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SOFTLEDGER, INC.
Master Service Agreement

  1. Introduction
    1. Overview. This Agreement sets forth the terms and conditions of Service Provider’s delivery, and Customer’s Use, of Service Provider’s proprietary platform and cloud services, as identified in the relevant Order as may be modified from time to time (the “Service”).  The Service includes the Software, Documentation and Technical Services but does not include Third-Party Products, except to the extent specified in the Order (as defined in 1 below).
    2. Definitions. Certain capitalized terms are defined in Section 20 (Definitions) and others are defined contextually throughout this Agreement.  Capitalized terms used in an Order shall have the same meaning as set forth in this Agreement unless such terms are otherwise defined in the Order.
  2. The Service.
    1. Service. Service Provider hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 1 (Assignment)) right to Use the Service during the applicable Subscription Term, solely for Customer’s internal business purposes, in accordance with the Documentation and this Agreement, including any usage limits in any Order.
    2. Authorized Users. Customer will not allow or permit access to any Person other than Authorized Users to Use the Service. Customer may permit Authorized Users to Use the Service, provided that Customer shall ensure that each Authorized User complies with all applicable terms and conditions of this Agreement and Customer shall be primarily liable for any acts or omissions by Authorized Users in connection their Use of the Service. Each Authorized User shall be provided with a specific user identification and password combination solely for the Use of the Service by such Authorized User.  Customer and each Authorized User shall (a) be responsible for the security and/or use of the user identification and password assigned to such Authorized User; (b) not disclose such user identification or password to any third person or entity; and (c) not permit any other Person to use such Authorized User’s user identification and password.  Customer will be responsible for (i) advising each Authorized User of his or her obligations under this Agreement and of the restrictions set forth in this Agreement; and (ii) each Authorized User's use of his or her user identification and password, the Service and Technical Services, including failure to comply with the terms of this Agreement (including any Order) or any of Service Provider's other policies regarding use of the Service and Technical Services.  Further, Customer shall (a) have sole responsibility for the accuracy, quality, integrity, legality, required consent, reliability, and appropriateness of all Customer Data submitted to the Service; (b) prevent unauthorized control or tampering or any other unauthorized access to, or Use of, the Service and notify Service Provider immediately of any unauthorized Use or security breach; (c) comply with all Laws in its Use of the Service; and (d) obtain and maintain all computer hardware, software, and communications equipment needed to access the Service and pay all access charges (e.g., ISP fees) incurred in connection with its Use the Service.  Customer will promptly notify Service Provider if it knows or reasonably suspects that any login credentials have been compromised. Service Provider uses Authorized User account information as described in its Privacy Policy.
    3. Administrators. Customer may designate an Authorized User as an administrator with control over Customer’s Service account, including management of Authorized Users and Customer Data. Customer is fully responsible for its choice of administrators and any actions they take. Customer agrees that Service Provider’s responsibilities do not extend to the internal management or administration of the Service for Customer.
    4. Age Requirement for Authorized Users. The Service is not intended for, and may not be used by, anyone under the age of 16. Customer is responsible for ensuring that all Authorized Users are at least 16 years old.
    5. Restrictions. Customer acknowledges and agrees that the limited right granted to Customer pursuant to Section 1 (Service) is subject to all the restrictions set forth in this Section. Customer will not, and will not permit anyone else to, do any of the following: (a) provide access to, distribute, sell or sublicense the Service to a third party; (b) Use the Service on behalf of, or to provide any product or service to, any third party; (c) Use the Service to develop a similar or competing product or service; (d) scrape, data mine, reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to or unauthorized data from the Service (and then only with prior written notice to Service Provider); (e) modify or create derivative works of the Service; (f) remove or obscure any proprietary notices in the Service or on the Documentation or otherwise misrepresent the source of ownership of the Service; (g) publish benchmarks or performance information about the Service; (h) interfere with the Service’s operation, circumvent its access restrictions, or conduct any security or vulnerability test of the Service; (i) transmit any Malware to the Service; (j) allow Authorized Users to share user seats; (k) engage in any fraudulent, misleading, illegal, or unethical activities related to the Service; (l) create Internet "links" to the Service or "frame" or "mirror" any part of the Service, including any content contained in the Service, on any other server or device; (m) except as expressly stated in this Agreement, no part of the Service or Documentation may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including electronic, mechanical, photocopying, or recording; or (n) Use the Service to store or transmit material which contains offensive, violent, pornographic, adult, obscene, illegal, defamatory, discriminatory, derogatory, inappropriate, or racially or morally offensive topics or content.
  3. Orders.
    1. Orders. An order for access to the Service, Support, Technical Services, or related services, in substantially the form of SoftLedger’s Subscription Order form, as the same may be revised from time to time; shall (a) reference this Agreement; (b) designate the Service, Support, usage rights, Technical Services or related services to be provided by Service Provider; and (c) be accepted by Customer (each, an “Order” and, collectively, the “Orders”). An agreement for Use of the Service is formed when an Order is signed by a duly authorized representative of Customer.  The terms and conditions of this Agreement are incorporated into and govern each Order.
    2. Affiliate Orders. An Affiliate of Customer, approved by Service Provider, may also place an Order for access to the Service, provided that any such Order shall (a) create a separate agreement between such Affiliate and Service Provider; and (b) incorporate this Agreement in its entirety. Each reference in this Agreement to “Customer” shall thereupon be deemed to, and shall, mean such Affiliate.  Neither Customer nor any Customer Affiliate has any rights under each other’s agreement with Service Provider, and breach or termination of any such agreement is not breach or termination under any other.
  4. Customer Data.
    1. Data Use. Customer grants Service Provider the non-exclusive, right to use, copy, store, transmit, publicly display, modify, and create derivative works of Customer Data, but only as necessary to provide the Service, Support, and any Technical Services to Customer under this Agreement.
    2. Security. Service Provider uses reasonable technical and organizational measures designed to protect the Service and Customer Data as described in the Security Policy.
    3. Personal Data. Each party agrees to comply with the DPA.
    4. Data Export. During the Subscription Term or within 30 days thereafter upon Customer’s written request, Customer may export its Customer Data from the Service using the export features described in the Documentation. After this export period, Service Provider may delete Customer Data in accordance with its standard schedule and procedures and the same shall no longer be retrievable. If Customer elects to proactively delete its account at any time, all associated Customer Data will be deleted permanently and cannot be retrieved.
  5. Customer Obligations.
    1. Generally. Customer is responsible for its Customer Data, including the content and accuracy thereof, and agrees to comply with Laws in its Use of the Service. Customer represents and warrants that it has made all disclosures and has all rights, consents, and permissions necessary to use its Customer Data with the Service and grant Service Provider the rights in Section 1 (Data Use), all without violating or infringing Laws, third-party rights (including Intellectual Property, publicity, or privacy rights) or any terms or privacy policies that apply to the Customer Data. Customer agrees that it will comply at all times with Service Provider’s EULA.
    2. Prohibited Uses. Customer must not Use the Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses and that Service Provider is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Service Provider has no liability for Prohibited Data or Use of the Service for High Risk Activities.
    3. Account Takeover. The Service may contain functionality allowing Customer to convert accounts previously registered by individuals using email addresses from Customer’s domain into Authorized User accounts under Customer’s control. Customer represents and warrants that it has all necessary rights and consents to the extent it exercises any such conversion rights as aforesaid.
  6. Suspension of Service. Service Provider may suspend Customer’s access to and Use of the Service and related services if (a) Customer breaches Section 4 (Age Requirement for Authorized Users), Section 2.5 (Restrictions) or Section 5 (Customer Obligations); (b) any payment obligation of Customer is 30 or more days overdue; or (c) Customer’s or any Authorized User’s actions risk harm to other customers or the security, availability, or integrity of the Service. Where practicable, Service Provider will use reasonable efforts to provide Customer with prior notice of any such suspension. Once Customer resolves the issue resulting in such suspension, Service Provider will promptly restore Customer’s access to the Service in accordance with this Agreement.
  7. Third-Party Platforms. Customer may choose to use the Service with Third-Party Platforms. Use of Third-Party Platforms is subject to the agreement between Customer and the relevant provider and not this Agreement. Service Provider does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability, or how the Third-Party Platforms or their providers use Customer Data. Service Provider does not provide any aspect of the Third-Party Platform and is not responsible for any compatibility issues, errors, or bugs in the Service caused in whole or in part by the Third-Party Platforms or any update or upgrade thereto.  For the avoidance of doubt, Customer is solely responsible for obtaining any associated licenses and consents necessary for Customer to use the Third-Party Platforms in connection with the Service.  If Customer enables a Third-Party Platform with the Service, Service Provider may access and exchange Customer Data with the Third-Party Platform on Customer’s behalf without liability.
  8. Technical Services. Technical Services relate to the implementation or configuration of the Service, and the provision of training to Customer, all as more particularly described in the relevant Order. Customer shall give Service Provider timely access to those Customer Materials as are reasonably required in connection with the performance of the Technical Services, and, if Customer fails to do so, Service Provider’s obligation to provide the Technical Services will be excused until such access is provided. Service Provider will use Customer Materials only for purposes of providing Technical Services. Customer may use Technical Services deliverables only as part of its authorized Use of the Service, subject to the same terms as for the Service in Section 2 (The Service) and Section 5 (Customer Obligations).
  9. Commercial Terms.
    1. Subscription Term. The commencement date of each Subscription Term for the Service set forth in an Order shall be the date upon which Customer signs such Order (the “Subscription Term Commencement Date”). The initial Subscription Term shall commence on the Subscription Term Commencement Date and continue until the one year anniversary thereof (the “Initial Subscription Term”).  Unless otherwise specified in the applicable Order, at the end of the Initial Subscription Term, the Subscription Term shall automatically renew for successive periods of one year each (each, a “Subscription Renewal Term” and, collectively with the Initial Subscription Term, the “Subscription Term”) unless either party provides the other with notice given no later than 90 days prior to the expiration of the Initial Subscription Term or then current Subscription Renewal Term, as applicable.
    2. Fees and Taxes. Fees are as described in each Order (“Fees”). Fees are invoiced on the schedule set forth in the Order. Unless the Order provides otherwise, all Fees and expenses are due within 30 days of the date of invoice therefor. Fees for each Renewal Subscription Term are at Service Provider’s then-current rates, regardless of any discounted pricing in a prior Order.  Late payments are subject to a service charge of 1.5% per month or the maximum amount permitted by Law, whichever is less. All Fees and expenses are payable without offset or deduction and are non-refundable except as set forth in Section 4 (Remedies for Service Provider Limited Warranties), and Section 15.4 (Mitigation and Exceptions). Payments due to Service Provider under this Agreement or any Order must be made in US Dollars by check, wire transfer of immediately available funds to an account designed by Service Provider, or such other payment method as may be mutually agreed to by the parties.   Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes, duties or levies that apply to the Orders, whether domestic or foreign (“Taxes”), other than taxes assessed against Service Provider’s income. Without limiting the foregoing, if Customer is required to deduct or withhold any Taxes from the amounts payable to Service Provider hereunder, Customer will pay an additional amount, so that Service Provider receives the amount due to it hereunder in full, as if there were no withholding or deduction.  Fees and expenses are exclusive of Taxes. 
  10. Support. During the applicable Subscription Term, Service Provider will provide Support in accordance with the Support Policy.
  11. Warranties and Disclaimers.
    1. Mutual Representations and Warranties. Each party hereby represents and warrants to the other that:
      1. It is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and
      2. It has duly authorized, executed, and delivered this Agreement and this Agreement constitutes a legally valid and binding obligation of it enforceable against it in accordance with its terms except as such enforcement may be limited by applicable bankruptcy, insolvency and other laws of general application affecting the enforcement of creditors’ rights and subject to general equitable principles.
    2. Customer Representations and Warranties; No Third Party Beneficiaries. Customer hereby represents and warrants that Service Provider’s Use of the Customer Materials in accordance with this Agreement will not violate any applicable Laws or cause a breach of any agreement or obligations between Customer and any third party.  Customer further represents and warrants that no consent of any third party shall be required for Customer to receive and Use the Service.  In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Service Provider will have the right, in its sole discretion, to suspend immediately the Service if deemed reasonably necessary by Service Provider to prevent any harm to Service Provider or its business.  Service Provider will provide to Customer written notice and reasonable opportunity to cure such breach, if practicable depending on the nature of the breach.  Once cured, Service Provider will promptly restore the Service unless the Service has been suspended due to chronic breaches, in which case, Service Provider may terminate the affected Orders with notice to Customer.
    3. Service Provider Limited Warranties. Provided Customer has paid all Fees payable under this Agreement and under all Orders, Service Provider warrants that:
      1. The Service will perform materially as described in the Documentation, as the Documentation may be modified from time to time, and Service Provider will not materially decrease the overall functionality of the Service during any given Subscription Term (the “Performance Warranty”);
      2. Service Provider will perform any Technical Services in a professional and workmanlike manner (the “Technical Services Warranty”); and
      3. Service Provider will deliver the Service to Customer in compliance with applicable Laws.
    4. Remedies for Service Provider Limited Warranties. If Service Provider breaches Section 11.3 (Service Provider Limited Warranties) and Customer delivers to Service Provider a reasonably detailed warranty claim within 30 days of the occurrence of such breach, then Service Provider will use commercially reasonable efforts to correct the applicable non-conformity. If Service Provider cannot do so within 60 days of receipt of Customer’s warranty claim, then either party may terminate the affected Order that relates to the non-conforming Service or Technical Services. Upon any such termination, Service Provider will refund to Customer (a) in the case of the Performance Warranty, any pre-paid Fees allocable to the then remaining balance of the applicable Subscription Term; or (b) in the case of the Technical Services Warranty, any pre-paid Fees for the non-conforming Technical Services. These warranties do not apply to (a) issues caused by misuse of the Service in violation of this Agreement or the Documentation or modifications made to the Service other than those made by or at the direction of Service Provider; (b) issues in or caused by Third-Party Platforms or other third-party systems; or (c) Trials and Betas or other free use or evaluation use of the Service.  THE FOREGOING CONSTITUTES CUSTOMER’S EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR BREACH OF THE WARRANTIES IN SECTION 3 (SERVICE PROVIDER LIMITED WARRANTIES). 
    5. Service Party Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 3 (SERVICE PROVIDER LIMITED WARRANTIES), THE SERVICE, SUPPORT, TECHNICAL SERVICES, AND ALL RELATED SERVICE PROVIDER SERVICES ARE PROVIDED “AS IS.” SERVICE PROVIDER AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. WITHOUT LIMITING ITS EXPRESS OBLIGATIONS IN SECTION 10 (SUPPORT), SERVICE PROVIDER DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE IN COMBINATION WITH THIRD-PARTY PLATFORMS OR SERVICES USED BY CUSTOMER OR MAINTAIN CUSTOMER DATA WITHOUT LOSS. SERVICE PROVIDER IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE SERVICE PROVIDER’S CONTROL. IF THIS WAIVER IS INEFFECTIVE WITH RESPECT TO CERTAIN STATUTORY RIGHTS AFFORDED CUSTOMER, ANY SUCH STATUTORY WARRANTIES WILL BE LIMITED TO THE SHORTEST PERIOD LEGALLY PERMITTED.
    6. Disclaimer with Regard to Certain Data. Service Provider has implemented a variety of security measures for the purpose of maintaining reasonable safety of Customer Data that may be sent to Service Provider as part of Service Provider’s delivery of the Service. However, Service Provider does not interpret, or segment data based upon its contents as a component of the Service it provides to Customer.  As a result, Customer must be aware of all data that it chooses to send to Service Provider for processing.  As Customer is responsible for the information which is sent to Service Provider, Customer is responsible for ensuring that any data which should be protected or restricted on a need to know basis such as PCI, PHI, or data subject to the Gramm-Leach-Bliley Act or classified government information, private individual data, personal data (as defined by the European Union General Data Protection Regulation) (collectively, “Sensitive Information”) or other data that requires special or additional protections should not be sent to Service Provider or specifically should not be transmitted outside of Customer’s network perimeter.  Any data which is sent to Service Provider is considered data which is not Sensitive Information and does not require additional security measures or segmentation based upon its contents.  In any instances where the aforesaid Sensitive Information is discovered by Service Provider when performing the Service to Customer, Service Provider will make a reasonable effort to notify Customer that such Sensitive Information has been sent to Service Provider.  As between Service Provider and Customer, Customer accepts any and all liability for claims arising out of or related to Sensitive Information and Service Provider shall have no obligations or liability with respect thereto.
  12. Term and Termination.
    1. Term. The term of this Agreement shall commence on the Effective Date and continue until the expiration or earlier termination of all Subscription Terms.
    2. Termination. Except in the event of a breach by Service Provider of any of the Service Provider Limited Warranties, the remedies for which are set forth in Section 4 (Remedies for Service Provider Limited Warranties), either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after written notice thereof; (b) ceases operation without a successor-in-interest that satisfies the reasonable creditworthiness standards of the other party; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. For the avoidance of doubt, the failure to cure the breach of a material term or condition of an Order may allow a party to terminate that specific Order, provided that all remaining Orders shall remain in full force and effect.  
    3. Effect of Termination. Upon expiration or earlier termination of this Agreement or an Order pursuant to Section 2 (Termination), Customer’s access to the Service and Technical Services will cease, other than limited Use of the Service to export Customer Data pursuant to the provisions of Section 4.3 (Data Export). In addition, any and all payment obligations of Customer under this Agreement for the terminated Service will immediately become due (including payment for the remainder of the Subscription Term as liquidated damages), except that in the event of termination by Customer pursuant to Section 12.2 (Termination), Customer will pay for the Service through the effective date of termination.   Upon the expiration or earlier termination of this Agreement, the receiving party will delete all the disclosing party’s Confidential Information in the receiving party’s possession or control (excluding Customer Data, which shall be handled in accordance with the provisions of Section 4.4 (Data Export)). Notwithstanding the foregoing, the receiving party may retain such copies of Customer Data and other Confidential Information to comply with Law or which is stored electronically on data archives or back-up systems which are not reasonably feasible to remove, provided that such copies shall not be used for any other purposes and shall remain subject to this Agreement’s confidentiality provisions.
    4. Survival. These Sections shall survive the expiration or earlier termination of this Agreement: 5 (Restrictions); 4.4 (Data Export); 5 (Customer Obligations); 9.2 (Fees and Taxes); 11.5 (Service Party Disclaimers); 11.6 (Disclaimer with Regard to Certain Data); 12.3 (Effect of Termination); 12.4 (Survival); 13 (Ownership); 14 (Limitations of Liability); 15 (Indemnification); 16 (Confidentiality); 17 (Required Disclosures); 19 (General Terms); and 20 (Definitions). Except where a remedy is stated to be exclusive, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
  13. Ownership. Neither party grants the other any rights or licenses not expressly set forth in this Agreement. Except for any use rights thereto granted to Service Provider pursuant to the terms and conditions of this Agreement, between the parties, Customer retains all Intellectual Property and other rights in and to Customer Data and Customer Materials; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, Service Provider shall own all right, title, and interest in and to any Aggregate Data. Except for any use rights thereto expressly granted to Customer pursuant to the terms and conditions of this Agreement, Service Provider and its licensors retain all Intellectual Property and other rights in and to the Service, any Technical Services and related Service Provider technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Service Provider. Service Provider may generate and use Usage Data to operate, improve, analyze, and support the Service and for other lawful business purposes. If Customer provides Service Provider with feedback or suggestions regarding the Service or other Service Provider offerings, Service Provider may use the feedback or suggestions without restriction or obligation.
  14. Limitations of Liability.
    1. Consequential Damages Waiver. EXCEPT FOR DAMAGES ARISING FROM EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, INCLUDING ANY LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR COST OF COVER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT.
    2. Liability Cap. EXCEPT FOR DAMAGES ARISING FROM EXCLUDED CLAIMS, IN NO EVENT SHALL SERVICE PROVIDER’S LIABILITY EXCEED THE TOTAL AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO SERVICE PROVIDER DURING THE IMMEDIATELY PRECEDING 12-MONTH PERIOD (OR, IF LESS, DURING THE PERIOD SINCE THE EFFECTIVE DATE).
    3. Excluded Claims. “Excluded Claims” means: (a) claims arising under Customer’s breach of Sections 5 (Restrictions) or 5 (Customer Obligations); (b) amounts payable to third parties under the indemnifying party’s obligations in Section 15 (Indemnification); or (c) claims arising under either party’s breach of Section 16 (Confidentiality).
    4. Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 14 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARAIN BETWEEN SERVICE PROVIDER AND CUSTOMER AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
  15. Indemnification.
    1. Indemnification by Service Provider. Service Provider shall indemnify, defend, and hold harmless Customer, and its directors, officers, and employees (individually a “Customer Indemnitee” and collectively, the “Customer Indemnitees”), from and against any claim, suit, action, cause of action, demand or proceeding brought against any and all Customer Indemnitees by a third party alleging that Customer’s Use of the Service, or any part thereof, infringes upon a valid US Intellectual Property Right of such third party (a “Claim”).  Customer shall provide Service Provider with prompt written notice of any such Claim and Service Provider shall have the right to assume exclusive control of the defense of such Claim, or, at the option of Service Provider, to settle the same.  Service Provider shall pay any damages finally awarded to such third party by a court of competent jurisdiction or final binding arbitration resulting from such Claim or agreed to by Service Provider in settlement of the Claim in Service Provider’s sole discretion.  Service Provider shall have no liability for any Claim arising from (a) an allegation that does not state with specificity that the Service is the basis of the Claim; (b) use of the Service other than for its ordinary purpose; (c) a Claim of infringement resulting from combining the Service furnished hereunder with any software, hardware, materials or other article not furnished by Service Provider where the infringement would not have occurred but for such combination; (d) any modification of the Service other than by or at the express written direction of Service Provider where such infringement would not have occurred but for such modification; (e) Customer's failure to install an enhancement provided at no additional charge that would have avoided the alleged infringement; (f) an allegation of infringement deriving from any Customer Indemnitee’s general use or exploitation of the Internet; (g) an allegation made against any Customer Indemnitee prior to the execution of this Agreement; or (h) any allegation based upon actions taken by a Customer Indemnitee prior to the execution of this Agreement or relating to any patent that Customer was aware of prior to the execution of this Agreement.  Customer represents that it has brought to Service Provider’s attention any such prior or existing or known patent or other intellectual property claims, in writing, prior to the execution of this Agreement. THE FOREGOING STATES SERVICE PROVIDER’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. 
    2. Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Service Provider, and its directors, officers, and employees (individually, a “Service Provider Indemnitee,” and, collectively, the “Service Provider Indemnitees”), from and against any and all damages and costs awarded against any and all Service Provider Indemnitees (including reasonable attorneys’ fees), or agreed in any settlement by Customer, arising from or in connection with (a) a Claim brought by a third party against any Service Provider Indemnitee arising from or in connection with Customer’s breach or alleged breach of Section 5 (Customer Obligations) or alleging that Customer Data or Customer Materials infringe any of such third party’s Intellectual Property Rights; or (b) based on any failure or alleged failure of any Customer Indemnitee to comply with any applicable Laws in connection with its Use of the Service including all federal, state, local and foreign consumer privacy and personal data protection laws and regulations. In addition, Customer will indemnify and hold harmless the Service Provider Indemnitees from and against all costs and expenses incurred by Service Provider in connection with compliance with any additional requirements imposed upon Service Provider or which may be required to protect Sensitive Information submitted by Customer or its Authorized Users to the Service.
    3. Settlement Procedures. Notwithstanding the foregoing, the indemnified party shall permit the indemnifying party to control the settlement of any Claim only if (a) the terms of such settlement do not require the indemnified party to admit any wrongdoing or take or refrain from taking any action (other than relating to use of the Service, when Service Provider is the indemnifying party); (b) the full amount of the settlement will be paid by the indemnifying party; and (c) the indemnified party will receive as part of such settlement a legally binding and enforceable satisfaction and/or release, in form and substance reasonably satisfactory to the indemnified party, providing that the claim and any claimed liability of the indemnified party with respect thereto are being fully satisfied by reason of such settlement and that the indemnified party is being released from any and all obligations or liabilities it may have with respect thereto. The indemnified party may participate in a Claim with its own counsel at its own expense and receive copies of all pleadings and other papers in connection therewith.
    4. Mitigation and Exceptions. In the event that the Service or any part thereof is likely to, in Service Provider’s sole opinion, or does become the subject of an infringement related Claim, Service Provider shall, at its option and expense, procure for Customer the right to continue using the Service or modify the Service to make it non-infringing; provided, however, that if Service Provider determines that neither of the foregoing options is reasonably practicable, then Service Provider may terminate the Service and promptly refund to Customer on a pro-rata basis any prepaid Fees allocable to the remaining balance of all applicable Subscription Terms as of the effective date of such termination.  Service Provider’s obligations in this Section 15 (Indemnification) do not apply (a) to infringement resulting from Customer’s modification of the Service or use of the Service in combination with items not specified in the Documentation or provided by Service Provider (including Third-Party Platforms); (b) to infringement resulting from Software other than the most recent release; (c) to unauthorized Use of the Service; (d) if Customer settles or makes any admissions about a Claim without Service Provider’s prior consent; (e) if Customer continues to use the Service (or any element thereof) after being notified of allegedly infringing activity; (f) to Trials and Betas or other free or evaluation use of the Service; or (g) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar service. THIS SECTION 15, SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SERVICE OR API. 
  16. Confidentiality.
    1. Definition. “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure, including know-how, trade secrets, inventions, processes, techniques, drawings, designs, specifications, software programs, research and development, roadmaps, business and financial information, pricing, customer lists, marketing plans, third party information that is disclosed to the receiving party by the disclosing party or by such third party at the disclosing party’s direction, and any information to the extent it contains, reflects, or is based upon any of the foregoing Confidential Information. Without limiting the foregoing, (a) Service Provider’s Confidential Information includes the Service, the Documentation, and any technical or performance information about the Service; and (b) Customer’s Confidential Information includes Customer Data.
    2. Obligations. As receiving party, each party will (a) hold Confidential Information in confidence, consistent with measures it uses to protect its own similar information but in no event less than reasonable care, and not disclose it to third parties except as permitted by this Agreement, including Section 1 (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its directors, employees, consultants, agents, advisors, and other representatives having a legitimate need to know (including, for Service Provider, the subcontractors referenced in Section 19.9 (Subcontractors)) (collectively, “Representatives”), and who have signed, prior to disclosure of Confidential Information to them, a confidentiality agreement or are bound by confidentiality at least as restrictive as those contained in this Section 16. Receiving party shall be primarily liable for any breach of this Section 16 by any of its Representatives.  The receiving party’s obligations of non-disclosure with regard to Confidential Information of the disclosing party are effective as of the Effective Date and will expire upon the later to occur of (a) 5 years from the date first disclosed to the receiving party; or (b) the expiration or earlier termination of this Agreement; provided that, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable Law), such obligations of non-disclosure will survive the expiration or earlier termination of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable Law.
    3. Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes generally available to the public through no breach of this Section 16 by the receiving party, (b) is in its possession, without confidentiality restrictions, at the time of disclosure by the disclosing party, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without reference to or reliance upon the disclosing party’s Confidential Information.
    4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Accordingly, in the event of any threatened or actual breach of this Section 16 by the receiving party, the disclosing party may seek injunctive relief in any court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of proving actual damages or posting bonds.
  17. Required Disclosures. Nothing in this Agreement prohibits the receiving party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the disclosing party in advance and cooperates reasonably, at no out-of-pocket cost to the receiving party, in any effort to obtain a protective order. If such protective order is not obtained, the receiving party shall only disclose that portion of the Confidential Information required to be disclosed and request that confidential treatment be accorded to such Confidential Information, where available.  The receiving party shall not otherwise be relieved of its obligations of confidentiality and non-use hereunder with respect to the affected Confidential Information.
  18. Trials and Betas. If Customer receives access to the Service or Service features on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use of such Service or Service features is permitted only for Customer’s internal evaluation for non-production purposes during the period designated by Service Provider (or, if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that Service Provider may never release, and their features and performance information are Service Provider’s Confidential Information. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TRIALS AND BETAS ARE PROVIDED “AS IS" AND SERVICE PROVIDER PROVIDES NO WARRANTY (IMPLIED OR OTHERWISE), INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS AND ITS LIABILITY FOR ANY DAMAGES ARISING FROM OR IN CONNECTION WITH TRIALS AND BETAS WILL NOT EXCEED US$50.
  19. General Terms.
    1. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the express prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement (in whole but not in part) together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets related to this Agreement to a transferee other than a direct competitor of the other party. 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 will bind and inure to the benefit of each party’s successors and permitted assigns.
    2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of New York without regard to principles of conflict of laws. The United Nations Convention on the International Sale of Goods shall not be applicable to this Agreement. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in New York, New York, and both parties submit to the personal jurisdiction of those courts.
    3. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and disbursements and court costs in connection with such action.
    4. Notices. Whenever, by the terms of this Agreement, notice, demand or other communication shall or may be given to either party, the same shall be in writing and addressed to the other party at its address set forth herein, or to such other address or addresses as shall from time to time be designated by written notice by either party to the other in accordance with this Section. All notices shall be sent by registered or certified mail, return receipt requested, or by delivery by Federal Express or other comparable courier service providing proof of delivery, and shall be deemed duly given upon the date of actual receipt (or, if such date is not a business day, on the next succeeding business day). All notices to Service Provider must include a copy emailed to legal@softledger.com. Service Provider may also send operational notices to Customer by email or through the Service.
    5. Entire Agreement. This Agreement (which includes all Orders, the Policies and the DPA) is the parties’ entire agreement regarding the subject matter hereof and supersedes any prior or contemporaneous agreements. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed to include “without limitation.” This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
    6. Amendments. Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representative. Nonetheless, with notice to Customer, Service Provider may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease Service Provider’s overall obligations during a Subscription Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Service Provider; any of these Customer documents are for administrative purposes only and have no legal effect.
    7. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held to be invalid, illegal or unenforceable, it will be limited to the minimum extent required to enable the rest of this Agreement to remain in effect.
    8. Force Majeure. Neither party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for payment obligations) due to causes beyond its reasonable control, which may include labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunication failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in Law, war, terrorism, riot or acts of God.
    9. Subcontractors. Service Provider may use subcontractors and permit them to exercise Service Provider’s rights, but Service Provider remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
    10. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.
    11. Export. Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Service. Customer (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use the Service in violation of any U.S. export embargo, prohibition or restriction; and (c) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations.
    12. Open Source. The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation or by Service Provider upon request. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
    13. Government End-Users. Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
  20. Definitions.

    Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.

    Aggregate Data” means any data that is derived or aggregated in anonymized form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users Use of the Service, including any usage data or trends with respect to the Service.

    APIs” mean application interface protocols.

    Authorized User” means an employee or contractor whom Customer has authorized to use the Service, provided that no such contractor shall be a direct competitor of Service Provider.

    Customer Data” means any data, content, or materials that Customer (including its Authorized Users) creates within or submits to the Service, including from Third-Party Platforms.

    Customer Materials” means all information, data, content, and other materials, in any form or medium, that are submitted, posted, collected, transmitted, or otherwise provided by or on behalf of Customer through the Service and/or Technical Services or to Service Provider in connection with Customer’s use of the Service, but excluding, for clarity, Aggregate Data and any other information, data, data models, content, or materials owned or controlled by Service Provider and made available through or in connection with the Service and/or Technical Services.

    DPA” means the Data Processing Addendum between the parties, the current version of which is here.

    Documentation” means Service Provider’s operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Service Provider to Customer relating to the Service, which may be updated from time to time upon notice to Customer.

    EULA” means Service Provider’s End User License Agreement, the current version of which is here.

    High Risk Activities” means activities where use or failure of the Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.

    Intellectual Property” or “Intellectual Property Rights” means patent rights (including patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

    Laws” means all relevant local, state, federal and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of technical or personal data.

    Malware” means computer codes designed to disrupt, disable, harm, or otherwise impede in any manner the operation of the Service, including viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.

    Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority, or other entity.

    Policies” means the Privacy Policy, Security Policy, and Support Policy.

    Privacy Policy” means the Privacy Policy, the current version of which is available here.

    Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (e) social security numbers, driver’s license numbers or other government ID numbers or (f) any data similar to the above protected under foreign or domestic Laws.

    Security Policy” means the Service Provider Security Policy, the current version of which is here.

    Service Provider Technology” means Service Provider’s proprietary technology used by Service Provider to provide the Service,  Support and Technical Services, the software tools, APIs, scripts, parsers, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, and other tangible or intangible technical material or information used or provided by Service Provider in connection with the Service, any modifications, improvements to, or derivative works of, any of the foregoing, and all related Intellectual Property Rights with respect to the foregoing throughout the world.

    Software” means any Service Provider client software, scripts, applications, or other code provided to Customer by Service Provider for Use with the Service.

    Subscription Term” means the term for Customer’s use of the Service as identified in an Order.

    Support” means support for the Service as described in the Service Provider’s Support Policy and identified in Customer’s Order.

    Support Policy” means the Service Provider’s Support Policy, the current version of which is available at https://softledger.com/support-services-terms

    Technical Services” means any implementation, integration, training, enablement or other technical services provided by Service Provider related to the Service, as identified in an Order.

    Third-Party Platform” means any platform, add-on, service, or product not provided by Service Provider that Customer elects to integrate or enable for use with the Service.

    Use” means to use and access the Service in accordance with this Agreement and the Documentation solely for Customer’s internal business purposes, which purposes shall not include commercial time-sharing, rental, outsourcing, service bureau or similar use.

    Usage Data” means Service Provider’s technical logs, data, and learnings from Customer’s Use of the Service, but excluding Customer Data.

    User” means a named individual authorized by the Customer to use the Services, for whom the Customer has purchased a subscription, and who has been supplied with user credentials for the Services by the Customer or by us at your request.

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