SAAS HOSTED MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (this “Agreement”) governs Client’s use of the Services. By executing an Order Form that references this Agreement, the client entity identified on the applicable Order Form (“Client” and, together with Company, individually, a “Party” and collectively, the “Parties”) agrees to the terms and conditions of this Agreement.
“Authorized Admin Users” means the individuals who are authorized by Client to access and use a Service concurrently on Client’s behalf, for whom Client has purchased a subscription as specified on an Order Form. Authorized Admin Users may include Client’s employees, third-party consultants, contractors, and other service providers. Authorized Admin Users may add, modify or delete data in their use of the Software or the Services as specified on an Order Form.
“Authorized Users” means the Authorized Admin Users and Authorized Viewer Users.
“Authorized Viewer Users” means the individuals who are authorized by Client to view and report on data contained in the Software on Client’s behalf, for whom Client has purchased a subscription as specified on an Order Form. Authorized Viewer Users may include Client’s employees, third-party consultants, contractors, and other service providers. Authorized Viewer Users may not add, modify or delete data in their use of the Software or the Services.
“Client Data” means any and all electronic data collected, stored, processed, transmitted, or retrieved by, in, or through the Services by Client or any Authorized Admin User.
“Company” means Foundation Software, LLC or if an affiliate thereof executed the applicable Order Form, such affiliate.
“Company Technology” means the hardware, systems, software, equipment, materials, and other technology used to deploy, manage, or maintain the Services. Company Technology includes the Software and the Site together with any documentation supplied to Client or any Authorized User.
“De-Identified Data” means any data (including de-identified Client Data) derived or generated by Company from its performance of the Services, which shall include all technical and usage data. De-Identified Data does not include any Personal Data or information that directly identifies Client, its affiliates, or its or their respective suppliers.
“Hosting Service” means any Company hosting server or third-party hosting server through which Client Data and other data may be processed.
“IP Rights” means all of the following, in any jurisdiction in the world, and all rights therein and thereto: patents, copyrights, confidential information, know-how, trade secrets, moral rights, confidential and proprietary information protected under contract or otherwise under Law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, software, data, registrations and applications for any of the foregoing, and any other rights or interests in intellectual property.
“Law” means any federal, state, local or other laws, statutes, rules, directives, regulations, ordinances, orders, rulings, agency or court interpretations, or other action of any governmental authority, including any guidance, guidelines or requirements of any governmental authority.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is executed by Client and Company and that references this Agreement.
“Person” means any individual or entity, including a partnership, corporation, limited liability company, limited liability partnership, association, trust, joint venture or unincorporated organization.
“Personal Data” means any personal data that may be used to identify an individual person, such as name, birthday, address, email, phone number or social security number.
“Services” means, as identified on (and purchased through) an Order Form, (i) specific modules of the online, software-as-a-service version of Software, and (ii) related services, future services, software applications and platforms provided by Company via the Site, Implementation Services, and Support Services, in each case, including any modifications, updates or upgrades to any of the foregoing and such services, software applications and platforms that may be generally released from time to time by Company.
“Site” means Company’s websites, including Company Technology incorporated therein.
“Software” means Company’s proprietary computer software identified in an Order Form, including all current, previous, and subsequent versions of, and all related products, modifications and updates to such computer software. Software may include other features and functionality specified on an Order Form, as well as any customization to any of the foregoing that may be expressly contracted for by Client pursuant to the terms and conditions of this Agreement.
Subject to and conditioned upon Client’s compliance with the terms and conditions of this Agreement, Company shall make available to Client the applicable Services, solely during the term of the applicable subscription for such Service, through Company’s hosted environment via the Internet for access and use in accordance with this Agreement, solely through the Site and solely for Client’s internal business purposes.
3. Use of Services
Subscription-based Services are purchased as subscriptions for the initial subscription term stated in the applicable Order Form. Client agrees that its purchases of the Services under this Agreement are neither contingent on the delivery of any future functionality or features relating to the Services nor dependent on any oral or written public statements made by Company regarding the future functionality of, or features relating to, the Services.
3.2 Client Responsibilities
Client shall: (i) be responsible for ensuring compliance with this Agreement by its Authorized Users; (ii) be solely responsible for the accuracy, quality, integrity and legality of Client Data, as well as the means by which Client acquires and uses Client Data; (iii) be responsible for responding to data subject requests for Personal Data collected by Client in accordance with applicable data privacy Laws; (iv) take all precautions to prevent unauthorized access to or use of the Services and Company Technology, and notify Company promptly of any such unauthorized access or use; and (v) use the Services and Company Technology only in accordance with (a) any documentation provided by Company to Client, (b) all applicable Laws, and (c) the Order Form; and (vi) be solely responsible for acquiring and maintaining Internet connectivity in order to access use the Services.
3.3 Use Restrictions
Client shall not, nor shall Client allow any Person, including any Authorized User, to: (i) use the Services other than through the Site and for Client’s internal business purposes; (ii) use the Services or Company Technology in a manner that is inconsistent with this Agreement or in violation of any applicable Law, including trade secret, copyright, trademark, export control and privacy and data security Laws; (iii) make the Services or Company Technology available to any Person other than Authorized Users, or permit data to be processed by any Person that is not expressly authorized by this Agreement to access and use Services or Company Technology; (iv) sell, resell, sublicense, rent, lease, transfer, or assign all or any part of the Services or Company Technology to any Person or use the Services or Company Technology as a service bureau; (v) perform or release the results of any benchmark of the Services; (vi) abuse or fraudulently use the Services or Company Technology or use the Services or Company Technology to defame, abuse, harass, stalk or threaten any Person or otherwise violate or infringe or misappropriate the legal rights (such as rights of privacy, publicity and IP Rights) of any Person; (vii) use the Services or Company Technology to store, transmit, process, propagate, distribute, or otherwise handle in any manner infringing, libelous, harmful, inappropriate, profane, vulgar, false, fraudulent, indecent, unlawful, immoral, lewd, obscene, or pornographic material or any other material that Company, in its sole discretion, deems to be objectionable; (viii) misrepresent or in any other way falsely identify any Person’s identity or affiliation; (ix) use the Services or Company Technology to store or transmit any viruses, worms, time bombs, Trojan horses or other harmful or malicious software or computer code, files, scripts, agents, or programs (collectively, “Malicious Code”); (x) interfere with or disrupt another Person’s use of the Services or the integrity or performance of Company Technology, the Services or the data of any of Company’s customers contained therein; (xi) access, use, or copy (or attempt to do any of the foregoing) the data of any of Company’s customers; (xii) gain (or attempt to gain) unauthorized access to the Services or Company Technology, including through automated means; (xiii) attempt to copy, frame, mirror, reverse-engineer, decompile, disassemble, create a derivative work from or derive the source code of all or any part of Company Technology or the Services; or (xiv) develop, build, license, sell or otherwise commercialize a product or service that is competitive with the Services.
3.4 Client Login Information
Company will permit access to the Services only through its hosted environment via the Internet, solely through the Site, using the initial access codes assigned by Company. All such access codes are subject to the confidentiality provisions of this Agreement. In addition to the foregoing, use of the Services may require the use of a username and password or other access, verification or authentication information (“Client Login Information”). A particular Client Login Information may not be used by more than one (1) Authorized User. Client shall be solely responsible for maintaining the confidentiality and security of Client Login Information. Consistent with Company’s requirements and specifications, Client is responsible for the creation, modification, verification, administration and distribution of Client Login Information, and Client agrees that Company shall not be responsible or liable for the creation, verification, modification, administration, distribution, recovery, suitability, security, use or misuse of any Client Login Information. In the event that Client becomes aware that the security of any Client Login Information has been compromised, Client shall immediately notify Company and de-activate or change such Client Login Information.
3.5 Client Hardware
Client’s receipt of the Services may necessitate Client’s use of computer hardware, servers, systems, software applications, and mobile devices (“Client Hardware”) and the Internet, as well as a Hosting Service, through which Client Data may be processed. Client understands and agrees that Client is solely responsible for acquiring, assessing the configuration and suitability of, and ensuring the security and responsible use of Client Hardware and Client’s Internet connectivity. Company’s sole responsibility regarding any Hosting Service is to use commercially reasonable efforts to determine that the Hosting Service is in good working order. Under no circumstances will Company be liable for any loss, damage, cost or expense due to any error, failure or shutdown of any Client Hardware or Hosting Service.
Client shall comply with all technical specifications and security and operating guidelines, procedures and protocols provided to Client by Company, including pertaining to use of Client Login Information and any documentation referenced in an Order Form. As part of the Services, Company will implement and maintain security procedures designed to protect the Services, Company Technology and Client Data from unauthorized access; provided, however, that unless resulting from Company’s failure to comply with the foregoing obligations, Client agrees that Company will not be responsible or liable if Client Data is accessed (i) by Persons through illegal or illicit means or (ii) through the exploitation of security gaps, weaknesses or flaws unknown to Company at the time. Company will, as soon as reasonably practicable, report to Client any unauthorized access to Client Data upon discovery and confirmation by Company, and Company will use good faith efforts to remedy any breach of security that permitted such unauthorized access. In the event notification of any unauthorized access to any Person included in Client Data is required, Client shall be solely responsible for any and all such notifications at Client’s expense. Company shall have no obligation to back up Client Data.
Company reserves the right but is not obligated to (i) monitor Client’s and any Authorized User’s access and usage of the Services, without notice to Client, including to ensure Client’s and any Authorized User’s compliance with the terms and conditions of this Agreement and (ii) disclose any such access and usage information. Client acknowledges that Company does not necessarily monitor the content of Client Data.
3.8 Suspensions of Services
Notwithstanding any term or provision to the contrary contained in this Agreement, Company reserves the right, in its sole discretion, to suspend or terminate Client’s or any Authorized User’s access to or use of Company Technology or the Services (i) for any breach of this Agreement by Client, (ii) to prevent harm to Company, its business, the Site, Services, or any Company Technology, or (iii) if Company reasonably concludes that performance would cause it to violate applicable Laws, if required to do so pursuant to applicable Law, or upon the request or order of a governmental, regulatory, or judicial authority.
4. Implementation Services
Implementation services identified on an Order Form (“Implementation Services”) must be utilized by Client within six (6) months after Client’s execution and delivery and Company’s acceptance of such Order Form. Client and Company understand that in the process of implementation or consulting, there may be occasions where Company or Client may have to alter or cancel implementation or consulting. In those instances where Client cancels or reschedules implementation and Company is unable to recoup its out-of-pocket costs and expenses, such as airline tickets, Client agrees to reimburse Company for any such costs and expenses. Company shall provide Client with a breakdown of such costs and expenses upon Client’s request. The Parties will cooperate to schedule Implementation Services, taking into account both the desires of Client and the recommendations of Company.
5. Support Services
Client may elect to purchase from time to time training, consulting, analysis, custom programming, support, or other support services provided by Company by submitting to Company a signed separate Order Form (“Support Services”). Such Support Services shall be governed by the terms and conditions of this Agreement. All Support Services shall be billable at Company’s standard hourly rates then in effect, plus out-of-pocket expenses (“Support Fees”). As a condition precedent to Company’s obligation to provide Support Services, Client may be required to provide credit card payment information or otherwise pay in advance to cover the cost of such services. Company reserves the right to require additional deposits and/or payments before rendering any Support Services.
6. Third-Party Software
6.1 Client Data Conversion
If Company determines Client Data can be imported for use in connection with Services and the Parties agree to have Client Data imported into Software by Company, then the ConversionQUICK™ program (“Conversion”) will be utilized. If Conversion is utilized, Client agrees to provide Client Data in a format that can be read by Conversion. Due to the diverse set-ups and configurations that are employed by Company’s clients, Company cannot guarantee that there will be no errors, or that defects will not occur, in connection with the use of Conversion. COMPANY’S SOLE OBLIGATION WITH RESPECT TO CONVERSION IS TO USE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT CONVERSION OPERATES AS PROGRAMMED, AND ANY PROVISION HEREIN TO THE CONTRARY NOTWITHSTANDING, COMPANY SHALL HAVE NO LIABILITY TO CLIENT OR ANY OTHER PERSON FOR ERRORS OR DEFECTS THAT OCCUR IN CONNECTION WITH THE USE OF CONVERSION.
Although Software may utilize a database (such as SQL Server), Software does not include a database, and the Services do not include any training, support or other services with respect to any database, unless indicated on an Order Form.
7. Fees and Taxes
Client shall pay Company (i) the monthly subscription fees for the Services identified on an Order Form (“Subscription Fees”), (ii) any fees (including costs and expenses), if any, for Implementation Services specified on an Order Form, (iii) Support Fees, and (iv) any other fees identified on an Order Form (all of the foregoing (i)-(iv), collectively, the “Fees”). All Fees are quoted and payable in United States Dollars. Subscription Fees are based on the Services purchased and not actual usage of the Services. Payment obligations are non-cancelable, and all Fees paid are non-refundable. Client acknowledges that increased Authorized User requirements or data storage requirements may lead to increases in Fees charged by Company for the Services. Company may increase or decrease all Fees applicable to any particular Software or Service for a subscription term by providing notice to Client at least sixty (60) days prior to the commencement of such subscription term.
Client shall pay the first monthly Subscription Fee upon the signing of the applicable Order Form. If Client signs such Order Form after the 15th of the month of execution, Client will be charged a prorated Subscription Fee for such month. Client shall pay all other Fees on the due dates specified in the applicable Order Form. Client shall provide appropriate credit card or ACH withdrawal information so that Company may automatically charge for (in the event Client provides credit card information) or withdraw (in the event Client provides ACH withdrawal information) any and all Fees. Client hereby authorizes Company to charge said credit card or make said ACH withdrawals for monthly Subscription Fees as they become due each month, as well as for any other Fees that are payable by Client hereunder. Client is responsible for maintaining complete and accurate billing and contact information with Company.
7.3 Overdue Charges
If any Fees or other amounts owing by Client are not received by Company from Client by the applicable due date, then at Company’s sole discretion, (a) such amounts may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid, or (b) Company may condition future subscription renewals on payment terms shorter than those specified in Section 7.2. Client shall reimburse Company for Company’s collection costs and expenses in the event of overdue amounts, including Company’s reasonable attorneys’ fees.
7.4 Suspension of Service; Acceleration
If any Fees or other amounts owing by Client under this Agreement are sixty (60) or more days overdue, Company may, without limiting its other rights and remedies hereunder, accelerate Client’s unpaid Fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend any Implementation Services, Support Services, or Client’s or any of its Authorized Users’ access to and use of Company Technology or the Services until such amounts (and any reasonable collection fees, attorneys’ fees, interest and, if appropriate, a reinstatement fee to cover any additional costs and expenses incurred by Company to bring Client’s account current) are paid in full.
Company’s Fees and other charges are exclusive of any taxes, levies, duties, or similar governmental assessments of any kind, including value-added, sales, use or withholding taxes assessable by any local, state, provincial, federal, foreign jurisdiction or any other government agency (collectively, “Taxes”). Company may be required to pay and/or collect any Taxes for which Client is responsible. Client shall be responsible for paying all Taxes associated with its purchases of the Services hereunder, and such Taxes shall be paid monthly with the Subscription Fee. In the event a government agency determines that Company should have collected and/or should be collecting sales taxes from Client, Client will (i) remit payment directly to the government agency and/or (ii) reimburse Company for all sales taxes due to the government agency. Furthermore, Client will include all applicable sales taxes in all Subscription Fees.
8. Data and IP Rights
8.1 IP Rights Ownership
Ownership of IP Rights embodied in the Services and Company Technology, and all improvements thereto, shall remain exclusively vested in and be the sole and exclusive property of Company or its licensors, as applicable. Client shall and hereby does assign to Company all right, title and interest it may have or may obtain in any of the foregoing to Company. The names and logos associated with the Services and Company Technology are trademarks of Company, its affiliates or third parties. No rights or licenses, express or implied, are granted to Client under this Agreement except for the limited rights expressly set forth herein.
8.2 Suggested Improvements
Client hereby grants Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license in and to any and all suggestions, enhancement requests, recommendations, and feedback provided by Client or any Authorized User, including as related to the Services or Company Technology and including to use or incorporate into the Services or Company Technology.
8.3 Client Data
Client hereby grants Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, copy, store, process, transmit, retrieve, and display Client Data solely to provide and support the Services and Company Technology. As between Company and Client, Client exclusively owns all rights, title and interest in and to all Client Data, except De-Identified Data. Client acknowledges that Company has the right to combine and aggregate De-Identified Data with de-identified data of other users for any purpose, including to improve its products and services. Company owns all rights, title and interest in and to all De-Identified Data.
8.4 General Skills and Knowledge
Notwithstanding anything to the contrary contained in this Agreement, Client agrees that Company is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar services performed for any of Company’s other customers.
9.1 Definition of Confidential Information
For purposes of this Agreement, “Confidential Information” means all data, information or material that a Party (“Disclosing Party”) or one of its affiliates has disclosed or otherwise made available to the other Party (“Receiving Party”) or one of its affiliates, or which Receiving Party has observed or otherwise obtained from Disclosing Party, whether made available orally, in writing or in electronic format, provided that such information, data or materials (i) is marked as “proprietary” or “confidential” at the time of disclosure, (ii) if disclosed in a form not susceptible to marking, is described and designated as “proprietary” or “confidential” in a writing provided to Receiving Party within thirty (30) days of such disclosure, or (iii) should reasonably be deemed confidential under the circumstances. Confidential Information also includes the terms and conditions of this Agreement and the addenda hereto. The non-public aspects of the Site and the operation thereof, Company Technology, the Services, any additional services provided by Company from time to time, and Company’s business and technical information and data shall be deemed to be the Confidential Information of Company, and identifiable Client Data shall be Confidential Information of Client.
9.2 Mutual Exchange of Confidential Information
The Parties anticipate that, in connection with this Agreement and the transactions contemplated hereby, each may disclose Confidential Information to the other. Accordingly, the Parties desire to establish in this Section 9.2 terms governing the use and protection of Confidential Information Disclosing Party may disclose to Receiving Party. Receiving Party may use Confidential Information of Disclosing Party only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to other Persons, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a commercially reasonable degree of care. Receiving Party may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees, agents, advisors, attorneys, accountants, and other representatives (and with respect to Company, its affiliates and its and its affiliates’ service providers, and actual and prospective lenders and purchasers) who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. Additionally, Company may transfer Client’s Confidential Information to a governmental agency or other third party to the extent necessary for Company to perform Services or if Client has given Company written authorization to do so. The Parties shall maintain in confidence the terms and conditions of this Agreement, with the exception that, where necessary or appropriate for the performance of the Services or the collection of Fees, Company may disclose the existence of this Agreement or the terms and conditions of this Agreement itself to a bank, credit card company, or other third-party financial institution. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Receiving Party at the time of its disclosure hereunder (other than information that was provided to Receiving Party by Disclosing Party); (ii) is or becomes publicly known through no wrongful act of Receiving Party; (iii) is received by Receiving Party from a third party free to disclose it without obligation to Disclosing Party; (iv) is independently developed by Receiving Party as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Disclosing Party. Receiving Party may disclose Confidential Information of Disclosing Party pursuant to the requirements of a governmental agency or by operation of Law, provided that Receiving Party gives Disclosing Party written notice of such disclosure as soon as is practicable and reasonably cooperates with Disclosing Party to contest or limit the scope of such disclosure.
10. Warranties and Disclaimers
10.1 Mutual Warranties
Each Party represents and warrants to the other Party that (i) it has and shall maintain the power and authority to enter into this Agreement, to grant the rights herein granted and to undertake and perform its obligations hereunder, without the further consent of any other Person, (ii) it is not subject to any contractual or other legal obligation that would reasonably be expected to prohibit in any way its full performance of this Agreement, and (iii) this Agreement is a legal, valid and binding obligation of such Party and enforceable against it in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar Laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity).
10.2 Company Warranties
Company represents and warrants to Client that any Implementation Services or Support Services performed by Company in connection with this Agreement shall be performed in a professional and workmanlike manner (collectively, the “Limited Warranty”). For any breach of the Limited Warranty, Client’s sole and exclusive remedy shall be as provided in Section 12.2 (“Termination by Client”). Notwithstanding anything to the contrary contained in this Agreement, if Client makes any unauthorized use of or modifications to Company Technology or the Services, then the Limited Warranty shall immediately be void and without further force or effect. Corrections for defects traceable to Client’s unauthorized modifications to Company Technology or the Services shall be Client’s responsibility and shall be billed at Company’s standard time and material charges.
10.3 Client Warranties
Client represents and warrants to Company that (i) Client is solely and exclusively responsible for its goods, products, and services and its use of any Client Data, (ii) Client’s use of any trademarks, servicemarks, trade names, trade dress, Client Data or other material in the course of its use of Services and Company Technology does not and will not violate or infringe any Person’s common law or statutory copyright, trademark or other IP Rights or any Person’s rights of privacy or publicity, (iii) Client Data that includes any individual’s Personal Data was and shall continue to be acquired, used, and processed with the consent of such individual and used in compliance with all privacy and data security Laws, rules, regulations and orders, and (iv) Client will not transmit to any Person (including by, in, or through the Services or Company Technology) any Malicious Code. Client acknowledges that Client has had the opportunity to examine the Services and the Services’ uses and capabilities and that it accepts sole and exclusive responsibility for (a) its selection of the Services to achieve Client’s intended result, (b) its use of the Services, and (c) the results and reporting obtained from use of the Services.
10.4 Warranty Disclaimers
EXCEPT FOR COMPANY’S WARRANTIES UNDER SECTION 10.1 AND SECTION 10.2, COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND COMPANY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION AND DATA ACCURACY. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CLIENT ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE SERVICES OR COMPANY TECHNOLOGY, AND THAT CLIENT HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, THE SERVICES AND COMPANY TECHNOLOGY ARE PROVIDED “AS-IS”. COMPANY DOES NOT WARRANT THAT THE SERVICES OR COMPANY TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS, THAT THE SERVICES OR COMPANY TECHNOLOGY WILL BE COMPATIBLE WITH CLIENT HARDWARE, OR THAT THE OPERATION OF THE SERVICES OR COMPANY TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, CLIENT ACKNOWLEDGES AND AGREES THAT THE INTERNET IS NOT ESTABLISHED OR MAINTAINED BY COMPANY, THAT COMPANY HAS NO CONTROL OVER THE INTERNET, AND THAT COMPANY IS NOT LIABLE FOR THE SECURITY OR INTEGRITY OF PERSONAL DATA TRANSMITTED TO AND THROUGH THE SERVICES, THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT, DELAY OR PROHIBIT THE OPERATION OF THE SERVICES OR COMPANY TECHNOLOGY. COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. CLIENT UNDERSTANDS THAT COMPANY HAS NOT EXAMINED CLIENT’S PARTICULAR BUSINESS METHODS OR OPERATIONS AND THEREFORE ACCEPTS NO RESPONSIBILITY FOR CLIENT’S SELECTION OF SERVICES AND COMPANY TECHNOLOGY TO MEET ANY OR ALL OF CLIENT’S BUSINESS NEEDS AND PURPOSES.
10.5 Sensitive Data
In using the Services, Client may elect to store or permit transmission of Client Data of a sensitive nature, which may include Personal Data, wage details and wage histories (“Sensitive Data”), in which case some Services may allow or facilitate the transmitting or viewing of Sensitive Data by end users. Client acknowledges that no system or security technology is immune to unauthorized intrusion or other security incidents or issues and that, by using the Services, Client and the applicable end users assume the risk thereof. Client is solely responsible for all data, including Sensitive Data, that is transmitted, accessed or viewed using the Services, and for monitoring, reviewing, and assessing the suitability, security, and responsible use thereof. Company’s sole obligation regarding the security of Sensitive Data is to ensure that the Services use data encryption methods. In the event of any loss of or damage to, or any unauthorized access to or use, dissemination or disclosure of, Sensitive Data, Company’s sole obligation upon discovery thereof shall be to use commercially reasonable efforts to notify Client and/or the applicable end users, as required by applicable Law.
11. Indemnification; Limitation of Liability
11.1 Intellectual Property Indemnification
Except to the extent such infringement is attributable to third-party software, including open source software, Company will defend Client against any claim, demand, lawsuit, or proceeding (“Claim”) made or brought against Client by a third party asserting or alleging that the use of the Services or Company Technology as permitted hereunder infringes on any United States IP Right of a third party, and indemnify and hold harmless Client from and against costs, expenses, attorneys’ fees, and damages, if any, finally awarded pursuant to a non-appealable order by a court of competent jurisdiction in such Claim or settlement entered into by Company; provided, however, that the foregoing obligation is conditioned upon (i) Client notifying Company in writing of such Claim immediately after it is made, and (ii) Client giving Company the right to control the defense of such Claim. In no event shall Client settle any such Claim without Company’s prior written approval. Notwithstanding anything to the contrary contained in this Section 11.1, Company shall have no liability or obligation if such Claim arises from (i) any alteration or modification to Company Technology or the Services other than by Company, (ii) any combination of Company Technology or the Services by Client with other software, data, or other assets not furnished by Company, or (iii) any use by Client of Company Technology or the Services that is prohibited by this Agreement or otherwise outside the scope of use for which Company Technology or the Services are intended.
11.2 Options for Infringement Claims
If either Party is enjoined from using Company Technology, or if Company believes that Company Technology may become the subject of a claim of infringement, Company, at its sole option and expense, may: (i) procure the right for Client to continue to use the Company Technology; (ii) replace or modify Company Technology so as to make it non-infringing; or (iii) terminate this Agreement (in which case Company shall refund to Client any and all Subscription Fees paid in advance by Client for those Services not provided by Company as of the time of such termination). SECTION 11.1 AND THIS SECTION 11.2 SET FORTH COMPANY’S SOLE OBLIGATION AND CLIENT’S SOLE REMEDY FOR ANY INFRINGEMENT BY COMPANY, COMPANY TECHNOLOGY OR THE SERVICES OF ANY IP RIGHT.
11.3 Indemnification by Client
Client will indemnify and hold harmless Company from and against any liabilities, loss, cost (including reasonable attorneys’ fees), or expense (including with respect to any Claim brought by Company and any third-party Claims) incurred by Company or any of its affiliates or their respective employees, officers, directors, or representatives (collectively, “Company Indemnitees”) in connection with or arising out of (i) Client’s violation or breach of any term or provision of this Agreement, (ii) Client’s failure to comply with any Law (including any governing the collection, use, storage or destruction of Personal Data), whether or not referenced in this Agreement, (iii) any failures of any Hosting Service, Client Hardware or Client’s Internet connectivity or (iv) Company’s provision or Client’s use of Company Technology or the Services, including any Claim made or brought by a third party asserting or alleging that Client Data or Company’s receipt or use thereof, or Client’s use of Company Technology or the Services in violation of this Agreement, infringes on any United States IP Right of a third party or has resulted in any other injury or damage to any third party (other than an infringement Claim defended by Company pursuant to Section 11.1); provided, however, that Client is notified in writing of such Claim promptly after it is made upon Company. Client shall have the right to control any defense of any such Claims.
11.4 Disclaimer of Incidental and Consequential Damages
IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT UNDER, RELATING TO, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITH RESPECT TO THE COMPANY TECHNOLOGY, SERVICES, AND COMPANY’S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER) UNDER ANY THEORY, INCLUDING CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF USE, REVENUE, PROFIT OR DATA, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR OTHER INTANGIBLE LOSS, WHETHER OR NOT SUCH DAMAGE OR LOSS WAS FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
11.5 Limitation on Liability
IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER, RELATING TO, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITH RESPECT TO THE COMPANY TECHNOLOGY, SERVICES, AND COMPANY’S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER), IF ANY, INCLUDING LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY, OR OTHERWISE, EXCEED THE LESSER OF (I) ACTUAL DIRECT DAMAGES INCURRED BY CLIENT AND (II) THE TOTAL SUBSCRIPTION FEES PAID OR PAYABLE BY CLIENT HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY.
THE PROVISIONS OF Section 11.4 AND THIS SECTION 11.5 ALLOCATE THE RISKS BETWEEN CLIENT AND COMPANY, AND COMPANY’S PRICING FOR THE SERVICES REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED THEREIN. Client must initiate a cause of action for any claim relating to, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING THE COMPANY TECHNOLOGY, THE SERVICES, AND Company’S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER) within one (1) year from the date when Client knew, or should have known after reasonable investigation, of the facts giving rise to the claim.
12. Term and Termination
12.1 Term of Agreement
This Agreement commences on the date that both Client has executed and Company has accepted an Order Form that references this Agreement, and it continues until all subscriptions hereunder have expired or have been terminated or this Agreement has been terminated in whole. The term of each subscription shall be as specified on the applicable Order Form and, unless otherwise provided on such Order Form, shall automatically renew for successive one (1) year terms unless either Party notifies the other in writing not less than sixty (60) days prior to the expiration of the then-current term of its intention not to renew. If a subscription for Services expires or is terminated, any other Services related thereto (including Implementation Services and Support Services) shall also be terminated.
12.2 Termination by Client
Client may terminate this Agreement if Company materially breaches this Agreement and such breach is not cured within sixty (60) days after Company’s receipt of written notice thereof. Upon any termination of this Agreement by Client in accordance with this Section 12.2, Company shall refund to Client any prepaid Fees for Services not yet provided.
12.3 Termination by Company
Company may terminate an Order Form or this Agreement and Client’s and any Authorized User’s subscription for and access to the applicable Services and Company Technology without prior notice (i) if Client breaches this Agreement and such breach is not cured within thirty (30) days after Client’s receipt of written notice thereof, (ii) if Client breaches Section 3.3, (iii) if Client fails to pay Fees as they become due, (iv) if the provision of the applicable Company Technology, Services or Company Confidential Information would require Company to violate any applicable Law or request by any law enforcement or other government agency, or (v) in the event of a change of control of Client, unless such change of control does not result in the control of Client by a Person that is competitive or otherwise harmful to Company’s interests as reasonably determined by Company in good faith and would not result in any material increase or change to the scope or purpose of this Agreement or any then-active Order Form. If Company exercises any of its rights to terminate this Agreement, Company shall not be obligated to refund any prepaid Fees or other amounts to Client.
12.4 Termination for End of Life
Company intends to continue to provide and support the Services for so long as Client renews its subscriptions therefor in accordance with the terms of this Agreement; provided, however, if Company determines in its sole discretion that it is no longer feasible to support a Service, Company may terminate the subscription for such Service for end of life at any time by providing one hundred eighty (180) days prior written notice to Client. Upon any termination by Company in accordance with this Section 12.4, Company shall refund to Client any prepaid Fees covering the remainder of the applicable subscription term after the effective date of such termination.
12.5 Other Termination
Either Party may terminate this Agreement if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy Laws, Laws of debtor’s moratorium or similar Laws.
12.6 Effect of Termination
The expiration or termination of this Agreement shall not relieve Client of its obligation to pay all Fees that have accrued or amounts that are otherwise owed by Client under this Agreement as of the effective date of the expiration or termination of this Agreement. Upon expiration or termination of this Agreement for any reason, (i) all rights and licenses granted by Company hereunder to Client, including the right to access and use Company Technology and the Services, will immediately cease and (ii) Client Login Information and all related information, including Client Data, may be deleted from Company Technology and the Services. Within ten (10) days after the expiration or termination of this Agreement, Client shall return to Company any materials provided by Company in connection with this Agreement. Within thirty (30) days after termination or expiration of this Agreement, each Party shall return or destroy the Conﬁdential Information of the other Party, and so certify in writing its compliance with the foregoing upon request of the other Party. In the event Conﬁdential Information of the Disclosing Party has been physically or logically stored or processed by the Receiving Party with its own or third-party information such that the Conﬁdential Information of the Disclosing Party cannot reasonably be separated for return or destruction, such data shall be protected by the Receiving Party under the terms of this Agreement until it is destroyed by the Receiving Party in the ordinary course of business. If Client is current in all payments due to Company at the time of expiration or termination of an Order Form, Company may provide Client with digital copy of Client Data that is hosted on the applicable Services, on a password-protected CD in a standard database document format, within thirty (30) days of the effective date of the expiration or termination of such Order Form, at no additional charge. If Client requests Client Data in any other format, Client may be required to pay Company a reasonable fee for technical services as determined by Company.
The definitions and the rights, duties, and obligations of the Parties set forth in the following sections of this Agreement, together with any other sections of this Agreement and addenda hereto which are by their own nature continuing, shall survive the termination or expiration of this Agreement: Sections 1 (“Definitions”), 7 (“Fees and Taxes”), 8 (“Data and IP Rights”), 9 (“Confidentiality”), 10 (“Warranties and Disclaimers”), 10.5 (“Indemnification; Limitation of Liability”), 12.6 (“Effect of Termination”), 13 (“Governing Law and Jurisdiction”), 18 (“Construction”) and 19 (“Miscellaneous”).
13. Mobile Module Services
This Section 13 is applicable only to the extent Client has a subscription to Mobile Modules.
“Mobile Modules” means the modules of Software designated on an Order Form as “Mobile Modules” and related Services which (i) allow Client to transmit certain data, the limits of which will be determined by the modules selected on an Order Form, from Software (which Client will access through the Services) to Client’s Mobile Devices and (ii) allow Client to transmit certain data, the limits of which will be determined by the modules selected on an Order Form, from Client’s Mobile Devices to Software (which Client will access through the Services). Mobile Modules is part of Software.
“Mobile Devices” means any cellphone, smartphone, tablet, laptop, personal computer or other piece of computer equipment that is used by Authorized Admin Users to access the Mobile Modules.
13.2 Modules and Mobile Devices
Company makes no warranty, express or implied, about the compatibility of Mobile Modules with any specific Mobile Devices, operating system or browser. Client understands and agrees that it is entirely responsible for assessing the suitability and compatibility of its Mobile Devices for use with Mobile Modules. In the event of any failure of Mobile Modules to work substantially in accordance with the then-current published documentation for Mobile Modules, if any, Company’s sole obligation and Client’s sole remedy will be for Company to use commercially reasonable efforts to rectify same. Client understands and agrees that Company shall have no obligation to backup any Client Data that is stored in, or processed or submitted through, Mobile Modules. Company reserves the right, but is not obligated, to monitor Client Data passing through Mobile Modules, including for the purposes of calculating Subscription Fees.
14. Estimating Edge Services
This Section 14 is applicable only to the extent Client has a subscription to Estimating Edge Services.
14.1 Right to Modify Data
Client shall have the right to modify, add to, and delete from data within the databases provided to Client with Estimating Edge Services identified on an Order Form (“Estimating Edge Services”). Client is not permitted to create new fields or modify the database structure, metadata or databases themselves.
14.2 Personal Data
Client acknowledges that the Estimating Edge Services are not designed with security and asset management for processing any Personal Data. Client shall not, and shall not permit any Authorized User or other Person to, provide any Personal Data through the Estimating Edge Services. Client is solely responsible for reviewing all Client Data that is collected, stored, processed, transmitted, or retrieved by, in, or through the Estimating Edge Services and shall ensure that no such Client Data contains or constitutes Personal Data.
If Client has access to The EDGE™ Fireprooﬁng Database (the “Fireproofing Database”), this Section 14.3 shall apply. While small sections may occasionally be updated, the Fireproofing Database is largely based on the Underwriters Laboratories, Inc. Fire Resistance Manual Volume. Although the most popular tests are updated more frequently, Client should insure that the test being applied is current for its use and make any changes needed. The Fireproofing Database is designed to allow Client to easily add new ﬁre tests as they become available and to update existing tests. In the majority of the tests, the design, thickness of material and hourly ratings are generally clear and understandable. However, some designs and tests have multiple thicknesses available to the user for a given hourly rating. When such cases were found while creating the Fireproofing Database, Company usually defaulted to using the greater thickness. The assumption is that it is better for the end customer to have too much material rather than too little. When using a test or design such as D-925 that has multiple thicknesses, it is up to the user to select the correct thickness from the design information section of the UL manual and modify their ﬁre test database to ﬁt their requirements. Company recommends that every Authorized User familiarize themselves with all tests in the Fireprooﬁng Database. This will ensure that when the time comes, the proper thickness will be used in the calculations.
15. Governing Law and Jurisdiction
15.1 Governing Law; Waiver of Jury Trial
This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal Laws of the State of Ohio, including its statutes of limitations, without regard to any borrowing statute that would result in the application of the statute of limitations of any other jurisdiction. The United Nations Convention for the International Sale of Goods and any conflicts of law principles and the Uniform Computer Information Transactions Act (where enacted) shall not apply to this Agreement. Any legal action, proceeding, or litigation arising out of or in any way related to this Agreement shall be instituted in the federal or state courts serving Cuyahoga County, Ohio. Each Party hereby irrevocably consents and submits to the exclusive jurisdiction of and agrees that the venue is proper in those courts in any legal action, proceeding or litigation arising out of or in any way related to this Agreement. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL ACTION, PROCEEDING OR LITIGATION ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT.
15.2 Injunctive Relief
Client acknowledges and agrees that certain obligations, promises and agreements of Client set forth in this Agreement are of a special, unique and extraordinary character. Client further acknowledges and agrees that a breach of any of its obligations, promises or agreements contained in this Agreement involving or relating to IP Rights or Confidential Information of Company will result in irreparable and continuing damage to Company for which there will be no adequate remedy at Law. Accordingly, in the event of any such breach, Company will be entitled upon obtaining a court order to injunctive relief, including a decree of specific performance, without the necessity of posting bond or proving damages, in addition to such other and further relief as may be proper (including monetary damages if appropriate).
16. California Consumer Privacy Act
If applicable, Client and Company recognize the following in accordance with the California Consumer Privacy Act of 2008 (“CCPA”): (a) Company is a “Service Provider” as defined in CCPA Section 1798.140(v); (b) Client shall disclose Personal Data to Company solely for (i) a valid business purpose and (ii) to perform the Services; (c) Company is prohibited from (i) selling such Personal Data, (ii) retaining, using or disclosing such Personal Data for a commercial purpose other than providing the Services and (iii) retaining, using or disclosing such Personal Data outside of this Agreement; and (d) Company understands the prohibitions outlined in this Section 16.
17. Force Majeure
Company shall not be liable in any way for any delay or failure to perform any obligation under this Agreement, or if Company Technology does not perform completely or accurately, due to circumstances or causes beyond the reasonable control of Company, whether or not such circumstances or causes are foreseeable, which shall include: failure or interruption of Internet service, hardware, Hosting Service, or any other infrastructure used with the Services or Company Technology; failure or closure of any bank, savings and loan, credit union or other financial services institution of any kind or nature (collectively, a “Financial Services Institution”); the interruption of the Services or the use of Company Technology for any reason whatsoever by a Financial Services Institution or a Hosting Service; power outages; acts of God; war; terrorist threats or acts; cybersecurity attacks or breaches; riot; embargoes; acts of civil or military authorities; natural disasters, including severe weather events, whether or not caused by climate change; fire; floods; accidents; strikes; public health emergencies (including epidemics and pandemics); and shortages of transportation, facilities, fuel, energy, labor or materials (each circumstance independently and individually and not exclusively, a “Force Majeure Event”) for the time such Force Majeure Event continues. If a Force Majeure Event occurs, Company may defer the Services for a period equal to the time such Force Majeure Event continues.
The section headings contained in this Agreement are intended for the convenience of the Parties only and shall not be used to construe the meaning of the terms herein. For purposes of this Agreement, the words “include,” “includes”, and “including” shall be deemed to be followed by the words “without limitation.” Should any provision of this Agreement require judicial interpretation, the Parties agree that the court interpreting or construing the same shall not apply a presumption that the terms and conditions of this Agreement shall be more strictly construed against one Party than against the other Party. All documents, guidelines, procedures, protocols and other materials posted on any website of the Company or any of its affiliates shall be deemed to have been provided by Company to Client, including through any Client-specific web portal.
Each Party is an independent contractor, and this Agreement shall not be construed as constituting either Party as a partner, joint venture, agent, franchisee, or fiduciary of the other Party, or to create any other form of legal association that would impose liability on one Party for the act or failure to act of the other Party, or as providing either Party with the right, power or authority (express or implied) to create any duty or obligation of the other Party. Client shall be responsible for the Authorized Users, and all acts and omissions of all Authorized Users and other users of the Services shall be deemed to be the acts and omissions of Client. Any notice or communication required or permitted to be given under this Agreement shall be in writing and may be delivered by hand, deposited with a generally recognized overnight carrier, sent by email or facsimile (provided delivery is confirmed and provided further that delivery by email shall not be sufficient for notices of termination or an indemnifiable claim), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the applicable Order Form or at such other addresses as shall be designated in writing by either Party to the other in accordance with this Section 19. Any such notice or communication will be deemed to be given when received. Client shall not assign this Agreement or any of its rights or interests under this Agreement, whether by operation of Law or otherwise, including in connection with any division, merger, transfer, consolidation, amalgamation or reorganization, nor delegate any obligation to be performed by Client under this Agreement, without Company’s prior written consent. Any attempted assignment or delegation in contravention of this Section 19 shall be null and void. Company may assign this Agreement or any of its rights or interests under this Agreement without the prior written consent of Client. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Company may freely subcontract this Agreement or portions thereof. Company may publish a brief description of Client’s use of the Services and Company Technology and may use Client’s name and logo to identify Client as a Company customer in marketing or promotional materials. Nothing in this Agreement is intended to confer upon any Person other than the Parties and their respective successors and permitted assigns and the Company Indemnitees any rights or remedies. No delay or omission by either Party in exercising any right under this Agreement will operate as a waiver of that or any other right. All waivers by either Party must be in writing to be effective. No waiver by either Party of any breach shall be deemed as a continuing waiver, a waiver of any subsequent breach, or a waiver of any other provision or other breach hereof. If any covenant, term or provision of this Agreement is deemed invalid, illegal or incapable of being enforced by reason of any rule of law, administrative order, judicial decision or public policy, all other covenants, terms and provisions of this Agreement shall remain in full force and effect. No modification or amendment of any provision of this Agreement shall be effective unless executed in writing by both Parties. This Agreement, including any Order Forms and any addenda hereto, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Each Order Form is hereby incorporated into and made part of this Agreement. In the event of any conflict between the terms of an Order Form and this Agreement (other than such Order Form), with respect to the subject matter of such Order Form, the terms of such Order Form shall control. Client agrees that this Agreement shall be binding on Company only upon Company’s execution and delivery of a signed Order Form in such form as is acceptable to Company in its sole discretion. No additional or different terms or provisions provided by Client, including in any acknowledge, bill of lading, or purchase order (but other than as expressly set forth in an Order Form), shall be applicable or have any effect, and such terms and provisions are hereby deemed to be rejected.