Master Subscription Agreement
THIS AGREEMENT GOVERNS YOUR LICENSE TO, 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 ANY AFFILIATES IDENTIFIED ON THE ORDER FORM 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.
This Agreement was last updated on July 19, 2021. It is effective between You and Us as of the date of You accepting this Agreement.
Table of Contents
- Our Responsibilities
- Use of the Services and Content
- Non-SingleOps Providers
- Fees and Payment for Licensed Services
- Proprietary Rights and Licenses
- Representations, Warranties and Disclaimers
- Mutual Indemnification and Exclusive Remedies
- Limitation of Liability
- Term and Termination
- Notices, Governing Law and Jurisdiction
- General Provisions
- Service Level Agreement
“Affiliate” means any entity that 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.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means Our services that are not generally available to customers.
“Content” means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via docs.SingleOps.com or login to the applicable Service.
“Licensed Services” means Services that You or Your Affiliate(s) license under an Order Form.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-SingleOps Applications” means a Web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto.
“Services” means the products and services that are ordered by You under an Order Form and made available online by Us, as well as associated offline components, as described in the Documentation. “Services” exclude Content and Non-SingleOps Applications.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents.
“We,” “Us” or “Our” means SingleOps, LLC.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity that are identified on the Order Form.
“Your Data” means electronic data and information submitted by or for You to the Licensed Services or collected and processed by or for You using the Licensed Services, excluding Content and Non-SingleOps Applications.
2. OUR RESPONSIBILITIES
2.1. Provision of Licensed Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Licensed Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Licensed Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Eastern time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemics, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-SingleOps Application, or denial of service attack.
2.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3. USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services and Content are licensed as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2. Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).
3.3. Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non-SingleOps Applications with which You use Services or Content.
3.4. Usage Restrictions. You will not: (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service 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 a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, (l) reverse engineer any Service (to the extent such restriction is permitted by law); (m) access the Services if You are Our direct competitor, except with Our prior written consent; or (n) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.5. Removal of Content and Non-SingleOps Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-SingleOps Application hosted on a Service by You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-SingleOps Application or modify the Non-SingleOps Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-SingleOps Application until the potential violation is resolved.
4. NON-SINGLEOPS PROVIDERS
4.1. Acquisition of Non-SingleOps Products and Services. We or third parties may make available third-party products or services for your convenience only, including, for example, Non-SingleOps Applications and implementation and other consulting services. Any acquisition by You of such non-SingleOps products or services, and any exchange of data between You and any non-SingleOps provider, is solely between You and the applicable non-SingleOps provider. We do not warrant or support, and We shall have no liability in connection with, Non-SingleOps Applications or other non-SingleOps products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form.
4.2. Non-SingleOps Applications and Your Data. If You install or enable a Non-SingleOps Application for use with a Service, You grant Us permission to allow the provider of that Non-SingleOps Application to access Your Data as required for the interoperation of that Non-SingleOps Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-SingleOps Application.
4.3. Integration with Non-SingleOps Applications. The Services may contain features designed to interoperate with Non-SingleOps Applications. To use such features, You may be required to obtain access to Non-SingleOps Applications from their providers and may be required to grant Us access to Your account(s) on the Non-SingleOps Applications. If the provider of a Non-SingleOps Application ceases to make the Non-SingleOps Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
5. FEES AND PAYMENT FOR LICENSED SERVICES
5.1. Fees. You will pay all fees specified in Order Forms. All payments made under this Agreement shall be in United States Dollars. Except as otherwise agreed by the parties in writing, (i) fees are based on subscriptions of Services and Content and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) licensed quantities cannot be decreased below the minimum amount as defined in the Order Form during the relevant subscription term.
5.2. 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 Licensed 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 Licensed 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.
5.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those 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, and/or (b) 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 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 12.1 (Manner of Giving Notice), before suspending services to You.
5.5. Payment Disputes. We will not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your license and subscription hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.6, We will invoice You and You will pay that amount 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 Us based on Our income, property and employees.
5.7. Future Functionality. You agree that Your obligation to pay the fees for Services and Content are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. License by Us to Use Content. We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
6.3. License by You to Host Your Data and Applications. You grant Us a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-SingleOps Applications and program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data of any Non-SingleOps Application or program code.
6.4. License by You to Use Your Feedback and Data. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license: (a) to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services; and (b) to use Your Data on a de-identified basis and aggregated with de-identified data from Our other customers for the purpose of providing and enhancing the Services and for other internal business purposes.
7.1. Definition of Confidential Information. “Confidential Information” means all 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 includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), 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 does 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 will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not 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 and contractors who need that 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 will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 that Confidential Information.
8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties. We warrant that (a) this Agreement, the Order Forms and the Documentation describe in all material respects the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Licensed Services during a subscription term, (c) the Licensed Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 4.3 (Integration with Non-SingleOps Applications), We will not materially decrease the functionality of the Licensed Services during a subscription term, and (e) the Licensed Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 11.3 (Termination for Cause).
8.3. Your Warranties. You warrant that (a) You will not introduce into the Licensed Services, the Content or Our systems any Malicious Code; and (b) You own or otherwise have and will have the necessary rights and consents in and relating to all Data that You provide to Us or submit to the Services.
8.4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WE DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. MUTUAL INDEMNIFICATION AND EXCLUSIVE REMEDIES
9.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Licensed Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided 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 (except that We may not settle any Claim Against You without Your consent, not to be unreasonably withheld, unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 8.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-SingleOps Application or Your breach of this Agreement.
9.2. Indemnification by You. You will 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 any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from 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 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 (except that You may not settle any Claim Against Us without Our consent, not to be unreasonably withheld, unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. This Section 9 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 9.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING SUCH INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR LICENSED SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
11.2. Term of Licensed Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
11.3. Termination for Cause. A party may terminate this Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
11.4. Termination for Insolvency. A party may 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.
11.5. Payment upon Termination. If this Agreement is terminated by Us in accordance with Section 11.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.6. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
11.7. Surviving Provisions. Those provisions which by their terms or nature should survive termination or expiration of this Agreement shall so survive, including, without limitation,Sections 5 (Fees and Payment for Licensed Services), 6 (Proprietary Rights and Licenses), 7 (Confidentiality), 8.4 (Disclaimers), 9 (Mutual Indemnification and Exclusive Remedies), 10 (Limitation of Liability), 11.5 (Payment upon Termination), 11.6 (Portability and Deletion of Your Data), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) will survive any termination or expiration of this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1. Manner of Giving Notice. 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. All notices to SingleOps, LLC shall be sent to 3565 Piedmont Road, NE, Building 4, Unit 460, Atlanta, Georgia, 30305, USA.
12.2. Agreement to Governing Law and Jurisdiction. This Agreement shall be governed by Georgia law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, or the United Nations Convention on the International Sale of Goods, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Atlanta, Georgia.
12.3. Canada. The parties declare that they have required that this Agreement and all documents related hereto, either present or future, be drawn up in the English language only.
Les parties déclarent par les présentes qu’elles exigent que cette entente et tous les documents y afferents, soit pour le present ou le future, soient rédigés en langue anglaise seulement.
13. GENERAL PROVISIONS
13.1. Export Compliance. The Services, Content, 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 any Service or Content in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
13.2. Anti-Corruption. You represent and warrant that 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 at firstname.lastname@example.org.
13.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
13.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5. 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.
13.6. Third-Party Beneficiaries. Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
13.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.9. Attorney Fees. You will pay on demand all of Our reasonable attorney 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).
14. SERVICE LEVEL AGREEMENT
14.1. System Reliability. SingleOps will undertake commercially reasonable efforts to make the Services available for access and use available 99.5% of the time during any given calendar month (the “Service Level”) not including planned outages for maintenance purposes for which advance notice is provided to the Customer (the “Availability Commitment”).
Client may terminate each applicable Order without penalty in the event that three (3) or more separate and distinct failures to meet the Availability Commitment occur within any three (3) month period, or the Services are unavailable for access or use for a period of twenty-four (24) consecutive hours or more.
|Severity Level||Definition||Examples||Working Objective||Target Communication Intervals|
|Initial Response||Update Frequency||Remediation||Target for Resolution||Window|
|1||A system-wide or component outage of SingleOps’ platform affecting 100% of end-users that has no available workaround||1. SingleOps web app is unavailable for all end-users of product||Restore system operations to normal functionality with minimal downtime and impact as soon as possible. Update Client and initiate PagerDuty procedures.||30 min||2 hours||4 hours||Immediately when available||24/7|
|2||A major component of SingleOps’ platform is non-functional, has major performance problems, and is affecting 2 or more end-users and may or may not have an available workaround.||1. Multiple SingleOps users are unable to access the Calendar||Restore system operations to normal functionality with minimal downtime and impact.||2 hours||4 hours||1 day||<5 Bus days||Business hours|
|3||Non-critical program error, usability issue or minor performance problem. Minor component of SingleOps is non-functional affecting at least 1 end-user with an available workaround.||1. A SingleOps customer or invoice encounters an issue when syncing to QuickBooks 2. Reports data displaying inconsistent or missing results on certain pages 3. Minor performance / load time issues||Restore system functionality to normal with a scheduled release as available, in accordance with Product’s prioritization.||1 day||On Request||N/A (Workaround should be available)||Case-by-case decision||Business hours|