Terms and Conditions
SOFTWARE AS A SERVICE (“SaaS”) SUBSCRIPTION AGREEMENT
Effective Date: April 23, 2018
PLEASE READ THE TERMS AND CONDITIONS OF THIS SAAS SUBSCRIPTION AGREEMENT (THE “SUBSCRIPTION AGREEMENT”) CAREFULLY BEFORE ACCESSING AND/OR USING THE SERVICE (DEFINED BELOW). THIS SUBSCRIPTION AGREEMENT REPRESENTS A LEGAL AGREEMENT BETWEEN THE ENTITY IDENTIFIED AS THE CUSTOMER ON THE APPLICABLE SALES ORDER (“CLIENT” OR “YOU”) AND Database International Group, Inc. d/b/a AwareManager (“AwareManager”). THE SERVICE IS LICENSED (NOT SOLD) TO YOU. BY CLICKING “I AGREE”, EXECUTING A SALES ORDER (DEFINED BELOW) THAT REFERENCES THE SERVICE OR ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT. THIS SUBSCRIPTION AGREEMENT AND THE APPLICABLE SALES ORDER TOGETHER REPRESENT THE ENTIRE AGREEMENT CONCERNING THE SERVICE BETWEEN THE PARTIES (THE “AGREEMENT”) AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES, including, without limitation, the terms of any purchase order or other document submitted by You or other terms and conditions or agreements, which shall be of no force or effect and shall be deemed rejected by awaremanager in their entirety. If you are entering into this Subscription Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement.
AwareManager may change this Subscription Agreement from time to time at its sole discretion, and if AwareManager makes any material changes, we will attempt to notify you by sending you an email to the last email address you provided to us and/or posting a notice on our website. Therefore, you agree to promptly notify us of any changes in your email address. Any material changes to this Subscription Agreement will be effective upon the earlier of the dispatch of the email notice to you or the date of posting of notice of the changes on our website and shall be evidenced by a new Effective Date shown above. These changes will be effective immediately for new users of the Service. AwareManager may require you to provide consent to the updated Subscription Agreement before further use of the Service is permitted. Otherwise, your continued use of the Service constitutes your acceptance of the changes. Please regularly check our website to view the then-current Subscription Agreement.
You should print and retain a copy of this Subscription Agreement for your records.
1. CLIENT; DESCRIPTION OF SERVICE; SUBSCRIPTION FEE; SUBSCRIPTION.
A. THE SERVICE. The “Service” means the AwareManager services, software and/or technology identified in the applicable order form executed by the parties in writing or electronically (“Sales Order”), that is operated and maintained by AwareManager.
B. SUBSCRIPTION FEE. For each year during the Subscription Term, Client will pay to AwareManager an annual subscription fee (the “Annual Subscription Fee”) which will be payable in advance. The amount of the first year Annual Subscription Fee is specified in the applicable Sales Order. The “Subscription Term” means the subscription term set forth in the applicable Sales Order.
(i) Upon payment of the Annual Subscription Fee, and subject to the terms and conditions of this Subscription Agreement, AwareManager grants to Client a limited, non-exclusive, non-sublicensable and non-transferable license to access and use the Service over the internet, during the Subscription Term within the United States of America, strictly for Client’s own internal business purposes and to permit any Users to access and use the features and functions of the Service as contemplated by this Agreement (the “Subscription”). All rights not granted to Client are reserved by AwareManager.
(ii) The Subscription to the Service is limited to the number of concurrent computer Users and the number of concurrent PDA Users specified on the applicable Sales Order. For the purposes of the Agreement, the word “User” means those of Client’s employees, agents, and independent contractors who are provided user names and passwords and permitted hereunder to access the Service pursuant to Client’s rights under this Agreement and “concurrent” means those Users who may access the Service via the designated type of device at the same time.
(iii) The Subscription to the Service is for Client’s use in connection with the management and/or ownership of the locations specified on the applicable Sales Order, comprising up to the square feet of space specified on the Sales Order.
(iv) Except as expressly permitted herein, Client shall not (and shall not permit any third party, including Users, to) (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service in any way; (b) modify or make derivative works based upon the Service; (c) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (d) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from the Service or any part thereof; (e) use the Service for commercial or competitive purposes, including to develop a competitive product or service, build a product using similar ideas, features, functions or graphics of the Service, or copy any ideas, features, functions or graphics of the Service; (f) interfere in any manner with the operation of the Service or attempt to access the Service through any unapproved interface; or (g) otherwise use the Service in any manner that exceeds the scope of use permitted under Section C(i) through (iii) or in a manner inconsistent with applicable law, the documentation, or this Agreement.
(v) Client shall not (and shall not permit any third party, including Users, to) (a) store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate of third party privacy rights; (b) store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (c) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (d) attempt to gain unauthorized access to the Service or its related systems or networks.
2. CLIENT RESPONSIBILITIES.
Client is responsible for all activity occurring under Client’s User accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Client’s use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data. Client will ensure that its use of the Service complies with all applicable laws, statutes, regulations or rules. Client shall: (A) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify AwareManager immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (B) not impersonate another user of the Service or provide false identity information to gain access to or use the Service.
Subject to the terms and conditions of this Subscription Agreement, during the Subscription Term, AwareManager will provide to Client technical support by email and telephone during AwareManager’s standard business hours (Monday through Friday, excluding federal holidays, 9:00 A.M. to 6:00 P.M. Eastern Time).
A. PAYMENT TERMS.
(i) In consideration for the access rights granted to Client and the services performed by AwareManager hereunder, Client will pay to AwareManager, without offset or deduction, all fees set forth in the applicable Sales Order, including the Annual Subscription Fee. AwareManager shall invoice Client for all applicable fees and expenses under this Agreement, and Client shall be responsible for remitting payment of all such fees and expenses to AwareManager within thirty (30) days of the applicable invoice date. Except as expressly stated herein, all fees are non-refundable. If an invoice, or portion thereof, is disputed, Client will notify AwareManager of the dispute in writing within 5 days of Client’s receipt of the invoice and shall pay all undisputed amounts within the thirty day period stated above.
(ii) , AwareManager may increase the Annual Subscription Fee by notifying Client of any increase in the Annual Subscription Fee at least sixty (60) days prior to the end of each year during the Subscription Term. Any changes will be effective for the following year.
B. EXPENSES. If travel to Client’s site or sites is required, Client will reimburse AwareManager and AwareManager will invoice Client for actual costs incurred for pre-approved travel (airfare at economy rate), accommodation, freight, overnight shipping and/or courier services.
C. TAXES. Unless otherwise noted in the applicable Sales Order, all fees are exclusive of and Client will report, pay and be responsible for all applicable federal, state, and local taxes (excluding only those taxes based on net income derived by AwareManager) designated, levied, or based upon this Agreement, except for employment taxes for AwareManager employees and taxes based on AwareManager’s net income. If Client is tax-exempt, Client must provide a valid exemption certificate to AwareManager with the executed Sales Order and from time to time for subsequent purchases during the term of the Agreement.
D. LATE PAYMENTS. Client will pay, in addition to all other amounts owed to AwareManager, interest calculated at 1.5% percent per month or, if lower, the maximum rate permitted by applicable law on all overdue amounts. AwareManager reserves the right (in addition to any other rights or remedies AwareManager may have) discontinue the Service and suspend all Users’ and Client’s access to the Service if any fees are overdue until such amounts are paid in full. In addition, if Client’s and its Users’ use of the Service exceeds the concurrent user limitations, AwareManager may, upon notice to Client, begin charging Client additional fees for such overages starting on the next billing period.
5. GENERAL TERMS AND CONDITIONS
A. SUBSCRIPTION TERM AND TERMINATION. Unless earlier terminated or otherwise renewed as provided herein, the term of the Agreement shall commence on the earlier of the date Client accepts this Agreement or first uses the Service, and continues for the Subscription Term specified in the Sales Order. Following expiration of the initial Subscription Term, or any subsequent Subscription Term, the Subscription Term shall automatically renew for additional one-year periods unless Client gives AM written notice of cancellation at least 90 days prior to the end of the then current Subscription Term. For the avoidance of doubt, the license to access and use the Service which is granted by AwareManager to Client hereunder shall be co-terminus with the Subscription Term. The Agreement may be terminated by either party upon written notice to the other if the other party materially breaches the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching party. If the Agreement is terminated for any reason, all rights and obligations of the parties, and licenses granted hereunder by AwareManager to Client, shall terminate except for those rights and obligations stated in subsections B, C, D and E of this Section 5, any payment obligations arising prior to the effective date of termination, and any other provision which, in accordance with its terms, is intended to survive the termination or expiration of the Agreement, which provisions shall survive and continue in effect. Termination of the Agreement for cause by AwareManager shall not relieve Client of its obligation to pay AwareManager the then current Annual Subscription Fee.
B. CONFIDENTIALITY. ”Confidential Information” shall mean all confidential or proprietary technical or business information of a party furnished by such party (the “Discloser”) in writing or orally to the other party (the “Recipient”), including without limitation (i) software code, proposals, ideas, inventions, algorithms, trade secrets, or research related to current products, new products, new features or services; and (ii) financial statements and other financial information. For the avoidance of doubt, the Service and related Documentation, and all enhancements and improvements thereto will be considered Confidential Information of AwareManager. The Recipient agrees to hold the Discloser’s Confidential Information in strict confidence using commercially reasonable precautions to protect such Confidential Information, which precautions will be at least equivalent to those taken by Recipient to protect its own Confidential Information. Except as required by law or as expressly authorized under the Agreement, Recipient will not disclose the Discloser’s Confidential Information or use such Confidential Information for its own benefit or for the benefit of any third party. Recipient shall have no obligation of confidentiality with respect to any of Discloser’s information which Recipient can document: (i) was in the public domain at or subsequent to the time it was communicated to Recipient by Discloser through no fault of Recipient; (ii) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (iii) was independently developed by Recipient without reference to any of Discloser’s Confidential Information; or (iv) was communicated by the Discloser to an unaffiliated third party free of any obligation of confidence. Recipient shall be permitted to disclose Confidential Information in the event that, and only to the extent that, such information is required to be disclosed to comply with applicable laws or regulations, or to comply with a court or administrative order, provided that the Discloser is given reasonable prior written notice of such disclosure.
C. NON SOLICITATION AND NON–HIRING OF AWAREMANAGER PERSONNEL. Without the prior written consent of AwareManager, the granting or denial of which shall be at the sole discretion of AwareManager, Client shall not, directly or indirectly, recruit, solicit for employment, retain as an independent contractor, hire, or employ, on a temporary or regular basis, any personnel of AwareManager who are or have been assigned to perform work for Client under the Agreement during the term of this Agreement and for two (2) years after the effective date of the termination of the Agreement.
D. WARRANTY, WARRANTY DISCLAIMER, LIMITATIONS OF LIABILITY, INTELLECTUAL PROPERTY, INDEMNIFICATION.
(ii) WARRANTY DISCLAIMER. AWAREMANAGER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. AWAREMANAGER DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF HE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; OR (D) THE SERVICE OR SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY PROVIDED IN SUBSECTION (I), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AWAREMANAGER AND ITS AFFILIATES, SUPPLIERS, CONTRACTORS, AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SERVICE.
(iii) LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLIENT AGREES THAT IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, SUPPLIERS, CONTRACTORS, OR LICENSORS BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AWAREMANAGER’S AND ITS AFFILIATES’, SUPPLIERS’, CONTRACTORS’, AND LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT OF THE CONSIDERATION EXCHANGED IN CONNECTION WITH THIS AGREEMENT. The parties agree that the limitations of liability set forth in this subsection (iii) shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.
(iv) INTERNET DELAYS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AWAREMANAGER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
(v) Intellectual Property Ownership. Client acknowledges and agrees that, as between the parties, AwareManager shall retain sole and exclusive right, title, and interest, including without limitation all intellectual property rights and other proprietary rights, in and to all aspects of the Service and all software and all AwareManager proprietary information and technology used by AwareManager or provided to Client in connection with the Service (“AM Technology”). All rights not specifically granted under the Agreement are reserved to AwareManager. The Service and the AM Technology is protected by intellectual property rights owned or licensed by AwareManager. Access to the Service is licensed, not sold to Client, and Client does not acquire any rights, express or implied, other than those specified in the Agreement. Client hereby grants to AwareManager a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Users, relating to the Service.
(vi) Ownership of Data. As between the parties, Client shall retain sole and exclusive right, title and interest, including without limitation all intellectual property rights, in and to any data, information or other content provided by Client or its Users through or in connection with, or generated by the Service (the “Client Data”). Client acknowledges and agrees that Client is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property or right to use of all Client Data, and AwareManager shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client Data. Client hereby grants to AwareManager a non-exclusive, worldwide, perpetual, irrevocable right and license to use the Client Data for the purposes of providing and/or improving AwareManager’s products and services, including Service. In the event the Agreement is terminated (other than by AwareManager for Client’s breach), AwareManager shall make available to Client a file of the Client Data in a format chosen by AwareManager within 30 days of termination if Client so requests in writing at the time of termination. AwareManager reserves the right to withhold, remove, and/or discard Client Data without notice for any breach of the Agreement by Client, including, without limitation, Client’s non-payment. Upon termination for cause by AwareManager, Client’s right to access or use the Service and the Client Data immediately ceases, and AwareManager shall have no obligation to maintain or return the Client Data.
(vii) Third Party Software. The Service may utilize, contain or otherwise use certain third party software (collectively, the “Third Party Software”). Third Party Software may be subject to additional licensing terms, which AwareManager may deliver or make available from time to time to Client, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement.
(a) Client shall indemnify and hold AwareManager, its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Client Data or AwareManager’s use thereof infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Client of Client’s representations and warranties; or (iii) a claim arising from the use of the Service by Client or it Users in breach of the Agreement. AwareManager shall promptly notify Client in writing of any claim for which it seeks indemnification, provided the failure or delay in doing so shall not relieve Client from any obligations to indemnify AwareManager except to the extent that such delay or failure materially prejudices the defense of such claim. AwareManager will give Client sole control of the defense of any action and all negotiations for settlement and compromise, provided that Client may not agree to a settlement or compromise that imposes any liability on AwareManager without AwareManager’s advance written consent. AwareManager shall provide Client with reasonable assistance and information necessary to perform the above, with Client to be responsible for any out-of-pocket expenses of AwareManager in providing such assistance. If AwareManager desires to have separate legal representation in any such action, AwareManager shall be responsible for the costs and fees of its separate counsel.
(b) AwareManager will indemnify, defend, and hold Client and its directors, officers, employees and agents harmless from any and all costs, expenses (including reasonable attorney’s fees), losses, damages or liabilities resulting from any claim by a third party that the Service infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. Client shall promptly notify AwareManager in writing of any claim for which it seeks indemnification, provided the failure or delay in doing so shall not relieve AwareManager from any obligations to indemnify AwareManager except to the extent that such delay or failure materially prejudices the defense of such claim. Client will give AwareManager sole control of the defense of any action and all negotiations for settlement and compromise, provided that AwareManager may not agree to a settlement or compromise that imposes any liability on Client without Client’s advance written consent. Client shall provide AwareManager with reasonable assistance and information necessary to perform the above, with AwareManager to be responsible for any out-of-pocket expenses of Client in providing such assistance. If Client desires to have separate legal representation in any such action, Client shall be responsible for the costs and fees of its separate counsel. If AwareManager’s obligations in this Section D(viii)(b) shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Service by anyone other than AwareManager or its authorized agents, or (ii) combination, operation or use of the Service with other software, hardware or technology not provided by AwareManager, or (iii) related to the Client Data. THIS SECTION STATES AWAREMANAGER’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
Upon AwareManager’s sole determination, or after the entry of any judgment or order not subject to further appeal, that the use of the Service infringes upon the intellectual property rights of any third party and that such use of the Service must cease, AwareManager at its election shall, at its own cost and expense, either (a) procure for Client the right to continue the use of the Service “as is”; (b) modify the Service in such a way that its use does not infringe upon the rights of third parties and does not materially alter the functionality of the Service; or (c) if AwareManager determines that the alternatives listed in the preceding subparagraphs (a) and/or (b) are not commercially practicable, terminate the Agreement by notice to Client and refund to Client any unapplied prepayments paid to AwareManager by Client hereunder within the twelve (12) months immediately preceding the assertion of the claim of infringement.
E. GENERAL PROVISIONS. Any notice required or permitted hereunder shall be given in writing and delivered by hand, email, facsimile, registered or certified mail, or by a nationally or internationally-recognized delivery service, provided that, in each instance, there is reasonable proof of receipt, and shall be effective upon receipt. Notices shall be sent to the addresses set forth on the applicable Sales Order or to such other notice address as either party shall have provided to the other in writing. AwareManager and Client are independent contractors, and not employer-employee, partners, agents or joint venturers. Each Party’s employees are not, nor shall they be deemed to be at any time during the term of the Agreement, employees of the other Party. Each Party shall, to the extent permitted by law, direct the performance of all its services provided hereunder, including the methods, means and manner of performance. AwareManager shall not be liable to Client for any failure or delay caused by events beyond AwareManager’s control, including, without limitation, Client’s failure to furnish necessary information, sabotage, failures or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials, or equipment, or technical failures. Client hereby represents and acknowledges that in entering into the Agreement, it did not rely on any representations or warranties other than those explicitly set forth in Section 5.D.i above. If any provision in the Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. Any waiver by either party of the other party’s failure to comply with any obligations, covenants, agreements or conditions herein shall not be enforceable unless it is in writing and signed by the party granting such waiver and shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. This Agreement will inure to the parties’ permitted successors and assigns, which will be bound thereby. This Agreement may not be assigned by either party without the other party’s prior written consent, except that this Agreement shall be automatically assigned to any successor to all or substantially all of a party’s businesses, whether by merger, change of control, asset sale or similar transaction. Any assignment in breach of the foregoing shall be void. The terms of the Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the permitted assignees of the parties. All legal actions relating to enforcement of the Agreement shall be brought in the state or federal courts located in the Commonwealth of Massachusetts. Client expressly agrees to submit to the jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to conflicts of laws or choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.