Service Subscription Agreement
This Service Subscription Agreement (the “Agreement”) is a binding, contractual agreement between the legal entity identified on an Order, Proposal or Quotation (“Licensee”) and Unlock Software, Inc. (“Licensor”), and it governs Licensee’s and its agents’ use of the SuiteFeedback software and/or service(s) identified on the Order, Proposal or Quotation (the “Service”). This Agreement also governs all use of the Service by any Licensee during any trial, evaluation, or other unpaid term of use (collectively, a “Trial”).
Licensee’s use of the Service is subject to Licensee’s acceptance of the terms and conditions of this Agreement. By entering into this Agreement and/or installing or using any Service, Licensee agrees to be bound by the terms and conditions set forth herein.
1. Terms of Service.
Licensor hereby grants Licensee a nonexclusive, non transferable, worldwide right and license to use the Service solely for Licensee’s internal business purposes, subject to the terms of this Agreement. Licensor will provide the following to Licensee with respect to the Service:
Customer Support. Licensor will provide Licensee with access to Licensor’s customer portal in Zendesk, where Licensee may log support tickets. Alternatively, Licensee may submit support requests by telephone at +1 (415) 323-8987. Telephonic support is available from 9:00 a.m. to 5:00 p.m., EST, Monday through Friday (excluding holidays). Licensor will use commercially reasonable efforts to respond to and resolve all customer support issues that are attributable to the Service. Notwithstanding the foregoing, during any Trial, Licensor shall only be obligated to provide such support as Licensor deems appropriate, in its sole business discretion.
Professional Services. Licensor may agree to perform work (“Professional Services”) for Licensee pursuant to a written and mutually executed Proposal (“Proposal”), which is entered into under this Agreement, defines Licensee’s entitlement to use the Service, and which specifies the scope and schedule of Professional Services to be performed by Licensor for Licensee, and the applicable fees. Unless otherwise expressly stated in the applicable Proposal, Professional Services shall be provided on a time and materials (“T&M”) basis at Licensor’s T&M rates in effect at the time the Professional Services are performed, and all Professional Services will be deemed accepted upon delivery. Any changes to the scope of work under a Proposal shall be made by written change order or amendment to the Proposal signed by an authorized representative of each party prior to implementation of such changes.
Upgrades; Compatibility. If NetSuite releases a version of its application that is incompatible with the Service, then Licensor will use all commercially reasonable efforts to promptly develop and make available a modified and upgraded version of the Service for Licensee. The foregoing is not binding on Licensor during any Trial.
2. Licensee’s Obligations.
Proper Use. Licensee shall be responsible for its users’ use of the Service in accordance with the applicable user manuals and other documentation, which may be amended from time to time (and any such amendments provided to Licensee in advance and in writing shall be binding upon Licensee), and any other instructions or guidance provided by Licensor. Licensee shall not, and shall ensure that its users shall not, use, submit, or enter any data, information or other materials in the course of using the Service that (i) violate any applicable laws, rules or regulations, (ii) infringe upon or misappropriate any intellectual property or proprietary rights of others, or (iii) violates the privacy rights of others.
Restrictions. Licensee shall not (and shall not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, or interoperability interfaces of the Service by any means whatsoever; (ii) remove any product identification, copyright or other notices; (iii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use the Service to or for the benefit of third parties; (iv) reproduce the Service or any component thereof; (v) modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Service nor any service or product that is similar to or a substitute in whole or in part for the Service; (vi) disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Service; or (vii) resell, sublicense, distribute, or transfer the Service or any component thereof to any third party (including, without limitation, sharing Licensee’s username(s) and password(s) for the Service with any third party).
Professional Services; Cooperation. Each party agrees to cooperate reasonably and in good faith with the other in the performance of the Professional Services and acknowledges that delays may otherwise result. Licensee agrees to provide, or provide access to, the following: office workspace, telephone and other facilities, suitably configured computer equipment, complete and accurate information and data from its employees and agents, coordination of onsite, online and telephonic meetings, and other resources as reasonably necessary for satisfactory and timely performance of the Professional Services. Except where the relevant Proposal provides otherwise, scheduling of Licensor’s resources must be agreed to no later than ten (10) business days prior to the date work is scheduled to begin. If Licensee subsequently requests scheduling changes or causes delays under a Proposal to which Licensor has dedicated resources and begun work, then (A) in the case of a T&M or block of hours Proposal, hours may be incurred to restart work, which may involve effort for information transfer, project re-planning, and other reasonable restart activities; or (B) in the case of a fixed fee Proposal, additional fees may apply and will be billed to Licensee as a Re-engagement Fee and must be paid in full by Licensee before Licensor will resume work. The Re-engagement Fee shall be calculated as follows: (i) if Licensor has completed less than 50% of the work, the Re-engagement Fee will be 10% of the total estimated project price; or (ii) if Licensor has completed greater than 50% of the work, the Re-engagement Fee will be 20% of the total estimated project price. The percentage of work completed will be determined based on the level and completeness of the project deliverables. Delays caused by Licensee that exceed ten (10) business days shall entitle Licensor to terminate the relevant Proposal for cause immediately upon written notice.
The Service and its software components, and anything developed by Licensor for Licensee under this Agreement (“Contract Property”), are licensed (not sold). Licensor and its suppliers retain all copyright, trade secret, trademark, patent and other proprietary rights in the Service and the Contract Property, including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. This license confers no title to, or ownership in, the Service or any of its components or any Contract Property, and Licensor reserves all rights not expressly granted to Licensee.
4. Fees; Payment.
Fees. Subject to the terms and conditions of this Agreement, Licensee will pay Licensor the setup fees, migration fees and/or monthly service access fees (collectively, the “Fees”) as set forth on an Order, Proposal or an executed SuiteFeedback quotation (“Quotation”).
Payment Terms. The Fees shall be due at the beginning of each period for which the Licensee desires to continue use of the Service. Payment terms are net 15 days. Licensor shall have the right to suspend and/or terminate Licensee’s access to the Service if Licensee is delinquent on its payment obligations.
Fees for Professional Services. Licensor shall invoice Licensee for Professional Services as stated in the applicable Proposal. Unless otherwise expressly stated in the applicable Proposal, (i) charges shall be due and payable fifteen (15) days from the date of the invoice; and (ii) Licensee shall reimburse Licensor for reasonable travel-related expenses incurred in conjunction with the Professional Services.
Taxes. Licensee shall be responsible for all taxes and regulatory fees of any kind imposed by any federal, national, state, provincial, local, municipal or foreign government on any services provided under this Agreement, other than taxes based solely upon Licensor’s income.
Payments Upon Termination. Upon expiration or termination of this Agreement for any reason, Licensee shall pay all earned and unpaid Fees and other amounts due Licensor hereunder, which shall be due and payable within fourteen (14) days following the date of expiration or termination of this Agreement.
5. Term and Termination.
Initial Term; Renewal. The initial term of this Agreement shall commence on (i) the date that Licensee submits an Order or Quotation; or (ii) for Services pursuant to an executed Proposal, the date that Licensor begins the project implementation. Thereafter, this Agreement shall be automatically renewed from year to year provided that Licensor provides Licensee with notice, at least sixty (60) days prior to the end of the then current term, of the upcoming renewal. Either party may submit written notice of its intention not to renew to the other party at least 30 days prior to the end of the-then current term, unless earlier terminated as provided in Paragraph 5(b); or Licensee terminates this Agreement by discontinuing payment.
Termination for Cause. Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching party has commenced cure during the thirty (30) day period and is pursuing such cure diligently and in good faith.
Term and Termination of Trials. Notwithstanding the foregoing, the term of this Agreement with respect to any trial shall be for the duration specified by Licensor at the commencement of the trial (and if no such duration is specified, it shall be deemed to be ninety (90) days). This Agreement may be terminated by Licensor at any time during a Trial, at Licensor’s sole discretion, upon notice to Licensee.
Obligations on Termination. Upon termination of this Agreement, Licensee shall, and shall ensure that its users shall, immediately, (i) cease all use of the Service, (ii) deliver to Licensor or destroy all copies of any related materials, and (iii) certify in writing to Licensor that such delivery or destruction has been accomplished. Upon termination of this Agreement by either party, Licensor reserves the right to immediately terminate access to the Service and Licensee acknowledges that it may be denied access to the Service.
Survival. Termination of this Agreement shall not relieve either party of its respective obligations to the other hereunder, including all payment obligations, which arose prior to the effective date of termination. Notwithstanding anything herein to the contrary, Sections 2(c), 3, 4, 5, 6, 7, 8 and 10 shall survive termination of this Agreement.
6. Services Warranty.
Licensor warrants that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. For any breach of this warranty, Licensee’s exclusive remedy, and Licensor’s entire liability, shall be the re-performance of the Professional Services. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. LICENSEE AGREES THAT ALL RISK PERTAINING TO THE USE OF THE SERVICE IS ASSUMED BY LICENSEE. LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR SUPPLIER OR THEIR EMPLOYEES OR AGENTS WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES DURING THE TERM OF ANY TRIAL.
Definition. “Confidential Information” means information about Licensor’s business, products, services or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical, marketing and other information marked or designated by Licensor as “confidential” or “proprietary;” together with all information which, by the nature of the circumstances surrounding the disclosure, ought in good faith be treated as confidential. Confidential Information shall include, without limitation, the Service and the software component(s) of the Service, as well as the specific terms, pricing, and fees set forth in this Agreement and the Proposal or Quotation.
Obligations. Licensee agrees that it will hold in strict confidence and not disclose the Confidential Information to any third party and that it will use the Confidential Information for no purpose other than as reasonably contemplated by this Agreement. Licensee shall only permit access to the Confidential Information to those of its employees, contractors or agents having a need to know and who have signed confidentiality agreements containing terms at least as restrictive as those contained in this Section 7 (Confidentiality). Licensee shall maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information with at least the same degree of care as used to protect its own confidential information (but in no event with less than reasonable care). For the avoidance of doubt, either party may generally disclose the existence (but not the specific terms) of the Agreement and Licensee agrees that Licensor may refer to Licensee in its public and marketing communications as a customer and use Licensee’s corporate name and/or logo in customer lists, including presentations and on Licensor’s website.
Exceptions. Licensee’s obligation of confidentiality under this Agreement shall not apply to information which Licensee can document (i) is in the public domain without the breach of any agreement or fiduciary duty or the violation of any law; (ii) was known to Licensee prior to the time of disclosure (as evidenced by Licensee’s records) without the breach of any agreement or fiduciary duty or the violation of any law; or (iii) is independently developed by Licensee (as evidenced by Licensee’s records) prior to receiving such Confidential Information or without use or reference to any Confidential Information. In addition, it will not be a breach of this Section 7 for Licensee to disclose certain Confidential Information required to be so disclosed pursuant to a valid judicial order, a requirement of a governmental agency, or by operation of law; provided that Licensee gives Licensor written notice of any such requirement immediately after learning of any such requirement, and takes all reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and have allowed Licensor to participate in the proceeding. Upon written request by Licensor, Licensee shall promptly return all documents and other tangible materials containing or representing Confidential Information and all copies thereof and destroy all such Confidential Information in intangible form.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DEATH OR PERSONAL INJURY, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, INCIDENTAL, COVER, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR DATA WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR LICENSEE’S USE OR RELIANCE UPON THE SERVICE OR ANY PROFESSIONAL SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID AND PAYABLE TO LICENSOR UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. FOR THE AVOIDANCE OF DOUBT, LICENSOR AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO LICENSEE DURING THE TERM OF ANY TRIAL. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO LICENSEE.
With respect to any Service that is to be hosted by Licensor for Licensee’s use, the following additional terms and conditions apply:
Operation; Management. Licensor will host and operate the Service on Licensor’s computer server. Licensee may monitor and manage the operation of the Service from Licensee’s dashboard. Licensee must provide Licensor an ID and password for an administrator-level role for Licensee’s NetSuite account, in addition to other system access as required. Licensee shall provide the ID and password via a secure Enterprise Password Management System. Licensor will keep Licensee’s ID and password strictly confidential and will only disclose Licensee’s ID and password to SuiteFeedback personnel who require the ID and password for the performance of their business duties. Licensee shall be responsible for the maintenance of user logon information for access to the Service, which shall be done via the SuiteFeedback dashboard.
Availability. Licensor will use all reasonable commercial efforts to make the Service available to Licensee.
Maintenance. Licensor may, from time to time, perform maintenance on the Service and related infrastructure. Licensor shall use all reasonable efforts to perform maintenance services during off-peak hours (10:00 p.m. to 5:00 a.m. PST). Licensee acknowledges that the performance of maintenance may cause the Service to be temporarily unavailable.
Prerequisite Applications; Internet Access. Licensee shall be solely responsible for procuring, at its expense, the necessary environment to use the Service via the Internet, including, without limitation, (i) a valid license to the NetSuite, and if applicable, other external applications, (ii) Internet access, and (iii) telecommunications services.
Notwithstanding the foregoing, during any Trial the Service Level Agreement shall not apply, and monitoring, management and maintenance of the Service shall be as Licensor deems appropriate, in Licensor’s sole business discretion.
Waiver and Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
Governing Law. This Agreement shall be governed in all respects by the substantive laws of the State of Florida, United States of America, without reference to any conflicts of law principles that would require the application of the laws of any other jurisdiction. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts having jurisdiction over Fort Lauderdale, Florida, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the foregoing, Licensor may bring an action to protect or enforce its intellectual property rights in any applicable jurisdiction.
No Export. Licensee will not export or reexport from anywhere any part of the Service, or any component or direct product thereof, except in full compliance with and with all applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce. Licensee warrants that it is not on the United States’ prohibited party list and is not located in or a national resident of any country on the United States’ prohibited country list.
Relationship. Neither party is, nor represents itself to be, an agent, employee, partner or joint venturer of the other, nor will either party transact any business on the other’s behalf, nor in any form make promises, representations or warranties that incur any liability for or on behalf of the other party.
Feedback. Licensee agrees that Licensor may, in its sole discretion, use any feedback, suggestions, and ideas about the Service or any of its components, in any manner, including in future modifications of the Service and components thereof.
Severability. If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of it being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
Compliance with Laws. Licensee shall comply with all laws and regulations applicable to this Agreement or the transactions contemplated hereby.
Assignment. Licensee may not assign this Agreement without the prior written consent of Licensor.
Entire Agreement; Modification. This Agreement, together with the Proposal or Quotation, constitutes the complete, final and exclusive statement of the terms of the Agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties. This Agreement may not be modified except pursuant to a written amendment, executed by an authorized representative of each party.
No Solicitation. During the term of this agreement and for a period of twelve (12) months thereafter, Licensee shall not directly or indirectly solicit any SuiteFeedback personnel that have performed Services under this Agreement to terminate his or her employment with SuiteFeedback, for any reason.