MASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) is was last updated on 2/11/2019 by and between Inscale Technologies, LLC, a North Carolina Company, having its principal place of business at 207 New Market Center #130, Boone, NC 28607 (“Inscale Technologies”), and (“Client”) as defined by the legal party listed on the Inscale Technologies Statement of Work referencing this agreement. Whereas, Client wishes to purchase professional services provided by Inscale Technologies. Now Therefore, Inscale Technologies and Client agree as follows:BY ACCEPTING THIS AGREEMENT BY MEANS OF EXECUTING A STATEMENT OF WORK 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 THESE TERMS AND CONDITIONS, 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 THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1. Services. On the terms and conditions set forth herein, Client hereby engages Inscale Technologies, on its behalf to perform those services mutually agreed upon from time to time by Inscale Technologies and Client (collectively “Services”) in written statements of work (each, a “Statement of Work”), and Inscale Technologies hereby accepts such engagement. Inscale Technologies shall render Services and deliver the required deliverables in accordance with the timetable and milestones set forth in the respective Statement of Work. Neither Inscale Technologies nor Client shall be obligated to enter into any Statement of Work. Any estimates of availability made verbally by Inscale Technologies prior to receipt of a signed Master Services Agreement and Statement of Work shall not constitute a commitment of resources or constitute a timeline for delivery of Services.
2. Statement of Work Authorization and Modification. Each Statement of Work is to be signed on behalf of the Client exclusively by designated authorized representatives of Client. Any deviation from or modification to a Statement of Work must be agreed to by the parties in writing. In the event of any express conflict or inconsistency between the provisions of a Statement of Work and the provisions of this Agreement, the provisions of the Statement of Work will govern and control with respect to the interpretation of that Statement of Work; provided, however, that the provisions of the Statement of Work will be so construed as to give effect to the applicable provisions of this Agreement to the fullest extent possible, including, without limitation, paragraphs 9, 10, 11, 12, 13 of this Agreement.
3. Acceptance. Within thirty (30) days after the receipt by Client of any deliverable, together with a written notice of completion from Inscale Technologies, Client agrees to review and/or test the deliverable. Unless written notice is provided within this thirty (30) day period, the deliverable will be deemed to be accepted. In the event any part of the deliverable is not acceptable, Client shall notify Inscale Technologies in a writing setting forth with specificity any deficiency. Inscale Technologies shall then have 30 days to correct the deficiency, unless additional time is expressly approved by Client. Upon the correction of the deficiency, the deliverable will be deemed to be accepted. It is agreed that a deficiency is defined as a failure of the deliverable to conform to written design specifications.
FEES AND BILLING
4. Charges for Services. Client will pay to Inscale Technologies the charges set forth in each Statement of Work. Unless otherwise provided in the Statement of Work, Inscale Technologies agrees not to change its fees during the term of the Statement of Work without the written consent of Client; provided, however, Inscale Technologies may adjust its fees prior to entering into a new Statement of Work.
5. Out-of-Pocket Expenses. Client will also pay Inscale Technologies as charges any reasonable out-of pocket expenses (including without limitation, travel expenses) incurred by Inscale Technologies in the course of providing Services to Client.
6. Payment. Unless otherwise expressly provided in a Statement of Work with respect to the charges to be paid thereunder, Inscale Technologies will invoice Client for charges on a periodic basis, with each invoice setting forth the charges related to the previous period. Unless otherwise expressly provided in a Statement of Work, any amount due to Inscale Technologies under this Agreement and each Statement of Work shall be payable in full upon receipt of an invoice therefore, without withholding, deduction or offset of any amounts for any purpose. Client shall be responsible for all taxes (including sales taxes) imposed as a result of the Services, excluding only taxes based on the net income of Inscale Technologies. Any amount not paid within thirty (30) days of the date of each invoice shall be subject to an interest charge equal to the lesser of 1.5% monthly or the maximum interest charge permissible under applicable law, payable on demand. Client shall be responsible for the payment of all invoices. Any charges not disputed by Client in good faith within ten (10) days of the receipt of an invoice therefore will be deemed approved and accepted by Client.
7. Inscale Technologies Warranty. Inscale Technologies warrants that its personnel shall perform the Services in a manner consistent with generally accepted industry standards and practices. In the event of a breach of the foregoing warranty, Inscale Technologies’s sole obligation and Client’s exclusive remedy will be to have Inscale Technologies perform again the Services in respect of which the warranty has been breached to bring them into compliance with such warranty. Any claim for breach of the foregoing warranty must be made by notice to Inscale Technologies within 30 days of completion of the Services in respect of which the claim is made or said claim shall be deemed waived.
8. Client’s Warranties. For each Statement of Work, Client hereby represents and warrants that (i) with respect to tools, hardware, software and other products provided by Client for use by Inscale Technologies under this Agreement and the Statement of Work, Client has obtained all licenses and permits which are required to be obtained to enable such use by Inscale Technologies; (ii) the information furnished by Client to Inscale Technologies on which Inscale Technologies based the description of the Services and the charges to be paid by Client therefore, as set forth in each Statement of Work, is accurate and complete in all material respects; and (iii) Client has, or will have, the personnel and other resources available, and will provide, or cause to be provided, such personnel and resources, to fulfill Client’s obligations set forth in each Statement of Work.
9. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPHS 7 & 8, Inscale Technologies DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERABLES OR THE SERVICES RENDERED BY Inscale Technologies OR ITS PERSONNEL OR THE RESULTS OBTAINED FROM THEIR WORK PURSUANT TO THIS AGREEMENT OR ANY STATEMENT OF WORK. ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE EXPRESSLY DISCLAIMED AND EXCLUDED BY Inscale Technologies.
10. If Client or its clients licensed, sublicensed, purchased or leased any third-party software or hardware, from Inscale Technologies, Client must refer to the separate limited warranty documentation, if any, provided with the software and/or hardware by the manufacturer or licensor for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If the software and/or hardware did not include a limited warranty from the manufacturer or licensor, Client agrees that the software is accepted “AS IS”. OTHER THAN WARRANTIES, IF ANY, AS TO THE SOFTWARE AND/OR HARDWARE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE SOFTWARE AND/OR HARDWARE BY THE MANUFACTURER OR LICENSOR, Inscale Technologies MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE SOFTWARE AND/OR HARDWARE BY THE MANUFACTURER OR LICENSOR. CLIENT ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY TO THIS AGREEMENT AND RECOGNIZES AND AGREES THAT THESE DISCLAIMERS ARE AN INTEGRAL PART OF INSCALE TECHNOLOGIES PRICING AND AN IMPORTANT FACTOR IN ITS WILLINGNESS TO PERFORM SERVICES HEREUNDER AND PURSUANT TO THE STATEMENTS OF WORK. Client shall make no warranty to its clients relating to the Services, deliverables, software or hardware in addition to, or inconsistent with, the limited warranties contained in this Section 10.
LIMITATION OF LIABILITY
11. Limitation on Consequential Damages, etc.. IN NO EVENT SHALL INSCALE TECHNOLOGIES BE LIABLE TO CLIENT, IT’S CUSTOMERS OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION), REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, OR WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Limitation on Cumulative Liability. UNDER NO CIRCUMSTANCES SHALL INSCALE TECHNOLOGIES AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO INSCALE TECHNOLOGIES UNDER THE STATEMENT OF WORK FROM WHICH THE CLAIM ARISES.
13. Allocation of Risk. CLIENT ACKNOWLEDGES THAT THE FEES PAID BY IT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT INSCALE TECHNOLOGIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
14. Confidential Information. For purposes of paragraphs 14 & 15, “Confidential Information” shall mean nonpublic information in tangible or intangible form of the disclosing party that disclosing party designates as confidential or which under the circumstances surrounding the disclosure would reasonably be considered confidential. Confidential Information shall include, without limitation, information contained in design documentation relating to any programs of Inscale Technologies, Client or Client’s Customers to whom Services are rendered (including any source code), development level documentation, all Inscale Technologies development tools (except for publicly available tools), data files, databases, marketing plans, supplier and customer information, proprietary and technical information, business and marketing strategies and plans, and information received from others that disclosing party is obligated to treat as confidential. Notwithstanding the foregoing, information disclosed to or acquired by recipient of the information shall not constitute Confidential Information to the extent that the recipient can demonstrate (i) such information was known to the recipient prior to the disclosure thereof by disclosing party; (ii) such information is or thereafter becomes lawfully obtainable from other non-confidential sources; (iii) the recipient’s duty as to confidentiality is waived in writing by disclosing party; (iv) such information was developed by employees or agents of the recipient of the information independently of and without reference to Confidential Information or other information that disclosing party has disclosed in confidence to any third party; or (v) disclosure thereof is required by legal process or applicable law (in which case the recipient of the information shall notify the disclosing party prior to disclosure of such information).
15. Nondisclosure. Each party acknowledges that in performance of this Agreement, it may acquire knowledge of the other’s Confidential Information. Subject to the provisions of this Section, each party acknowledges and agrees that all of the Confidential Information disclosed to or acquired from the other party to this Agreement shall be maintained in strict confidence and that it shall not disclose any Confidential Information to any person or entity except as required to perform this Agreement or as expressly permitted by the disclosing party in writing. No party shall use another party’s Confidential Information nor circulate it within its own organization except to further the purposes of this Agreement. Each party shall be responsible and liable to the other for any disclosure of Confidential Information by any employee, contractor, agent or other person or entity to whom such party discloses Confidential Information of the other.
16. Irreparable Harm. In addition to all other legal or equitable remedies to which a disclosing party may be entitled to enforce this Section, both parties acknowledge that any violation of Section 15 by the non-disclosing party would cause irreparable harm to the disclosing party and agree that the disclosing party shall be entitled to an immediate injunction to prevent violations of Section 15 without the necessity of proving actual harm or posting bond.
17. Independent Development; Residuals. Nothing in the terms of this Agreement and any Statement of Work shall be construed to limit Inscale Technologies’s or Client’s right to independently develop or acquire products without the use of Confidential Information. Inscale Technologies or Client shall be Confidential Confidential free to use for any purpose the Residuals resulting from access to or work with Confidential Information, provided such party shall maintain the confidentiality of Confidential Information as provided in this Section 6 and any other written confidentiality agreement between the parties. For purposes of this Agreement, “Residuals” shall mean technical information related to software technology in nontangible form, which may be retained by individuals who have had access, as permitted by this Agreement, to Confidential Information, including ideas, concepts, know-how or techniques contained therein. Neither Inscale Technologies nor Client shall have any obligation to limit or restrict the assignment of such individuals or to pay compensation resulting from the use of the Residuals. Notwithstanding the foregoing, this Section shall not be construed to grant either Inscale Technologies or Client a license of the other party’s copyrights or other intellectual property.
18. Independent Development; Residuals. Nothing in the terms of this Agreement and any Statement of Work shall be construed to limit Inscale Technologies’s or Client’s right to independently develop or acquire products without the use of Confidential Information. Inscale Technologies or Client shall be Confidential Confidential free to use for any purpose the Residuals resulting from access to or work with Confidential Information, provided such party shall maintain the confidentiality of Confidential Information as provided in this Section 6 and any other written confidentiality agreement between the parties. For purposes of this Agreement, “Residuals” shall mean technical information related to software technology in nontangible form, which may be retained by individuals who have had access, as permitted by this Agreement, to Confidential Information, including ideas, concepts, know-how or techniques contained therein. Neither Inscale Technologies nor Client shall have any obligation to limit or restrict the assignment of such individuals or to pay compensation resulting from the use of the Residuals. Notwithstanding the foregoing, this Section shall not be construed to grant either Inscale Technologies or Client a license of the other party’s copyrights or other intellectual property.
19. CLIENT AGREEMENTS Client shall enter into a written agreement with each of its clients to whom, or for whose benefit, Services are provided which contain the following minimum provisions: (i) provisions preventing the disclosure of Inscale Technologies’s Confidential Information substantially similar to Section 15 of this Agreement; (ii) provisions disclaiming warranties and limiting liabilities for Services substantially similar to Sections 9-13 of this Agreement; (iii) provisions prohibiting the client from taking any actions which impair or infringe the intellectual property rights of Client or its licensors, including Inscale Technologies; (iv) requiring the client not to remove or destroy any copyright notices, other proprietary markings or confidential legends placed upon or contained within an deliverable; and (v) prohibiting the solicitation, hiring or employing of employees or independent contractors of Inscale Technologies (see Section 23). Client shall cause such agreements to be executed prior to the rendering of Services by Inscale Technologies. Inscale Technologies shall be a third party beneficiary of each such agreement. Client shall use its best efforts to assist Inscale Technologies in the protection of Inscale Technologies's legal rights and to enforce Inscale Technologies’s and applicable third party’s intellectual property rights. Client shall cooperate fully with Inscale Technologies in any action by Inscale Technologies in the event of an actual or threatened violation of Inscale Technologies's proprietary rights by any person or entity, including clients of Client.
TERM AND TERMINATION
20. Term. This Agreement shall be effective when signed by both parties and thereafter shall remain in effect until terminated by Inscale Technologies or Client as provided in this Agreement. The term of any Statement of Work shall be as provided therein. Termination of this Agreement shall have the effect of terminating all Statements of Work.
21. Termination. This Agreement or any Statement of Work may be terminated by Client without cause by giving Inscale Technologies thirty (30) days prior written notice. This Agreement or any Statement of Work may be terminated by Inscale Technologies immediately upon written notice in the event Client fails to perform its obligation for payment of invoices pursuant to this Agreement. This Agreement or any Statement of Work may be terminated by a party if the other party commits a material breach or default of any obligation hereunder or thereunder which breach or default is not cured within 30 days after written notice of such breach or default.
22. Effect of Termination. Upon termination of this Agreement: (a) Client shall promptly pay all amounts payable to Inscale Technologies for Services rendered and out-of-pocket expenses incurred up Confidential Confidential to the date of termination; and (b) each party shall return or destroy, at the direction of the other party, all the other party’s Confidential Information in its possession.
23. Survival. All Sections of this Agreement and any provisions specified as surviving in a Statement of Work shall survive any termination of this Agreement and/or termination of any Statement of Work.
24. HIRING OF OTHER PARTY PERSONNEL. For a period of one (1) year from the expiration or termination of each applicable Statement of Work, Client agrees not to solicit the employment of any personnel or agent of the other party who has been directly involved with the delivery of Services under a Statement of Work unless Inscale Technologies grants it consent in writing. If this condition is breached, the breaching party agrees to compensate the other party with a sum equal to twenty-four (24) times the average monthly salary received by such individual during the last one (1) year which the individual was employed by Inscale Technologies plus the fees payable under the Statement(s) of Work for which the such individual was/is/will be directly involved with the delivery of Services.
25. Notices. Any notices or communications required or permitted to be given regarding this Agreement shall be in English and in writing, and shall be sent via U.S. Certified Mail, Return Receipt Requested, or, by prepaid overnight or courier service, to the addresses above, or such other address as shall be designated in writing by either party to this Agreement to the other. Notices are deemed given on receipt or attempted delivery (if receipt is refused).
26. Independent Contractor. Each party, in rendering performance under this Agreement is acting solely as an independent contractor. In no way is either party to be construed as the agent of the other party in any respect, any other provisions of this Agreement hereunder notwithstanding.
27. Entire Agreement; Amendments. This Agreement and the Statements of Work together constitute the entire agreement between the parties. This Agreement may not be amended except by the written agreement of the parties.
28. Construction; Headings. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement or any of its provisions.
29. Severability. If any provision of this Agreement or its application to any person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall be enforceable to the fullest extent permitted by law.
30. Waivers. No action or inaction taken pursuant to this Agreement shall be deemed to constitute a waiver of compliance with any covenant, condition or agreement contained herein. The waiver by any party hereto of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
31. Rights and Remedies Cumulative. Unless otherwise specifically provided, the rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute or otherwise.
32. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of North Carolina without regard to principles of conflict of laws that would require application of the laws of any other jurisdiction.
33. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and assigns.
34. Assignment. Neither party shall assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
35. Force Majeure. Inscale Technologies shall not be responsible for failure to perform under this Agreement when its failure results from any of the following causes: Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion, earthquake or serious accident, strike, labor trouble or work interruption or any cause beyond its reasonable control.
36. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one Agreement.
FEES AND BILLING
Charges for Services. Client will pay to Inscale Technologies the charges set forth in each Statement of Work. Unless otherwise provided in the Statement of Work, Inscale Technologies agrees not to change its fees during the term of the Statement of Work without the written consent of Client; provided, however, Inscale Technologies may adjust its fees prior to entering into a new Statement of Work.
Out-of-Pocket Expenses. Client will also pay Inscale Technologies as charges any reasonable out-of pocket expenses (including without limitation, travel expenses) incurred by Inscale Technologies in the course of providing Services to Client.
Payment. Unless otherwise expressly provided in a Statement of Work with respect to the charges to be paid thereunder, Inscale Technologies will invoice Client for charges on a periodic basis, with each invoice setting forth the charges related to the previous period. Unless otherwise expressly provided in a Statement of Work, any amount due to Inscale Technologies under this Agreement and each Statement of Work shall be payable in full upon receipt of an invoice therefore, without withholding, deduction or offset of any amounts for any purpose. Client shall be responsible for all taxes (including sales taxes) imposed as a result of the Services, excluding only taxes based on the net income of Inscale Technologies. Any amount not paid within thirty (30) days of the date of each invoice shall be subject to an interest charge equal to the lesser of 1.5% monthly or the maximum interest charge permissible under applicable law, payable on demand. Client shall be responsible for the payment of all invoices. Any charges not disputed by Client in good faith within ten (10) days of the receipt of an invoice therefore will be deemed approved and accepted by Client.
MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. 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 THESE TERMS AND CONDITIONS, 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 THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on June 24, 2019. It is effective between You and Us as of the date of You accepting this Agreement.
1. DEFINITIONS "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. "AppExchange" means the online directory of applications that interoperate with the Services, located at http://www.salesforce.com/appexchange or at any successor websites. "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. "Order Form" means the documents for placing orders 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. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference. "Purchased Services" means Services that You or Your Affiliates purchase under an Order Form. "Services" means the products and services that are ordered by You under an Order Form and made available by Us. "User Guide" means the online user guide for the Services, accessible via login at http://www.salesforce.com, Accounting Help Tab as updated from time to time. "Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, 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, consultants, contractors and agents, and third parties with which You transact business. "We," "Us" or "Our" means the Inscale Technologies company described in Section 35 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction). "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 Purchased Services.
2. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only 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.
USE OF THE SERVICES
4. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be 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 unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
5. Usage Limitations. Usage limitations imposed by salesforce.com may affect the use of our application. Such as 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.
FEES AND PAYMENT FOR PURCHASED SERVICES
6. 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 services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. 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.
7. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit 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 30 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually 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 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 providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
8. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such 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 date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 7 (Invoicing and Payment). Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit 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 35 (Manner of Giving Notice), before suspending services to You.
9. Payment Disputes. We shall not exercise Our rights under Section 8 (Overdue Charges) or 9 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
11. 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 authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
12. Reservation of Rights in Services. 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.
13. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) 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, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
14. 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 authorize 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.
15. Your Data. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
16. Suggestions. We shall have a royalty-free, worldwide, irrevocable, 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.
17. 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.
18. 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 authorized 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.
19. 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.
WARRANTIES AND DISCLAIMERS
20. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) The functionality of the Services will not be materially decreased during a subscription term, and (iv) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (v) 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 31 (Termination for Cause) and Section 32 (Refund or Payment upon Termination) below.
21. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
22. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
23. Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers ("Non-GA Services"). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue NonGA Services at any time in Our sole discretion and may never make them generally available.
24. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify You for any damages, attorney 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.
25. Indemnification by You. You shall defend Us against any claim, 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 misappropriates 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.
26. Exclusive Remedy. This Section 24-26 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
LIMITATION OF LIABILITY
27. Limitation of Liability. NEITHER PARTY'S 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 $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S 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 YOUR PAYMENT OBLIGATIONS UNDER SECTION 6-11 (FEES AND PAYMENT FOR PURCHASED SERVICES).
28. 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.
TERM AND TERMINATION
29. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
30. 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. Except as otherwise specified in the applicable Order Form, 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 30 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 7% 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.
31. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.
32. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, 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.
33. 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.
34. Surviving Provisions. Section 6-11 (Fees and Payment for Purchased Services), 12-16 (Proprietary Rights), 17-19 (Confidentiality), 20- 23(Disclaimer), 24-26 (Mutual Indemnification), 27-28 (Limitation of Liability), 32 (Refund or Payment upon Termination), 33 (Return of Your Data), 35 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and shall survive any termination or expiration of this Agreement.
35. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
A North Carolina LLC
207 New Market Center #130