READ THIS MASTER SUBSCRIPTION AGREEMENT CAREFULLY BEFORE CONTINUING THE REGISTRATION. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDER FORM THAT INCORPORATES THIS AGREEMENT YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. MASTER SUBSCRIPTION AGREEMENT
This MASTER SUBSCRIPTION AGREEMENT (“Agreement”) between TRIEVR Data Services, Inc. (“Trievr”) and You (as defined below), governs Your acquisition and use of Services (as defined below), and is entered into and effective as of the date You accept this Agreement.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the terms and conditions of this Agreement and, in such event, You and Your as used in this Agreement shall refer to such entity. If You register for a free trial for Services, this Agreement will also govern that free trial.
This Agreement was last updated on Aug 1, 2013.
“Affiliate” means any entity which 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.
“Order Form” means the documents for placing orders hereunder that are entered into between You and Trievr from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means Services that You or Your Affiliates purchase under this Agreement or an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means software as service consisting of data storage and storage logistical services that Trievr performs, and includes the right to use Trievr software products as more further described in the Order Form. Services are ordered by You or Your Affiliates under a free trial or an Order Form and made available by Trievr online via the customer login link and/or other web pages designated by Trievr.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Trievr at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“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 submitted by You to the Services.
2. FREE TRIAL
If You register on Trievr’s website for a free trial, Trievr will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. During such free trial period, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services subject to the terms of this Agreement. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
NOTWITHSTANDING SECTION 8 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. During a subscription term, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Purchased Services subject to the terms of this Agreement and the relevant Order Form(s). Trievr shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms 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 Trievr regarding future functionality or features. You agree that You do not acquire under this Agreement or any Order Form any license to use the Services in excess of the scope and/or duration set forth herein or therein.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased 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 applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, 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 only 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.
4. USE OF THE SERVICES
4.1. Trievr Responsibilities. Trievr shall: (i) provide basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Trievr’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Services only in accordance with applicable laws and government regulations.
4.2. Trievr Protection of Your Data. Trievr shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Trievr shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
4.3. Your Responsibilities. You shall (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Trievr promptly of any such unauthorized access or use, and (d) use the Services only in accordance with applicable laws and government regulations.
4.3. Restrictions on Use of Services. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) attempt to gain unauthorized access to the Services or their related systems or networks, (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (e) store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, or (f) use or permit use of the Services, including by uploading, storing, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (1) menance or harass any person or cause damage or injury to any person or property, (2) be infringing, false, libelous, defamatory, harassing, or otherwise tortious or obscene, pornographic or otherwise immoral (3) violate privacy rights or promote bigotry, racism, hatred or harm, (4) constitute unsolicited bulk e-mail, “junk mail,” “spam,” or chain letters, (5) constitute an infringement of intellectual property or other proprietary rights or (6) otherwise violate applicable laws, ordinance or regulations. In addition to any other rights afforded to Trievr under this Agreement, Trievr reserves the right to remove or disable access to any material that violates the foregoing restrictions. Trievr shall have no liability to You in the event Trievr takes such action. You agree to defend and indemnify Trievr against any claim arising out of a violation of Your obligations under this Section.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, and (ii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form.
5.2. Invoicing and Payment. You agree to pay for all Services as set forth in the applicable Order Form. All fees due are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Trievr must pay based on the Services, except for taxes based on Trievr’s income. Fees listed on an Order Form are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
5.3. Overdue Charges. If any charges are not received from You by the due date, then at Trievr’s 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) Trievr may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Trievr services is 30 or more days overdue, Trievr may, without limiting other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Trievr’s services to You until such amounts are paid in full. Trievr will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 12.1 (Notice), before suspending services to You.
5.5. Payment Disputes. Trievr shall not exercise Trievr’s rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, Trievr retains all rights, title and interest in and to the Services, including, without limitation, all software used to provide the Services and all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. For the avoidance of doubt, this Agreement does not grant You any intellectual property rights in or to the Services, any of its components or any Trievr software.
6.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3. Your Data. Subject to the limited rights granted by You hereunder, Trievr does not acquire any right, title or interest, including any intellectual property rights, in or to Your Data except the limited and temporary right to use Your Data as necessary for the 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; Trievr Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, 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. 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) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ 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. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
7.3. 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. WARRANTIES AND DISCLAIMERS
8.1. Trievr Warranties. Trievr warrants that (i) Trievr has validly entered into this Agreement and has the legal power to do so, (ii) the Services shall perform materially in accordance with Trievr’s best practices and company policies, and (iii) the functionality of the Services will not be materially decreased during a subscription term. TRIEVR DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT TRIEVR WILL CORRECT ALL SERVICE ERRORS. YOU ACKNOWLEDGE THAT TRIEVR DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATION FACILITIES. TRIEVR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. For any breach of a warranty above, 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. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
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. MUTUAL INDEMNIFICATION
9.1. Indemnification by Trievr. Trievr shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Trievr written notice of the Claim Against You; (b) give Trievr sole control of the defense and settlement of the Claim Against You (provided that Trievr may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Trievr all reasonable assistance, at Trievr’s expense. In the event of a Claim Against You, or if Trievr reasonably believes the Services may infringe or misappropriate, Trievr may in its discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Trievr’s warranties under “Trievr Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
9.2. Indemnification by You. You shall defend Trievr against any claim, demand, suit or proceeding made or brought against Trievr by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Trievr “), and shall indemnify Trievr for any damages, attorney fees and costs finally awarded against Trievr as a result of, or for any amounts paid by Trievr under a court-approved settlement of, a Claim Against Trievr; provided that Trievr (a) promptly give You written notice of the Claim Against Trievr; (b) gives You sole control of the defense and settlement of the Claim Against Trievr (provided that You may not settle any Claim Against Trievr unless the settlement unconditionally releases Trievr of all liability); and (c) provide to You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. This Section 9 (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. LIMITATION OF LIABILITY
10.1. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA OR DATA USE. TRIEVR’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO TRIEVR FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
11.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
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, Trievr 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 Trievr, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Trievr for the period prior to the effective date of termination.
11.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of Services, Trievr will make available to You for download a file of Your Data. After such 30-day period, Trievr shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Trievr systems or otherwise in Trievr possession or under Trievr control.
11.6. Surviving Provisions. Section 5 (Fees and Payment for Purchased 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 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
12. NOTICE, GOVERNING LAW AND JURISDICTION
12.1. Notice. To be effective, all notices and other communications hereunder shall be in writing and delivered personally or mailed by overnight U.S. mail, postage prepaid, or by certified or registered U.S. mail, return receipt requested, postage prepaid, or sent by Federal Express or another nationally recognized courier service (billed to sender), to You at the address specified in the applicable Order Form, and to Trievr at:
TRIEVR DATA SERVICES, INC.
405 Farm Lane
Doylestown, PA 18901
Attn: Greg Brigham
12.2. INTENTIONALLY OMITTED
12.3. Agreement to Governing Law and Jurisdiction. This Agreement and all Order Forms shall be governed by, and shall be construed in accordance with, the laws of the State of Delaware, excluding any conflicts of law provisions. Any controversy or claim arising out of or relating to this Agreement or an Order Form, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such arbitration shall take place in Philadelphia, Pennsylvania.
13. GENERAL PROVISIONS
13.1. Export Compliance. The Services, other technology Trievr makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
13.2. INTENTIONALLY OMITTED
13.3. 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.
13.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
13.6. 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.
13.7. Attorney Fees. You shall pay on demand all of Trievr’s reasonable attorney fees and other costs incurred by Trievr to collect any fees or charges due under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).
13.8. 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 Order Forms), 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.
13.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, 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 Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.