ATRIO® Subscription Agreement
Terms and Conditions
1.1 “Authorized Users” means any employee or agent of Customer, including without limitation its management company, or, where applicable, guest of Customer, authorized by Customer to access and use the Service.
1.2 “Cardholder Data” means the data that is defined as Cardholder Data by the Payment Card Industry Security Standards Council (“Council”).
1.3 “Company Affiliate” shall mean a person or entity that controls, is controlled by, or under common control with Company.
1.4 “Customer Data” means all electronic data and/or information submitted by Customer to the Service, including Personally Identifiable Information.
1.5 “Error” means any significant reproducible error of the Service or Licensed Software which prevents the Service from operating as designed.
1.6 “Hardware” means computer hardware equipment produced by third party manufacturers which Company buys from said manufacturers or distributors for resale to its customers.
1.7 “Intellectual Property Rights” means all current and future copyright, patent, rights in inventions or trade secrets, topographies, names, marks, rights in designs and devices, moral rights and all other intellectual and property rights (whether or not registered) protected or capable of protection in any country of the world.
1.8 “Initial Term” means the initial length of the subscription to the Service as specified on the Sales Order.
1.9 “Licensed Software” means those software programs which reside on a computer(s) at Customer’s location and which communicate or interoperate with the Service. Licensed Software includes, but is not limited to, the software programs commonly referred to as ‘client’ software that resides on each workstation and which is specifically used to enable Customer’s access of the Service.
1.10 “Malicious Code” means viruses, worms, time bombs, Trojan horses, spy-ware and other harmful, invasive or malicious code, files, scripts, agents or programs.
1.11 “Personally Identifiable Information” means mean any information that can be associated with or traced to any individual, including an individual’s name, address, telephone number, e-mail address, IP address, social security number, or other similar specific factual information, regardless of the media on which such information is stored (e.g., on paper or electronically) and includes information meeting the above criteria that is generated, collected, stored or obtained as part of this Agreement or such information that Company has access to while performing its obligations and responsibilities under this Agreement.
1.12 “Products” means those Hardware and/or Third Party Software set forth in Section II of the Sales Order that Customer orders from Company and Company agrees to sell to Customer under the terms and conditions of this Agreement.
1.13 “Renewal Term” means any extension of the Service following the end of the Initial Term or any other Renewal Term pursuant to Section 11.
1.14 “Sales Order” means the document for ordering subscription Service. Sales Order shall also include any subsequent documents signed by the parties which add to or modify the Service. All Sales Orders shall be governed by this Subscription Agreement or the Subscription Agreement in effect at the time of an addition to the Service or at the beginning of any Renewal Term.
1.15 “Service” means the cloud-based application and platform environment made available by Company to Customer on a subscription basis as set forth in Section I of the Sales Order. Service shall also include those support services set forth in Section 2.2 below. The Service does not include an Internet access service.
1.16 “Subscription Limit” means the extent to which the Service may be used; such Subscription Limits are set forth in Section I of the Sales Order.
1.17 “Third Party Software” means computer software programs owned by third party producers which Company obtains from said producers or distributors for resale/license to its customers.
2.1 Company shall make the Service available to Customer pursuant to this Agreement and the applicable Sales Orders for Customer’s own internal business purposes only within the scope of the Subscription Limit during the Initial Term and any Renewal Term. In the event that the Service commences on any day other than the first day of a calendar month, such additional days shall be in addition to the Initial Term. Increases to the Subscription Limit shall require an additional Sales Order; such Sales Order shall set forth any additional Service Fees applicable to the then current term. Customer may not reduce its Service commitment under the then-current term. Customer agrees that its purchase of the Service are neither contingent upon the delivery of any future functionality or features nor dependent on any oral or written public comments made by Company regarding future functionality or features. To the extent that the Service includes an interface to a third party vendor system, Customer acknowledges that transactions processed by such third party vendor system may be subject to separate licensing requirements and Customer agrees that it has the sole obligation to obtain, or cause its third party vendor to obtain, any and all such licenses.
2.2 Customer may purchase additional Services during the current Term. Applicable Subscription Fees for the current Term shall be prorated for the remainder of the Term in effect at the time the additional Services are added.
2.3 During the term of the Agreement, Company shall provide remote support and assistance related to the operation or use of the Service. Company shall use commercially reasonable efforts to correct Errors when reported to Company by Customer.
2.4 Company hereby grants to Customer and Customer hereby accepts for the term of the Agreement, a non-exclusive, non-transferable license, without the right to sublicense or redistribute, to allow Authorized Users to access the Service and to use the Service and the Licensed Software for Customer’s own use only pursuant to the provisions of this Agreement.
2.5 Company shall use commercially reasonable efforts to make the Service available to Customer twenty-four (24) hours a day, seven (7) days a week, except for (a) scheduled maintenance downtime or (b) any unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, fire, flood, or other damage caused by an act of nature; acts of government; civil unrest or disobedience; acts of terror or of a public enemy; strikes, lockouts, or other labor troubles; or Internet service provider failures or delays.
2.6 Company shall implement and maintain industry standard security practices, including appropriate barriers between the Service and untrusted networks, such as the Internet, including installing, configuring and monitoring system configuration, firewall, and intrusion detection software protecting systems.
3. Implementation Services
3.1 Company shall provide the Implementation Services set forth in Section III of the Sales Order. Company’s Implementation staff shall not provide more than six (6) consecutive days of Implementation Services without a minimum of one (1) day off. Company may assign resources as may be required and available to provide the Implementation Services.
3.2 Upon receipt by Company of the executed Agreement and the initial payment (“Deposit”), Company shall schedule the Implementation Services. Customer acknowledges that Implementation Services are scheduled on a first come, first served basis, and shall be mutually agreed upon by Company and Customer subject to Company’s availability. Should Customer require rescheduling of confirmed Implementation Service dates, Company will make commercially reasonable efforts to accommodate Customer’s request and provide Customer with the next available Implementation Service dates based on Company’s then current contracted installation schedule. Customer shall be responsible for paying for any Implementation Services that have been scheduled and confirmed between Customer and Company if canceled or rescheduled by Customer less than forty-five (45) days prior to the commencement of such Implementation Services, unless Company is able to reschedule the resource with another customer using commercially reasonable efforts. In the event that this should occur, Customer shall only be liable for that amount of unused Implementation Services which could not be resold using commercially reasonable efforts.
3.3 Company reserves the right to make use of subcontractors to provide Implementation Services and to use such means as Company, in its sole discretion, considers appropriate. Company’s use of subcontractors shall not relieve it of its obligations hereunder.
4. Fees and Payment
4.1 The Subscription Fees for the Service, Implementation Services Fees and any other fees, if applicable, shall be set forth in the Sales Order and are due and payable in accordance with the payment terms shown therein. In the event that the Service commences on any day other than the first day of a calendar month, Customer shall be billed pro-rated Subscription Fees for the period of time from the commencement date through the end of that calendar month. The pro-rated Subscription Fees shall be in addition to the Subscription Fees identified for the Initial Term. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are nonrefundable. All payments shall be made to Company in the currency indicated on the Sales Order.
4.2 For Implementation Services provided on-site at Customer’s property or other Customer designated location, customer shall further pay all reasonable airfare, transportation, meals, accommodation and related expenses incurred by Company’s employees or agents in connection with Implementation Services. These amounts shall be invoiced separately and shall be due and payable upon receipt of Company’s invoice and receipts.
4.3 Customer shall be liable for any sales, use, or other taxes or duties which may become due based on the Subscription Fees, Implementation Service Fees, other fees charged hereunder. Customer shall not be liable for taxes which are based on the income of Company. In jurisdictions where Company is required to collect any sales, use, or other tax or duties which may be incurred as a result of Company’s performance under this Agreement, Customer shall pay these amounts to Company upon receipt of Company’s invoice. Customer shall, on a yearly basis or upon Company request if made, provide to Company proof that taxes have been paid, if such payment are not made to Company directly.
4.4 All Product sold hereunder shall be delivered to Customer F.O.B., origin. Customer shall be responsible for all costs of insurance, packaging, shipping freight and other delivery-related costs (“Delivery Costs”)
4.5 All payments by Customer are to be made to Company at the address shown on page one of the Sales Order. Interest shall accrue at the rate of one and one-half percent (1½%) per month or eighteen percent (18%) per year on all payments thirty (30) days past due.
4.6 Should Customer fail to make any payment due hereunder, Company shall have the right to suspend or interrupt Customer’s access to the Service until Customer’s non-payment is remedied, provided that Company shall provide written notice to Customer of such non-payment and a five (5) day cure period. Company shall also have right to any of its remedies under this Agreement, at law, or in equity.
5. Customer obligations
5.1 Customer shall be responsible for its Authorized Users’ compliance with this Agreement.
5.2 Customer, on behalf of itself and its Authorized Users, shall be responsible for maintaining the confidentiality of its passwords. If Customer becomes aware of any unauthorized access to the Service, it shall notify Company.
5.3 With respect to Customer Data that is Personally Identifiable Information, the parties record their intention that Customer will be the data controller and Company will be a data processor and, in any such case, Customer shall ensure that it is entitled to transfer the relevant Personally Identifiable Information to the Service for processing in accordance with this Agreement.
5.4 Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.
5.5 Customer shall not (a) allow any third party (except its Authorized Users and then only in compliance with this Agreement) to access, operate or otherwise use in any way the Service, (b) use the Service to provide service to third parties, or use as a service bureau in any manner, (c) loan, lease, rent, disclose, sell, transfer, sublicense, otherwise use, copy, or distribute copies of the Service, in whole or in part, (d) copy, duplicate, modify, create derivative works from or distribute all or any portion of the Licensed Software, (e) reverse engineer, decompile or disassemble any portion of the Service, Licensed Software, or other products or processes accessible through the Service, (f) use the Service to store or transmit infringing, libelous, obscene, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (g) use the Service to store or transmit malicious code, (h) interfere with or disrupt the integrity or performance of the Service or third-party data contained herein, or (i) attempt to gain unauthorized access to the Service or their related systems or networks.
5.6 Customer shall contract separately with an Internet service provider (ISP) for access to the Internet in order to access and use the Service. Customer acknowledges that performance of the Service may be affected by inadequate Internet service. Customer shall ensure that its ISP provides Customer with adequate band-with to access and use the Service.
6. Confidentiality and IP Rights
6.1 Company and Customer shall each, on behalf of itself, its employees, agents or subcontractors, retain all information furnished to it by the other party, whether orally or in writing, which is either marked as confidential or proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”) , in strict confidence and shall not copy, publish, disclose, sell, assign, transfer, license, lease, or convey in any manner, in whole or in part, said information to any third parties. For avoidance of doubt, Confidential Information shall include, without limitation, Customer Data, the Service, the Licensed Software, the terms and condition of this Agreement and all Sales Orders, business and marketing plans, technical or nontechnical data, financial data and plans, product plans and designs, and business processes. Each of the parties shall limit access to the Confidential Information of the other party to those of its employees, agents, and subcontractors who have a need to know for purposes consistent with this Agreement, including, without limitation, their accountants, attorneys, financial institutions, and/or regulatory body. The obligations under this Section 6 shall not apply with respect to information that (a) is in public domain at the time it is disclosed by the disclosing party or after such disclosure becomes part of the public domain by publication or otherwise without the violation of this Agreement by the receiving party; (b) is disclosed with the prior written approval of the disclosing party; or (c) is disclosed in compliance with a judicial or governmental order, provided that the receiving party shall give the disclosing party reasonable notice prior to such disclosure and shall comply with any applicable protective order.
6.2 All Intellectual Property Rights in the Service, the Licensed Software and the accompanying reference documents and written materials, is owned by Company, a Company Affiliate and/or its licensors. Company reserves all rights not expressly granted to Customer in this Agreement. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.
6.3 Company shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporation into the Service any suggestions, enhancement requests, recommendations, or other feedback provided to Company by Customer and/or its Authorized Users relating to the operation of or functionality included in the Service.
7.1 Customer, on behalf of itself and any affiliated company that Customer manages, is managed by, controls, is controlled by, or is under common control with, agrees not to directly or indirectly engage, employ or solicit the services of any employees or contractors of Company or a Company Affiliate, during the term of their employment or contractual relationship with Company or a Company Affiliate, or within one (1) year following termination of their employment or contractual relationship with Company or the Company Affiliate. If Customer breaches this provision, Customer shall pay to Company an amount equal to the annualized current salary of each such employee lost as liquidated damages. Such sum is agreed by the parties to be a reasonable amount of liquidated damages for the loss of an employee or contractor with respect to which Company or its affiliate has expended considerably in excess of said amount to increase said employee’s knowledge, skill and expertise particular to Company business and to the level necessary to perform said employees’ highly technical functions.
8.1 Company shall defend Customer against any action brought against Customer based on a claim that Customer’s use the Licensed Software or the Service as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party and Company will pay those costs and damages finally awarded against Customer on the condition that (A) Customer notifies Company promptly in writing of any such claim or action, (B) Company shall have the sole control of the defense and final settlement thereof, and (C) should the Licensed Software or Service or any part thereof in Company’s opinion be likely to become the subject of a claim of infringement, Customer shall permit Company, at Company’s sole option and expense (i) to procure for Customer the right to continue to use the Licensed Software and/or Service, (ii) to replace or modify the Licensed Software and/or Service to become non-infringing, or if neither (i) nor (ii) are reasonably available as options, Company may terminate this Agreement upon three (3) months prior written notice to Customer and Customer’s sole and exclusive remedy shall be a prorated refund of the Subscription Fees paid by Customer applicable to the remaining months in the current Term following the effective date of termination, if any, and payment of any damages and expenses as set forth above. Notwithstanding the foregoing, Company shall have no liability or obligation to defend Customer for any such claim of infringement or misappropriation of Intellectual Property Rights, direct or indirect, to the extent that such claim or action is the result of: (a) Customer’s failure to accept any procured right to continue using the Service or Licensed Software; (b) Customer’s failure to implement any replacement or modification to the Service or Licensed Software to make them non-infringing; (c) Customer’s use of the Service or Licensed Software in combination with hardware and/or third party software not meeting the Company’s specifications; (d) any modification of the Service or Licensed Software Customer, its employees, subcontractors, or agents when absent such modification the Service or Licensed Software would not be infringing; or (e) the integration or interfacing of the Service with any third party software not sold to Customer hereunder and, which as a result of such integration or interfacing, the Service is claimed to infringe when absent such integration or interfacing the Service would not be infringing (notwithstanding, whether or not Company has advised Customer that such use would likely result in a claim of infringement by a third party).
8.2 Customer shall indemnify and hold Company harmless from and against any and all loss, liability, and expense (including court costs and reasonable attorney’s fees) relating to third party claims, demands, or actions arising from or related to (i) Customer Data; (ii) Customer’s breach of Section 5.5; (iii) use of the Service or Licensed Software in violation of this Agreement; and/or the exclusions set forth in subsections (a) through (e) of Section 8.1.
8.3 This Section 8 sets forth each party’s sole liability and exclusive remedy against the other party with respect to the subject matter of this Section.
9.1 Each of the parties represents and warrants that (i) it is duly organized and validly existing under the laws of its state of formation, (ii) it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder and (iii) its execution and performance of this Agreement shall not in any way conflict with any other agreement..
9.2 Company warrants that (i) the Service shall perform as designed; (ii) it has all rights necessary to make the Service available to Customer hereunder, (iii) the Service will not contain any Company created or intentionally introduced Malicious Code; and (iv) to the extent applicable, Company will obtain validation from the Council that the Service complies with the Payment Card Industry Data Security Standards (“PCI_DSS”) or Payment Application Data Security Standards (“PA-DSS”), as is applicable, prior to making the Service and any and all Improvements available to Customer. Customer’s sole and exclusive remedy for Company’s breach of the warranty in 9.2 (i) shall be, upon terminate the Agreement in accordance with Section 11.3(i), a pro-rated refund of paid Subscription Fees applicable to the remainder of the then current Term following the effective date of termination.
9.3 Company represents that it has the authority of each producer and/or manufacturer of Products which are subject to this Agreement to sell the same to Customer. Customer acknowledges that Company makes no warranties, express or implied, concerning Products. Company agrees to and does hereby assign to Customer the producer’s or manufacturer’s warranty(s), if any, applicable to the Products. Company makes no representations regarding the validity or enforceability of any such producer’s or manufacturer’s warranty and Customer understands that its sole remedy for any breach of warranty is such as may exist against the producer or manufacturer under the producer’s or manufacturer’s warranty.
9.4 For avoidance of doubt, Company makes no warranty or representation whatsoever with respect to any Customer third party vendor system to which Company has provided an interface as part of the Service.
9.5 EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE IN THIS SECTION 9, COMPANY SPECIFICALLY DISCLAIMS AND CUSTOMER WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEMS INTEGRATION, AND DATA ACCURACY. COMPANY DOES NOT WARRANT THAT THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED OR, EXCEPT AS PROVIDED FOR IN SECTION 9.2(iii), THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
10. Limitation of Liability
10.1 EXCEPT FOR COMPANY’S OBLIGATIONS ARISING OUT OF SECTION 8.1, IN NO EVENT SHALL COMPANY OR A COMPANY AFFILIATE BE LIABLE FOR DAMAGES THAT RESULT IN ANY WAY FROM CUSTOMER’S USE OF THE SERVICE OR CUSTOMER’S INABILITY TO USE THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION TORT, CONTRACT, OR OTHERWISE, SHALL COMPANY OR A COMPANY AFFILIATE BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF ITS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
10.2 EXCEPT FOR COMPANY’S OBLIGATIONS ARISING OUT OF SECTION 8.1, IN NO EVENT SHALL COMPANY’S , A COMPANY AFFILIATE’S, OR A COMPANY LICENSOR’S LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER FOR THE SERVICE APPLICABLE TO THE THREE (3) MONTH PERIOD PRECEDING THE DATE THE CAUSE OF ACTION ACCRUED.
10.3 CUSTOMER’S REMEDIES IN THIS AGREEMENT ARE EXCLUSIVE. Company’s limited warranties do not apply to any Licensed Software that has been modified or altered in any manner by anyone other than Company or its authorized agent.
11 Term and Termination
11.1 This Agreement shall commence on the Service Commencement Date and shall continue for the Initial Term and each Renewal Term until it either expires or is terminated pursuant to the Agreement. At least ninety (90) days prior to the end of the Initial Term or any Renewal Term, Company shall provide Customer with the Subscription Fees and any changes to the terms and conditions to the Agreement applicable to such Renewal Term. If there is no change to the Subscription Fees from the prior Term and no changes to the terms and conditions to the Agreement, the Agreement shall automatically renew for a twelve (12) month period unless Company receives a written termination/non-renewal notice from Customer prior to the commencement of the applicable Renewal Term.
11.2 Following the Initial Term, Customer may terminate the Services for convenience at any time by providing Company with ninety (90) days prior written notice.
11.3 This Agreement shall be subject to termination at the election of either party in the event that (i) the other party materially breaches the Agreement provided that written notice of such breach is provided to the other party and a thirty (30) day period in which to cure the breach, 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 Upon any termination by Customer in accordance with Section 11.3 (i), Company shall refund to Customer any prepaid Subscription Fees covering the remainder of the then current Term for the Service commencing on the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Company hereunder for the period prior to the effective date of termination.
11.5 Upon written request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, Company shall make available to Customer copies of the Customer Data then available on the Service. Customer Data shall be provided in comma separated data format. Company reserves the right to withhold delivery of Customer Data until all Fees owed to Company by Customer have been paid in full. After such thirty (30) day period, Company shall have no obligation to maintain or provide any Customer Data and may, unless legally prohibited, delete all Customer Data on the Service.
11.6 Termination or expiration of this Agreement shall not extinguish any obligations hereunder which by the terms continue after termination, including, without limitation, those provided in Sections 5, 6, 7, 8, 9, 10 and 12.
12.1 This Agreement, together with the Sales Order(s), contains the entire agreement of the parties hereto with respect to the subject matter hereof. Any amendments to or modifications of this Agreement shall be valid only if made in writing and signed by both parties.
12.2 This Agreement shall be binding upon and inure to the benefit of Company, its successors and assigns. This Agreement shall not be assignable or transferable by Customer without Company’s prior written approval; such approval shall not be unreasonably withheld.
12.3 Should one or more of the provisions of this Agreement be held to be invalid by a court or other tribunal of competent jurisdiction, the remaining provisions of the Agreement shall be valid and binding as though such provision were not included herein.
12.4 Neither party shall be responsible for any delay or failure to provide any service or perform any act required hereunder, in whole or in part, due to reasons beyond the control of the affected party, including, without limitation, federal, state or municipal action or regulation; strikes, lockouts, or other labor troubles; fire, flood, or other damage caused by an act of nature; accident or other casualty; Internet blackout or brownouts, failure or delay in transportation; insurrection, riot or other acts of civil disobedience or of a public enemy, provided that the affected party gives notice to other party of such delay as promptly as practicable.
12.5 This Agreement shall be governed by the laws of the State of Vermont , specifically excluding its conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods) and, to the extent applicable, the laws of the United States. If a dispute or claim relating to the Agreement arises, the parties shall promptly attempt in good faith to resolve the dispute by mediation. For all disputes not resolved by mediation, any action brought by either party shall be instituted and prosecuted in the courts of the County of Lamoille and the State of Vermont and each party waives the right to change venue.
12.6 If any action at law or in equity is brought to enforce or interpret any of the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and expenses, including expert witness fees, and court costs, in addition of any other relief to which it may be entitled.
12.7 Any notice or communication provided for hereunder by either party to the other party shall be properly given when made in writing and sent by certified mail or an overnight courier service (such as Federal Express, DHL, UPS, etc.), and addressed to the appropriate party at the address set forth above. Notice shall be effective upon receipt. Either party may change the contact name or address for notice by providing written notification to the other party.
ATRIO® Subscription Agreement 19 May, 2015