Master Subscription Agreement

 

PLEASE READ CAREFULLY - THIS MASTER SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN US AND YOU AND GOVERNS YOUR PURCHASE AND USE OF OUR SERVICES.THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES, UNLESS YOU AND WE HAVE SIGNED A SEPARATE AGREEMENT REGARDING YOUR USE OF THE SERVICES.

If you register for a free trial for our Services, this Agreement will also govern your Free Trial.

By accepting this Agreement, either by clicking a box indicating Your acceptance or by executing an Order Form that references this Agreement, You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with the terms of this Agreement, You must not accept this Agreement and may not use the Services.

You may not use the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not use the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

1. DEFINITIONS

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, "Control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Third-Party Products" means online or web-based applications and offline software products that are provided by entities or individuals other than Us.

"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. These include any acceptance by You of Service from via subscription process. Order Forms shall be deemed incorporated herein by reference.

"Paid Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.

"Services" means the online applications and platforms, or any other products or services that are ordered by You and made available by Us online via the customer login link on our website.

"User Guide" means the online user guide for the Services, made available on our website, as updated from time to time.

"Users" means individuals who are authorised by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, advisors, contractors and agents,or third parties with which You transact business.

"We," "Us" or "Our" means The Sales Productivity Company s.r.o., a Czech Republic limited liability company.

"You" or "Your" means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity.

"Your Data" means all electronic data or information submitted by You to the Services.
 
2. FREE TRIAL

We may make one or more Services available to You on a trial basis free of charge, until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Paid Services purchased by You. Additional terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated by reference into this Agreement.

ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.

Notwithstanding anything to the contrary in this Agreement, during the Free Trial the Services are provided “as-is” without any warranty or support.

3. PAID SERVICES

3.1. Provision of Paid Services. We will make the Paid Services available to You pursuant to this Agreement and the relevant Order Forms during the subscription term. You agree that Your purchase of the Paid Services is neither contingent upon the delivery of any future functionality or features nor dependent on any verbal or written public comments made by Us regarding future functionality or features.

3.2. User Subscriptions. Unless otherwise specified in an applicable Order Form, (i) Services are purchased as User subscriptions and may only be accessed by the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, provided that these are within the limits of the contracted The Sales Productivity Company edition subscribed to by You,  and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

4. USE OF THE SERVICES

4.1. Our Responsibilities. During the subscription term, we shall: (i) provide to You basic support for the Paid Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Paid Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which we shall give a prior notice), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Our employees), or Internet service provider failures or delays, or denial of service attacks.

4.2. Your Responsibilities. You acknowledge and agree that the Services are for Your internal business purposes only. You shall (i) be responsible for compliance with this Agreement by Your personnel and Users, (ii) be solely responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorised access to or use of the Services, and notify Us promptly of any such unauthorised access or use, and (iv) use the Services only in accordance with the User Guide and applicable law and government regulations.

4.3. Restrictions. You shall not (i) make the Services available to anyone other than Users, (ii) sell, resell, rent, lease the Services, or create derivative works based on the Services, (iii) use the Services to upload, or store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (iv) use the Services to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (vi) attempt to gain unauthorised access to the Services or their related systems or networks, (vii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (viii) reverse engineer the Services, (ix) create derivate works based on the Services except as authorised herein, or (x) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

4.4. Usage Limitations. The Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.

4.5. Acquisition of Third-Party Products. Any acquisition by You of Third-Party Products, and any exchange of data between You and any third party provider, is solely between You and the applicable third party provider. We do not warrant or support Third-Party Products, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.

4.6. Third-Party Products and Your Data. If You install or enable Third-Party Products for use with Services, You agree that We may allow the respective Third-Party Products providers to access Your Data as required for the interoperation of such Third-Party Products with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Products providers. 

5. FEES AND PAYMENT FOR PAID SERVICES

5.1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Services purchased and not on the actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

5.2. Invoicing and Payment. For credit/debit card purchases, You will provide Us with valid and updated credit/debit card information. Otherwise, You will provide Us with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit/debit card information to Us, You authorise Us to charge such credit/debit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit/debit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete, accurate and updated billing and contact information in the Services.

5.3. Overdue Charges. If payment of any invoices or any other fees or charges is not received from You by the due date, then at Our discretion, (i) such payment, fees or charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the due date until the date payment is actually received, and/or (ii) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).

5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 20 or more days overdue (or 10 or more days overdue in the case of amounts You have authorised Us to charge to Your credit/debit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 12.3 (Notices), before suspending services to You.

5.5. Payment Disputes. We shall not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and you are cooperating diligently to resolve the dispute.

5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorised by the appropriate taxing authority.

5.7. Billing process. The billing process for Our Paid Services will be processed through Our 100% subsidiary company The Sales Productivity Company s.r.o. company.

6. PROPRIETARY RIGHTS

6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

6.2. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorise Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

6.3. Suggestions. You grant Us a royalty-free, fully paid-up, worldwide, irrevocable, transferable, sublicenseable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

7. CONFIDENTIALITY

7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorised by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

8. WARRANTIES AND DISCLAIMERS

8.1. Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the User Guide, (ii) subject to Section 4.7 (Integration with Third-Party Products), the functionality of the Services will not be materially decreased during a subscription term, and (iii) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iii) if You or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Payment upon Termination) below.

8.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE DO NOT MAKE ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. MUTUAL INDEMNIFICATION

9.1. Your indemnification. If a third party claims that your use of the Services infringes any patent, copyright, trademark or trade secret, You must immediately notify Us in writing. We shall defend You against such claim(a "Claim Against You"), and shall indemnify You for any damages, legal fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.

9.2. Our Indemnification. You shall defend Us and hold us harmless from and against any claim, damage, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriate the intellectual property rights of a third party or violates applicable law (a "Claim Against Us"), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

10. LIMITATION OF LIABILITY

10.1. Limitation of Liability. Neither Our nor Our licensors’ liability with respect to any single incident arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) shall exceed the lesser of €5,000 or the amount paid by You hereunder in the 12 months preceding the incident, provided that in no event shall Our or Our licensors’ aggregate liability arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) exceed the total amount paid by You hereunder. The foregoing shall not limit You payment obligations under Section 5 (Fees and Payment for Paid Services).

10.2. Exclusion of Consequential and Related Damages. In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.

11. TERM AND TERMINATION

11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until the expiration or termination of all User subscriptions granted under this Agreement. This Agreement also terminates at the end of the free trial period, in case You use the Services for a free trial period and do not purchase a subscription before the end of that period.

11.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Unless the applicable Order Form states to the contrary, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.

11.3. Termination for Cause. Either You or We may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within 30 days following notice thereof from the non-breaching party. Each party may also terminate this Agreement if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4. Payment upon Termination. Upon any termination by You for cause, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination by Us for cause, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

11.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

11.6. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Payment upon Termination), 11.5 (Return of Your Data), and 12 (Miscellaneous) shall survive any termination or expiration of this Agreement.

12. MISCELLANEOUS

12.1. Governing Law. This Agreement shall be governed by the laws of England and Wales, without regard to any conflict of laws rule or provision that would result in the application of the substantive law of any other jurisdiction. Each party agrees to the exclusive jurisdiction of the applicable court in London, England.

12.2. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.3. Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

12.4. Assignment. You may not assign or transfer this Agreement, in whole or in part, without Our prior written consent. We may assign or transfer this Agreement, at any time, in Our sole discretion. Subject to the foregoing, this Agreement shall be binding upon and shall benefit the successors and permitted assigns of the parties.

12.5. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

12.6. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department (info@closeplanapp.com).

12.7. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.8. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

12.9. Severability. If any provision of this Agreement is found invalid or unenforceable, that provision will be replaced with a valid and enforceable clause intended to effect the parties’ original intent to the maximum extent permissible, and the remaining provisions of this Agreement shall remain in effect.

12.10. Legal Fees. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).

12.11. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.