TRUEREV MASTER SUBSCRIPTION AGREEMENT
PLEASE READ THESE TERMS AND CONDITIONS (THESE “TERMS”) CAREFULLY BEFORE USING Genuiti’s services, any documentation provided to you, or our application programming interface (collectively, the “SERVICES”). TRUEREV IS A PRODUCT CREATED BY GENUITI SOFTWARE AND TRUEREV AND GENUITI WILL BE USED INTERCHANGEABLY AND ARE CONSIDERED ONE AND THE SAME IN THESE TERMS AND CONDITIONS. THESE SERVICES ARE OFFERED BY GENUITI, INC., A DELAWARE CORPORATION (“GENUITI,” “WE” OR “US”). THESE TERMS SET FORTH THE TERMS, CONDITIONS, AND LIMITATIONS OF YOUR USE OF THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, YOU CANNOT USE THE SERVICES.
1. CONTRACT STRUCTURE & ORDER-OF-PRECEDENCE
This TrueRev Master Subscription Agreement (“Agreement”) is entered into between Genuiti Software, Inc. (DBA “TrueRev”) and the customer (“Customer”) identified on the first order document signed by both Parties referencing this Agreement (“Order Form”), effective as of the effective date identified in that Order Form (“Effective Date”). Capitalized terms in this Agreement are defined in Section 17 (Definitions) and elsewhere in this Agreement. This Agreement and all Order Forms govern Customer’s access to and use of TrueRev’s Service, and SOW govern any Professional Services TrueRev provides to Customer. Customer and TrueRev may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.” In the event of any conflicts between this Agreement, any Order Form, and/or any SOW, the following order-of-precedence applies: SOW take precedence and prevail over Order Forms solely with respect to the subject matter of SOW; and Order Forms and SOW take precedence and prevail over this Agreement solely with respect to their respective subject matter.
THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN TRUEREV AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT,” OR ACCESSING OR USING ANY TRUEREV SERVICE. BY SIGNING AN ORDER FORM, OR ACCESSING OR USING ANY TRUEREV SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, TRUEREV’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY TRUEREV SERVICE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S CONSENT TO THIS AGREEMENT.
2. OWNERSHIP OF SERVICE & CUSTOMER DATA
2.1 Ownership of the Service. The Service is the property of TrueRev, and is protected by copyright, patent, trade secret and other intellectual property laws. TrueRev and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement and the applicable Order Form(s). All rights not expressly granted to Customer are reserved and retained by TrueRev and its licensors.
2.2 Ownership of Customer Data. As between Customer and TrueRev, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof.
3. GRANT OF RIGHTS
Subject to the terms and conditions of this Agreement, TrueRev hereby grants to Customer the non-exclusive, non-transferable (except as specified in Section 16.2 (Assignment)), worldwide, royalty-free right to access and use the Service during the Service Term in accordance with the terms of this Agreement and all applicable Order Form(s) and SOW (e.g., any usage volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein).
4. CUSTOMER RESPONSIBILITIES
4.1 Customer Responsible for User Accounts. Customer is responsible for all activity occurring under Customer’s User accounts (except to the extent any such activity is caused by TrueRev), and for complying with all laws and regulations applicable to Customer’s use of the Service. Customer also must (a) notify TrueRev promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify TrueRev promptly upon becoming aware of, and make a reasonable effort to stop, any unauthorized copying, distribution or other misuse of any aspect of the Service.
4.2 Use Restrictions. Customer must not, without TrueRev’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Service, except to the extent expressly permitted by this Agreement; (b) creation of any modifications or derivative works of the Service; (c) reverse engineering of the Service; (d) gaining of unauthorized access to the Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; or (g) sending, storing or use of any infringing, obscene, threatening, libelous or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any illegal spam, or any material that is harmful to children or violates any third party privacy rights). Customer also must use reasonable security measures to access the Service, and must not knowingly send, store or use any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service. TrueRev also reserves the right to take all steps reasonably necessary to protect the security, integrity or availability of the Service (e.g., by temporarily suspending access by anyone who introduces malicious code or attempts to do so), notwithstanding anything to the contrary in this Agreement.
4.3 Customer PCI Responsibilities. If Customer or its third party service provider processes any credit card information using the Service, Customer (and/or such service provider, as applicable) will: (a) comply with their responsibilities under the Payment Card Industry Data Security Standard (“PCI DSS”); (b) implement and maintain reasonable security measures to protect all cardholder data in their possession or control; and (c) not take any action in connection with using the Service that places TrueRev in non-compliance with the PCI DSS (for example, storing any cardholder data in any custom fields of the Service).
5. PRIVACY, SECURITY, CUSTOMER DATA, CONTINUITY & SUPPORT
5.1 Compliance with Privacy Laws. TrueRev and Customer will at all times comply with all Privacy Laws. TrueRev will only use Customer Data in the manner permitted by this Agreement and all Privacy Laws; provided, however, that:
a. Customer hereby authorizes TrueRev and its Affiliates to use Customer Data solely to provide the Service to Customer and otherwise meet TrueRev’s obligations under this Agreement;
b. Customer hereby warrants that, to the extent required by Privacy Laws applicable to TrueRev’s provision of the Service to Customer and the parties’ respective obligations under this Agreement, Customer has provided all proper notices under Privacy Laws and obtained from its personnel, customers and all legally-required third parties all rights and permissions legally required in order to grant the authorizations in Section 5.1(a) and to use the Service in the manner contemplated by this Agreement.
Notwithstanding anything to the contrary in this Agreement, if (i) complying with any Privacy Laws would materially change TrueRev’s costs or risks in providing the Service (including, without limitation, by requiring that any TrueRev data centers be located outside the U.S., or requiring TrueRev to operate in violation of any U.S. laws), and (ii) after the Parties’ respective legal counsel meet to discuss the problem, TrueRev provides written notice that it does not wish to incur such costs or risks, then each Party will have the right to terminate this Agreement (including all Order Forms and SOW) in writing within thirty (30) days after TrueRev provides such written notice – in which case the termination will be effective thirty (30) days thereafter. In the event of such a termination, Customer’s sole right and TrueRev’s sole obligation (except to the extent otherwise expressly stated in this Agreement) will be for TrueRev to promptly refund to Customer, on a pro rata basis, any Fees paid under all Order Forms and SOW then in effect that are unused as of the termination effective date.
5.1.1 Unless otherwise mutually agreed to in writing by the Parties, Customer’s Tenant(s) will be hosted as agreed between TrueRev and Customer.
5.2 Export and Deletion of Financial Account Data & Other Customer Data. The Service allows Customer to export and back-up Customer Data at its discretion, and TrueRev encourages Customer to do so regularly. Customer will be charged for any other data extraction at TrueRev’s prevailing Professional Services rates.
5.3 Data Retention. Regardless of the basis for expiration or termination of this Agreement, TrueRev will not be obligated to retain any Customer Data for longer than thirty (15) days after any such expiration or termination, unless otherwise agreed in advance by the Parties in writing.
5.4 Business Continuity & Disaster Recovery. TrueRev will implement and maintain throughout the term of this Agreement reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service.
5.5 Support & Service Level Agreement. TrueRev will provide technical support for the Service in accordance with Exhibit A to this Agreement (Support and Service Level Agreement) as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.
6. TERM, TERMINATION & EFFECT OF TERMINATION
6.1.1 Term of Agreement. This Agreement will begin on the Effective Date and continue in effect until all Order Forms and SOW expire or are terminated in accordance with this Agreement (e.g., Section 6.2.2), which may be done concurrently with termination of this Agreement.
6.1.2 Term of Order Forms. The term of each Order Form will be set forth therein, starting on the Effective Date specified therein and continuing for the initial Service term specified therein (“Initial Service Term”).
PLEASE CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS AND THOSE IN SECTION 7.2. Unless otherwise set forth in the applicable Order Form, or unless the Order Form is terminated in accordance with Section 6.2.2, upon expiration of the Initial Service Term, the relevant Order Form will renew automatically on an annual basis for subsequent renewal terms of twelve (12) months (each a “Renewal Service Term“), unless either Party notifies the other Party in writing, at least thirty (30) days (subject to Section 7.2) prior to the end of the then-current Service Term, that it chooses not to renew. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.”
6.2.1 Termination of Agreement. Neither Party will have the right to terminate this Agreement without legally valid cause (no termination “for convenience”). Either Party may terminate this Agreement, but only by providing written notice to the other Party, and only after all Order Forms and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.
6.2.2 Termination of Order Form or SOW. Either Party may terminate any Order Forms and/or SOW in accordance with their respective terms. If not specified in the applicable Order Form or SOW, then subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding warranties and Service Credits): either Party may terminate any Order Forms or SOW for cause upon written notice if the other Party fails to cure any material breach thereof, or any material breach of this Agreement, within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach. Either Party may terminate this Agreement, but only by providing written notice to the other Party, and only after all Order Forms and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.
6.3 EFFECT OF TERMINATION
6.3.1 Effect of Expiration or Termination of Agreement. Sections 1, 2, 4.2, 5.2, 5.3, 5.4, 6, 8, 9, 10, 11, 12.3, 13, 14, 15, 16 and 17 of this Agreement will survive any expiration or termination of this Agreement. The applicable Order Forms and SOW may identify additional terms that will survive any expiration or termination of this Agreement.
6.3.2 Effect of Termination of Order Form or SOW.
Subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding Compliance with Privacy Laws, Indemnification, Warranties and Service Levels): (a) if Customer terminates an Order Form, SOW and/or this Agreement for uncured material breach in accordance with this Agreement, Customer will be entitled to a refund, on a pro rata basis, of any Fees paid thereunder that are unused as of the termination effective date; and (b) if TrueRev terminates an Order Form, SOW and/or this Agreement for uncured material breach in accordance with Section 6.2, all amounts owed by Customer thereunder will become due and payable.
7. ORDER PROCESS
Customer orders the TrueRev Service via one or more Order Forms, and Customer may also order TrueRev’s Professional Services via one or more SOW. Customer’s Affiliates are also permitted to sign Order Forms and/or SOW with TrueRev that are governed by this Agreement, in which case all references to “Customer” in this Agreement shall be interpreted to refer to the relevant Customer Affiliate for purposes of interpreting such Affiliate Order Forms and SOW; provided, however, that TrueRev’s maximum liability under Section 14 to Customer and all of its Affiliates who sign Order Forms or SOWs under this Agreement shall not exceed, in the aggregate, the limits stated in Section 14.
7.1 Purchase Orders. If Customer requires that a purchase order (“PO”) be issued before making payment under an Order Form or SOW, Customer must provide to TrueRev such valid PO conforming to the applicable Order Form or SOW in time for Customer to meet its payment obligations. The terms and conditions of any PO (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) will have no effect on the rights or obligations of the Parties, regardless of any failure to object to such terms and conditions.
7.2 Modification of Fees Upon Renewal. TrueRev reserves the right to modify the Fees for its Service under one or more Order Forms, effective upon commencement of the next Renewal Service Term of the relevant Order Form(s), by notifying Customer of such change in writing at least thirty (30) days before the end of the then-current Service Term, unless Customer notifies TrueRev in writing, at least twenty (20) days prior to the end of the then-current Service Term, that Customer chooses not to renew such Order Form(s).
8. FEES & PAYMENT
8.1 Payment Details. Customer must pay all fees and charges in accordance with this Agreement and each mutually executed Order Form and SOW (“Fees”).
Except to the extent otherwise expressly stated in this Agreement or in an Order Form or SOW:
a. all obligations to pay Fees are non-cancelable and all payments are non-refundable, unless under the sole discretion of and approved by TrueRev;
b. Customer must make all payments without setoffs, withholdings or deductions of any kind;
c. Customer must pay all Fees due under all Order Forms and SOW within thirty (30) days after Customer receives each invoice (invoices are deemed received when TrueRev emails them to Customer’s designated billing contact); and
d. all payments must be in U.S. Dollars.
Except to the extent otherwise expressly stated therein, if an applicable Order Form or SOW provides for payment via credit card or electronic money transfer (e.g., ACH), TrueRev is permitted to process such payment on the date of TrueRev’s invoice
Upon Order Effective Date, TrueRev invoices and collects in advance annual fees for use of the Service based on the edition of the Service subscribed to by Customer, and Customer’s anticipated usage volume using the Service (after the Initial Service Term, TrueRev will invoice Customer for such annual fees at the start of each Renewal Service Term); and if Customer’s use of the Service exceeds the committed volume specified above, Customer will pay the additional usage-based fees described in this Order Form in arrears as invoiced.
8.2 Taxes. TrueRev’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities in connection with any Order Forms or SOW. Customer is responsible for paying all such taxes, levies, or duties. Customer is not, however, responsible for paying any taxes based solely on TrueRev’s income or which do not arise from any Order Form or SOW. If TrueRev has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides TrueRev a valid tax exemption certificate authorized by the appropriate taxing authority.
8.3 Customer Contact Information. Customer agrees to provide TrueRev accurate billing and other contact information for each Order Form and SOW at all times during the Service Term, including the name of Customer’s applicable legal entity, and the street address, e-mail address, name and telephone number of an authorized billing contact. Customer shall update this information within thirty (30) days after any changes, via email to TrueRev’s Accounts Receivable team at info@TrueRev.com or firstname.lastname@example.org for billing contact information. Customer shall also maintain, at all times during the Service Term, at least one User who is a current employee and is authorized to administer Customer’s use of the Service (e.g., by creating accounts and resetting passwords).
8.4 Consequences of Non-Payment. If Customer fails to make any payments required under any Order Forms or SOW, then in addition to any other rights TrueRev may have under this Agreement or applicable law:
a. Customer will owe TrueRev an interest penalty of one and one-half percent (1.5%) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less);
b. TrueRev will be entitled to recover its reasonable attorneys’ fees, other legal expenses (including expert witness fees and expenses on appeal) and other reasonable costs to collect such amounts; and
c. If Customer’s account remains delinquent (with respect to payment of a valid invoice) for thirty (30) days after receipt of a delinquency notice from TrueRev, which may be provided via email to Customer’s designated billing contact, TrueRev may temporarily suspend Customer’s access to the Service for up to ninety (90) days to pursue good faith negotiations before pursuing termination in accordance with Section 6. Customer will continue to incur and owe all applicable Fees irrespective of any such Service suspension based on such Customer delinquency.
9. NON-PRODUCTION USAGE
From time to time, to the extent applicable, Customer may use the Service for evaluation, testing or other purposes where such use is outside a Production Tenant (e.g., by using an API Sandbox Tenant or another non-production service environment). By using the Service on such a non-production basis, Customer accepts the Service on an “as is” basis and acknowledges TrueRev provides no express or implied warranties, indemnities or security commitments, and TrueRev will have no liability, in connection with such use, notwithstanding anything to the contrary in this Agreement.
10. THIRD PARTY INTERACTIONS
To the extent use of the Service requires use of any third party products or services not made available by TrueRev (e.g., Oracle Java, Adobe Acrobat, Salesforce CRM, Amazon Web Services and/or a Web browser), Customer may be required to separately purchase/license such products or services directly from the applicable third party. In addition, in connection with using the Service, Customer may choose to purchase/license certain other third party products and/or services made available by TrueRev. Any third party products and services (even if included on an Order Form or otherwise made available via a TrueRev-controlled site) and any terms associated therewith (even if presented by TrueRev) are between Customer and the relevant third parties. TrueRev does not support, license, control, endorse or otherwise make any representations or warranties regarding any third party products or services under this section, and in no event will TrueRev have any liability whatsoever in connection therewith.
11. PROFESSIONAL SERVICES
If Customer wishes to purchase any training, implementation or other professional services from TrueRev relating to the Service (“Professional Services”), the Parties will mutually execute one or more separate SOW containing the relevant terms and conditions. TrueRev Professional Services are separate and apart from the Service, and neither Party’s obligations in connection with the Service are dependent in any way on any Professional Services. Except to the extent expressly set forth to the contrary in any applicable SOW, the following provisions will apply to all SOW:
a. As between Customer and TrueRev, Customer will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Customer without any contribution by TrueRev and provided to TrueRev under the SOW. Customer grants TrueRev a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, distribute, create derivative works of, and otherwise use such Customer-owned materials in connection with providing the Service during the Term of this Agreement and otherwise performing its obligations under this Agreement;
b. As between Customer and TrueRev, TrueRev will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for TrueRev (either alone or jointly with Customer or others) and provided to Customer under the SOW, and any derivative works thereof, excluding any incorporated Customer Confidential Information (collectively, “TrueRev PS Materials”); and
c. Subject to the terms of this Agreement, TrueRev grants Customer a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, create derivative works of, and otherwise use internally the TrueRev PS Materials in connection with the Service during the Term of this Agreement.
Nothing in this Agreement will prohibit, restrict or limit (i) TrueRev from performing similar Professional Services for any third party, or (ii) Customer from hiring any third party to perform similar Professional Services (though Customer is not permitted to give any direct competitor of TrueRev access to the Service or any TrueRev PS Materials without TrueRev’s prior written consent).
12. WARRANTIES & DISCLAIMERS
12.1 Mutual Warranties. Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms.
12.2 Additional TrueRev Commitments. TrueRev further represents and warrants that:
a. It will use reasonable technical means to screen for and detect disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots and other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data;
b. It will make reasonable efforts to notify Customer, at least thirty (30) days in advance via TrueRev’s Normal Communication Channels, of any scheduled changes TrueRev believes are likely to have a material, adverse impact on Customer’s use of the Service (“Material Changes”). (As a multi-Tenant SaaS vendor, TrueRev reserves the right to make enhancements and other changes to the Service, including occasional deprecation and removal of certain features and functionality, subject to the Service warranty in Section 12.2(b).)
If TrueRev breaches any warranties in this Section 12.2, Customer’s exclusive remedy and TrueRev’s sole obligation will be for TrueRev to make reasonable efforts to correct the non-conformity or, if TrueRev is unable to correct the non-conformity within sixty (60) days after receipt of Customer’s written notice, for Customer to terminate the applicable Order Form(s) and receive a refund, on a pro rata basis, of any annual fees prepaid under such Order Form(s) that are unused as of the termination effective date.
12.3 Warranty Disclaimers. EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTIONS 5 OR 12 OF THIS AGREEMENT OR IN EXHIBIT A HERETO: (A) TRUEREV AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) TRUEREV AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY PARTICULAR RESULTS, OR BE TIMELY OR SECURE. TRUEREV AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY PROFESSIONAL SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY TRUEREV.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. TRUEREV IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY TRUEREV.
CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES. MORE GENERALLY, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY OTHER COMMITMENTS, STATEMENTS OR OTHER MATTERS NOT EXPRESSLY ADDRESSED IN THIS AGREEMENT, AN ORDER FORM OR AN SOW.
13.1 TrueRev will have no obligation or liability for any Claim under this section to the extent arising from: (x) the combination, operation or use of the Service with any product, device, software or service not supplied by TrueRev to the extent the combination creates the infringement; (y) the unauthorized alteration or modification by Customer of the Service, or (z) TrueRev’s compliance with Customer’s designs, specifications, requests, or instructions in providing Professional Services to the extent the Claim is based on such compliance.
13.2 By Customer. Customer will defend TrueRev, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on a breach by Customer of Section 4 (Customer Responsibilities) of this Agreement. Customer will also indemnify TrueRev and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) awarded by a court of competent jurisdiction in a final, non-appealable judgment, or agreed in a written settlement agreement agreed by Customer in writing, arising out of the third party claims described in this section.
13.3 Requirements for Indemnification.
Each Party’s respective defense and indemnity obligations under Sections 13.1 and 13.2 are contingent upon the indemnified Party: (a) promptly giving notice of the third party claim to the defending/indemnifying Party once the claim is known; (b) giving the defending/indemnifying Party sole control of the defense and settlement of the claim and not compromising or settling the claim without the defending/indemnifying Party’s approval (though the defending/indemnifying Party must not settle such claim unless the settlement unconditionally releases the other Party of all liability and does not adversely affect the other Party’s business or service in a material manner); and (c) providing appropriate information and reasonable cooperation to the defending/indemnifying Party in connection with the claim.
THE FOREGOING ARE THE DEFENDING/INDEMNIFYING PARTY’S SOLE OBLIGATIONS, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDIES WITH RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 13.
14. LIMITATION OF LIABILITY
NOT WITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUT ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
14.1 EXCEPT FOR SUMS DUE TRUEREV UNDER APPLICABLE ORDER FORMS AND SOW, AND EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY OR RESPONSIBILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORMS OR SOW WILL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY;
14.2 EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE ELSE FOR ANY LOSS OF PROFITS, REVENUE, OPPORTUNITIES, ECONOMIC ADVANTAGE, GOODWILL, DATA OR USE, OR FOR ANY INDIRECT, CONSEQUENTIAL, HYBRID, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMAINING AVAILABLE REMEDY FAILS ITS ESSENTIAL PURPOSE; AND
14.3 THE TERMS OF SECTION 14 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
THE PROVISIONS OF SECTION 14 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND TRUEREV, AND THE FEES CHARGED FOR THE SERVICE ARE BASED ON THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.
15.1 Definition. As used in this Agreement, “Confidential Information” means information and materials provided by the disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, the Customer Data and Customer’s non-public business plans, and TrueRev’s Confidential Information includes, without limitation, all pricing terms offered to Customer under any Order Form, TrueRev’s non-public business plans, all non-public aspects of the TrueRev Technology, and the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
15.2 Purpose. Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the “Purpose”). For the avoidance of doubt, use of Confidential Information in an aggregated and anonymized manner that does not include Personal Data is not prohibited.
15.3 Permitted Disclosures and Obligations. Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors and consultants who (a) need to know such information in order to fulfill the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’ and consultants’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Further, neither Party may disclose publicly the existence or nature of any negotiations, discussions or consultations in progress between the Parties without the prior written consent of the other Party. Recipient and its Affiliates, contractors and consultants who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure. For the avoidance of doubt, a security breach involving Customer Data will be governed by Section 5.2, and not Section 15.
15.4 Exclusions. Recipient’s obligations under Section 15 will not apply to any Discloser Confidential Information that Recipient can prove: (a) is or becomes part of in the public domain through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; (c) was independently developed by Recipient without use of any Discloser Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of any confidentiality obligation. A disclosure by Recipient of any Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.
15.5 Ownership and Destruction of Confidential Information. As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such Confidential Information is retained.
15.6 Export. Exchange of Confidential Information under this Agreement is subject to all applicable export laws and regulations. Except to the extent permitted by a separate written agreement, the Parties will not disclose any information requiring an authorization to be exported. Each Party also specifically agrees to comply with all applicable laws, regulations, orders and sanctions relating to prohibitions or limitations on relationships or transactions with prohibited countries or individuals (e.g., those administered by the U.S. Commerce or Treasury Departments).
15.7 Confidentiality Period. Recipient’s obligations with respect to Discloser’s Confidential Information under Section 15 will remain in effect for the term of this Agreement and for three (3) years after any expiration or termination of this Agreement.
16.1 Governing Law and Dispute Resolution. This Agreement is governed by Delaware law and controlling United States federal law, without regard to conflicts of law provisions of any jurisdiction. The Service is a service, not a good, and is not subject to the Uniform Commercial Code, the Uniform Computer Information Transactions Act, or the United Nations Convention on the International Sale of Goods. Any disputes, actions, claims or causes of action arising out of or relating to this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, USA. However, other than with respect to seeking injunctive relief in connection with matters that qualify for such an extraordinary remedy under applicable law, neither Party may initial any litigation against the other Party until after providing clear written notice of its intention to do so and first making a good faith effort to resolve the dispute informally through escalation to an appropriate level of executive management of both Parties for at least thirty (30) days after providing such notice.
16.2 Assignment & Other Transfers. Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that upon written notice to the other Party, either Party may assign or otherwise transfer this Agreement, along with all associated Order Forms and SOW (and all its rights and obligations thereunder), (a) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control, or (b) to its Affiliate.
Notwithstanding anything to the contrary in this section, however: (i) in the event of any permitted transfer by Customer under this section to a direct competitor of TrueRev, TrueRev will have the right to terminate this Agreement, including all associated Order Forms and SOW, for cause under Section 6.5 (in the event of such a termination, TrueRev will promptly refund to Customer, on a pro rata basis, all Fees prepaid by Customer under all Order Forms and SOW then in effect that are unused as of the termination effective date); and (ii) Customer is not allowed to transfer to a successor-in-interest or Affiliate a subscription of the Service if TrueRev otherwise would not allow the proposed transferee to subscribe any version, e.g., because TrueRev believes the size or complexity of the proposed transferee’s business warrants a subscription of the Service.
In the event of a transfer by Customer that is permitted under this section, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order Forms prior to the transfer (e.g., any transaction volume terms, and any limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this section is void. Subject to the terms of this section, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and transferees
16.3 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, e.g., pandemic(s), war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting period of delay or inability to perform.
16.4 Marketing. TrueRev is permitted to identify Customer as a TrueRev customer on TrueRev’s website and marketing materials and, within thirty (30) days after Customer goes live on the Service, Customer and TrueRev will also issue a mutually agreed joint public announcement relating thereto.
16.5 Independent Contractors. The Parties are independent contracting parties. Neither Party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.
16.6 Notices. All legal notices (e.g., notice of termination of this Agreement or an Order Form based on an alleged material breach) required under this Agreement must be delivered to the other Party in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified U.S. mail (requiring signature) to the other Party’s corporate headquarters, Attention: Legal Department. With respect to all other notices, Customer may email TrueRev at support@TrueRev.com, and TrueRev may email Customer’s billing contact identified on the applicable Order Form(s) or SOW. Either Party may change its notice address by giving written notice to the other Party.
16.7 Anti-Corruption. Customer acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any TrueRev employee, representative or agent in connection with this Agreement. Customer will use reasonable efforts to promptly notify TrueRev at support@TrueRev.com if Customer becomes aware of any circumstances that are contrary to this acknowledgment.
16.8 Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Service constitutes software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government Users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
16.9 Execution. This Agreement may be signed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.
16.10 Entire Agreement. This Agreement, together with any applicable Order Forms and SOW (including any other terms referenced in any of those documents), comprises the entire agreement between Customer and TrueRev regarding the subject matter of this Agreement, supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives of both Parties.
As used in this Agreement:
“Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“API Sandbox Tenant” means a Non-Production Tenant identified as an “API Sandbox Tenant” (or its equivalent, if renamed) on the applicable Order Form. “Non-Production Tenant” means a Tenant the use of which is restricted to processing non-production data solely for evaluation and/or testing. “Tenant” means a single, discrete operational environment within TrueRev’s SaaS environment in which Customer may use the Service. “Production Tenant” means a Tenant that Customer is permitted to use to process live Customer Data for production use in accordance with the applicable Order Form;
“Content” means the audio and visual information, documentation, software, products and services contained in or made available via the Service, other than Customer Data and Customer Confidential Information;
“Customer Data” means any data, information or material received by the Service from Customer or Customer’s Users in the course of accessing or using the Service;
“Intellectual Property Rights” means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide;
“Normal Communication Channels” means the online channels through which TrueRev normally communicates important information to its customers, e.g., TrueRev’s online Knowledge Center and community site, and/or the email address(es) provided by Customer. (Customer must opt-into TrueRev’s online community site to receive certain important information regarding such changes and to take other required action relating to use of the Service.);
“Personal Data” means information relating to a natural person as such term is defined by the applicable Privacy Laws, including the General Data Protection Regulation (EU) 2016/679 (GDPR);
“Privacy Laws” means all laws and regulations regarding data privacy and transmission of Personal Data that apply to TrueRev’s provision of the Service to Customer (e.g., storing and processing Customer Data in connection with the Service);
“Service” means (i) the TrueRev® SaaS service for subscription management, accessible via https://www.TrueRev.com and/or another Web site or IP address designated by TrueRev, “Service” also includes, without limitation, all other components of the applicable Service, and all related Content and TrueRev Technology;
“SOW” means Statement(s) of Work, Work Authorization(s) or other contract(s) under which TrueRev provides its Professional Services, if any;
“User(s)” means Customer’s customers, employees, representatives, consultants, contractors and agents who have been authorized by Customer to use the Service; and
“TrueRev Technology” means all of TrueRev’s and its licensors’ proprietary technology that TrueRev makes available to Customer as part of or in connection with the Service (including, without limitation, any and all software, hardware, products, processes, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information).
(SUPPORT AND SERVICE LEVEL AGREEMENT)
This is Exhibit A to TrueRev’s Master Subscription Agreement (the “Agreement”). Capitalized terms not defined herein have the meaning indicated in the Agreement and its associated Order Form(s).
I. SUPPORT CUSTOMIZATIONS:
A. The commitments under this exhibit do not apply to customizations, enhancements or other non-standard modifications to the Service requested or made by Customer.
II. SUPPORT FOR TRUEREV PRODUCTION AND NON-PRODUCTION TENANTS (FOR ALL CUSTOMERS):
A. RESPONSE TIMES: For all support issues relating to TrueRev Non-Production Tenants, TrueRev will make efforts to respond promptly (via TrueRev’s Normal Support Channels, defined below) to all tickets submitted through TrueRev’s designated support portal / channel, in any event within five (5) Business Days after receipt. If TrueRev fails to meet this response time commitment, Customer’s exclusive remedy and TrueRev’s sole obligation will be: (a) for TrueRev to make efforts to respond promptly after Customer notifies TrueRev that it failed to meet this response time commitment; and (b) if TrueRev fails to meet this response time commitment five (5) times during a 3-month period, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Non-Production Tenant(s) that are unused as of the termination effective date.
”Business Day” means Monday through Friday, based on the time zone of Customer’s primary place of business.
“TrueRev’s Normal Support Channels” means TrueRev’s email@example.com.
B. SERVICE LEVELS & SERVICE CREDITS: No Service Level or Service Credit commitments apply to Non-Production Tenants.
1. Service Updates, Major and Minor Releases. TrueRev will periodically update the Service to correct errors or bugs (“Patches”), or to deliver Service enhancements, (Updates and Major and Minor Releases (Major and Minor Releases are each a “New Release”). Patches may be critical or non-critical. Updates and Minor Releases provide improved or enhanced functionality or performance and may also include certain Patches, while Major Releases provide new features and/or functionality and may contain new products, technology or modules; however, Major Releases do not include new products, technology, modules or functionality which TrueRev licenses separately from the Service licensed by Customer or for which TrueRev charges a separate fee.
2. Availability. The Service will be operational and available for use on a 24×7 basis with an average uptime commitment of 99.9% for each calendar month (Uptime Commitment).
2.2 Exclusions. The calculation of uptime will not include downtime due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or (b) general Internet problems, force majeure events or other factors outside TrueRev’s reasonable control.