Master Agreement with Empowering Systems, Inc.
This Master Agreement (“Agreement”) defines the scope of our business relationship and the terms for using our Products and/or Services. The specific details of our Products and Services that you have ordered are defined in the attached “Order(s).” All Orders are subject to the terms of this Agreement, which may be amended from time to time.
You accept the terms of this Agreement, either by clicking a box indicating your acceptance or by accepting an Order that references 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 its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. 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 our Products and Services.
Table of Contents
1. Definitions
2. Ordered Products and Services
3. Use of the Products and Services
5. Fees and Payment for Products and Services
12. Governing Law, Dispute Resolution and Notices
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“License” means that Your designated number of Users as specified in the Order are granted a limited, non-exclusive license to use the computer program(s) embedded in the Products and the accompanying documentation (User Guides) provided by Empowering Systems, Inc. (“Licensor”) only in accordance with this Agreement. We, as the Licensor reserve all rights not expressly granted to the User. The User assumes sole responsibility for the installation, use and results obtained from use of the Software. From time to time Licensor may, in its sole discretion, advise You of updates, upgrades, enhancements or improvements to the Software and/or new releases of the Software (collectively, “Enhancements”), and You may license such Enhancements upon payment of prices, either directly or through a subscription, as may be established by Licensor from time to time.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order” means the documents authorizing purchases hereunder, such as a signed quotation or its on-line representation, including addenda thereto, that are entered into between You and Us from time to time. Orders shall be deemed incorporated herein by reference.
“Ordered Services” means Services that You or Your Affiliates authorize under an Order.
“Ordered Products” means Products that You or Your Affiliates authorize under an Order.
“Services” means Subscription Services , technical services and applications provided by Us and/or other designated parties as described in the Services Guide, that are ordered by You under an Order, but excluding Third Party Services.
“Subscription Services” means the ongoing software maintenance, ongoing support services, ongoing hosting services, and other ongoing technical services that are ordered by You on an Order, but excluding Third Party Services.
“Products” means the applications and framework provided by Us and/or other designated parties as described in the User Guide, that are ordered by You under an Order, but excluding Third Party Applications.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Products and Services, and are identified as third-party applications.
“Services Guide” means the online guide for the Services, accessible via http://www.empoweringsystems.com as updated from time to time.
“User Guides” means the guide for each of the Products, accessible online or within the Product as updated from time to time.
“Users” means individuals who are authorized by You to use the Products and Services, for whom licenses to a Product and/or subscriptions to a Service have been Ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
“We,” “Us” or “Our” means Empowering Systems, Inc. described in Section 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. “Your Data” means all electronic data or information inputted by You to the Ordered Products and Services.
2. ORDERED PRODUCTS AND SERVICES
2.1 Provision of Ordered Products and Services. We shall make the Products and Services available to You pursuant to this Agreement and the relevant Order during a subscription term. 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 Licenses. Unless otherwise specified in the applicable Order, (i) Products are paid for as User licenses and may be accessed by no more than the specified number of Users, (ii) additional User licenses may be added at the then current pricing, (iii) User licenses maintained by a Subscription service will qualify for any updates, upgrades, enhancements or improvements to the Product. User licenses are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Product.
2.3 User Subscriptions. Unless otherwise specified in the applicable Order, (i) Services are paid for as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the then current pricing, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
3. USE OF THE PRODUCTS AND SERVICES
3.1 Our Responsibilities. We shall: (i) provide to You the Products and/or Services ordered; (ii) use commercially reasonable efforts to make the ordered Products and or Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (which We shall schedule to the extent practicable during the weekend hours from 9:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays; and (iii) provide the Products and/or Services only in accordance with applicable laws and government regulations.
3.2 Your Responsibilities. You shall: (i) be responsible for Users’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Products and/or Services, and notify Us promptly of any such unauthorized access or use; and (iv) use the Products and/or Services only in accordance with the User Guide(s) and/or Services Guide and applicable laws and government regulations. You shall not (a) make the Products and/or Services available to anyone other than Users, (b) sell, resell, rent or lease the Products and/or Services, (c) use the Products and/or Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Products and/or Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Products and/or Services or their related systems or networks.
3.3 Usage Limitations. Products and/or Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of computers You are permitted to configure for each User. Any such limitations are specified in the User Guide(s) and/or Services Guide.
4.1 Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Orders. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “supported” or otherwise, except as specified in an Order. No purchase of third-party products or services from Us is required to use the Services.
4.2 Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Products and/or Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers.
5. FEES AND PAYMENT FOR PRODUCTS AND SERVICES
5.1 Fees. You shall pay all fees specified in all Orders hereunder. Except as otherwise specified herein or in an Order, (i) fees are quoted and payable in United States dollars and (ii) fees are based on Products and/or Services ordered and not actual usage.
5.2 Invoicing and Payment. You will provide Us with an Order and/or a valid purchase order or alternative document reasonably acceptable to Us and/or valid and updated credit card information. If You provide credit card information to Us, You authorize Us to charge such credit card for all Products and/or Services listed in the Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Ordered User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. If the Order 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. Unless otherwise stated in the Order, invoiced charges are due net 15 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Products and/or Services.
5.3 Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% 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 require future payments by credit card.
5.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our Products and/or Services 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 obligations become immediately due and payable, and suspend Our Products and/or Services to You until such amounts are paid in full.
5.5 Payment Disputes. We shall not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
5.6 Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to 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.
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Products and/or Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2 Restrictions. You shall not (i) permit any third party to access the Products and/or Services except as permitted herein or in an Order, (ii) create derivate works based on the Products and/or Services, (iii) copy, frame or mirror any part or content of the Products and/or Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Products and/or Services, or (v) access the Products and/or Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Products and/or Services. No use of Our Products and/or Services is allowed by direct competitors, except with Our prior written consent. This means that no use of Our Products or Services is authorized for monitoring availability, performance or functionality, or for any other benchmarking or competitive analysis purposes.
6.3 Ownership of Your Data. You exclusively own all rights, title and interest in and to all of Your Data.
6.4 Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Products and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Products and/or Services.
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Products and/or Services; and Confidential Information of each party and all Orders, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.3 Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Products and/or Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
7.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8.1 Our Warranties. We warrant that: (i) the Products shall perform materially in accordance with the Product‘s User Guide; (ii) the Services shall perform materially in accordance with the Services Guide; and (iii) the functionality of the Products and/or Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below.
8.2 Mutual Warranties. Each party represents and warrants that, (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.1 Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Products and/or Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by You in connection with any such Claim, provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
9.2 Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Products and/or Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
9.3 Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
10.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $100,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR ORDERED PRODUCTS AND/OR SERVICES).
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11.1 Term of Licenses. This Agreement commences on the date You accept it and continues until terminated in accordance with this Agreement.
This License is effective until terminated. This License will terminate immediately without notice from Licensor if the User fails to comply with any of its provisions. Upon termination, the User must destroy the Software and all copies thereof, and the User may terminate this License at any time by doing so. Licensor reserves the right to destroy the Software if the User fails to comply with this agreement.
11.2 Term of Subscription Services. Except as otherwise specified in the applicable order, the Term of Subscription Services is one month. Subscription Services ordered by You commence on the date You accept it and continue for the subscription term. Except as otherwise specified in the applicable Order, all subscription services shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of cancellation with at least 30 days prior written notice.
11.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Orders after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5 Return of Your Data. Within 30 days of notice of termination of ordered Subscription Services, you can request an export of your data which we will provide in xml format, with the understanding that export service charges may apply. As of the termination date, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
11.6 Surviving Provisions. Sections 5 (Fees and Payment for Ordered Products and/or Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of Your Data), 12 (Governing Law, Dispute Resolution and Notices) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
12. GOVERNING LAW, DISPUTE RESOLUTION AND NOTICES
12.1 Governing Law & Dispute Resolution. This Agreement shall be governed by and interpreted under the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws provisions. In the event of a dispute, the parties mutually agree to use friendly mediation to resolve it. If mediation is unsuccessful, the parties agree to use binding arbitration, such arbitration to be conducted in the Boston, Massachusetts area. The parties agree to share the expense of such proceedings. The foregoing obligation to mediate and arbitrate does not prohibit either party from seeking temporary or permanent injunctive or other equitable relief in a court of competent jurisdiction.
12.2 Manner of Giving Notice. Notices should be sent to the addresses identified in the Order(s). Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Products and/or Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
13.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Products and/or Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Products and/or Services in violation of any U.S. export embargo, prohibition or restriction.
13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6 Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).
13.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Orders, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order, the terms of such exhibit, addendum or Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
This Agreement is effective on January 1, 2011 and may be amended from time to time. You will be provided thirty (30) days notice of any amendments. If You do not opt out during that 30-day period, You are deemed to have accepted the modified terms. If You elect to “opt out” of the modified terms, Your contract will continue through the end of its then current term under the old terms after which time it will terminate.