THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT (“AGREEMENT”) BETWEEN SERVICEAIDE, INC, A DELAWARE CORPORATION AND ITS AFFILIATES INCLUDING SUNVIEW SOFTWARE, INC. AND WENDIA NORTH AMERICA, LLC (COLLECTIVELY THE “COMPANY,” “US,” OR “OUR”) WITH ITS PRINCIPAL PLACE OF BUSINESS AT 2445 AUGUSTINE DRIVE, SUITE 150, SANTA CLARA, CA 95054 AND THE CUSTOMER IDENTIFIED ON THE APPLICABLE ORDER FORM (“CUSTOMER”). IT IS EFFECTIVE (THE “EFFECTIVE DATE”) AS OF THE DATE OF ACCEPTANCE OF THE APPLICABLE ORDER FORM.
THIS AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF OUR SOFTWARE AND SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THIS AGREEMENT IS EFFECTIVE AS OF SUCH DATE. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
WHEREAS, Customer desires to access one or more of the Company’s software products and receive services from the Company, and the Company wishes to grant such access and provide services, pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the parties agree as follows:
Capitalized terms not otherwise defined in this Agreement have the meanings ascribed to them below:
1.1 “Customer Data” means all data, information or material submitted or provided by Customer to the Company through Customer’s use of the Services under this Agreement.
1.2 “Day(s)” means calendar day(s) for this Agreement (except when used as part of a proper name, e.g. Memorial Day).
1.3 “Order Form” means any ratified document that identifies: (i) the Software to be provided by the Company, (ii) the subscription Term, subscription fees and other terms relating to the Company’s provision of such Software, and (iii) any Services, including Professional Services, to be provided by the Company. Each executed Order Form will become a part of this Agreement.
1.4 “Professional Services” means any consulting, implementation or other services performed by the Company for Customer under an Order Form to facilitate Customer’s use of the System.
1.5 “Regulation” means any applicable governmental law, regulation, rule, or order
1.6 “Services” means the online hosting, maintenance and support services, and Professional Services as set forth in an Order Form.
1.7 “Software” means the software products identified on an Order Form executed by the parties, including associated documentation and any Upgrades and Enhancements. Additional Order Forms may be executed by the parties from time to time for additional software products.
1.8 “Statement of Work” or “SOW” means a document that identifies the Professional Services to be performed, the Fees Customer will pay for the Professional Services and the estimated duration of the Professional Services. If used, each executed Statement of Work shall be attached to an Order Form and is incorporated into and made part of this Agreement.
1.9 “System” means the Software, forms, reports, associated documentation, the Company’s database, and all software, hardware and systems accessed or utilized by the Company, in connection with providing access to Customer under this Agreement.
1.10 “Upgrades and Enhancements” means code corrections and fixes, updates and new releases to the Software, which are made available by the Company generally to all of its customers. Upgrades and Enhancements include new optional functionality and net-new functionality for the Software subscribed to by Customer, but do not include net-new functionality falling outside of the scope of the Software subscribed to that would otherwise be sold as a separate component.
1.11 “Users” means Anyone who are authorized by Customer and who have been issued a User ID and password to access and use the System for Customer’s internal business.
2.1 Grant of Rights. Subject to the terms and conditions of this Agreement, the Company grants to Customer a non-exclusive, non-transferable, non-assignable (except as set forth in Section 16.5), limited term right, without the right to sub-license, to access, display and use the System remotely via the Internet for the number and type of Users as set forth on an Order Form. The Company and its licensors reserve all rights in and to the System not expressly granted to Customer under this Agreement. The System will be made available via the Internet in a Software as a Service, or “SaaS” model, in accordance with the terms of the Company’s Service Level Agreement, attached to this Agreement as Exhibit A.
2.2 Restrictions on Use. Customer will not permit its Users to directly or indirectly edit, alter, abridge, or otherwise change in any manner the System. Customer may not, and may not permit Users to:
(a) reproduce, display, download, modify, create derivative works of or distribute the System, in whole or in part, or attempt to reverse engineer, decompile, disassemble or access the source code for the System or any component thereof;
(b) use the System, or any component thereof, in the operation of a service bureau to support or process any data of any party other than Customer;
(c) permit any party, other than the then-currently authorized Users to access the System;
(d) transmit the System, in whole or in part, electronically by any means;
(e) access the System via any means other than over the Internet using the Company’s supported technology; or
(f) access the System other than through the authorized User ID and password. The Company reserves the right to include a license key or other means within the System to limit use thereof to the then currently authorized Users and to enforce the restrictions on use of the System set forth in this Agreement.
2.3 Authorized Use Only. Customer is responsible for the acts and omissions of all Users and for all activity occurring under its accounts, whether or not authorized by Customer. Customer will implement reasonable controls to ensure that the System is only accessed and used by the then-currently authorized Users, and Customer shall immediately disable access when a User is no longer authorized. Customer will promptly notify the Company of any unauthorized access to or use of the System that becomes known to Customer. Customer will take all reasonable steps to ensure that each User’s access to and use of the System is in compliance with the terms of this Agreement. Customer may not share or transfer User IDs or passwords, and each User shall access the System only with a User ID issued to them. Customer will be responsible for all acts or omissions of Customer or its Users, and will cooperate with the Company in the enforcement of this Agreement against all third party Users. The Company will have the right to immediately suspend or terminate a User’s access to and use of the System if such User breaches the terms of this Agreement or threatens or disrupts the System. Where reasonably possible, the Company will deliver notice to Customer of the suspension or termination of a Users access to and use of the System.
3.1 Customer’s Obligations. Customer shall:
(a) cooperate with the Company to achieve an effective implementation of the System and performance of the Services;
(b) provide the Company with all information, access and resources reasonably necessary for effective implementation and operation of the Services;
(c) have in place the appropriate browser and other software and hardware for implementing and accessing the System, including any third party licenses;
(d) supply sufficient workspace and other necessary resources at Customer’s facility at no charge to the Company;
(e) be solely responsible for the accuracy, quality, integrity and legality of all Customer Data provided by Customer or any User and of the means by which it acquired such data;
(f) designate a Customer representative who will be named in the engagement’s Statement of Work, who is authorized to make commitments on Customer’s behalf and who will render decisions promptly to avoid delays in the progress of the Services.
4.1 Company’s Services. The Company will perform the Services pursuant to the Order Form, each applicable Statement of Work and this Agreement. Any modification to an executed Statement of Work must be approved in writing by the parties and may result in an adjustment to timelines or Fees due.
5.1 Fees. Customer will pay the amounts set forth on each Order Form or as otherwise agreed in writing by both parties (“Fees”). Except as expressly provided in the Service Level Agreement, all Fees are non-cancellable and non-refundable. Fees are exclusive of taxes, levies, duties, governmental charges, or expenses. In addition to the Fees and expenses specified in this Agreement, Customer is solely responsible for and will pay (or reimburse the Company for) all withholding, value added and sales taxes due, except for taxes on the Company’s income. Customer will, at the Company’s request, provide the Company with receipts and other written evidence of payment of such taxes.
5.2 Subscription Fees, Each Order Form will specify the initial number of Customer Users that Customer is subscribing for (“Base Users”) as well as the Subscription Fees for such Users (“Base Users Subscription Fees”) and other Subscription and non-Subscription Products.
5.3 Professional Services Fees. Customer will pay the amounts set forth in each Order Form for Professional Services or other amounts relating to implementation of the System (“Professional Services Fees”).
5.4 Fee Increases. Except as otherwise set forth on the applicable Order Form, after the Initial Term, a price increase of 6% per annum shall be applied to Fees for each Renewal Term in accordance with Section 9.1. The Fee per User will change accordingly with any Renewal Term price increases.
6.1 Payment Terms. Unless otherwise set forth in an Order Form, the Company will invoice Customer for the Fees annually in advance, and Customer will pay such invoices, within thirty (30) Days of the invoice date. Customer will make payment via electronic funds transfer or wire. If Customer fails to make any payment when due, provided that the Company first provides written notice of the delinquency to Customer and Customer fails to pay all amounts within ten (10) Days from receipt of such notice, the Company may cancel or suspend Services or access to the System, and any unpaid, undisputed amount will accrue interest at the rate of one percent (1%) per month or the highest rate permitted by law, whichever is less. Customer will be liable for all costs and expenses attendant to collection of past due amounts, including reasonable legal fees, court costs and other professional fees and expenses of enforcement. In addition, as provided in the Order Form, the Company reserves the right to audit Customer’s use of the System monthly and invoice Customer based on the number of Additional Users (as defined in an Order Form) in excess of Customer’s Base Users. The Company’s rights under this section will be in addition to all other rights and remedies available to the Company upon Customer’s default.
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