MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (“Agreement”) is a legal agreement between the individual or entity entering into this Agreement as “Customer”, and 4me Group, LLC (“4me Group”). This Agreement sets forth the terms and conditions that apply to Customer’s access and use of 4me Group’s Services (as defined herein) as further set forth on the applicable order form (the “Order Form”).
As used in this Agreement and in any Order Form(s), the following capitalized terms shall have the meanings set forth below. Other terms are defined in the text of this Agreement.
“Affiliate” means a company, firm or individual that controls, is controlled by, or is under common control with the Customer or 4me Group (as applicable);
“Billing Period” means the annual or other billing period as set forth on the Order Form;
“Content” means the information, documents, software, products and services contained in or made available via the Services, other than Customer Data;
“Customer” means an identifiable Customer for which the Service is licensed, as set forth in the applicable Order Form;
“Customer Data” means any and all data, reports, materials, or other information that Customer or Customer’s Affiliates, Users, subscribers or partners may disclose or submit to 4me Group or the Services in the course of using the Services;
“Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by 4me Group (either alone or jointly with Customer or others) that result from Professional Services included in any Order Form and/or SOW, and provided to Customer hereunder;
“Documentation” means any and all manuals, instructions and other documents and materials that 4me Group provides or makes available to Customer in any form or medium which describe the functionality, components, features or requirements of the 4me Group Technology;
“Initial Term” means the contracted period specified in the applicable Order Form;
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world;
“Maintenance and New Release” means any update, upgrade, release, new version, or other adaptation or modification of the 4me Group Technology, including any updated Documentation, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the 4me Group Technology;
“Order Effective Date” means the date identified in an Order Form as the date on which such Order Form shall be effective;
“Order Form(s)” means the form evidencing the initial subscription order for the Services and any subsequent Order Forms submitted online or in written form, specifying, among other things, the Order Effective Date, the Customer, the Initial Term, the applicable Fees, the Billing Period, and other charges as agreed to between the parties, each such fully executed Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail);
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity;
“Privacy Laws” means any and all applicable local, city, state, federal, national, and international laws, rules and regulations relating to data protection, privacy, encryption, identity theft, data breach, consumer protection, and data security, and any applicable industry standards relating to privacy and data security;
“4me Group” has the meaning set forth above in the preliminary statement to this Agreement;
“4me Group Technology” means the 4me Group Lead Tool, and any related software or services provided;
“Renewal Term” means each subsequent one (1) year renewal period beginning on the expiration of the Initial Term (as described further below);
“Service(s)” means 4me Group’s services related to the 4me Group Technology, as identified and licensed to Customer under an applicable Order Form developed, operated, and maintained by 4me Group, or ancillary online or offline products and services provided or licensed to Customer by 4me Group, to which Customer is being granted access under this Agreement, including the 4me Group Technology, the Content and any product, service or license belonging to a third party that appears on an Order Form;
“SOW” means a separately executed Statement of Work containing relevant project details, including without limitation, details regarding Professional Services;
“Term” means the Initial Term and any Renewal Term, subject to any right of termination as specified herein;
“User(s)” means the Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Customer (or by 4Me Group at Customer’s request), with the exact number of authorized Users to be specified on the applicable Order Form; and
“Website” means the website owned and operated by 4me Group at the url – https://stocksystems.wpengine.com, and any other website or mobile application associated with use or provision of the Services.
- License Grant/Limitations/Restrictions
2.1 Subject to the terms and conditions of this Agreement, during the Term, 4me Group hereby grants Customer a non-exclusive, non-transferable (except as expressly permitted herein), non-assignable (except as expressly permitted herein), limited license to use the Service provided hereunder solely for Customer’s own internal business purposes or as otherwise specified in the applicable Order Form and only according to the terms as set forth in this Agreement and the Order Form. Without limiting the generality of the foregoing, this Agreement and the license granted hereunder do not grant any license to any of the Confidential Information as set forth in Section 22 of this Agreement.
2.2 All Intellectual Property Rights and other rights not expressly granted to Customer are reserved by 4me Group and its licensors. 4me Group reserves the right to make changes, modifications and enhancements to the Services from time to time.
- Limitations on Use
3.1 Customer shall not: (a) except as contemplated hereunder, copy, or allow any User to copy, the 4me Group Technology, in whole or in part; (b) except as expressly permitted hereunder, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available all or any portion of the 4me Group Technology to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) bypass or breach, or allow any User to bypass or breach, any security device or protection used for or contained in the 4me Group Technology or Documentation; (d) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change (or allow any User to remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change) any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the 4me Group Technology or Documentation; (e) use, or allow any User to use, the 4me Group Technology in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law; (f) use, or allow any User to use. the 4me Group Technology for purposes of: (i) benchmarking or competitive analysis of the 4me Group Technology; or (ii) developing, using or providing a competing software product or service; (g) use, or allow any User to use, the 4me Group Technology in or in connection with the design, construction, maintenance, operation or use of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the 4me Group Technology could lead to personal injury or severe physical or property damage; or (h) use, or allow any User to use, the 4me Group Technology or Documentation in any manner or for any purpose or application not expressly permitted by this Agreement.
3.2 Customer shall: (i) be responsible to 4me Group for the compliance with this Agreement by all Users, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the 4me Group Technology, and notify 4me Group promptly of any such unauthorized access or use, and (iii) use, and cause all Users to use, the 4me Group Technology only in accordance with the applicable laws. Customer shall not: (a) use, or allow any User to use, the 4me Group Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (b) use, or allow any User to use, the 4me Group Technology to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (c) interfere with or disrupt, or allow any User to interfere with or disrupt, the integrity or performance of the 4me Group Technology or third-party data contained therein, or (d) attempt to gain, or allow any User to attempt to gain, unauthorized access to the 4me Group Technology or the systems or networks of 4me Group or any of its licensors.
- Order Process
Customer shall order Services by signing the Order Form. In the event that Customer’s business practices require a purchase order number be issued prior to payment of any 4me Group invoices issued pursuant to an Order Form, then such purchase order number must be provided to 4me Group prior to the applicable Order Effective Date. Customer’s execution and return of applicable Order Form to 4me Group without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may provide to 4me Group or use in connection with the procurement of Services (or any software) from 4me Group will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of 4me Group to object to such terms, provisions or conditions.
- Customer’s and 4me Group’s Responsibilities
5.1 Customer is responsible for all Customer Data and other activity occurring under Customer’s User accounts and the accounts of its Users. In accessing or utilizing the Service, Customer agrees to comply, and to cause its Users to comply, with all applicable local, state, national and foreign laws, treaties and regulations, including without limitation all Privacy Laws and those related to data privacy and the transmission of technical or personal data.
5.2 Customer shall: (i) notify 4me Group immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Service; (ii) report to 4me Group immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, 4me Group Technology, Services or Deliverables that becomes known or suspected by Customer or Customer’s Users; and (iii) not impersonate another 4me Group user or customer, or provide false identity information to gain access to or use the Service.
5.2 4me Group will maintain the security and integrity of the Services and will comply in all material respects with all Privacy Laws in connection with the operation of the Services. 4me Group will implement and maintain reasonable and appropriate technical, organizational and security measures against the destruction, loss, unavailability, unauthorized access or alteration of Customer Data in the possession or under the control of 4me Group. 4me Group shall immediately notify the Customer as soon as 4me Group learns or reasonably suspects that the security, confidentiality, or integrity of any Customer Data has been compromised or that there has been an unauthorized use or disclosure of any Customer Data, and shall promptly take all reasonable actions required to stop and remedy any such security incident. In the event of any such security incident, 4me Group shall also cooperate with the Customer in connection with the giving of any notice of such incident as may be required under applicable law.
5.3 4me Group will maintain a disaster recovery plan to ensure availability of information following interruption to, or failure of, critical business processes following industry standards generally adopted by U.S. based SaaS providers. 4me Group is responsible for implementing and maintaining the business continuity plans throughout the duration of Services provided.
- Account Information and Data
6.1 Included as part of the Services is a software program that resides on 4me Group’s web and mobile applications for the purpose of collecting and transmitting reports and other data. Customer shall: (i) have sole responsibilities for the accuracy, quality, integrity, legality and intellectual property ownership or right to use all Customer Data; (ii) prevent unauthorized access to, or use of, the Service or any Customer Data, and (iii) notify 4me Group promptly of any such unauthorized access or use of Customer Data. Customer acknowledges and agrees that 4me Group has a right to keep, maintain and use Customer Data for the purposes contemplated hereunder, and to limit access to, and to protect the same. Customer grants to 4me Group a nonexclusive, nontransferable license to access and use Customer Data to provide the Services to Customer. Without limiting the generality of the foregoing, Customer acknowledges that 4me Group may aggregate Customer Data with the data and information of other customers and subscribers of 4me Group for purposes of data analytics and monitoring and improvement of the Service; provided, that any such aggregation, analysis, or other activities will be on an anonymous, non-personally identifiable basis, and will not identify any data as belonging to or being provided by any specific customer or other organization. In addition, 4me Group shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information that the Customer or Customer’s Users provide relating to the features, functionality, or operation of the Services.
6.2 4me Group shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Customer Data. 4me Group’s use of Customer Data shall be limited to the purpose of providing the Services to the Customer and for 4me Group to meet its obligations hereunder, and for any other purposes as provided herein. Customer agrees and acknowledges that 4me Group is not obligated to retain any Customer Data (i) forlonger than 30 days after termination or expiration of this Agreement, or (ii) for any period if Customer has materially breached this Agreement and has failed to cure the breach within the period set forth in Section 13.2.
- Professional Services
If professional services (such as implementation, training, support, etc.) are included in any Order Form (“Professional Services”), such shall be set forth in the Order Form, a SOW, or 4me Group’s then-standard Professional Services Agreement (the “Professional Services Addendum”). If Customer requests that 4me Group provide any Professional Services at Customer’s facility, in addition to any fees associated with such Professional Services, Customer agrees to pay all customary travel and living expenses (“Travel Fees”) in connection therewith. In addition, the following provisions shall apply to all 4me Group SOWs and any applicable Professional Services Agreement: (a) 4me Group shall retain all ownership rights to any and all Deliverables excluding, any pre-existing technology, materials or Customer Confidential Information supplied by Customer for incorporation into such Deliverable; and (b) 4me Group grants Customer a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any Deliverable to the extent necessary to permit Customer to use the Deliverable in connection with the Services during the Term. All Professional Services are provided only as an adjunct to the Services, and are separate and apart from the Services. Customer acknowledges that nothing in this Agreement shall restrict or limit 4me Group from performing similar Professional Services or other services for any third party.
- Intellectual Property Ownership
8.1 Neither party will acquire any ownership interest in each other’s respective Intellectual Property Rights. Without limiting the generality of the foregoing, title to and ownership of the Website, the Services, the 4me Group Technology, all related Intellectual Property Rights, and all rights to any and all ideas, designs, concepts, techniques, discoveries, inventions, improvements, products, computer programs, procedures, specifications, data, memoranda, and other materials, whether or not patentable, related to the foregoing shall remain with and be the sole property of 4me Group and/or the owner of third party content or software which is incorporated into or provided with such Intellectual Property Rights, as the case may be.
8.2 This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, to any Deliverable, to the 4me Group Technology, or to any of the other Intellectual Property Rights owned by 4me Group. The 4me Group name, the 4me Group logo, and the product names and logos associated with the Services are trademarks of 4me Group or third parties, and no right or license is granted to use them.
9.1 4me Group shall indemnify and hold Customer harmless from and against any third party costs, damages, losses, liabilities and expenses (collectively “Claim(s)”) to the extent arising out of or in connection with a Claim reasonably alleging that the use of the Services used in accordance with this Agreement infringes a US patent, copyright or trademark right of a third party or misappropriates such third party’s trade secrets.
9.2 Customer shall indemnify and hold harmless 4me Group and its officers, managers, employees, agents, affiliates, successors and assigns from and against any Claims to the extent arising out of or in connection with: (i) Customer or its Users’ performance or nonperformance hereunder; (ii) use of the Service or Deliverables by Customer or its Users, Affiliates, or other employees or agents; (iii) Customer’s breach of any representation, warranty, covenant, or agreement specified herein; or (iv) a Claim alleging that the use of the Customer Data in accordance with this Agreement or Customer or any User’s use of the Services in violation of this Agreement infringes or otherwise violates Privacy Laws or any third party’s property, privacy or other rights or violates any applicable law.
9.3 The indemnifying party’s obligations under this Section 9.3 are contingent upon the indemnified party (a) promptly giving notice of the Claim to the indemnifying party once the claim is known; (b) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle such Claim unless such settlement unconditionally releases the indemnified party of all liability and does not adversely affect the indemnified party’s business or service); (c) providing to the indemnifying party all available information and reasonable assistance; and (d) not compromising or settling such third-party Claim without the indemnifying party’s approval (such approval not to be unreasonably withheld). With respect to 4me Group’s indemnification obligations, if (x) any aspect of the Service is found or, in 4me Group’s reasonable opinion is likely to be found, to infringe upon the intellectual property right of a third party as specified above, or (y) the continued use of the Service is enjoined, then 4me Group will promptly and at its own cost and expense at 4me Group’s option: (i) obtain for Customer the right to continue using the Service; (ii) modify the item(s) in question so that it is no longer infringing; or (iii) replace such item(s) with a non-infringing functional equivalent. If, after all commercially reasonable efforts, 4me Group determines in good faith that options (i) – (iii) are not feasible, 4me Group will remove the infringing items from the Service and refund to Customer on a pro-rata basis any prepaid unused Fees paid for such infringing element. 4me Group shall have no obligation or liability for any claim pursuant to this Section to the extent arising from: (i) the combinations, operation, or use of the Services or Deliverables supplied under this Agreement with any product, device, or software not supplied by 4me Group to the extent the combination creates the infringement; (ii) the unauthorized alteration or modification by Customer of the Services or any Deliverables, or (iii) 4me Group’s compliance with Customer’s designs, specifications, requests, or instructions pursuant to an engagement with 4me Group’s Professional Services organization relating to the Services to the extent the claim of infringement is based on the foregoing. THE FOREGOING IS THE INDEMNIFYING PARTY’S SOLE OBLIGATION AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY WITH RESPECT TO INDEMNIFICATION.
- Privacy and Security; Disclosure
Customer agrees to comply with 4me Group’s privacy and security policies, including those governing the Website (the “Policies”), which may be viewed at the Website. 4me Group reserves the right to modify its privacy and security policies in its sole discretion from time to time; provided, however, 4me Group will provide at least thirty (30) days prior written notice of any such modification. Because the Service is a hosted, online application, 4me Group occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. 4me Group may disclose the fact that Customer is a customer of 4me Group. 4me GroupCustomer agrees that it will promptly notify all of its Users of any such modification, as directed by 4me Group.
- Fees, Payment Terms, Taxes, Billing Contact
11.1 Customer shall pay all fees or charges as set forth on each executed Order Form, Professional Services Addendum, and SOW (“Fees”). Except as otherwise expressly set forth in this Agreement, all payment obligations are non-cancelable, all amounts paid are nonrefundable, and amounts purchased or subscribed for can not be reduced during the applicable Initial Term or Renewal Term then in effect. Except as set forth in the applicable Order Form, Professional Services Addendum, or SOW: (a) 4me Group charges and collects in advance for Fees; and (b) all Fees will be charged and payable in U.S. Dollars.
11.2 4me Group’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on 4me Group’s income. If 4me Group has the legal obligation to pay or collect taxes for which Customer is responsible, 4me Group reserves the right to bill Customer for such taxes, and Customer agrees to pay to 4me Group (unless Customer provides 4me Group with a valid tax exemption certificate authorized by the appropriate taxing authority) the full amount of such taxes and any interest or penalties incurred due to late payment or nonpayment of such taxes by Customer. If Customer believes Customer’s bill is incorrect, Customer must contact 4me Group in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. To the extent that any such tax, levy, or duty is levied in respect of Fees or other payments to 4me Group, the payment due to 4me Group will be grossed up such that 4me Group will receive the same amount as if no such tax, levy, or duty had been charged or levied.
11.3 Customer agrees to provide 4me Group with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Customer agrees to update this information within thirty (30) days of any change to such information.
11.4 4me Group reserves the right to modify its Fees with respect to its Services and to introduce new charges (to become effective upon the upcoming Renewal Term), by providing Customer written notice at least forty-five (45) days prior to the end of the then current Initial Term or Renewal Term (as applicable) then in effect. In the event that Customer does not provide notice of termination to 4me Group as described in Section 13.2 below, such Fee changes shall become effective at the commencement of the next Renewal Term.
- Non-Payments; Delinquent Accounts
In addition to any other rights available to it at law or equity, 4me Group reserves the right to suspend or terminate this Agreement, any related Order Forms, and/or Customer’s access to the Services if Customer’s account becomes delinquent and is uncured for a period of ten (10) days from date of delinquency notice. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date of the delinquency notice, plus all expenses of collection, including, without limitation, all reasonable legal fees incurred by 4me Group (regardless of whether or not suit is brought). Customer will continue to be charged for Fees during any period of Service suspension due to Customer’s delinquency. If 4me Group initiates termination of this Agreement as set forth in Section 13.2, Customer will be obligated to pay all remaining Fees due computed in accordance with their terms for the remainder of the Initial Term or Renewal Term (as applicable) then in effect. Customer agrees that 4me Group may charge such unpaid Fees to Customer’s credit card or via ACH payment, or otherwise bill Customer for such unpaid Fees.
- Term and Termination
13.1 This Agreement commences on the Order Effective Date and shall continue in effect through the Initial Term specified on the Order Form. Upon expiration of the Initial Term, this Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term”) at a seven percent (7%) increase over the then-current fees under this Agreement, in addition to any fee adjustment as set forth in Section 11.4, unless either party notifies the other party in writing at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term then in effect (as applicable) of its intention not to renew. Notwithstanding the foregoing or anything contained in this Agreement to the contrary, 4me Group reserves the right to adjust pricing upon commencement of any Renewal Term to conform to its then current pricing structure in any case where Customer elects to decrease its usage for Services in connection with any renewal of this Agreement.
13.2 Either party may terminate this Agreement or any or all Orders or SOWs then in effect upon a material breach of this Agreement by the other party (including pursuant to Section 12); provided, however, that except in the case of a payment breach under Section 12 or a breach of the restrictions or provisions in Sections 2, 8, and 22, the non-breaching party will, prior to any termination, be provided written notice of any breach hereunder, as well as thirty (30) day opportunity to cure. Further, to the extent permitted by law, either party may immediately terminate this Agreement or any or all Orders or SOWs then in effect in the event of: (i) an assignment for the benefit of creditors by the other party or the voluntary appointment (at the request of the other party or with the consent of the other party) of a receiver, custodian, liquidator or trust in bankruptcy of the other party’s property or the filing by the other party of a petition in bankruptcy or other similar proceeding under any law for relief of debtors; (ii) the filing against the other party of a petition in bankruptcy or other similar proceeding under any law for relief of debtors, or the involuntary appointment of a receiver, custodian, liquidator or trustee in bankruptcy of the other party’s property; or (iii) the other party dissolves, liquidates, or otherwise ceases business operations.
- Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. 4me Group warrants to Customer that for a period of ninety (90) days from installation (the “Warranty Period”), the 4me Group Technology will substantially conform in all material respects to the specifications set forth in the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with this Agreement. The foregoing limited warranty will apply only if Customer: (a) notifies 4me Group in writing of the warranty breach before the expiration of the Warranty Period; and (b) has promptly installed all Maintenance and New Releases to the 4me Group Technology that 4me Group previously made available to Customer. Notwithstanding any provisions to the contrary in this Agreement, the foregoing limited warranty does not apply to problems to the extent arising out of or relating to: (i) 4me Group Technology, or the media on which it is provided, that is modified or damaged by Customer or its Users; (ii) any operation or use of, or other activity relating to, the 4me Group Technology other than as specified in the Documentation, including any incorporation in the 4me Group Technology of, or combination, operation or use of the 4me Group Technology in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation; (iii) Customer or any User’s negligence, abuse, misapplication or misuse of the 4me Group Technology, including any use of the 4me Group Technology other than as specified in the Documentation; (iv) Customer or any User’s failure to promptly install all Maintenance and New Releases that 4me Group has previously made available to Customer; (v) the operation of, or access to, Customer’s or a third party’s system or network; or (vi) Customer’s breach of any material provision of this Agreement, the Policies, or any Professional Services Addendum. Customer represents and warrants that: (w) Customer owns or otherwise has sufficient rights in Customer Data to grant 4me Group the licenses that Customer grants in this Agreement; (x) Customer has not falsely identified itself nor provided any false information to gain access to the Services; (y) Customer has obtained appropriate consents from all Users, and others whose personal information is included in Customer Data and transmitted, processed, and stored through the Services; and (z) all billing and contact information provided by Customer is true and correct.
- Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 14, ALL SERVICES AND DELIVERABLES ARE BEING OFFERED TO CUSTOMER ON AN “AS IS” BASIS. ALL WARRANTIES WITH RESPECT TO SERVICE, DELIVERABLES, AND OTHER PRODUCTS OR SERVICES BEING PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN ADDITION, 4ME GROUP AND ITS AFFILIATES, LICENSORS, AND PARTNERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY OR TIMELINESS OF THE SERVICES OR ANY INCLUDED CONTENT. 4me Group DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET CUSTOMER OR ANY USER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ALL ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT (1) THE SERVICE DOES NOT CONSTITUTE THE PROVISION OF LEGAL, TAX, ACCOUNTING, FINANCIAL, OR PROFESSIONAL ADVICE OR SERVICES IN ANY MANNER; (2) THE SERVICE DOES NOT ENSURE CUSTOMER’S COMPLIANCE WITH ALL APPLICABLE EMPLOYMENT, MARKETING, DATA PRIVACY, AND OTHER LAWS; AND (3) CUSTOMER IS SOLELY RESPONSIBLE FOR CUSTOMER AND ITS USER’S COMPLIANCE WITH ALL APPLICABLE EMPLOYMENT, MARKETING, DATA PRIVACY, AND OTHER LAWS. Customer agrees that its purchase and subscription hereunder is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by 4me Group regarding future functionality or features. 4me Group and its licensors do not warrant or support third-party products or services, whether or not they are designated by 4me Group as “certified” or otherwise.
Customer will be solely responsible for: (a) the quality, performance, suitability, merchantability, safety and other characteristics of all products and services offered by or through it or any of its Affiliates (including, without limitation, any infringement, misappropriation or violation of any intellectual property right of any third party); (b) be solely responsible for all shipping, returns, warranty and service claims, collections, chargebacks and disputes with consumers or other third parties with regard to any transactions involving its own products and services; and (c) complying with all laws, regulations, rules, orders and other requirements of governmental authorities in connection with its business operations and use of the Services, including, without limitation obtaining and maintaining all permits, licenses, registrations and other government approvals.
- Internet Delays
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. 4ME GROUP IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY 4ME GROUP.
- Limitation of Liability
EXCEPT AS EXPLICITLY PROVIDED BELOW, IN NO EVENT SHALL 4ME GROUP’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO: (A) CUSTOMER’S BREACH OF SECTION 2; OR (B) EITHER PARTY’S BREACH OF SECTION 22.
Customer grants 4me Group the right to use Customer’s name, mark and logo in 4me Group marketing materials. Without requiring prior Customer approval, Customer agrees that 4me Group may use Customer’s name, mark and logo on 4me Group’s website and state the fact that Customer is a 4me Group customer without revealing specifics about the Agreement or the relationship.
The parties shall each maintain sufficient insurance coverage to adequately cover its obligations under this Agreement. Upon request, and no later than thirty (30) days after written request therefore, a party shall provide to the other party a copy of its current certificate of insurance evidencing its current coverage.
For notices that are directed to Customer as part of 4me Group’s general customer base, 4me Group may give notice by means of any of the following: (a) a general notice on the Service; (b) by electronic mail to Customer’s e-mail address on record in 4me Group’s account information; (c) by nationally recognized overnight delivery service; or (d) by written communication sent by first class mail or pre-paid post to Customer’s address listed in 4me Group’s account information. All notices sent to Customer specifically under this Agreement (and not sent to the general customer base) shall be in writing, and may be given by electronic mail to Customer’s e-mail address on record in 4me Group’s account information; or by written communication sent by first class mail or pre-paid post to Customer’s address listed in 4me Group’s account information. All notices to be delivered by Customer to 4me Group shall be in writing and shall be delivered by electronic mail to email@example.com or by first class mail or pre-paid post to the following address: 4me Group, LLC, 6740 Clough Pike, Suite 206, Cincinnati, Ohio 45244, Attention: Chief Executive Officer. Either 4me Group, on one hand, or the Customer, on the other hand, may update its contact information for receiving notices by providing writing notice of such update to the other party in the manner provided in this Section 20. A notice delivered electronically hereunder will be deemed to have been delivered on the date and time of the signed receipt or confirmation of delivery or transmission thereof, unless that receipt or confirmation date and time is not a business day or is after 5:00 p.m. local time on a business day, in which case such notice will be deemed to have been received on the next succeeding business day. A notice delivered by first class mail or pre-paid post will be deemed to have been given three (3) business days after mailing or posting.
This Agreement and the license and other rights granted hereunder, may not be transferred or assigned by Customer without the prior written consent of 4me Group. Any purported assignment in violation of this Section shall be void, and will constitute a material breach and grounds for termination of this Agreement. For purposes of this Agreement, a sale of a controlling interest of Customer’s equity securities or other change in control transaction will be deemed an assignment hereunder. In the event of an assignment by Customer to a successor-in-interest to the business of Customer, the rights granted in this Agreement shall be limited to Customer’s products, services and offerings in use immediately prior to the close of such transaction. 4me Group may assign or delegate this Agreement without consent, including: (a) to any Affiliate; and (b) in connection a change of control transaction including a merger, consolidation, reorganization or sale that includes the assets used in providing the Services under this Agreement. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party or its licensors (as a ‘Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement. For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Order Effective Date. As used herein, the term “Confidential Information” refers to any and all information relating to the other party or its licensor’s products, technology, trade secrets, information, data, know-how or knowledge, any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, including, without limitation, any cost or pricing information, lists of actual or potential customers, contractual terms and conditions, marketing or distribution data, business methods or plans. If Confidential Information is (a) provided as information fixed in tangible form or in writing (e.g., paper, disk or electronic mail), such shall be conspicuously designated as “Confidential” (or with some other similar legend) or (b) provided orally, such shall be identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure, unless a reasonable person would understand such information to be confidential based on its content. Confidential Information does not include information which (I) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party, or (iv) is independently developed by the Receiving Party without use or reference to Disclosing Party’s Confidential Information. The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, attorneys, accountants, and other professional advisors of the Receiving Party, or potential acquirers of Receiving Party, in each case such person or entity must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein. Each Receiving Party’s confidentiality obligations with respect to such Disclosing Party’s Confidential Information shall remain in effect for the Term of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement. For the avoidance of doubt, Confidential Information with respect to Customer includes Customer Data, and Confidential Information with respect to 4me Group includes all pricing terms offered to Customer under any Order Form, the 4me Group Technology and the results of any evaluation of the Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. The parties agree that any Non-Disclosure Agreement entered into prior to the applicable Order Effective Date shall not limit or reduce each respective Party’s obligations with respect to Confidential Information disclosed under this Agreement.
- Governing Law
This Agreement shall be governed by Ohio law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. If a dispute arises between the parties relating to this Agreement or the services, the parties agree that a meeting shall be held promptly between the parties, attended by individuals with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If, within fifteen (15) days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they agree to submit the dispute to binding arbitration in Cincinnati, Ohio in accordance with the rules of the American Arbitration Association. The arbitrator, if a sole arbitrator, or the chairman, if a panel of three (3) arbitrators, will be a lawyer with experience in handling disputes in the software industry and, if a panel, the other two panel members will each have a background or training in computer law, computer science or the computer software industry. The decision of the arbitrator(s) will be final and can be enforced by any court of proper jurisdiction. Nothing in this Section 23 will prevent or restrict either party from seeking temporary or preliminary injunctive relief in order to preserve the status quo or prevent irreparable harm.
- Entire Agreement
This Agreement, together with the Policies, the Service Policy, and any applicable Professional Services Addendum, constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein or in the Policies or the Service Policy. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form) shall add to or vary the terms and conditions of this Agreement.
- Amendments and Updates
Except as explicitly provided herein, this Agreement may not be modified or amended, except by an instrument in writing signed by duly authorized representatives of both parties hereto.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
- No Partnership
No provision of this Agreement shall be interpreted to conflict with the intent of the parties that their legal status with respect to this Agreement, each other, and the Services and other products and services being provided hereunder shall at all times be that of independent contractors, and not as employees, partners or joint venturers.
- Third-Party Beneficiaries
Except as expressly provided in this Agreement, this Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, 4me Group’s licensors shall be deemed to be express and intended third party beneficiaries of the terms, restrictions, and obligations of Customer hereunder.
The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.