SOFTWARE SUBSCRIPTION AND PROFESSIONAL SERVICES AGREEMENT
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS SOFTWARE SUBSCRIPTION AND PROFESSIONAL SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE ACCESSING AND USING THE APPLICATIONS AND SERVICES. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU (“CUSTOMER”) AND SQUAREWORKS CONSULTING, LLC (“SQUAREWORKS”) AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN CUSTOMER’S ACCESS AND USE OF THE APPLICATIONS AND SERVICES. BY ACCESSING AND USING THE APPLICATIONS AND SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS STATED OR REFERENCED HEREIN. CUSTOMER AGREES THAT THIS AGREEMENT IS THE FULL AND EXCLUSIVE EXPRESSION OF THE AGREEMENT BETWEEN CUSTOMER AND SQUAREWORKS AND THAT IT TAKES PRECEDENCE OVER ALL PREVIOUS PROPOSALS OR VERBAL OR WRITTEN AGREEMENTS AND OTHER COMMUNICATIONS REGARDING THE SUBJECT OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ABIDE BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, DO NOT ACCESS AND USE THE APPLICATIONS AND SERVICES. CUSTOMER MUST ACCEPT AND ABIDE BY THIS AGREEMENT AS PRESENTED– ANY CHANGES, ADDITIONS OR DELETIONS BY CUSTOMER TO THIS AGREEMENT WILL NOT BE ACCEPTED BY SQUAREWORKS AND WILL NOT BE PART OF THIS AGREEMENT.
A capitalized term used herein and not otherwise defined when first used shall have the meaning ascribed to such term as specified in Exhibit A hereto. In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 SquareWorks Obligations. SquareWorks shall provide the services and support (the “Services”) described in one or more statements of work hereto (each, a “Statement of Work” or “SOW”) available to Customer during the term of this Agreement.
1.2 Customer Obligations. Customer shall use the Services solely for its internal business purposes in accordance with the Statement of Work and not for the benefit of any third parties. For any Services provided by SquareWorks involving file storage, Customer is responsible for maintaining appropriate backups of any data/files stored by SquareWorks.
2.1 License Grant. If Customer has purchased a subscription to any SquareWorks software application specified in the applicable SOW (an “Application”), SquareWorks grants to Customer a nonexclusive right and license during the subscription term specified in such SOW to remotely access and use the software on the Customer’s NetSuite platform solely for Customer’s internal business purposes.
2.2 Internal Use Only. Customer shall use the Application solely for its internal business purposes as permitted under this Agreement and in accordance with the SOW, and not for the benefit of any third parties.
2.3 Support. During the subscription term for the applicable Application, as defined in the applicable SOW, SquareWorks shall provide support for the Application via email for maintenance and support relevant to the Application’s standard functionality as described in the Functional Documentation of the software provided in http://software.squareworks.com. Assistance with configuration design, updates to the Application’s configuration or assistance with hardware issues are not included as part of such support.
2.4 Implementation. SquareWorks shall implement the Application if and as further in the applicable SOW. All implementation services will be performed remotely.
2.5 Initial Subscription Term.
(a) Unless specified otherwise in the applicable SOW, Customer’s initial subscription term for to use the Application (the “Initial Subscription Term”) is one (1) year commencing on the date specified in the applicable SOW.
(b) Upon the expiration of the Initial Subscription Term or any renewal term thereof, unless either party provides the other with written notice of its election not to renew such SOW at least thirty (30) days prior to such renewal date, the subscription term will automatically renew, for a term equal in duration to the Initial Subscription Term at the rates specified therein. SquareWorks reserves the right to change the rates, applicable charges, and usage policies and to introduce new charges for any renewal term, upon at least 60 days’ prior notice to Customer, which notice may be provided by e-mail.
Fees & Payment.
3.1 Fees and Expenses. Customer shall pay SquareWorks the fees specified in the applicable SOW. All fees are quoted and payable in United States dollars.
3.2 Overages. If the fees include a usage tier, any overage fees will be charged at (i) the rate specified in the SOW for the initial term of the SOW and (ii) SquareWorks’ then-current overage rates for any renew term of the SOW. SquareWorks shall invoice Customer in the following month for any such monthly overage fees incurred by Customer and such fees shall be due and payable within 30 days of the date of such invoice.
3.3 Invoicing & Payment. Fees for the Services will be invoiced in accordance with the applicable SOW. Unless different payment terms are set forth in the applicable SOW, all fees shall be due and payable within thirty (30) days of invoice date. Customer shall provide SquareWorks with complete and accurate billing and contact information. Customer will make payments via ACH or wire transfer.
3.4 Overdue Payments. Any payment not received from Customer by the due date shall accrue (except with respect to fee then under reasonable and good faith dispute), late charges 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 of such payment was due until that date paid.
3.5 Non-Payment and Suspension of Services. If Customer’s account is more than thirty (30) days past due (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, SquareWorks reserves the right to suspend the Services or Application subscription, as applicable, without liability to Customer, until such amounts are paid in full.
3.6 Taxes. Except as otherwise stated in the SOW, SquareWorks’ fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes incurred by it hereunder, excluding U.S. income taxes on SquareWorks. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer shall gross up the payments so that SquareWorks receives the amount actually quoted and invoiced. If SquareWorks has a legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides SquareWorks with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.7 Refunds & Disputes. Except as otherwise provided, all fees are non-refundable. If Customer believes that any charges are in error, Customer is to open an accounting ticket to give notice to SquareWorks within 30 days of the receipt of the disputed bill. Any invoice not disputed by Customer in accordance with this Section 3.7 within 30 days of receipt of the invoice shall be conclusively accepted by Customer as correct. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by SquareWorks in enforcing collection of overdue fees.
3.8 Missed Meetings.
(a) Remote Meetings. To cancel any scheduled remote meeting hereunder, Customer must provide SquareWorks with written notice of cancellation at least 4 hours prior to such meeting (a meeting not cancelled with such require prior notice shall be deemed a missed meeting for purposes of this paragraph). For each missed meeting after the first missed meeting, the Customer shall be billed in full for any subsequent missed meetings based on SquareWorks’ professional service rates as specified in the applicable SOW. If no rate is specified, the applicable rate will be $235/hour.
(b) Onsite Meetings. To cancel any scheduled onsite meeting hereunder, Customer must provide SquareWorks with written notice of cancellation at least 24 business hours prior to such meeting (a meeting not cancelled with such require prior notice shall be deemed a missed meeting for purposes of this paragraph). For each missed meeting after the Customer’s first missed meeting, the Customer shall be billed in full for any subsequent missed meetings based on SquareWorks’ professional service rates as specified in the applicable SOW. If no rate is specified, the applicable rate will be $235/ hour.
4.1 Confidentiality. A party shall not disclose or use any Confidential Information of the other party for any purpose outside the scope of this Agreement, except with the other party’s prior written permission.
4.2 Protection. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind (but in no event using less than a reasonable standard of care).
4.3 Compelled Disclosure. If a party is compelled by Law to disclose Confidential Information of the other party, it shall promptly provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
4.4 Remedies. If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
4.5 Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party.
Each party hereby agrees that during the term of this Agreement and for a period of one (1) year thereafter, neither party nor any of its employees, agents or contractors will, without the other party’s prior written approval, directly or indirectly hire any employee or consultant of such other party or recruit, solicit or knowingly induce, or attempt to induce, any employee or consultant of such other party to terminate his or her employment or consulting relationship with, or otherwise cease his relationship with, such other party; provided that nothing in this Section 5 shall prevent either party from hiring a respondent to a general solicitation not personally directed to him or her.
Warranties & Disclaimers.
(i) Each party represents and warrants that it has the right to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it; including those related to data privacy, international communications and the transmission of technical or personal data.
(ii) SquareWorks warrants that it shall perform the obligations described in each SOW in a professional and workmanlike manner; and that all Services shall conform to the terms and conditions of this Agreement and the description of Services in the applicable SOW.
6.2 Warranty Remedies. As Customer’s exclusive remedy and SquareWorks’ sole liability for breach of the warranty set forth in Section 6.1(ii), SquareWorks shall (a) correct the non-conforming Services at no additional charge to Customer, or (b) in the event SquareWorks is unable to correct such deficiencies after good-faith efforts, refund Customer prorated amounts paid for the defective Services from the date SquareWorks received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to SquareWorks, but no later than thirty (30) days after the first date the deficiency is identified by Customer.
6.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SQUAREWORKS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. SQUAREWORKS DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES.
7.1 Indemnification by SquareWorks. SquareWorks shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Services as contemplated hereunder infringes a copyright, a patent, or a trade secret or trademark of a third party; provided, however, that Customer: (i) promptly gives written notice of the Claim to SquareWorks; (ii) gives SquareWorks sole control of the defense and settlement of the Claim (provided that SquareWorks may not settle any Claim unless it unconditionally releases Customer of all liability); and (iii) provides to SquareWorks, at SquareWorks’ cost, all reasonable assistance. Notwithstanding the foregoing, SquareWorks shall not be required to indemnify Customer in the event the alleged infringement: (iv) is based on information or requirements furnished by Customer, (v) is the result of a modification made by a party other than SquareWorks, or (vi) arises from use of the Services in a manner inconsistent with the Statement of Work; or use of the Services in a manner not otherwise contemplated by this Agreement. If Customer is enjoined from using the Services or SquareWorks reasonably believes it will be enjoined, SquareWorks shall have the right, at its sole option, to obtain for Customer the right to continue use of the Services or to replace or modify the Services so that it is no longer infringing and continues to conform materially in accordance with the Statement of Work. If neither of the foregoing options is reasonably available to SquareWorks, then use of the Services may be terminated at the option of SquareWorks and SquareWorks’ sole liability shall be to refund a prorated portion of any prepaid fees paid by Customer for such unused Services.
7.2 Indemnification by Customer. Customer shall defend, indemnify and hold SquareWorks harmless from any Claims made or brought by a third party: (i) based upon breach of this Agreement by Customer, its Employees and Authorized Parties resulting in the unauthorized disclosure of Customer Data; (ii) alleging that the Customer Data infringes the rights of, or has caused harm to a third party; or (iii) in connection with a claim arising from Customer’s, its Employees’ or Authorized Parties’ use of the Services in breach of this Agreement; provided, however, that SquareWorks: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases SquareWorks of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
Limitation of Liability
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS AND/OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S (OR SQUAREWORKS’S THIRD PARTY LICENSORS) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SERVICES FEES ACTUALLY PAID BY CUSTOMER IN CONSIDERATION FOR SQUAREWORKS’S SERVICE DELIVERY DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM AROSE.
8.2 Exclusion of Damages. EXCEPT WITH RESPECT TO (I) CUSTOMER’S PAYMENT OBLIGATIONS AND (II) AMOUNTS TO BE PAID BY AN EITHER PARTY PURSUANT TO THE INDEMNIFICATION OBLIGATIONS NO MATTER HOW SUCH DAMAGES MIGHT BE CHARACTERIZED, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
8.3 Allocation of Liability. THE PARTIES ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTIES, DISCLAIMER OF CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH SQUAREWORKS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. SQUAREWORKS’ PRICING REFLECTS THIS ALLOCATION OF RISK AND THESE LIMITATIONS.
8.4 Failure of Remedy. The parties agree that the limitations specified in this section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Term & Termination.
9.1 Term. Except as otherwise agreed to by the parties in writing, the term of this Agreement shall commence on the Effective Date and shall be terminated as provided below.
9.2 Termination. Subject to earlier termination as provided herein, this Agreement shall commence upon the Effective Date and continue until terminated by a party upon five (5) days prior written notice. Any SOW in effect at the time of a termination of this Agreement in accordance with the preceding sentence shall remain in effect and continue until completion of the term of such SOW and shall be governed by the terms and conditions of this Agreement. Either party may terminate this Agreement or any SOW (i) immediately in the event of a material breach of this Agreement or any such SOW by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing..
9.3 Effect of Termination. Upon any termination of this Agreement, (i) Customer shall, as of the date of such termination, immediately cease accessing or otherwise utilizing the Services and (ii) each party shall cease using and either return or destroy the other party’s Confidential Information in its possession. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to SquareWorks prior to the effective date of termination.
9.4 Surviving Provisions. The parties’ rights and obligations under Sections 4, 7, 8, 9.3, 9.4 and 11 will survive termination or expiration of this Agreement.
10.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between parties. There are no third-party beneficiaries to this Agreement.
10.2 Waiver of Cumulative Remedies. No failure to delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.3 Use of Name. Customer hereby authorizes SquareWorks to use Customer’s name and/or logo on SquareWorks’ website disclosing that SquareWorks has provided the Services to Customer and to use Customer’s name in any standard customer listing (or partial customer listing) published by SquareWorks.
10.4 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving SquareWorks or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused for up to thirty (30) days. In the event that a force majeure event persists for more than 30 business days, the unaffected party may terminate this Agreement or any Statement of Work upon written notice to the affected party.
10.5 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 (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Statements of Work) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement and all past due fees are paid in full. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.6 Governing Law; Waiver of Jury Trial. This Agreement shall be governed exclusively by the internal laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws rules. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
10.7 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Statements of Work, constitutes the entire agreement between the Parties with respect to the subject matter hereof. In the event of a conflict, the provisions of any Statement of Work shall take precedence over provisions of the body of this Agreement and over any other Exhibit or Attachment. This Agreement 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 signed by the party against whom the modification, amendment or waiver is to be asserted. 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. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
“Agreement” means this this Software Subscription and Professional Services Agreement, any exhibits or attachments hereto, and any fully executed Statement of Work.
“Application” shall have the meaning ascribed to such term in Section 2.2.
“Authorized Parties” means Customer’s Employees and third-party providers authorized to access or receive Customer Data by Customer in writing.
“Confidential Information” means (a) any software utilized by SquareWorks in the provision of the Services and its respective source code; (b) Customer Data; (c) each party’s business or technical information, including but not limited to the Statement of Work, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or parties).
“Customer Data” means all data made available by the Customer or its Authorized Parties to SquareWorks or otherwise provided by Customer or its Authorized Parties in connection with the provision of the Services.
“Employee” means Customer’s employees, consultants, contingent workers, independent contractors, and retirees whose active business record(s) are or may be managed by the Services. Information related to former employees, consultants, contingent workers, independent contractors and retirees in the form of static, historical records may be maintained in the system but shall be excluded from the calculation of Employees.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.
“Statement of Work” or “SOW” shall have the meaning ascribed to such term in Section 1.1.
“Services” shall have the meaning ascribed to such term in Section 1.1.