Terms and Conditions
SOFTWARE AS A SERVICE (“SaaS”) SUBSCRIPTION AGREEMENT
PLEASE READ THE TERMS AND CONDITIONS OF THIS SaaS SUBSCRIPTION AGREEMENT (THE “SUBSCRIPTION AGREEMENT”) CAREFULLY BEFORE ACCESSING AND/OR USING THE SERVICE, THE AWAREMANAGER SOFTWARE AND/OR TECHNOLOGY AS TO WHICH YOU ARE BEING GRANTED A SUBCRIPTION LICENSE AND/OR BEFORE DOWNLOADING OR INSTALLING ANY AWAREMANAGER SOFTWARE AND/OR APPS TO YOUR SERVERS AND/OR HANDHELD DEVICES. THE AWAREMANAGER SERVICE IS LICENSED (NOT SOLD) TO YOU. BY EXECUTING AND RETURNING THE CONFIDENTIAL SALES ORDER, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY ALL THE TERMS OF THIS SUBSCRIPTION AGREEMENT. THIS SUBSCRIPTION AGREEMENT AND THE 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.
You should print and retain a copy of this Subscription Agreement for your records.
1. CLIENT; DESCRIPTION OF SERVICE; SUBSCRIPTION FEE; SUBSCRIPTION.
A. CLIENT. The “Client” means the entity identified as the “Client” on the first page of the applicable Sales Order.
B. THE SERVICE. The “Service” means the AwareManager Software identified in the applicable Sales Order, that is operated and maintained by Database International Group, Inc. d/b/a AwareManager (“AwareManager”) and the AwareManager APPs (if applicable) and all of AwareManager’s proprietary technology (including software, hardware, processes, algorithms, user interfaces, know-how, techniques, and other tangible or intangible material or information) made available to Client by AwareManager in providing the Service (the “AM Technology”).
C. 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 twelve months in advance. The amount of the first year Annual Subscription Fee is specified in the applicable Sales Order.
(i) Upon payment of the Annual Subscription Fee, and in accordance with the terms stated herein and subject to the limitations stated in sections (ii) – (v) below, AwareManager grants to Client a limited, non-exclusive, non sub-licensable 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 (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 “concurrent” means those users of Client (each, a “User”) 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) Client shall not (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; or (d) reverse engineer or access the Service in order to (1) build a competitive product or service, (2) build a product using similar ideas, features, functions or graphics of the Service, or (3) copy any ideas, features, functions or graphics of the Service.
(v) Client shall not (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 shall: (A) 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.
During the Subscription Term, AwareManager will provide to Client unlimited 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 SCHEDULE. The Annual Subscription Fee shall be due and payable as follows:
(i) Following AwareManager’s acceptance of the applicable Sales Order, AwareManager shall invoice Client for the first year Annual Subscription Fee plus one half (1/2) of the total Implementation and Support Fees specified on the Sales Order, together with any applicable sales or similar tax or portion thereof which AwareManager is required by a relevant taxing authority to collect and remit to such authority.
(ii) AwareManager will invoice the balance of the Transition Fee (1/2 of the Minimum Transition Fee plus any fees for additional Transition Services) and any Reimbursable Expenses to Client monthly, in arrears, following the month(s) in which such Transition Services are supplied and Reimbursable Expenses (as defined below) are incurred.
(iii) At least sixty (60) days prior to each successive one year anniversary of the Effective Date, AwareManager shall notify Client of any increase in the Annual Subscription Fee and invoice Client for the Annual Subscription Fee 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 (each, a “Reimbursable Expense”).
C. TAXES. Unless invoiced to Client by AwareManager pursuant to Section 5.A(i) above, 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 the Subscription Fees and/or the Transition Fees stated above. 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 shall pay each invoice in full within thirty (30) days of the date of each invoice. 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. 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.
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 be for the Subscription Term specified in the Sales Order. Following expiration of the initial Subscription Term, the Subscription Term shall automatically renew for additional one year periods upon Client’s payment of the Annual Subscription Fee for which Client is invoiced by AwareManager pursuant to Section 4.A(iii) immediately prior to the expiration of the then current Subscription Term (each, a “Renewal Fee”). Client’s failure to pay when due the Renewal Fee shall constitute non-renewal of the Subscription Term. For the avoidance of doubt, the license to access and use the Service and the AM Technology 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. The Recipient agrees to hold the Discloser’s Confidential Information in strict confidence using commercially reasonable precautions, 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 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 until two (2) years after the effective date of the termination of the Agreement.
D. WARRANTY, WARRANTY DISCLAIMER, LIMITATIONS OF LIABILITY, INTELLECTUAL PROPERTY, INDEMNIFICATION.
(i) Limited Performance Warranty. AwareManager warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online AwareManager help documentation under normal use and circumstances.
(ii) WARRANTY DISCLAIMER/LIMITATIONS OF LIABILITY. 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 CUSTOMER’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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AWAREMANAGER DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SOFTWARE AND HARDWARE SUPPLIED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AWAREMANAGER SHALL NOT BE LIABLE TO CLIENT FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THIS PRODUCT, EVEN IF AWAREMANAGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, AWAREMANAGER’S TOTAL LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM 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 PRECEDING LIMITATION ON THE AMOUNT OF AWAREMANAGER’S LIABILITY SHALL NOT APPLY TO ITS INDEMNIFICATION OBLIGATION UNDER SECTION 6D(VI) BELOW. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to the Client.
(iii) 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.
(iv) Intellectual Property Ownership. 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 of AwareManager”s Technology. All rights not specifically granted under the Agreement are reserved to AwareManager. The Service and the AM Technology is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. 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.
(v) Ownership of Data. Client shall retain sole and exclusive right, title and interest, including without limitation all intellectual property rights, in and to its data used 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. in the event the Agreement is terminated (other than by reason of Client’s breach), AwareManager shall make available to Client a file of the Client Data 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 forward the Client Data.
(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 use of the Client Data 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 breach by Client or Client Users 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. Client will have 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 incurred insofar as such costs, expenses, losses, damages or liabilities are based on a claim that (a) the Software violates or infringes on any United States intellectual property rights of a third party. 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. AwareManager will have 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.
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. Any amendment or modification of the Agreement will be effective only if it is in writing and signed by the party to be charged. 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. The Agreement may not be assigned by either party without the prior written consent of the other party. 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.