This FieldAware Master Services Agreement (“Services Agreement”, “MSA”, or “Agreement”) governs your purchase of a subscription license to and use of our Services. The parties agree as follows:
IF YOU REGISTER FOR A DEMO/FREE TRIAL VERSION OF THE SERVICE, THE APPLICABLE PROVISIONS OF THIS AGREEMENT ALSO GOVERN YOUR USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SERVICE ORDER 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 AND YOUR AFFILIATES TO THESE TERMS AND CONDITIONS. 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 SERVICE.
This Agreement incorporates our Data Processing Addendum (“DPA”), at https://www.fieldaware.com/site/assets/files/12871/fieldaware-data-processing-addendum.pdf,when the GDPR applies to your use of the Services to process Customer Data (as defined in the DPA). The DPA is updated and effective as of March 30, 2022, and replaces and supersedes any previously agreed data processing addendum between you and the Company.
95/46/EC. The DPA may be updated from time to time in accordance with its terms.
1.1 “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.3 “Authorized User” means an individual who is your employee or contractor, your Affiliate’s employee or contractor, or a Permitted Third Party’s employee or contractor who you allow to create a unique user name and password under your account.
1.4 “Subscriber Software” means software components to be installed on your, your Affiliates’, or your Authorized Users’ computer systems or devices.
1.5 “Documentation” means our user documentation, in all forms, relating to the Service (e.g., user manuals, on-line help files, etc.).
1.6 “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
1.7 “Permitted Third Party” means an entity under contract with you or your Affiliates who needs to access the Service to perform its obligations to you or your Affiliates and who is not our competitor.
1.8 “Professional Services” means the professional services specified in a Service Order or Statement of Work, potentially including but not limited to implementation services, consulting, and training services.
1.9 “Service” or “Services” means the service or services identified in a Service Order, as we may modify from time to time in our discretion.
1.10 “Service Order” means an ordering document entered into between you and us specifying the Services to be provided thereunder, including any addenda and supplements thereto. By entering into a Service Order under this Agreement, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to the Agreement.
1.11 “Statement of Work” means a Company document which specifies the deliverable of Professional Services.
1.12 “Subscriber Data” means all electronic data or information submitted to the Service, or otherwise provided for processing by the Service, by or on behalf of you and your Affiliates in accordance with this Agreement.
1.13 “Subscription Fees” means the fees for the Service specified in the Service Order.
1.14 “Technical Support Services” means our then-current technical support services offering.
1.15 “Company” or “we” or “us” or “our” means GPS Insight, Inc. or its designated Affiliate as specified in a Service Order or invoice.
1.16 “you” or “your” or “Customer” or ” Subscriber” means the customer named on the Service Order, the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity.
2.1 Full FieldAware Service. We offer demo/free trial versions of our Service. The most comprehensive version of the Service requires payment for continued use of the Service. The version of the Service that requires payment is currently referred to as ” Full FieldAware Service.”
2.2 Demo/Free Trials. We offer trials of the Full FieldAware Service for a specified period of time without payment or at a reduced rate (each, a “Demo/Free Trial“). If you register on our website or via a Service Order for a Demo/Free Trial, we will make the Service available to you under the Demo/Free Trial until the earlier of (a) the end of the Demo/Free Trial period for which you registered to use the Service, or (b) the start date of any Full FieldAware Service subscription ordered by you for such Service, or (c) termination by us in our sole discretion. Additional Demo/Free Trial terms and conditions may appear on the Demo/Free Trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding, and to the extent such additional terms and conditions conflict with any other terms in this Agreement, such additional terms will control. We reserve the right, in our absolute discretion, to determine your eligibility for a Demo/Free Trial, and, subject to applicable laws, to withdraw or to modify a Demo/Free Trial at any time without prior notice and with no liability, to the greatest extent permitted under law. ANY DATA YOU ENTER INTO THE SERVICE, AND ANY CONFIGURATION CHANGES MADE TO THE SERVICE BY OR FOR YOU, DURING YOUR DEMO/FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS THOSE COVERED BY THE DEMO/FREE TRIAL OR EXPORT SUCH DATA, BEFORE THE END OF THE DEMO/FREE TRIAL PERIOD. Please review the applicable Documentation for the Service during the Demo/Free Trial period so that you become familiar with the functionality and features of the Service before you make your purchase.
2.3 Inapplicable Provisions. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), BETA VERSIONS AND DEMO/FREE TRIALS OF THE SERVICE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AND SECTION 9 AND SECTION 10 (INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DO NOT APPLY TO BETA VERSIONS AND DEMO/FREE TRIALS OF THE SERVICE.
3.1 Use of the Service. Subject to the terms and conditions of this Agreement and your timely payment of any applicable fees, we grant to you and your Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement), non-sublicensable right during the term of this Agreement to use the Service solely in connection with your internal business operations. Your and your Affiliates’ rights to use the Service are subject to any limitations on use of the Service based on the version of the Service you register for (e.g., applicable user limits) and as set forth in the Service Order (collectively, the “Scope Limitations “) and your rights to use the Service are contingent upon your compliance with the Scope Limitations and this Agreement. Note that, as provided in greater detail in Section 6.1, any decrease in users must be requested at least thirty (30) days prior to any applicable term autorenewal. As part of the Service, we may provide you and your Affiliates with Subscriber Software, which you and your Affiliates may install on your computer system or other devices, subject to the terms of this Agreement, including, without limitation, Section 3.3. You are solely responsible for your conduct (including by and between all users), the content of Subscriber Data, and all communications with others while using the Service. You acknowledge that we have no obligation to monitor any information on the Service, but we may remove or disable any information that you make publicly available on the Service at any time for any reason or for no reason at all. We are not responsible for the availability, accuracy, appropriateness, or legality of Subscriber Data or any other information you may access using the Service.
3.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, we grant to you and your Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in in this Agreement), non- sublicensable right during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Service in accordance with this Agreement.
3.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize your Affiliates or third parties to: (a) rent, lease, or, except as explicitly set forth in this Agreement, otherwise permit third parties to use the Service, Subscriber Software, or Documentation; (b) use the Service to provide services to third parties as a service bureau or in any way that violates applicable law; (c) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Service to harm, threaten, or harass another person or organization; or (f) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system. In addition to your other obligations set forth herein, you specifically acknowledge and agree that: (a) the Company is not acting on your behalf as a Business Associate or subcontractor (as such terms are used, defined, or described in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”); (b) the Service is not HIPAA-compliant; and (c) You, nor your Affiliates or permitted third parties, may not use the Service in any manner that would require the Company or its Service to be HIPAA-compliant. You will not copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Service or any Subscriber Software or provide, disclose, or make any Subscriber Software available to any third party, except that you may make one copy of Subscriber Software solely for backup and archival purposes. You will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation or any Subscriber Software and will include all such notices on any copies. You will ensure that your Affiliates, Permitted Third Parties, and Authorized Users comply with this Agreement. You will be directly and fully responsible to us for their conduct and any breach of this Agreement by them. We reserve the right to deactivate, change, or require you to change your user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Service for any reason or for no reason. We may exercise such right at any time, with or without prior notice.
3.4 Authorized Users Only. This Agreement restricts the use of the Service to Authorized Users, up to the number of users specified in the Service Order. An Authorized User account must not be shared among users. Additional Authorized Users may be added by paying the applicable fees to us at our then-current rate or as otherwise specified in a Service Order. The Authorized Users who are employees of Permitted Third Parties may access and use the Service solely to perform the Permitted Third Party’s contractual obligations to you subject to the use limitations set forth in this Agreement. As part of the registration process, you may be asked to identify your company and other Authorized Users who should be associated with your account. You will not misrepresent the identity or nature of the company or Authorized Users who should be associated with your account. We may reassign the domain name associated with your account and change the way you access the Service at any time in our sole discretion. You are responsible for maintaining the confidentiality of your login, password, and account and for all activities that occur under your login and account, including the activities of Authorized Users.
3.5 Protection against Unauthorized Use. You will, and will ensure that your Affiliates, Permitted Third Parties, and Authorized Users use reasonable efforts to prevent any unauthorized use of the Service, Subscriber Software, and Documentation, and you will immediately notify us in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Service, Subscriber Software, or Documentation directly or indirectly through you, your Affiliate, a Permitted Third Party, or an Authorized User, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by us to prevent or terminate unauthorized use of the Service, Subscriber Software, or Documentation. We may, at our expense appoint our own personnel or an independent third party to verify that your use of the Service complies with the terms of this Agreement.
3.6 Beta Versions. From time to time, we may make available for you to try, at your sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a ” Beta Version“). Beta Versions are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. We may discontinue Beta Versions at any time in our sole discretion and may never make them generally available. We have no liability for any harm or damage arising out of or in connection with a Beta Version. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), BETA VERSIONS OF THE SERVICE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AND SECTION 9 AND SECTION 10 (INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DO NOT APPLY TO BETA VERSIONS OF THE SERVICE.
3.7 Reservation of Rights. We retain all right, title, and interest in and to the Service, Subscriber Software and Documentation and all related intellectual property rights, including without limitation any modifications, updates, customizations, cards, apps, or other add-ons. Your rights to use the Service, Documentation, and Subscriber Software are limited to those expressly set forth in this Agreement. We reserve all other rights in and to the Service, Subscriber Software, and Documentation.
3.8 Service Availability. The Company commits to provide 99.5% uptime with respect to the Subscriber’s Subscription Services during each Company fiscal quarter of the Term, excluding regularly scheduled maintenance times. Scheduled maintenance downtime is maintenance scheduled with at least two (2) business days’ notice. If in any Company fiscal quarter this uptime commitment is not met by the Company and Subscriber was not able to access the Subscription Services, the sole remedy available to Subscriber will be a pro-rata refund of that quarter’s applicable license fees for the period of time during which the Subscription Services were not available. Refund must be requested by Subscriber within five days of the end of the applicable quarter by emailing email@example.com. Credit will be calculated by the Company using the Company’s system logs and other records.
4.1 Professional Services. You may contract with us to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described on the Service Order and Statement of Work (if applicable). Unless otherwise specified in the applicable Service Order or Statement of Work you must fully utilize the purchased Professional Services within ninety (90) days from the Service Order effective date. Any unused portion of the Professional Services will expire after this period, or the period as detailed in the applicable Service Order or Statement of Work. If you elect not to purchase Professional Services to assist with implementation and training, you will still be entitled to receive the assistance of FieldAware Technical Support to assist with any product issues. However, if you elect not to purchases Professional Services, you shall not be entitled to utilize FieldAware Technical Support as a substitute for the Professional Services, including, but without limitation, any Professional Services relating to the implementation or installation of the Service. Subscribers who are subject to European Data Protection Laws and Regulations hereby acknowledge and grant the Company permission to have access to Subscriber Data, including regulated data, for any Professional Services performed as described on the Service Order and Statement of Work (if applicable).
4.2 Changes to Professional Services. You may reasonably request in writing that revisions be made with respect to the Professional Services set forth in a Service Order and Statement of Work. If your requested revisions materially increase the scope of the Professional Services or the effort required to perform the Professional Services under the Service Order, then we will deliver to you a written proposal reflecting our reasonable determination of the revised Professional Services, delivery schedule, and payment schedule, if any, that applies to the requested revisions. If you approve the proposal, then the parties will execute an amendment to the Service Order. Otherwise, the then-existing Service Order will remain in full force and effect, and we will have no obligation with respect to the relevant change requests.
4.3 Technical Support Services. We will provide you with Help Documentation and other online resources to assist you in your use of the Services which can be referenced at https://support.fieldaware.com/fasupport/ . We will also provide you the applicable Technical Support Services for the version of the Service to which you are subscribed or purchased as part of Service Order so long as you are current in payment of the Subscription Fees (if applicable). You are responsible for providing support to Permitted Third Parties. Subscribers who are subject to European Data Protection Laws and Regulations hereby acknowledge and grant the Company permission to have ongoing access to Subscriber Data, for any Technical Support Services.
4.4 Your Responsibilities. You will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable us to perform the Professional Services and Technical Support Services. You acknowledge that our ability to provide Professional Services as described in the Service Order and Technical Support Services may be affected if you do not meet your responsibilities as set forth above.
4.5 Feedback and Other Content. The Service may permit you, your Affiliates, Authorized Users, and Permitted Third Parties to submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service. You grant to us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit such content without restriction.
5.1 Fees and Payment Terms. For new or returning Subscribers, unless otherwise specified in a Service Order, the initial Subscription fees and the Professional Services fees set forth in the Service Order are due upon execution of the Service Order. For sake of clarity, the Service will not be provisioned nor will any Professional Services begin until after the initial Subscription and Professional Services fees set forth in the Service Order are received by the Company. Subscription Fees will be invoiced at the then-current rate for the Service or as otherwise specified in a Service Order, up to thirty (30) days in advance of the start of each renewal period. Fees for additional Service quantities and Professional Services will be invoiced at the time of order, unless otherwise agreed in writing by the parties. After the initial Subscription fees and Professional Services fees, you will pay all additionally invoiced amounts in full within thirty (30) days after the invoice date.
The charges in an invoice will be considered accepted by you unless we are notified of a good faith dispute in writing within five (5) days of the date of the invoice.
Unless expressly provided otherwise in a Service Order, all amounts payable under this Agreement are denominated in United States dollars, and you will pay all such amounts in United States dollars. Subscriber shall provide accurate, current, timely, and complete information on Subscriber’s legal business name, address, email address and phone number. Subscriber shall also provide an appropriate billing address, email address, contact person and phone number. Subscriber must promptly update all contact and billing information should it change. Subscriber is responsible for any and all their bank fees related to payments.
5.2 Credit Card. If you use a credit card to set up an account or pay for the Service, you must be authorized to use the credit card information that you enter when you create the billing account. You authorize us to charge you for the Service using your credit card and for any paid feature of the Service that you choose to sign up for or use under this Agreement. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for a subscription to the Service. If you set up a Demo/Free Trial using a credit card or if you paid the Subscription Fees using a credit card, you agree that we may automatically charge your credit card account the applicable Subscription Fee when the Demo/Free Trial ends or renew your subscription and charge your credit card account on the one- year anniversary of your last subscription date (the ” Renewal Date“), unless you cancel your subscription before the end of the Free Trial or the Renewal Date (as applicable). We will automatically renew your subscription each year on the Renewal Date until you terminate your subscription or we no longer offer the Service to which you subscribed. We may charge you up to the amount you approve, and we will notify you in advance of the difference for recurring Subscription Fees. You must keep all information in your billing account current. You may change your payment method at any time. If you tell us to stop using your payment method and we no longer receive payment from you for a Service that requires payment, we may terminate your access to that Service.
5.3 Late Payment. Any amount not paid when due may be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded monthly from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due. Amounts due from you under this Agreement may not be withheld or offset by you against amounts due to you for any reason. The Company reserves the right to suspend Subscriber’s and any Affiliates’ access to and/or use of Service for any accounts that are 30 (thirty) days past due. Suspended accounts will not be reinstated until all amounts due to the Company are paid in full, including current balances, and any costs or expenses incurred by us to collect the fees not paid when due.
5.4 Taxes. The fees stated in a Service Order may not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement (“Taxes“). You are responsible for paying all applicable Taxes. If we determine that we have the legal obligation to pay or collect Taxes, we will add such Taxes to the applicable invoice and you will pay such Taxes, unless you provide us with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues us for unpaid Taxes for which you are responsible under this Agreement and which you did not pay to us, we may invoice you and you will pay such Taxes to us or directly to the taxing authority, plus all applicable interest, penalties and fees.
5.5 Future Functionality. Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
6.1 Term. This Agreement commences on the effective date specified in the Service Order and continues for the initial subscription term specified in the Service Order, unless this Agreement is terminated earlier in accordance with the terms of this Agreement. Thereafter, this Agreement automatically renews for additional successive one-year terms unless at least 30 days before the end of the then- current term either party provides written notice to the other party that it does not intend to renew. Any requested decrease in number of subscription licenses upon renewal must also be made via written notice at least 30 days before the end of the then-current term. This may result in an increase to the per-user (or other applicable) subscription license fee. Subscription rates may increase by up to 10% upon automatic renewal. If you intend not to renew or request reduction in subscription licenses, then you must provide this written notice to firstname.lastname@example.org.
6.2 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. A breach of this Agreement by your Affiliate, an Authorized User, or Permitted Third Party will be treated as a breach by you. Termination in accordance with this Subsection will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If you fail to timely pay any Subscription Fees or Professional Services Fees, we may, without limitation to any of our other rights or remedies, suspend performance of the Service, Professional Services, and Technical Support Services until we receive all amounts due, or may terminate this Agreement pursuant to this Subsection.
6.3 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) we have no obligation to provide or perform any Service, Professional Services, or Technical Support Services after the effective date of the termination; (b) you will immediately pay to us any Subscription Fees, Professional Services Fees, and other amounts that have accrued prior to the effective date of the termination; (c) any and all liabilities accrued prior to the effective date of the termination will survive; (d) you will provide us with a written certification signed by your authorized representative certifying that all use of the Service, Subscriber Software, and Documentation by you, your Affiliates, Permitted Third Parties, and Authorized Users has been discontinued and the Subscriber Software has been de-installed from your and your Affiliates’ computer systems; and (e) Sections and Subsections 1, 2, 3.7, 4.5, 5, 6.3, 7, 8.3, 9.4, 11, 12, and will 14 survive termination. If this Agreement is terminated by us for your uncured material breach or by you other than as a result of a material, uncured breach by us, you will pay to us the amounts due under the applicable Service Order for the remainder of the then-current term. If you terminate this Agreement for our uncured material breach, as your exclusive remedy, we will provide you a pro-rata refund of all prepaid but unused Subscription Fees for the remainder of the then-current term.
7.1 Definition. “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding our product plans, Beta Versions, terms of this Agreement, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its Affiliates to the other party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the Effective Date specified on the Service Order. Confidential Information includes this Agreement and its terms. “Confidential Information” excludes information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (b) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (c) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
7.2 Maintenance of Confidentiality. The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such Confidential Information under the terms of this Agreement. Provided that such Permitted Third Party is bound by obligations of confidentiality and nonuse no less restrictive than the terms of this Agreement, you may disclose our Confidential Information to a Permitted Third Party solely to the extent required for such Permitted Third Party to be able to access and use the Service pursuant to this Agreement. Also, we may disclose this Agreement to actual and potential investors and funding sources and their representatives, in each case who agree to hold it in confidence. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.
7.3 Return of Materials and Effect of Termination. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. Following expiration or termination of this Agreement, we may purge your Subscriber Data and your Service environment from our systems. The obligations in this Section 7 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section 7 for as long as such information remains a trade secret under applicable law.
8.1 Data Security & Transmission. We implement and maintain physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Subscriber Data. You acknowledge and understand that the technical processing and transmission of Subscriber’s Electronic Communications is fundamentally necessary to use of the Service. DSL, cable, or another high-speed internet connection is required for proper transmission. You further acknowledge and understand that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. The Company is not responsible for any Electronic Communications and/or Subscriber Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by the Company, including, but not limited to, the Internet and Subscriber’s local network.
8.2 Subscriber Data. Subscriber Data is your property. You grant us a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate, and display Subscriber Data as required to provide or perform the Service, Technical Support Services, account management services, and Professional Services, and to publish, display, and distribute de-identified, aggregated information derived from Subscriber Data and from your use of the Service for purposes of improving our products and services, and developing, displaying, and distributing benchmarks and similar reports, provided that any such data is not publicly identified or identifiable as originating with or associated with you or any individual person. Following termination of Subscriber’s account and/or use Service, the Company may immediately deactivate Subscriber’s account and that following a reasonable period of not less than ninety (90) days shall be entitled to delete Subscriber’s account from the Company’s “live” site. During this 90-day period and upon Subscriber’s request, we will grant Subscriber limited access to the Service for several days for the sole purpose of permitting Subscriber to retrieve Subscriber Data, provided that Subscriber has paid in full all good faith undisputed amounts owed to the Company.
9.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of the Service Order, or performance of this Agreement.
9.2 Our Warranty. We warrant that the Service as delivered to you will materially conform to the specifications set forth in the applicable Service Order and/or Statement of Work, during the term of the Service Order. With respect to the Full FieldAware Service you must notify us of a claim under this warranty within thirty (30) days of the date on which the condition giving rise to the claim first appears. To the extent permitted by law, your sole and exclusive remedy arising out of or in connection with breach of warranty, is limited to the correction of the non-confirming Service, or if correction is not commercially reasonable, termination of the applicable Service Order(s) and a refund of any prepaid unused fees for the applicable Service. With respect to Professional Services the Company warrants that it and each of its employees, consultants, or subcontractors, if any, that it uses to provide and perform Professional Services have the necessary knowledge, skills, experience, qualifications, rights and resources to provide and perform the services in accordance with the applicable Service Order and/or Statement of Work; and (b) the Professional Services will be delivered to Subscriber in a good and diligent, workmanlike manner in accordance with industry standards, laws and governmental regulations applicable to the performance of such services. If the Professional Services do not conform to the foregoing warranty, and the Subscriber notifies the Company within thirty (30) days of the Company’s delivery of the Professional Services, Subscriber’s sole and exclusive remedy is to have the Company re-perform the non-confirming portions of the Professional Services.
9.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE, SUBSCRIBER SOFTWARE, OR DOCUMENTATION. WE DO NOT WARRANT THAT THE SERVICE, SUBSCRIBER SOFTWARE, OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICE, SUBSCRIBER SOFTWARE, OR DOCUMENTATION WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SERVICE, SUBSCRIBER SOFTWARE, AND DOCUMENTATION.
9.5 High-Risk Activities. THE SERVICE IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAILSAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, OR LIFE SUPPORT OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICE OR SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. WE SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH HIGH-RISK ACTIVITIES.
10.1 Defense of Infringement Claims. We will, at our expense, either defend you from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against you alleging that your use of the Service infringes or misappropriates any United States copyright, trade secret, trademark, or other intellectual property right. You must (a) give us prompt written notice of the Claim; (b) grant us full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as we may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. You will not defend or settle any Claim under this Subsection 10.1 without our prior written consent. You may participate in the defense of the Claim at your own expense and with counsel of your own choosing, subject to our sole control over the defense and settlement of the Claim as provided above.
10.2 Indemnification of Infringement Claims. We will indemnify you and your Affiliates from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against you and your Affiliates in any Claim under Subsection 10.1; (b) all out-of- pocket costs, including reasonable attorneys’ fees reasonably incurred by you in connection with the defense of a Claim under Subsection 10.1 (other than attorneys’ fees and costs incurred without our consent after we have accepted defense of the Claim and expenses incurred pursuant to the last sentence of Subsection 10.1); and (c) all amounts that we agree to pay to any third party to settle any Claim under Subsection 10.1.
10.3 Exclusions from Obligations. We have no obligation under this Section 10 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Service in combination with other products or services; (b) any aspect of the Service configured specifically for you to comply with designs, requirements, or specifications required by or provided by or on your behalf; (c) use of the Service by you, any Authorized User, or any Permitted Third Party outside the scope of the rights granted in this Agreement; (d) failure of you, any Authorized User, or any Permitted Third Party to use the Service in accordance with instructions provided by Us; or (e) any modification of the Service not made or authorized in writing by Us.
10.4 Infringement Remedies. In the defense or settlement of any infringement Claim, we may, at our sole option and expense: (a) procure for you a license to continue using the Service; (b) replace or modify the allegedly infringing technology to avoid the infringement; or (c) if the foregoing are not commercially feasible in our sole judgment, then terminate your license and access to the Service and refund any prepaid, unused Service fees as of the date of termination. This Section 10 states our sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third- party intellectual property right by the Service.
11.1 Defense. You will defend us and our Affiliates from any actual or threatened third-party Claim arising out of or based upon (a) use of the Service by you, your Affiliates, Permitted Third Parties, or any Authorized User that is not in accordance with the terms of this Agreement; and (b) the Subscriber Data or other materials or information provided by you or on your behalf under this Agreement. We will give you prompt written notice of the Claim and provide assistance in connection with the defense and settlement of the Claim as you may reasonably request. We may participate in the defense of any Claim at our own expense and with counsel of our own choosing.
11.2 Indemnification. You will indemnify us from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against us in any Claim under Subsection 11.1; (a) all out-of-pocket costs, including reasonable attorneys’ fees reasonably incurred by us in connection with the defense of a Claim under Subsection 11.1 (other than attorneys’ fees and costs incurred without your consent after you have accepted defense of the Claim); and (c) all amounts that you agree to pay to any third party to settle any Claim under Subsection 11.1.
12.1 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.2 Cap on Liability. EXCEPT WITH REGARD TO YOUR BREACH OF SECTION 7 OR SECTION 9.3, TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL SUBSCRIPTION FEE AMOUNTS PAID BY YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR OBLIGATION TO PAY ANY FEES UNDER THIS AGREEMENT OR ANY SERVICE ORDER.
12.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
13.1 Company Partner Third-Party Products and Services. Any Company Partner third-party Product or Service (e.g. Company Forms, Company Insights, etc.) that we provide as identified in an applicable Service Order, shall be subject to this MSA. Subscriber does not have a direct relationship nor contract with the Company Partner, and only has access to these Services as part of the Full FieldAware Service and through Company’s Partnership with applicable Third- Party.
13.2 Non-Company Third-Party Products and Services. You may choose to develop, procure, or connect to Permitted Third-Party product or service outside of the Company that interoperates with the Service. We do not warrant or support these third-party product or services, regardless of whether it is certified by us. If you install or enable a third-party product or service for use with the Service, you grant us permission to allow the provider of that product or service to access Subscriber Data as required for the interoperation with that third-party product or service with the Service. We are not responsible for any disclosure, modification, or deletion of Subscriber Data by the third-party product or service resulting from this access. If we believe a third-party product or service violates our policies, this Agreement, applicable law, or the rights of any third party, we may disable the
third-party produce or service and suspend its use until the potential violation is resolved.
14.1 Access by Competitors. You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
14.2 U.S. Government Use. If the Service is licensed under a United States government contract, you acknowledge that the Service is a “commercial item” as defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. You also acknowledge that the Service is “commercial computer software” as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract will have only those rights, and will be subject to all restrictions, set forth in this Agreement.
14.3 Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify our Legal Department at email@example.com.
14.4 Relationship. We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of this Agreement.
14.5 Publicity. We may only use your name, trademarks, and service marks to the extent necessary to fulfill our obligations under this Agreement or as otherwise explicitly authorized in this Agreement or a Service Order. We reserve the right to use your name as a reference for marketing and promotional purposes on our website and in other communications with our existing and prospective customers. We may issue a press release, containing your name, announcing the relationship no later than sixty (60) days following the execution of this Agreement. The press release may include quotes from senior management of both the Subscriber and the Company. We will work with you to prepare any additional marketing materials such as case studies, testimonials, videos, etc. and obtain written consent for their use. No specific details of the Agreement will be made public in any format for any promotion, publicity, marketing, or advertising purpose. Any approval required under this Section shall not be unreasonably withheld or delayed by either party. If you do not want to be listed as reference for the Service, you may send an email to firstname.lastname@example.org stating you do not wish to be identified as a reference.
14.6 Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under this Agreement (in whole or in part) without our prior written consent, except in connection with a change of control, merger, or by operation of law. Your assignment or delegation will not relieve you of your obligations under this Agreement nor release you of your liability under this Agreement. We may voluntarily, involuntarily, or by operation of law assign any of our rights or delegate any of our obligations under this Agreement without your consent. Any purported assignment or delegation in violation of this Subsection will be null and void. Subject to this Subsection, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.
14.7 Subcontractors. We may use subcontractors or other third parties in carrying out our obligations under this Agreement and any Service Order. We remain responsible for all of our obligations under this Agreement.
14.8 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address set forth in the Service Order and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
14.9 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
14.10 Governing Law. This Agreement shall be governed in accordance with the laws of the State of Arizona and any controlling U.S. federal law and excluding the Uniform Computer Information Transactions Act (UCITA).
14.11 Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any action arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, will be determined by binding arbitration in Phoenix, AZ, U.S.A. by one arbitrator. The arbitration will be administered by the AAA pursuant to its Comprehensive Arbitration Rules and Procedure. Judgment upon the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to prepare for or conduct the arbitration hearing on the merits.
14.12 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, including, without limitation, your Affiliates, Permitted Third Parties, or Authorized Users.
14.13 Changes to the Agreement. The Company reserves the right to change this Agreement at any time to reflect new Services, changes in our practices or relevant laws. We may also take steps, as required by law, to notify you which may include notifying you by email (sent to the email address specified in your account) or by means of notice on this site. The “Last Updated” legend at the top of this Agreement indicates when it was last revised. Any changes will become effective when we post the revised Agreement.
14.14 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce. We reserve the right, at our discretion, to change the terms of this Agreement on a going-forward basis at any time. Please check the terms of this Agreement periodically for changes. If a change materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
14.15 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
14.16 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
14.17 Counterparts. The Service Order may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Service Order may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
14.18 Entire Agreement. This Agreement and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter, including any prior Nondisclosure Agreement between the parties or their Affiliates. If there is a conflict between the terms of this Agreement and a Service Order, the terms of the Service Order will control. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party mutually and expressly agrees to such provision in writing.