This Master Subscription and Services Agreement (“Agreement”) is between Acqueon Technologies Inc., (“Licensor”) a Company registered in Delaware, United States, and the entity (“Licensee/Customer”) which has accepted this Agreement through an Order referencing this Agreement directly with Acqueon or through its authorized business partner (“Reseller”). This Agreement takes effect when you click “i-accept” or similar button or sign an Order or when the Licensee first uses or accesses the Product or Services, whichever is earlier (“Agreement Effective Date”) and will remain in effect during the relevant subscription term in the Order or until terminated as specified in this Agreement. Capitalized terms not defined elsewhere in this Agreement shall have the meaning given to them in the Definitions section below.
The following are the definitions of various terms used in this Agreement.
a) “License” means the License for the Software/Product granted under Section 4.
b) “Product/Software” means Licensor’s software programs to which the Licensee acquire a License under an “Order”.
c) “Third-Party Vendors” means manufacturer of certain components, software, data, or other material that may be part of the Software/Product to which Licensee acquire a License to use.
d) “Order” means any other form of ordering document placed directly with Licensor or through the Licensor’s authorized Reseller that references and incorporates this Agreement. Such Order details the number of Licenses to be procured, prices and other commercial terms and conditions relevant thereto.
e) “Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
f) “Services” means the Software-related professional services that Acqueon may provide to the Customer in connection with the implementation, support and configuration of the Software as contemplated by this Agreement pursuant to a statement of work (“SOW”).
g) “Statement of Work/SOW” means a separate document which is executed pursuant to this Agreement that details the Services to be delivered to the Licensee.
h) “User” as used in this Agreement means individuals who are authorized by the Customer to use the Product or Services pursuant to this Agreement or as otherwise defined, restricted or limited in an Order Form. Users may include but are not limited to employees, agents, contractors, consultants, suppliers.
All Products/Software’s shall be provided pursuant to an Order document executed by Licensor with the Customer or with Business Partner purchasing on behalf of the Customer, which shall include, at a minimum: (a) an identification number for that Order, (b) a detailed description (including quantity and scope) of the Licenses to be provided, (c) price breakdowns and the basis for payment for the Product subscribed. An Order is non-cancellable, and all sums paid thereunder are non-refundable. If Customer exceeds the quantity of Licenses purchased, then Customer promptly must purchase and pay fees for the excess quantity.
SOWs will be used to process the Customer’s purchase of Services. Each SOW shall contain a detailed specification of the Services mutually agreed upon by Customer and Acqueon. The Parties may elect at any time to modify the SOW by written amendment or change order signed by each Party’s duly authorized representative. Acqueon shall analyze the effect of the proposed modifications and shall provide such analysis in writing within 10 days, unless otherwise mutually agreed. If Acqueon objects to any modification proposed by the Customer or any changes in cost, then Acqueon shall notify the Customer of its objections in detail and in writing within 10 business days after receiving the proposed modification. Each SOW shall describe the assistance, equipment, or software, if any, which Acqueon will require from the Customer.
Where Customer purchases through a Business Partner, final prices and terms and conditions of sale will be as agreed between Customer and the Business Partner from which Customer makes such purchases; however, the terms set forth in this Agreement are applicable to Customer’s use of, and the performance of Licensor’s Software and Services. Unless agreed otherwise in writing between Licensor and Business Partner, any Business Partner purchasing any Software or Services on behalf of an end customer shall fully comply with this Agreement as if it is the Customer, if the Business Partner has access to, or utilizes any of the purchased Software and/or the Services, and shall further require that its end customer(s) comply with the terms of this Agreement if such end customer has access to, or utilizes any of the purchased Software or Services, as applicable.
Any one of Customer’s majority owned subsidiaries may also order Software and/or Services under this Agreement by entering an Order or SOW, signed by such subsidiary and Licensor, and agreeing to be bound by the terms of this Agreement and such Order or SOW. For the purposes of such Order or SOW, “Customer” as used in such Order or SOW and this Agreement, shall be deemed to refer to the majority owned subsidiary executing such Order or SOW.
Subject to the terms and conditions of this Agreement and the Licensee’s payment obligations, Licensor hereby grants, non-exclusive, limited, non-transferable, non-reproducible, non-assignable, non-sublicensable right, to use the Product and/or Services for Licensee’s internal operations and for the term as mentioned in the Order and is non-cancellable during such period. Neither Customer nor its Users acquire under this Agreement any right or license to use the Software or Services in excess of the scope and/or duration of the Software or Services as stated herein and in the applicable Order/SOW.
5.1 Licensee acknowledges that the Product contains proprietary software of the Licensor and that the Software along with all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of the Licensor. Accordingly, Licensee is expressly prohibited from using the Licenses in any way except as expressly permitted hereunder or under the Order. Further, Licensee acknowledges not to use any Third-Party vendor’s product / components, where applicable, independently or separately from the Product delivered herein.
5.2 Licensee acknowledges that the Product is protected by trade secret, copyright, and other proprietary rights, and that title and ownership to the Product remains with the Licensor, its Affiliates and/or Third-Party Vendor where applicable. Licensee does not acquire any right, title or interest in or to the License(s) or any Intellectual Property Rights contained therein.
5.3 Licensee shall:
a) Seek permission from Licensor to use the Software for commercial software hosting services;
b) keep the Software confidential; not alter, modify or adapt the Software or any part thereof;
c) not sell, rent, sublicense, publish, display, distribute, modify, adapt, enhance, extend, translate, reverse engineer, de-compile, disassemble, make any attempt to discover the source code of the License or underlying ideas, or algorithms of any products or any software contained therein or create derivative works of the Software or any part thereof;
d) Not remove or modify any proprietary markings or restrictive legends placed on the Software;
e) Not attempt to unlock or bypass any “copy-protection”, licensing or authentication algorithm utilized by the “Software”.
f) permit any use of or access to the Software by any third party.
g) The Licensee shall take necessary steps to secure and protect the Software and any copies thereof in a manner consistent with the maintenance of rights therein and to take appropriate action by instruction or agreement with its employees and agents to satisfy its obligations under this agreement.
h) access the Software or the Services for the purpose of building a competitive product or service or copying its features or user interface.
i) infringe the intellectual property rights of any entity or person
j) store or transmit “SPAM” (defined as unsolicited commercial email or “Malicious Code” (defined as viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs).
k) make any use of the Software or Services that violates any applicable local, state, national, international or foreign law or regulation.
Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software and/or Service and notify Licensor promptly of any such unauthorized access or use. Customer and/or Business Partner, as applicable, shall be responsible for Users’ compliance with this Agreement.
6.1 Each party represents and warrants that (i) it has the right, power and authority to enter into this Agreement and to grant the rights granted to the other party hereunder; and (ii) it will comply with all federal, state, local and international laws, rules and regulations applicable to its business in connection with its use or provision of Software and/or Services.
6.2 Licensor warrants to licensee that the Software will substantially conform to standard user documentation. Services will be performed in a competent and workmanlike manner, in accordance with generally accepted standards of the applicable industry.
6.3 Licensor will, at its own expense and as its sole obligation and Licensee’s exclusive remedy for any breach of the foregoing warranty, either replace the applicable Software or correct any reproducible error in the Software reported to Licensor by Licensee in writing. If Licensor determines that it is unable to correct the error or replace the Software, Licensor will refund to Licensee the advance License fees actually paid by Licensee, in which case the License for the applicable Software and Licensee’s right to use such Software will terminate.
6.4 To the fullest extent allowed by law, and except for the warranties expressly stated herein, this software is provided “as is”, and Licensor disclaims all other warranties, terms or conditions, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties, terms or conditions regarding merchantability, fitness for a particular purpose, non-infringement, and satisfactory quality. Licensor does not warrant that use of the software will be uninterrupted or error free, that all defects in the software will be corrected, or that the software is free of bugs or errors, will meet Licensee’s business needs, or will operate in the combinations which may be selected by Licensee.
As a result of the relationship entered into by the parties under this Agreement, the parties acknowledge that they may from time to time require or gain access to Confidential Information of the other party. The receiving party: (a) shall hold all Confidential Information in confidence; (b) shall use the Confidential Information only for the purposes expressly permitted herein; (c) shall reproduce the Confidential Information only to the extent necessary for such purpose; (d) shall restrict disclosure of the Confidential Information to its employees, consultants, agents and representatives with a valid need to know in connection with this Agreement and who are bound to protect the confidentiality of such Confidential Information (and shall advise such employees, agents and representatives of the obligations assumed herein); and (e) shall not disclose or cause to be disclosed the Confidential Information to any third party without prior written approval of the disclosing party, except as allowed under (d) above. Confidentiality Exceptions. The foregoing confidentiality restrictions shall not apply to Confidential Information that: (a) is or becomes a part of the public domain through no wrongful act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party without reference to or reliance on the Confidential Information; or (e) that the disclosing party agrees in writing is free of such restrictions. Nothing in the Agreement limits a party’s ability to seek equitable relief for breaches of this Section 7.
Licensor is responsible for taking and maintaining steps to protect the confidentiality, integrity, and security of the Product and/or Services. Licensor will implement and maintain appropriate technical and organizational security measures designed to protect against unauthorized access to, or destruction, loss, unavailability, or alteration of, Customer Data. Licensor will use commercially reasonable security technologies (such as encryption, password protection and firewall protection) in providing the Software and/or Services, however, Customer acknowledges that Licensor cannot and does not guarantee the privacy, security, authenticity, and non-corruption of any information transmitted through, or stored in any system connected to the Internet. Customer further acknowledges that Customer is responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer’s data and Customer’s applications, including any malicious codes contained in Customer’s content or Customer’s applications that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.
9.1 Defense and Indemnity- Subject to the remainder of this Section 9, Licensor agrees, at its own expense, to defend or, at its option, to settle, any claim or action brought against Licensee to the extent it is based on a claim that the Licensed Product as used within the scope of this Agreement infringes or violates any United States patent, copyright, trademark, trade secret or other proprietary right of a third party, and will indemnify and hold Licensee harmless from and against any damages, costs and fees reasonably incurred (including reasonable attorneys’ fees) that are attributable to such claim or action and which are assessed against Licensee in a final judgment. Licensee agrees that Licensor shall be released from the foregoing obligation unless Licensee provides Licensor with: (i) prompt written notification of the claim or action; (ii) sole control and authority over the defense or settlement thereof; and (iii) at no cost to Licensor, all available information, assistance, and authority to settle and/or defend any such claim or action.
9.2 Limited Remedies. If any Licensed Product becomes, or in the opinion of Licensor is likely to become, the subject of an infringement claim or action, Licensor may at is sole option either: (i) procure, at no cost to Licensee, the right to continue using the Licensed Product; (ii) replace or modify the Licensed Product to render it non-infringing, provided there is no material loss of functionality; or (iii) if, in Licensor’s reasonable opinion, neither (i) nor (ii) above are commercially feasible, terminate the License and refund prorated amount Licensee paid for such Licensed Product.
9.3 Exceptions. Notwithstanding the foregoing, Licensor will have no liability under this Section 9 for any claim or action where: (i) such claim or action would have been avoided but for modifications of the Licensed Product, or portions thereof, made after delivery to Licensee; (ii) such claim or action would have been avoided but for the combination or use of the Licensed Product, or portions thereof, with other products, processes or materials; (iii) Licensee continues allegedly infringing activities after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; (iv) Licensee’s use of the Licensed Product is not strictly in accordance with the terms of this Agreement; or (v) such claim or action is based on the Intellectual Property Rights of Licensee or one of its affiliated parties. Licensee will be liable for all damages, costs, expenses, settlements, and attorneys’ fees related to any claim of infringement arising as a result of (i)-(v) above. This Section 9 states your sole and exclusive remedy and Licensors entire liability for any infringement claims or actions.
9.4 Limitation of Liability- To the maximum extent mandated by law, Licensor shall not be liable to Licensee for any incidental, special, indirect, consequential or punitive damages of any character, including without limitation, damages for: loss of business or good will, work stoppage, loss of information or data, loss of revenue or profit, or computer failure, or phone/telecommunications charges resulting from unauthorized access to Licensee’s computers, telephone equipment or lines, or other financial loss arising out of or in connection with the installation, maintenance, use, performance or failure of the software, regardless of the legal theory asserted, whether based on breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise, and even if Licensor has been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose. Licensor’s liability to Licensee, regardless of the legal theory of any claim, shall not exceed the license fee(s) received by Licensor for the software in the preceding 12 months from the date the liability arose.
10.1 Payment terms. Acqueon will invoice Customer for the Products and Services in advance based upon the pricing set forth in the applicable Order and/or the SOW including any applicable termination or other fees (“Fees”). Customer will pay in full the Fees and applicable Taxes due on each invoice in U.S. dollars within thirty (30) days from the date of invoice. Any undisputed amounts not paid by the date due are subject to interest at the lesser of (i) 1.5% per month; or (ii) the maximum rate permitted by law, or to such other late penalty fees as may be imposed by Business Partner on Customer if the order is made through Business Partner. Customer shall reimburse Licensor for all reasonable legal fees and collection costs and expenses incurred in connection with enforcement of this Agreement, including collection of the Fees.
10.2 Taxes. Prices do not include any applicable sales, use, ad valorem or similar taxes (each, to the extent required by applicable Law, a “Tax” and collectively, “Taxes”) regardless of the taxing authority. Customer shall pay such Taxes unless there is an applicable exemption from such Tax, with written confirmation of such Tax exemption to be provided to Acqueon upon request. To the extent Acqueon is required by Law to collect such Taxes, one hundred percent (100%) of such Taxes shall be added to invoices as separately stated charges. Acqueon shall be responsible for all taxes imposed on Acqueon’ s income or property.
10.3 Expenses. Unless otherwise specified in the applicable SOW, Acqueon will be reimbursed for all actual and reasonable travel expenses that are incurred by Acqueon while performing Services under a SOW, provided such expenses are preapproved in writing by Customer in advance.
10.4 Customer will notify Acqueon in writing in the event Customer disputes any portion of any fees or taxes paid or payable by Customer under this Agreement. Customer will provide such notice to Acqueon within 60 days of the date of invoice and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the 60-day period described in this Section, Customer will not be entitled to dispute any fees or taxes paid or payable by Customer
11.1 Term of the Agreement: This Agreement will commence upon the Agreement Effective Date, and shall, unless earlier terminated in accordance with Section 11.3 and 11.4 below, continue in force and effect.
11.2 Term of the Order: The Term of the Product license(s) granted under the Order shall commence upon the date set forth in the applicable Order and remain in effect for the period mentioned thereon. and. auto-renew for an additional term unless terminated earlier under this Section 11. Thereafter, the Order shall automatically renew for periods of time equal to the initial Order Term set forth on the applicable Order, unless either party provides the other party with written notice of its intent not to renew at least thirty (30) days in advance of the expiration of the then-current Order Term.
11.3 Termination for breach. Either party may terminate this Agreement, Order, or any SOW immediately upon notice to the other party if the other party breaches any material provision of this Agreement, Order or the SOW and fails to cure or remedy such breach within thirty (30) days of receiving written notice from the non-breaching party specifying in reasonable detail the nature of such breach. The Customer acknowledges that there is no right of Customer to terminate any other Product offering for convenience under the Order.
11.4 Either Party may terminate this Agreement or any Statement of Work immediately by providing the other Party with written notice of its intent to do so if: (i) a court of competent jurisdiction (or other administrative body empowered to issue such orders) issues a final order or judgment holding that this Agreement or the Services offered hereunder are in violation of or are prohibited by law, regulation, regulatory authority; or (ii) a Party’s performance under this Agreement is substantially impaired by law, regulatory, or by a regulatory authority, including, but not limited to, any regulatory or governmental authority directing Customer to terminate the Agreement
11.5 Effect of termination. Upon termination of this Agreement, all Licenses granted hereunder automatically revert to Licensor and Licensee will no longer have access to the Products. Licensee shall purge all copies of the Software and Licenses from its computer systems, return the Software and supporting materials to Licensor or its authorized representative, or destroy them (including all copies), and certify in writing to Licensor that such actions have been completed. All obligations to keep the Software confidential shall survive termination. Customer's failure to comply with the obligations of this Section will constitute unauthorized use of the terminated Acqueon Product, entitling Acqueon to equitable relief as provided in this Agreement and other legal and equitable remedies. Termination or expiration of this Agreement for any reason shall not release either party from any obligation or terminate any right under this Agreement which, by its nature, is intended to survive, including the payment obligations under this Agreement. Notwithstanding anything to the contrary contained herein or otherwise and within fifteen (15) days of any termination of this Agreement or any Order, Customer shall pay to Licensor all unpaid fees accrued prior to such termination including without limitation; (a) fees for the Services rendered by Acqueon up to the effective date of termination; (b) fees for procurement of Hardware and Licenses from third-party vendors for the entire term of the Agreement that are requested by Client; (c) fees for the Product as subscribed for in the Order for the remaining Term of the subscription.
11.6 Transition Support- Customer may request in writing within thirty (30) days after the effective termination or expiration date of the Product subscribed under the Order (“Customer Data Retrieval Period”), a copy of its Customer Data (additional charge may apply if there is more than one such request from Customer). After such Customer Data Retrieval Period, Licensor has no obligation to maintain or provide any of Customer Data and shall, unless legally prohibited or is reasonably deemed necessary by Licensor to be maintained to prevent fraud, resolve disputes, troubleshoot problems, or enforce this Agreement, be able to dispose of all Customer Data in its systems or control. The term “Customer Data” as used in this Agreement means any electronic data or information submitted by Customer or Users to the Cloud Services.
Either Party may not, without the prior written consent of the other party, assign any of its rights or delegate any of its duties under this Agreement, except that Licensor may assign, without consent, to any successor in ownership in connection with any merger, consolidation, sale of substantially all the assets of its business, or pursuant any other transaction in which ownership of more than fifty percent (50%) of its voting securities is transferred.
At the request of Licensor, Licensee shall furnish with a signed statement that the Licenses are being used pursuant to the terms and conditions of this Agreement. Licensee also agrees to permit Licensor and its Third-Party Vendor to review the relevant records and inspect Licensee facilities to verify compliance with this Agreement. Licensor will conduct such inspection during normal business hours in a manner that does not unreasonably interfere with Licensee business operations.
Licensor will have the right to use and display publicly, in its website or marketing materials, Licensee’s trademarks, service mark, logos and trade names (“Marks”) as they may appear solely for the purposes of publicity, promotion, advertising and marketing. Licensor will not register or take other action with respect to any Marks anywhere in the world, except to the extent authorized herein. Licensee shall own and retain all rights, title, and interest to its Marks. Nothing contained herein shall transfer the title and ownership of the Marks to Licensor.
This Agreement shall constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. Acqueon reserves the right to change, update, or add or remove provisions of this Agreement, at any time by posting the updated terms on the site. The date of the most recent changes is posted at the top of this page. Customers are encouraged to review the terms regularly for changes. Any updates that are made during Customer’s License term will take effect upon renewal that License term.
Any notice delivered by Licensor to Licensee under this Agreement will be delivered via mail, email or fax. All notices and other correspondences shall be sent to [email protected].
The waiver of a breach of any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this EULA will remain in full force and effect.
Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
Each party shall comply with all laws applicable to the actions contemplated by this Agreement. Licensee acknowledges that the Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. Licensee represent that (1) Licensee is not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) Licensee will not permit the Software to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
In the event of conflict or inconsistency among this Agreement and the Order, the following order of precedence shall apply: (a) this Agreement and (b) the Order and/or SOW unless the Parties have expressly agreed to deviate from . Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s 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.
Either party (other than for the payment of amounts due hereunder) shall be excused for non-performance of its obligations under this Agreement, to the extent that performance is rendered impossible by strike, fire, flood, epidemic, pandemic, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party (each a “Force Majeure Event”). Any delay or nonperformance of any provision of this Agreement caused by a Force Majeure Event shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance
Customer shall, in no event, directly or indirectly solicit for employment, hire or contract with any personnel of Licensor, including during the term of the Agreement and for a period of one (1) year thereafter without the written consent of Licensor. This prohibition will not apply if Licensor personnel answers Customer’s notice of a job listing or opening, advertisement or similar general publication of a job search or availability for employment on his or her own initiative without any direct or indirect solicitation by Customer or its Affiliates
This Agreement shall be construed, governed, and enforced in accordance with the Federal laws of the United States of America, excluding its conflict of law principles. The courts in New Jersy shall have an exclusive jurisdiction under this Agreement. The UN Convention on International Sale of Goods shall not apply.