Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE OF OUR SERVICES AND/OR PRODUCT. IF YOUR SUBSCRIPTION IS OR INCLUDES A FREE TRIAL, THIS AGREEMENT ALSO GOVERNS YOUR FREE TRIAL OF THE SERVICES AND/OR PRODUCT.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY SIGNING AND EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on 23rd May 2022. It is effective between You and Us as of the date of Your acceptance of this Agreement.
In this Agreement unless the context otherwise requires:
2. PRODUCT LICENSING
2.1 Provision of Product Licenses
We shall make the Product available to You pursuant to the terms of this Agreement and the applicable Service Orders, as detailed in the relevant Order Forms, for the duration of the applicable subscription term. Service Orders and Order Forms are not binding upon Us, until We have notified You in writing (by email or otherwise) that We have accepted them. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2 User Subscriptions
2.3 Use of Materials
Any information or materials that are made available to you (“Materials”) by Us is the copyrighted work of Us and/or its licensors (if any). Your right to download and/or use the Materials will be subject to these Terms. Any use, reproduction or redistribution of the Materials not in accordance with these Terms is prohibited.
The origins of such Materials may be internal or external to Us. All Materials provided on Our websites or otherwise, including any material from third parties, is “as is,” and We make no express or implied claims, representations or warranties as to its accuracy, validity or veracity. We shall not be liable, in any way, for your use of these Materials, any results that may occur from such use, or any consequences from decisions made in reliance on these Materials. We make no claims, representations or warranties that the Materials will operate properly, securely, effectively or efficiently. We disclaim all liability concerning the download of Materials, including, but not limited to damage to the user’s hardware, software, network or systems, loss of data, application failure, backup errors or problems related to connectivity, security, compatibility, functionality or efficiency.
2.4 Additional features and functionality
Any additional features or functionality (not included in Our standard Product) such as custom fields, custom objects or components which are not part of the Product or regular system upgrades, will only be provided if:
3. DELIVERING A PROJECT
3.1 Our Duties
Following the commencement of a Project, We will use commercially reasonable endeavors to:
3.2 Your Duties
You agree that you will:
3.3 Extension of Due Dates
You agree that:
4. USER ACCEPTANCE TESTING AND DELIVERY
4.1 User Acceptance Testing
4.2 Rectification of errors found during User Acceptance Testing
then such work will be classified as an ‘’enhancement’’ and may be the subject of an additional fee or charge.
6. WHEN A PHASE AND/OR PROJECT IS DEEMED TO BE COMPLETED
A Phase and/or Project will be deemed to have been delivered and completed upon the completion of User Acceptance Testing and/or the provision of training under Section 5.
7. FEES AND PAYMENT
You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, fees are based on Product purchases and not actual usage, Order Forms are non-cancellable, fees paid by You are non-refundable, and the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. The start date of Your usage of the Product (as stated in the applicable Order Form) will represent the start of the license billing period except as otherwise specified in the Order Form. Billing will be initiated from the beginning of Your Start Date for ALL Users specified in the Order Form, irrespective of when each User actually uses the Product. Your obligation to pay the fees for Product purchased is not in any way contingent upon the progress or completion of any related or unrelated Services that We are performing for You, unless otherwise explicitly stated in the applicable Order Form.
7.2 Invoicing and Payment
If You provide credit card information to Us, You authorize Us to charge such credit card for all Products purchased pursuant to any Order Form for the duration of the subscription term. Term length will be stipulated on the Order Form along with billing periods. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges must be paid within 14 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
7.3 Overdue Charges
If any charges are not received by Us from You by the due date, then at Our discretion: (a) such charges will accrue late-payment interest at the rate of 1%p.a. 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, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 7.2 (Invoicing and Payment).
7.4 Suspension of Service and Acceleration
If any amount owing to Us by You under this or any other agreement is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such future payment obligations become immediately due and payable, and suspend Your usage of Our Product and Services until such amounts are paid in full. We will give You at least 7days’ prior notice that Your account is overdue before suspending Your access to Our Product or Services.
7.5 Formal Collection of Payment
You hereby acknowledge that We hold the right to pursue payment collection through formal debt collection third parties (or assign our collection rights under this Agreement to any third party, by notice in writing to You) if any amount owing by You under this or any other agreement for Our Product or Services is 30 or more days overdue and no effort to resolve a payment dispute has been made (or efforts have been made, but full payment has still not been received by Us within 14 days of the commencement of those dispute resolution efforts). All fees and costs incurred in securing these payments will be added to the total payable amount at the time of collection including; third-party collection fees, and interest charges identified in clause 7.3 (Overdue Charges).
Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to goods and services tax, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
8. PROPRIETARY RIGHTS
8.1 Reservation of Rights
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Products and Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You shall not:
8.3 Your Data
As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Products and Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Products or Services.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1 Representations and Acknowledgements
Except as expressly provided herein, or to the extent of any implied warranties that cannot be lawfully excluded, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and to the maximum extent permitted under applicable law, each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Where applicable law does not allow such implied warranties to be excluded, but does permit remedies for breach of warranty to be limited, the parties agree that our liability for breach of such warranty shall be limited to an obligation to re-supply the products, or re-perform the services, that did not comply with the applicable implied warranty. Content, beta and free trial products and services are provided “as is,” exclusive of any warranty whatsoever. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
10. MUTUAL INDEMNIFICATION
10.1 Indemnification by Us
10.2 Indemnification by You
You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Product in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We: (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance that You request, at Your expense.
11. LIMITATION AND EXCLUSION OF LIABILITY
11.1 Limitation of Liability
Neither party’s liability with respect to any single incident arising out of or related to this agreement will exceed the amount paid by customer hereunder in the 12 months preceding the incident. Further, in no event will either party’s aggregate liability arising out of or related to this agreement exceed the total amount paid by customer hereunder. The above limitations will apply whether an action is in contract or tort and regardless of the theory of liability. However, the above limitations are in addition to and will not limit customer’s payment obligations under section 7 (fees and payment). Notwithstanding the foregoing, the liability arising out of or related to the obligations under Section 10 of this Agreement will not exceed USD $1,000,000.
11.2 Exclusion of consequential and related damages
In no event will either party have any liability to the other party for any lost profits, revenues, damage to reputation or for any indirect, special, incidental, consequential or punitive damages, whether an action is in contract, tort (including negligence) or otherwise, and regardless of the theory of liability, even if a party has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.
11.3 Your data
11.4 Data Retention
We retain processed data in order to continue provision of our Services to you in connection with the Product. Your Data is stored in a database instance which is dedicated to you.
12.1 Market Disclosure
When You become a customer of Us, You agree to allow Us to reference You as a customer using Our technology on Our website and in print copy or marketing collateral. We will use Your company logo for this purpose, but not for any other purpose.
13. TERM AND TERMINATION
13.1 Term of Agreement
This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
13.2 Term of Purchased Subscriptions
The term of each subscription shall be as specified in the applicable Order Form and is subject to any special terms and conditions specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 45 days before the end of the relevant subscription term. The per-User pricing during any automatic renewal term will be the same as applied during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. If a corresponding Order Form specifies the duration of the period over which Your pricing is fixed, We will not increase Your per-User Product fees for that period of time.
In both these instances 30 days’ notice will be required.
13.4 Refund or Payment upon Termination
13.5 Return of Your Data
Upon request by You made within 30 days after the effective date of termination or expiration of Your relevant subscription under the applicable Order Form, We will make available to You for download a file of Your Data in comma separated value (.csv) format, relating to the expired or terminated subscription. After such 30-day period, We shall have no obligation to maintain or provide any such data and may thereafter, unless legally prohibited, delete all such data in Our systems or otherwise in Our possession or under Our control.
13.6 Surviving Provisions
Sections 7 (Fees and Payment), 10 (Mutual Indemnification) and 11 (Limitation of Liability) will survive any termination or expiration of this Agreement.
14. PRODUCT SUPPORT
You will receive Support Services for the Product as detailed in the Order Form for the duration of the term under the applicable Order Form. In all cases, Your support requests must be submitted via our online ticketing system or email and only elevated to telephone communication when initiated by Our Customer Support team members. You will be provided with further details on the support request process provided during the onboarding process.
14.2 Summary of Services Offered and included under this Agreement
14.3 Support Response Times
We shall respond to your support request within 12 Hours during working days (Monday – Friday) of the time zone from which the support request originated. You acknowledge that it may not be possible to provide a complete resolution to the support request within this time frame.
14.4 Support Request Procedures
An incident will be classed as resolved as soon as Our customer support team member has provided You with what it believes to be the appropriate solution, or confirmed that the Product is functioning in its usual manner and have marked the ticket in question as ‘Solved’ or ‘Closed’. The status of the incident ticket will be considered to be “On Hold” if We are waiting for positive confirmation from You about any aspect of the incident.
14.6 High-level Elevation and Consulting
In some cases, You may request additional services to modify or improve the Product. In such cases a consulting or technical services proposal will be provided by Us to You. In such cases – the new consulting or technical services proposal will cover the cost of the services requested by You. If You and Us reach agreement on the Services to be provided by Us, and the charges to be paid by You for those Services, we will enter into an Order Form for the provision of those Services.
15. NONDISCLOSURE OBLIGATION
15.1 Confidential Information
In this Agreement, “Confidential Information” means information of whatever nature and in whatever form (including electronic, magnetic and other non-tangible forms capable of being read by human beings or not) concerning the operations, dealings, organisation, personnel, business strategies, ideas or intellectual property rights of a party (Discloser) which is received by, disclosed to or discovered by the other party (Recipient) pursuant to, in connection with or as a result of this Agreement or any action taken under this Agreement. For the avoidance of doubt, Our Confidential Information includes the Product and details about our Services and Confidential Information of Our licensors and subcontractors.
This Agreement imposes no obligation upon Recipient with respect to Discloser’s Confidential Information which Recipient can establish by legally sufficient evidence:
Recipient must keep secret and confidential all Confidential Information of Discloser and must not use or disclose any of Discloser’s Confidential Information without the prior written consent of Discloser, except to the extent necessary to disclose Confidential Information for the purposes of carrying out an obligation or responsibility of Recipient under this Agreement, provided that the person to whom the Confidential Information is disclosed is subject to obligations of confidentiality offering no less protection (to Discloser) than as set out in this Section 15.
Each party acknowledges that the Confidential Information of the other party is of a proprietary and confidential nature and that any un-authorised disclosure or use of the Confidential Information, without written prior permission of the Discloser, may (depending on the circumstances):
Each party must take all reasonable steps to ensure that each of its personnel to whom any of the other party’s Confidential Information is disclosed must not use or disclose that Confidential Information or any part of it except in a manner permitted by clause 15.3.
15.6 Return of materials
Subject to clause 15.7, Recipient must on demand by Discloser return (and must cause Recipient’s personnel to return) to Discloser all copies (including partial copies) of Discloser’s Confidential Information.
15.7 Retention for quality assurance purposes
Recipient may retain, on a confidential basis, one copy of Discloser’s Confidential Information for record keeping and quality assurance purposes.
15.8 Terms of Agreement Confidential
The parties agree that the terms and conditions of this Agreement and the fees payable under this Agreement are confidential and will be regarded as Our Confidential Information. We may however use these terms and conditions as the basis for its contracts with other customers.
15.9 Public announcements
Neither party may make statements to the media, or public statements generally, relating to the other party or to such other party’s Confidential Information. However, either party may make such statements about the general nature of the commercial relationship between the parties.
16.1 Compliance with Laws
You agree that You must, in connection with this Agreement and its subject matter, comply with all applicable laws and regulations.
You must not assign or novate any of Your rights or obligations under this Agreement without Our prior written consent. Any purported assignment or novation by You without Our prior written consent is of no effect and voided.
16.3 Governing Law
We reserve the right to vary and update these terms from time to time during the period of Your subscription and shall provide you with at least 30 days’ prior notice of any updates to these terms. Your continued use of the Product or Service beyond the effective date of the updated terms shall constitute your acceptance of the updated terms.
16.5 Entire agreement
This Agreement constitutes the entire agreement between You and Us in respect of the Product and Services. No Order Form or other ordering document that purports to modify or supplement the printed text of this Agreement shall add to or vary the terms of this Agreement. This Agreement replaces and supersedes any prior verbal or written understandings, communications, and representations between You and Us. This Agreement may be amended only by a written document executed by a duly authorised representative of You and Us.
16.6 Force majeure
We will not be liable for any failure to perform, to the extent caused by any circumstances beyond Our reasonable control. If the failure due to such circumstances continues for ninety (90) or more consecutive days, either You or Us may terminate this Agreement with immediate effect by written notice to the other party.
16.7 Severance and waiver
If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right under this Agreement shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.
16.8 Limitation of actions
Except for actions for non-payment or breach of Our intellectual property rights, no action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has accrued.
16.9 No third-party rights
You acknowledge that:
16.10 Disparaging Statements
Neither party will make any false, misleading or disparaging statements regarding the other party or its technology, products or services, or their capabilities, features, functions or performance, including without limitation in or in the course of any sales, marketing, publicity or other activities under or in relation to this Agreement.
You acknowledge that We are not a party to any transaction that You enter into with any third party (including, for example, any of Your customers), even if (for example) the Platform provides a payment gateway or other functionality to facilitate settlement of such transactions.
16.12 Independent contractors
We are not an employer, employee, agent or partner of You, and We are not engaged in any joint venture with You.