This Subscription Services Agreement (“Agreement”) is between LogicGate Inc., a Delaware corporation (“LogicGate”), and the customer agreeing to these terms by its execution (“Customer”). This Agreement is dated and effective as of the last date signed.
1. SOFTWARE-AS-A-SERVICE. This Agreement includes and incorporates the Order Form and Customer Support Policy (found at https://www.logicgate.com/customer-support-policy). This Agreement provides Customer access to and usage of an Internet based software service as specified on the Order Form (the “Service(s)”), which Service may be used by Customer in accordance with this Agreement.
2. USE OF SERVICE.
a. Customer Owned Data and Customer Warranty. For purposes of this Agreement, the term “Authorized User” means any and all Primary Users, Secondary Users, and Public Users identified in the Order(s) then in effect who satisfy the criteria set forth in the definitions of such terms found at www.logicgate.com/services-descriptions and as may be described on the Order(s). All data, audio, video, pdf, images, messages and other files and content uploaded by Customer or its Authorized Users within the Service remains the property of Customer or its Authorized Users, as applicable (“Customer Data”). Customer hereby represents, warrants and covenants that (i) Customer has the right to upload, transmit, use, share and license the Customer Data in the manner that it or its Authorized Users upload, transmit, use, share or license the Customer Data, (ii) Customer’s and its Authorized Users’ access to and use of the Customer Data shall at all times comply with applicable law (including laws of a foreign jurisdiction, if applicable), and (iii) Customer has all rights and authorizations necessary to grant any and all licenses it grants under this Agreement. Customer grants LogicGate and its affiliates, employees, agents and contractors a worldwide, limited-term, royalty-free license to use, copy, transmit and host the Customer Data (of both Customer and its Authorized Users) solely for purposes of performing under this Agreement. During the term of this Agreement, Customer may export its Customer Data and print reports as allowed by such functionality within the Service, so long as it has the rights and authorizations of its Authorized Users required to do so.
b. Authorized Third Party Access and Usage. Customer may allow its Authorized Users (as defined, and subject to the numerical and other limitations set forth, in the Order(s) then in effect) to access the Service in compliance with the terms of this Agreement. Customer is responsible for the compliance with this Agreement by its Authorized Users and any other person or entity who accesses the Services via or as a result of Customer (including any customer of Customer if Customer is identified as an “Affiliate Partner” in the Order(s) then in effect), and Customer will indemnify, defend and hold harmless LogicGate’s Indemnified Parties from and against any and all Losses (as defined below) arising in connection with noncompliance with this Agreement by Customer or such other persons (including any action by the foregoing that would be a breach of this Agreement if taken or omitted to be taken by Customer).
c. Customer Responsibilities. Customer (i) must keep its and its Authorized Users’ passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must prevent unauthorized access to its account, and notify LogicGate promptly of any such unauthorized access; and (iv) may use the Service only in accordance with this Agreement and applicable law.
d. LogicGate Support. LogicGate will provide customer support to the Customer for the Service under the terms of LogicGate’s Customer Support Policy which is incorporated into this Agreement.
3. SERVICE LEVEL AGREEMENT & LOGICGATE WARRANTY.
a. Service Warranty. LogicGate warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding maintenance or scheduled outages, force majeure, and outages that result from any Customer technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.
Availability Warranty of 98% with Credit of 3% of monthly subscription fee for each full hour of an outage (beyond the warranty). For the avoidance of doubt, in determining eligibility for, and amount of, credits, “outages” shall not include maintenance or scheduled outages, force majeure, or outages that result from any Customer technology issues. Maximum amount of the credit is 100% of the subscription fee for such month.
CUSTOMER’S EXCLUSIVE REMEDY AND LOGICGATE’S SOLE OBLIGATION FOR ITS FAILURE TO MEET THE WARRANTY IN 3.a(i) ABOVE WILL BE FOR LOGICGATE TO PROVIDE CUSTOMER A CREDIT FOR THE APPLICABLE MONTH AS PROVIDED IN THE CHART ABOVE; PROVIDED THAT CUSTOMER NOTIFIES LOGICGATE OF SUCH BREACH WITHIN 30 DAYS OF THE END OF THE MONTH IN WHICH THE BREACH ALLEGEDLY OCCURRED.
b. Data Protection and Privacy Warranty. LogicGate warrants to Customer that it will use commercially reasonable efforts to protect and keep private all Customer Data, subject to the exclusions set forth in clauses (i) – (iv) of Section 5.c. and as otherwise set forth herein; provided, however, that for the avoidance of doubt, LogicGate will not be responsible for and shall have no obligation with respect to the acts or omissions of Customer, its Authorized Users, or any other person or entity who accesses the Services via or as a result of Customer.
c. LEGAL DISCLAIMER. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT LOGICGATE AND THE SERVICE DO NOT PROVIDE LEGAL ADVICE, AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ANY AND ALL APPLICABLE FEDERAL, STATE, PROVINCIAL AND LOCAL LAWS, RULES AND REGULATIONS.
d. DISCLAIMER. LOGICGATE DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. WHILE LOGICGATE TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, LOGICGATE DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED OR THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED.
4. PAYMENT. Customer must pay all fees as specified on the Order(s) then in effect in accordance with the Payment Terms listed on such Order(s). Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This Agreement contemplates one or more orders for the Service, which orders must be mutually agreed upon by the parties in the form of the Order Form or in another writing signed by both parties hereto (each an “Order”) and are governed by the terms of this Agreement.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by or on behalf of a party hereto (“Discloser”) to the other party hereto (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Customer’s Confidential Information includes Customer Data. Confidential Information of each party includes such party’s business and marketing plans, business processes, product plans and designs and other technical information.
b. Protection of Confidential Information. Recipient must use at least the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care) not to disclose or use any Confidential Information of Discloser for any purpose outside the scope of or not permitted by this Agreement or to any third party without the written permission of Discloser. Recipient shall limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.
c. Exclusions. Notwithstanding the foregoing, Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by Recipient without use or access to the Confidential Information; provided, however, that LogicGate’s Confidential Information shall nevertheless include the Service, the Service user interface design and layout, and pricing information. Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice and reasonable cooperation to seek a protective order.
6. LOGICGATE PROPERTY.
a. Reservation of Rights. The software, workflow processes, user interface, designs and other technologies provided by LogicGate as part of the Service are the proprietary property of LogicGate and its licensors (as applicable), and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with LogicGate and its licensors (as applicable). Customer may not remove or modify any proprietary marking or restrictive legends in the Service. LogicGate reserves all rights except to the extent expressly granted in this Agreement.
b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service; (ii) use the Service in a service provider capacity, unless Customer is identified as an “Affiliate Partner” in the Order(s) then in effect, in which case Customer may use the Service in a service provider capacity so long as it limits access to the Service to the Primary Users, Secondary Users, and Public Users identified in the Order(s) then in effect; (iii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iv) interfere with or disrupt the integrity or performance of the Service; (v) attempt to gain unauthorized access to the Service or their related systems or networks; (vi) reverse engineer or decompile the Service, or otherwise attempt to obtain the source code from which any component of the Service is compiled; or (vii) access the Service to build a competitive service or product, or copy any feature, function or graphic.
c. Aggregate Data. During and after the term of this Agreement, LogicGate may create and use aggregated, de-identified, non-personally identifiable data, including data derived from Customer Data or other data obtained through the provision of the Service, for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.
7. TERM AND TERMINATION.
a. Term. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order(s) then in effect, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party hereto terminates this Agreement by notifying the other party hereto in writing of such termination at least thirty (30) days prior to the end of the then-current Term, or a new Term is mutually agreed to by the Parties.
b. Mutual Termination for Material Breach. If either party is in material breach of this Agreement, the other party may terminate this Agreement at the end of a written 30-day notice/cure period, if the breach has not been cured. If LogicGate terminates this Agreement due to Customer’s material breach, (a) LogicGate shall be entitled to retain any and all funds previously paid by Customer and (b) Customer shall immediately pay LogicGate the Total Order Value set forth on the Order(s) then in effect for the remainder of the then-current Term, whether or not then due and payable. If Customer terminates this Agreement due to LogicGate’s material breach, LogicGate shall refund to Customer the pro rata portion of the Total Order Value (as defined in the Order(s) then in effect) it received from Customer for that portion of the year in which the termination occurred that has not yet elapsed as of the time of termination. Either party may terminate this Agreement immediately 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.
c. Return of Customer Data. For a period of 60-days after termination, unless applicable law requires that LogicGate dispose of any Customer Data within a shorter timeframe, upon request LogicGate will make the Service available for Customer solely to export Customer Data as provided in Section 2(a). After such 60-day period, LogicGate has no obligation to maintain the Customer Data and may destroy it.
d. Return LogicGate Property Upon Termination. Upon termination of this Agreement for any reason, Customer must pay LogicGate for any unpaid amounts due for Service through the date of termination, and destroy or return at Customer’s sole cost and expense (in LogicGate’s discretion) any and all property of LogicGate. Upon LogicGate’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
e. Suspension for Violations of Law. LogicGate may, at its discretion, temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that Customer has violated a law relating to or in connection with the Service or the usage thereof.
8. LIABILITY LIMIT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL LOGICGATE, ITS AFFILIATES OR THEIR RESPECTIVE CONTRACTORS (AS APPLICABLE) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER, BUSINESS INTERRUPTION OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF DATA, RECORDS OR INFORMATION; AND LOST PROFITS, REVENUE, GOODWILL OR ANTICIPATED COST SAVINGS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICE OR ANY PROPERTY OR INFORMATION PROVIDED BY LOGICGATE TO CUSTOMER, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF LOGICGATE KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS AND EVEN IF CUSTOMER’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. Except for LogicGate’s willful misconduct, LogicGate’s and its affiliates’ total aggregate liability arising out of or related to this Agreement or the Service (whether in contract, tort or otherwise) shall be limited to the amount paid by Customer within the 12 month period prior to the first incident that gave rise to the liability.
a. Mutual Indemnification for Third Party Claims. Subject to applicable limitations herein, each party hereto (for purposes of this paragraph, the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party hereto, its affiliated and subsidiary companies, and each of their respective officers, directors, employees, agents, contractors, successors, and assigns (collectively, the “Indemnified Parties”), from and against any and all damages, losses, fines, penalties, costs, expenses and other amounts (including reasonable attorney’s fees and expenses) (collectively, “Losses”) arising from or in connection with any actual or threatened claims, demands, investigations, and causes of actions by third parties (“Claims”) relating to, arising out of or resulting from (i) the Indemnifying Party’s breach or default of any provision of this Agreement, or (ii) the Indemnifying Party’s gross negligence or willful misconduct in the performance of its obligations hereunder.
b. Indemnity by LogicGate. Subject to applicable limitations herein, LogicGate shall defend, indemnify, and hold Customer and the Customer’s Indemnified Parties harmless from and against any and all Losses arising from or in connection with Claims to the extent based on or arising from any allegations that the Services, materials, products, systems, deliverables, LogicGate property, or resources performed, provided or used by LogicGate or its agents, or any part thereof (each, an “Infringing Item”), infringes upon or misappropriates the copyright, patent, trademark, trade secret or other intellectual property rights of such third party.
c. LogicGate Disclaimer. LogicGate shall not have any liability or obligation under this Section in regard to any Claim based on (1) the combination, operation or use of the Infringing Item with equipment, data, software or documentation not supplied by LogicGate if the Claim would have been avoided by use of other equipment, data, software or documentation, provided that Customer’s use of such other equipment, data, software or document would not materially frustrate Customer’s objective in obtaining the Infringing Item from LogicGate; or (2) modifications to the Infringing Item by a party other than LogicGate. Notwithstanding the foregoing, in no event shall LogicGate’s liability or obligation to Customer under this Section be in any way diminished where LogicGate suggested, had knowledge of and did not object to, or consented to, such combination, operation, use, or modification. In the event LogicGate becomes aware of any potential Claims under Section 9(b), LogicGate may in its discretion (i) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the infringing or misappropriating Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the infringing or misappropriating Services upon thirty (30) days’ prior written notice and refund to Customer any prepaid fees covering the remainder of the term of the subscriptions so terminated. Under no circumstances shall LogicGate or its affiliates have any indemnification obligation with respect to any Losses to the extent arising in connection with Customer’s breach of this Agreement (or any applicable Order) or any applicable law or the acts or omissions of Customer or the Customer’s Indemnified Parties.
d. Indemnity By Customer. Customer shall defend, indemnify, and hold LogicGate and LogicGate’s Indemnified Parties harmless from and against any and all Losses arising from or in connection with Claims to the extent based on or arising from any allegations that (i) Customer or its users used the Service in a manner inconsistent with this Agreement and/or the Order(s) then in effect or (ii)(A) any part of the Customer Data, (B) Customer’s use or disclosure of Customer Data, or (C) Customer’s use of the Services in combination with any equipment, data, software or documentation not supplied by LogicGate infringes upon, misappropriates or violates any third party's patent, copyright, trademark, trade secret or other intellectual property right, or violates the terms of this Agreement (including any Order(s) then in effect) or any applicable law.
e. Exclusive Remedy. This Section 9 sets forth the Indemnifying Party’s sole liability to, and the Indemnified Party’s sole and exclusive remedy against, the other party for any third party claim described in this Section 9.
10. GOVERNING LAW; VENUE. This Agreement is governed by the laws of the State of Delaware (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party. Any legal action or proceeding arising out of or relating to this Agreement or the subject matter hereof shall be instituted in any United States federal court or state court located in Chicago, Illinois, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. The parties acknowledge and agree that the terms of this Section 10 are reasonable and hereby irrevocably and unconditionally (a) waive any objection to such courts having venue of any action or proceeding and (b) waive and agree not to claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
11. OTHER TERMS.
a. Entire Agreement, Changes, Waiver. This Agreement and all Order(s) then in effect constitute the entire Agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise or inducement not included in this Agreement is binding. No modification of this Agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
b. Customer Reference. Customer agrees (i) that LogicGate may identify Customer as a recipient of services and use Customer’s logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief Customer profile for use by LogicGate on logicgate.com for promotional purposes.
c. No Assignment; No Third-Party Beneficiaries. Neither party may assign or transfer this Agreement or an Order to a third party, except that this Agreement with all Orders then in effect may be assigned, without the consent of the other party, as part of a merger, or sale of all or substantially all the assets, of the assigning party. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. There are no third-party beneficiaries under this Agreement other than Indemnified Parties.
d. Independent Contractors. The parties are independent contractors with respect to each other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties; and each party will be solely responsible for the payment of any and all compensation owed to its employees (including employment related taxes).
e. Enforceability and Force Majeure. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
f. Money Damages Insufficient. Any breach by a party of this Agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party and money damages may not be sufficient. In addition to any other rights or remedies, the other party may seek a court order to stop any breach or avoid any future breach.
g. No Additional Terms. LogicGate rejects additional or conflicting terms of any Customer form-purchasing document or other writing.
h. Order of Precedence. If there is an inconsistency between this Agreement and an Order then in effect, the Order prevails.
i. Survival of Terms. Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.
j. Feedback. By submitting ideas, suggestions or feedback to LogicGate regarding the Service, (i) Customer agrees that such items submitted do not contain confidential or proprietary information; and (ii) Customer hereby grants LogicGate a worldwide, assignable, sublicensable, transferrable, irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
k. Insurance. LogicGate will maintain the following policies of insurance: Commercial General Liability Insurance (CGL): $1,000,000.00 per occurrence, and $2,000,000.00 in the aggregate; Automobile Liability: $1,000,000.00 combined single limit; Worker’s Compensation: $1,000,000.00; and Cyber Liability (including Errors & Omissions): $5,000,000.00 each wrongful act, and $5,000,000.00 in the aggregate.
l. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally; (b) by overnight courier upon written verification of receipt; (c) by telecopy or other electronic transmission upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon confirmation of delivery. Notice shall be sent to LogicGate and Customer at the addresses set forth in the applicable Order Form, or such other address as either party may specify in writing.
m. Execution. The individual executing this Agreement and any Order on behalf of Customer hereby represents and warrants that he/she has the right, power, legal capacity and appropriate corporate or other applicable organizational authority to enter into this Agreement and/or any Order on behalf of Customer.