Where xTuple, with the consent of Data Controller, provides to a third party access to EU Personal Data or contracts such rights or obligations to a third party, xTuple will, with each third party, (a) enter into a written agreement that imposes obligations on the third-party that are consistent with the GDPR, (b) transfer the EU Personal Data to the third party only for the limited and specified purposes as instructed by Data Controller, (c) require the third party to notify xTuple if the third party determines that it can no longer meet its obligation to provide the same level of protection as is required by the GDPR; and (d) upon notice, take reasonable and appropriate steps to stop and remediate unauthorized Processing.
(e) Data Controller hereby provides its consent for xTuple to use the subprocessors on Exhibit A to provide the services. To the extent that xTuple makes any changes with regard to the use of its subprocessors, it shall inform Data Controller and provide Data Controller with the right to object to such change. To the extent Data Controller has a reasonable objection to such change in subprocessors, the parties shall cooperate to address the objection in a reasonable manner.
(f) xTuple may replace a subprocessor if the reason for the change is beyond xTuple’s reasonable control. In such instance, xTuple shall notify Data Controller of the replacement as soon as reasonably practicable, and Data Controller shall retain the right to object to the replacement subprocessor pursuant to section (e) above.
(g) xTuple will promptly inform Data Controller in writing of any requests with respect to EU Personal Data received from Data Controller’s customers, consumers, employees, or other associates. Data Controller will be responsible for responding to any such request, but xTuple will reasonably cooperate with Data Controller to address any such request or a request by an individual about whom xTuple holds EU Personal Data for access, correction, restriction, objection, erasure or data portability of his or her EU Personal Data.
(h) xTuple shall implement appropriate technical and organizational measures designed to protect the EU Personal Data from accidental or unlawful destruction, loss, alteration, unauthorized disclosure, access or use (each a “Security Incident”) and in accordance with Vendor’s security standards.
(i) xTuple shall notify Data Controller within forty-eight (48) hours of a Security Incident, and shall provide such timely information as Data Controller may reasonably require to enable Data Controller to fulfil any data breach reporting obligations under the GDPR. xTuple will take steps to immediately identify and remediate the cause of such Security Incident.
(j) Subject to applicable law, xTuple will notify Data Controller immediately in writing of any subpoena or other judicial or administrative order by a government authority or proceeding seeking access to or disclosure of EU Personal Data. Data Controller may, if it so chooses, seek a protective order, and xTuple will reasonably cooperate with Data Controller in such action, provided Data Controller reimburses xTuple for all costs, fees, and legal expenses associated with the action. xTuple will have the right to approve or reject any settlements that affect xTuple.
(k) The parties agree that the European Commission Standard Contractual Clauses for the Transfer of Personal Data to Processors Established in Third Countries (2010/87/EU) (“Model Processor Contract”), attached here as Exhibit B, are incorporated by reference for purpose of the Mobile Processor Contract, where xTuple is the “data importer,” Data Controller is the “data exporter,” and the data processing activities in Appendix 1 to the Model Processor Contract shall be such activities as necessary for us to perform our Services for Data Controller, and the data security measures in Appendix 2 to the Model Processor Contract shall be those identified in the Agreement and this Addendum.
3. xTuple will comply with applicable data protection and privacy laws, including, but not limited to, the GDPR, to the extent such laws apply to xTuple in its role as a Processor.
4. Data Controller certifies that it:
(a) Has obtained the written consent, affirmative opt-in, other written authorization (“Consent”) from applicable individuals or organizations in the European Union (including as necessary trade unions or labor officials, or has another legitimate, legal basis for collecting, delivering or making accessible EU Personal Data to xTuple (as well at its subsidiaries, affiliates, and subprocessors), and such Consent or other legitimate basis allows xTuple (and its subsidiaries, affiliates, and subprocessors) to Process the EU Personal Data pursuant to the terms of the Agreement and this Addendum, and
(b) Has ensured that the collection, delivery and disclosure to xTuple of EU Personal Data is in compliance with the GDPR as Controller and all laws applicable to Data Controller and otherwise complies with applicable privacy and data protection laws, including the delivery of comprehensive information notice, as needed.
5. xTuple will assist Data Controller in ensuring that its secure Processing obligations, as Controller, under the GDPR are met, which may include assisting Data Controller in a consultation with a supervisory authority where a data protection impact assessment indicates that the intended Processing would result in a high risk. Upon request, xTuple shall make available to Data Controller the information necessary to demonstrate compliance with the GDPR and will allow for and contribute to audits, including inspections, to confirm xTuple’s compliance with this Addendum by Controller or another auditor mandated by Controller. All expenses resulting from this Section 5 will be incurred by Data Controller, unless xTuple is found materially noncompliant.
6. Upon termination of the Agreement, xTuple shall either return all EU Personal Data Processed on behalf of Data Controller or delete or destroy the EU Personal Data, including any existing copies, at Data Controller’s expense, if any, unless xTuple has a legal obligation to maintain such EU Personal Data.
IN WITNESS WHEREOF, the parties acknowledge their agreement to the foregoing by due execution of this Addendum by their respective authorized representatives. The Addendum cannot be modified or amended by either party except with a separate written document signed by both parties.
Exhibit A
Subprocessors — See Technology Partners
Exhibit B
Standard Contractual Clauses — See Attached (PDF)
THIS SUPPLEMENTAL AGREEMENT (“Agreement”) between OpenMFG, LLC, doing business as xTuple (“xTuple”) and the Customer, is made effective as of the signing date of the Customer’s Purchase Agreement.
RECITALS
A. Customer desires to obtain Online Services from xTuple, as provided in this Agreement, and under the terms of the xTuple Master Services Agreement.
B. xTuple is willing to provide the Online Services, as well as optional Remote Management (XTN) Services, to Customer as provided in this Agreement and under the terms of the xTuple Master Services Agreement.
In consideration of the mutual covenants and agreements set forth herein, the parties agree as follows:
AGREEMENT
1. Definitions.
a. Any capitalized terms that are not defined herein shall have that meaning provided within the xTuple Master Services Agreement.
b. “Authorized User” means an employee of Customer, or a person to whom Customer has outsourced services, who is authorized to access the Customer Software and the Online Services as a concurrent user.
c. “Documentation" means user manuals, technical manuals and any other materials provided by xTuple, in printed, electronic or other form, that describe the implementation, operation, use or technical specifications of the Online Services. Documentation for the Online Services includes, without limitation, applicable requirements on the xTuple website: www.xtuple.com.
d. “Fees” means all sums due to xTuple pursuant to this Agreement.
e. “License Agreement” means a commercial xTuple End-User License (Supplemental Agreement) between xTuple and Customer.
f. "Online Service(s)" means the service or services described in Schedule 1 of this Agreement, which is hereby incorporated into this Agreement. Activities or services falling outside of the defined meaning of Online Services may be available from xTuple pursuant to a separately executed agreement.
g. "Platform" means the operating systems, databases, and other component software (and versions of those systems) identified by xTuple from time to time on its official website as appropriate for operation of the Software and access to the Online Services.
h. “Remote Management Services” means those optional business continuity and remote management services offered by xTuple under the “XTN” name, including XTN Business Continuity service, XTN Basic Upgrades service, and XTN Premium Upgrades service, as may be further described at www.xtuple.com, and/or within the Documentation.
i. “xTuple Master Services Agreement” means that agreement between xTuple and Customer executed on [ ], and which is hereby incorporated into this Agreement.
2. Online Service Terms. Subject to the terms and conditions herein, upon full execution of this Agreement and Customer's payment of the associated Fees, Customer shall be entitled to access to Online Services provided by xTuple on the following terms and in compliance with this Agreement, including the following limitations and restrictions. This Agreement is to be entered into only by a Customer that has a valid, executed, and in-force License Agreement.
a. Cloud; Third Party Services. The Online Services consist in part of a server software component implementing the Online Services, which is located on servers provided or made available to xTuple, but owned and operated by one or more Third Party Providers, and thus the Online Services are provided subject to the terms, conditions, policies, and availability or uptime of the Third Party Providers. Third Party Providers used by xTuple are identified in Schedule 2, which is hereby incorporated into this Agreement; this Agreement represents Customer’s agreement to, and a representation of compliance with, such Third Party Providers’ terms, conditions, and policies. In addition, the parties acknowledge the off-site hosting of Customer Data and/or website in a “cloud” environment can include, but is not limited to, virtual server space apportioned and managed by xTuple in a data center operated by one or more Third Party Provider. Customer also agrees, and authorizes such Third Party Providers to host and/or store Customer Data and/or website, and acknowledges that Customer Data may be transmitted or communicated over the internet or cloud to such Third Party Providers. A client component, the Software, subject to a separate License Agreement, shall reside on Customer’s local computer(s) as further provided herein.
b. Access. Subject to the terms and conditions herein, xTuple grants Customer a nonexclusive, non-transferable right to access and use the Online Services during the Term, for Customer’s internal (i.e., its own) business use as a service provider. For clarity, “internal” includes use as a service provider, such that Customer may use the Online Services to provide goods and services to its customers, including granting those customers access to the Customer’s website, but does not grant Customer the right to rent, lease, loan, sell, sublicense, distribute, transmit, network, or otherwise transfer its access to the Online Services or Software to any third party. Subject to the terms and conditions herein, and as between the parties, xTuple will generally permit such access twenty-four (24) hours a day, seven (7) days a week, but makes no representations or warranties regarding the availability or uptime of the Online Services. xTuple may, directly or indirectly, suspend or terminate access to the Online Services for Customer’s failure to comply with this Agreement, any other agreement between the parties, or any use of the Online Services not in accordance with the Documentation or any Use Rights, or if required by law or any governmental entity.
c. Control. All access and use shall be in accordance with the Documentation and only for Customer Data. Customer agrees to supervise, control, and be responsible for its use of the Software, Online Services, and Documentation through custody and control of access thereto directly or indirectly. Customer shall be responsible for its Authorized Users and any other person to whom Customer (or any of its users) may provide access to or use of the Software, Online Services, and/or Documentation, whether or not such access or use is permitted by this Agreement. Customer agrees to make reasonable efforts to safeguard the Software and Online Services from infringement, misappropriation, theft, misuse, or unauthorized access, and shall notify xTuple if it learns of any of the foregoing.
d. Edition / Version of the Software. A required client component that appropriate version of the Software that works with the Online Service, which Software is subject to a separate License Agreement, and which Software shall reside on Customer’s local computer(s). Customer’s License Agreement provides for a license to one of commercial versions or editions of xTuple Software; this Agreement by itself offers and provides no right or license to the Software.
e. Number of Concurrent Users. As specified in the License Agreement, Customer may have no more than the number concurrent users of the Software specified at the time of the initial order at any given time. Customer may increase this number of users pursuant to the License Agreement, and initiated by contacting xTuple at sales@xtuple.com.
f. Code Access. Customer may access the Software, and may receive a copy of the object code or source code to the Software but only under the terms outlined in a valid, in-force License Agreement. Customer shall not access or attempt to access the code within the server component of the Online Services.
g. Internet Connection. Customer must have a high speed internet connection, and hardware and software that are compatible with the Online Services, as set out in the Documentation. In addition, internet availability, telecommunication services, etc., are subject to third-party service availability. None of these things is xTuple’s responsibility.
h. Updates. xTuple regularly upgrades and updates certain elements of the Online Services. This means that the Online Services are continually evolving. xTuple reserves the right, in its sole discretion, to make changes to the Online Services that it deems necessary or useful. Some of these changes will occur automatically, while others may require Customer to schedule and implement the changes (e.g., under optional, Remote Management Services under Section 3). The changes may also mean that Customer needs to upgrade its equipment in order to make efficient use of the Online Services. xTuple will provide Customer with advance notification in this case.
i. Older Versions. xTuple recognizes that Customer may have legitimate business reasons for not upgrading to a new or then current version of the Online Services as soon as the version becomes available. However, xTuple will not, and has no obligation to, support old or prior versions. xTuple may maintain a policy that sets out what happens when old versions reach end-of-life (e.g., to view the current policy, see www.xtuple.com/eol-policy), and the parties agree to comply with such policy. When an old version used by Customer is at end-of-life, xTuple may remove Customer’s access to that version and upgrade Customer’s Online Service to a new version.
j. Additional Services; Support and Implementation Assistance. This Agreement covers cloud delivered Online Services and, except as expressly provided herein or by separate agreement, does not provide support or professional services, training, or other assistance in implementing or using any Software and Online Services, or for converting, entering, or verifying any data. xTuple may configure the Online Services for periodic, nightly backups, but this Agreement does not obligate xTuple to provide the same apart from the provision of any ordered Remote Management Services. Customer is advised to make frequent backups of its Customer Data and to safeguard the same. Except to the extent expressly provided as one of the Remote Management Services, if ordered by Customer, this Agreement does not obligate xTuple to provide services for the backup, restoration, or recovery of Customer Data uploaded or used with the Online Services. In the course of the Online Services, if Customer makes xTuple aware of an outage in the Online Services, xTuple will make reasonable efforts to coordinate the uptime response with the relevant Third Party Provider, and shall use commercially reasonable efforts to issue an incident response (or other report of any non-Incident determination) within four (4) business hours of Customer’s submission and request for the incident response. Incident responses shall be communicated by xTuple to Customer in the same manner (e-mail or telephone) as the request. All requests for Third Party Provider support and all incident responses shall be communicated in the English language.
k. No Maintenance. Under the terms of this Agreement, xTuple shall have no obligation for customization, maintenance (except as may be expressly provided herein), or updating of the Online Services.
3. Remote Management Service Terms. In the event that Customer has ordered one of the Remote Management Services, and xTuple has agreed to provide the same, then upon execution of this Agreement and Customer's payment of the associated Fees, Customer shall be entitled to the ordered Remote Management Services on the following terms and conditions, and expressly subject to the following limitations and restrictions. The offer and provision of Remote Management Services are conditioned upon Customer having a valid, executed, and in-force License Agreement. Customer has agreed to order the following Remote Management Service and agrees to pay the associated Fees, as designated by checking below:
󠄁XTN Business Continuity service.
󠄁 XTN Basic service.
󠄁 XTN Premium service.
a. Nightly backup. xTuple shall perform nightly backups of the xTuple server database(s), transmitting the backup(s) over the Internet to xTuple’s data center. If, in xTuple’s sole judgment, it is necessary to restore Customer’s database from a backup file, xTuple will make reasonable efforts to do so in a timely fashion.
b. Upgrades (XTN Basic and Premium service level only). At a time of its choosing that is convenient to Customer, xTuple shall perform software upgrades to which Customer may be entitled under the Customer’s existing License Agreement and/or other supplemental agreement. Customer shall undertake to provide xTuple with all necessary remote access, whether via the Internet or other networks to its xTuple server(s).
c. Database tuning (XTN Premium service level only). xTuple shall perform quarterly audits of the technical performance of the xTuple server database, and make whatever improvements are required, in xTuple’s sole judgment, to improve that performance.
d. Customer Contacts. Customer is further entitled to identify and maintain two (2) Customer contacts for the Remote Management Services. All services must be requested by, and xTuple is obligated to communicate only with, the identified Customer contacts.
e. Coverage Hours. Services will be made available, Monday through Friday (excluding major holidays), between 8:00 a.m. and 6:00 p.m. Eastern time.
4. Service Conditions.
a. General Conditions. The Online Services require compatible Platforms, Software, and other equipment and software. Customer understands and agrees that the Software is intended to be operated only on approved Platforms, as provided on the xTuple website at http://www.xtuple.org/compatibility-matrix. xTuple will have no obligation to provide Online Services under this Agreement if Customer (i) is using any version of the Software other than one described as currently supported for such operation at http://www.xtuple.com/eol-policy; (ii) is operating, or attempting to operate, the Software on an unauthorized Platform; (iii) alters or modifies the Software, except as directed by xTuple pursuant to a written agreement; (iv) accepts a Software fix or correction from any party other than xTuple; (v) is using the Software in a manner for which it is not intended, or not in accordance with Documentation or Use Rights; (vi) fails to make available to xTuple any of the Customer Materials; (vii) materially breaches any of its obligations under this Agreement, the xTuple Master Services Agreement, or any other agreement with xTuple; or (viii) is no longer subject to a valid License Agreement. Professional Services will be made available to Customer only pursuant to a separate written agreement with xTuple.
b. Staffing/Non-exclusive Services/Derivative Knowledge. xTuple shall determine the method and details of performing the Online Services or any Professional Services. xTuple, in its sole discretion, may engage subcontractors, Third Party Providers, etc., to perform any of the Online Services or Professional Services, and retains the right to perform similar services for other customers. xTuple shall be free to use, in the performance of the Online Services and any services for other customers, any ideas, concepts, techniques, skills and know-how disclosed by Customer or developed in or related to the performance of the Online Services.
c. Other Conditions of Use. The Online Services provided to Customer are non-exclusive, non-transferable, and are for Customer’s internal business use only. Customer’s right to access and use the Online Services is conditional upon, among other things, Customer’s compliance with the following; Customer shall not:
(1) transfer to any other person any of its rights to access or use the Online Services;
(2) sell, rent or lease the Online Services;
(3) make the Online Services available to anyone who is not an Authorized User;
(4) create any derivative works based upon the Online Services or Documentation;
(5) copy any feature, design or graphic in the Software or Online Service, or reverse engineer or attempt to reverse engineer the Software;
(6) access the Online Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if Customer is an employee of a xTuple competitor;
(7) use the Online Services in a way that violates any criminal or civil law, governmental regulation, or rule, the Documentation, or any Use Rights;
(8) load test the Online Services in order to test scalability; or,
(9) exceed the usage limits listed in this Agreement.
5. Payments.
a. Online Service Fees. Customer shall pay xTuple a monthly or annual Fee, according to the then-current pricing schedule available online at xTuple’s website. If monthly, Customer’s first payment shall be in advance for three (3) full months of the Online Services, and automatic monthly billing (as described below) shall commence at the beginning of the fourth month.
b. Remote Management Service Fees. If Remote Management Services are selected, Customer shall pay xTuple a monthly or annual Fee for the Remote Management Services, per xTuple server covered, according to the then-current pricing schedule available online at xTuple’s website. If monthly, Customer’s first payment shall be in advance for three (3) full months of the Online Services, and automatic monthly billing (as described below) shall commence at the beginning of the fourth month.
c. Manner of Establishing Services. xTuple may, at its discretion, create Customer’s database and secure payment information manually, or in an automated fashion online.
d. Monthly Billing Options. Customer may choose from a pre-authorized bank account draft, or a pre-authorized credit card charge.
(1) Pre-authorized ACH bank account draft. Customer hereby authorizes xTuple to debit its account the current monthly Fee, with the first three (3) months’ payment due on the Effective Date, and monthly payments on the same day of the month as the Effective Date, starting three (3) months following the Effective Date. In the event that Customer’s account debit is declined, a fifty dollar ($50) fee will be assessed, and Customer must provide alternate billing information within seventy-two (72) hours of being notified by xTuple, or be subject to the Termination clause in Section 8.b. below.
(2) Pre-authorized credit card charge. Customer hereby authorizes xTuple to charge its account the monthly Fee, plus an additional credit card service charge of 3% of the total invoice, with the first three (3) months’ payment due on the Effective Date, and monthly payments on the same day of the month as the Effective Date, starting three (3) months following the Effective Date. In the event that Customer’s card is declined, a fifty dollar ($50) fee will be assessed, and Customer must provide alternate billing information within seventy-two (72) hours of being notified by xTuple, or be subject to the Termination clause in Section 8.b. below.
e. Manner of Payment. All Fees under Sections 5.a and 5.b. are to be paid in advance and shall be non-refundable. All Fees are to be paid in U.S. dollars. Any services performed by xTuple that are not covered under this Agreement shall incur Fees in amounts and on the schedule specified in a separate agreement executed by the parties or, if not so specified, in amounts computed at xTuple's standard hourly rate, based upon actual time spent. All invoices for additional Fees shall be paid by Customer within thirty (30) days of issuance of an invoice by xTuple.
f. Taxes. Customer will pay all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, state or local, however designated, which are levied or imposed by reason of the transactions contemplated hereby; excluding, however, taxes based upon the net income or gross receipts of xTuple.
g. Non-Payment. Notwithstanding anything herein to the contrary, xTuple reserves the right to refuse to provide Online Services when any Fees are unpaid. Fees remaining unpaid more than fifteen (15) days after the applicable due date shall be subject to interest at a rate of one-and-one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is less.
h. Annual Fee Option. In the event that Customer selects the optional annual Fee, then for the Online Services, Customer agrees to pay to xTuple an initial annual Fee in the amount specified in the xTuple invoice. Customer must pay the annual Fee upon execution of this Agreement and in advance for each subsequent anniversary thereof (provided that Customer is not in breach), according to the then-current pricing schedule and terms available online at xTuple’s website. xTuple will invoice for the amount due, thirty (30) days before the due date. If Customer selects ACH or credit card billing, then Customer agrees to execute such reasonable, additional authorization for the same. If Customer does not wish to renew the annual subscription for the Online Services, then Customer must notify xTuple in writing at least sixty (60) days prior to the anniversary date of this Agreement.
6. Online Services Warranty Support. With respect to the Online Services and Remote Management Services, the terms of this Agreement offer and provide no warranty; the Online Services and Remote Management Services are provided AS IS. To the extent available, any warranty shall be pursuant to a separate supplemental agreement for support between Customer and xTuple.
7. Disclaimer of Warranties; Limitation of Liability. With any exception to be pursuant to Section 6 of this Agreement, xTuple disclaims any and all warranties for the Online Services as provided in Section 6 of the xTuple Master Services Agreement. In no event will xTuple be liable for any damages with respect to the Online Services and this Agreement beyond that provided in Section 8 of the xTuple Master Services Agreement. The parties agree that any third party software, product, or service that may be provided by xTuple, including any open source software, shall be provided only under the terms, conditions, license, and warranty of the Third Party Provider, and xTuple disclaims any and all warranties therein.
8. Term; Termination; Survival.
a. Term. The Online Services provided under this Agreement shall commence with the Effective Date and continue on a month to month basis for an indefinite period of time (the “Term”). Subject to the payment and timing requirements in Section 5, if a party does not wish to continue this Agreement, then that party must provide sixty (60) days written notice to the other party, and the Term shall terminate upon sixty (60) days of receipt of such written notice.
b. Termination for Cause. In addition to the right of termination under Section 10 of the xTuple Master Services Agreement, in the event that Customer breaches any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then this Agreement will automatically terminate, unless Customer has cured the breach or failure to xTuple’s satisfaction within thirty (30) days of such breach or failure or failure, or in the event of failure to provide alternate billing information pursuant to Section 5.d., within seventy-two (72) hours. Such a termination is in addition to any other remedy available to xTuple in law or equity, and xTuple may seek injunctive relief and money damages against Customer for such breach or failure..
c. Termination of License Agreement. This Agreement will terminate upon the expiration or termination of the License Agreement for any reason.
d. Effect of Termination; Survival. Upon termination, Customer must immediately stop accessing and using the Online Services; xTuple may disable all Customer access. Termination of this Agreement shall be in addition to, and not in lieu of, any other remedies available to either party. The following sections, as well as any other right, obligation or provision under this Agreement that, by its nature should survive termination or expiration of this Agreement, will survive expiration or termination of this Agreement: Sections 1, 2.a, 4, 5.e-g, 6, 7, 8.b-d, 9.
9. GENERAL PROVISIONS.
a. Ownership. Except for any access rights expressly granted herein, xTuple reserves all right, title, and interest in and to the Online Services, any associated software, and all intellectual property therein. As between the parties, xTuple, or any Third Party Provider, owns or shall own all right, title, interest, copyright, and patent rights in and to the original and all modified versions of the Online Services, including, without limitation, all modifications thereto. xTuple reserves the right to provide access to the Online Services to any third party.
WITNESS the following signatures and seals:
OPENMFG, LLC, d/b/a XTUPLE
By:
Name:
Title:
_____________________________________
CUSTOMER
By:
Name:
Title:
|
Monthly ACH Billing Option (US customers only)
Bank Name
ACH Routing Number
Customer Bank Account # |
Please contact billing@xtuple.com with any questions regarding this Agreement.
35413066_1
SCHEDULE 1
Online Services
SCHEDULE 2
List of Third Party Providers
Amazon.com
Rackspace
IBM
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