The Plug Group: Order Management Information System
This Master Subscription Agreement (this "Agreement") is entered into between The Plug Group, Inc., a North Carolina corporation, together with its successors and permitted assigns ("Provider"), and the entity identified as Customer on the initial Order Form referencing this Agreement ("Customer"). Provider and Customer are each a "Party" and together the "Parties." The "Effective Date" of this Agreement is the Order Date of the initial Order Form referencing it. This Agreement is not separately signed; Customer accepts it by executing or otherwise accepting an Order Form that references it, as provided in Sections 14.22 and 14.23.
Provider makes available a hosted order management software application known as the Order Management Information System ("OMIS"). Customer wishes to subscribe to OMIS on the terms set forth herein. In consideration of the mutual covenants below, the Parties agree as follows:
1.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where "control" means ownership of more than fifty percent (50%) of the voting interests of the subject entity. No Affiliate of Customer has any right to access or use the Services except under a separate Order Form executed by that Affiliate and Provider.¶
1.2 "Authorized User" means a named individual employee, officer, or contractor of Customer who (a) performs work for Customer's own internal business operations, (b) satisfies Section 3.4, (c) holds an email address in a domain owned or controlled by Customer and registered with Provider, and (d) for whom a subscription has been purchased under an Order Form. An individual who is an employee, contractor, or advisor of a prospective or actual acquirer of Customer is not an Authorized User unless Provider consents in writing.¶
1.3 "Availability" means that the core production functions of the Services are accessible to Authorized Users over the public internet and are performing materially in accordance with the Documentation. The Services are Available notwithstanding degraded performance that does not prevent Authorized Users from performing core functions.¶
1.4 "Beta Services" means any feature, module, environment, or version of the Services that Provider identifies as beta, pilot, preview, early access, limited release, evaluation, or by a similar designation, or that Provider makes available to a subset of customers before general release.¶
1.5 "Change of Control" means, with respect to a Party, any of the following, whether in a single transaction or a series of related transactions and whether direct or indirect: (a) a merger, consolidation, reorganization, or similar transaction in which such Party is a constituent entity; (b) the sale, transfer, or other disposition of all or substantially all of such Party's assets, or of the assets of the business unit that uses the Services; (c) the sale, issuance, or transfer of equity interests representing more than fifty percent (50%) of the voting power or economic interest in such Party; or (d) any other transaction or arrangement by which a person or group acquires the power, directly or indirectly, to direct the management or policies of such Party.¶
1.6 "Commercially Reasonable Efforts" means the degree of effort a prudent provider of hosted software of comparable scale and vintage would apply, taking into account the nature of the platform described in Section 2.6 and the Fees payable. It does not require Provider to incur material unbudgeted expense, acquire additional hardware or licenses, engage third parties, work outside the support hours in Schedule Z, or take any action that is commercially impracticable.¶
1.7 "Company Database" means a distinct OMIS database instance provisioned for Customer or for a legal entity designated by Customer, as identified on an Order Form.¶
1.8 "Competing Application" means any software application, system, module, or service whose purpose or effect is to perform order management, order entry, order tracking, job costing, or related workflow functions substantially similar to those performed by the Services, whether developed internally, commissioned from a third party, acquired, or licensed.¶
1.9 "Confidential Information" means non-public information disclosed by one Party to the other that is designated as confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure. Provider's Confidential Information includes the Services, the Provider Technology, and all non-public technical and commercial information relating thereto. Customer's Confidential Information includes Customer Data.¶
1.10 "Customer Data" means the electronic data and content submitted to or processed by the Services by or on behalf of Customer or its Authorized Users, including order records, transactional data, and Customer's business records stored in a Company Database.¶
1.11 "Documentation" means the user guides, runbooks, and operating documentation for the Services that Provider makes available to Customer.¶
1.12 "Excluded Downtime" means any period of unavailability arising from Scheduled Maintenance, Emergency Maintenance, suspension permitted by this Agreement, Beta Services, Integration Services, Customer Data, Customer systems, networks, devices, or configuration, Customer’s acts or omissions, third-party systems or networks outside Provider’s reasonable control, a force majeure event under Section 14.6, or action Provider reasonably takes to prevent or contain a security incident, reinfection, corruption, or unlawful processing.¶
1.13 "Feedback" means any suggestion, comment, idea, enhancement request, feature request, recommendation, correction, specification, workflow description, sample, or other input provided by Customer or any Authorized User relating to the Services, whether solicited or unsolicited and whether provided orally, in writing, or through the Services.¶
1.14 "Fees" means the subscription fees, implementation fees, and other charges set forth on an Order Form.¶
1.15 "Integration Services" means any Provider-enabled interface, worksheet, portal, connector, API, or other functionality expressly identified on an Order Form that allows a person or system to access, read, or write data in a Company Database outside the standard OMIS web interface, including any Restricted-Access Integration. Integration Services do not include a Standard Export or Customer's own invoices, reports, exports, or other business records. Integration Services are part of the Services and the Provider Technology.¶
1.16 "Modification" means any modification, enhancement, configuration, report format, integration, workflow, or new or altered functionality of the Services developed by Provider at Customer's request, in response to Feedback, or otherwise, whether or not funded in whole or in part by Customer. "Customization" has the same meaning and the terms are used interchangeably.¶
1.17 "Negotiated Terms" and "Updatable Terms" have the meanings given in Section 14.13.¶
1.18 "Order Form" means an ordering document executed by, or otherwise accepted by, the Parties that specifies the Company Databases, the number of Authorized User subscriptions, the Fees, the Initial Term, and any additional terms. Each Order Form is incorporated into and governed by this Agreement.¶
1.19 "Outage" means a period during which the Services are not Available, measured from the earlier of Provider’s detection or Provider’s receipt of Customer’s written report through the time Availability is restored. Excluded Downtime is not an Outage.¶
1.20 "Personal Data" means information within Customer Data that identifies or reasonably can be used to identify a natural person, including the names of property buyers, closing attorneys, and builder, subdivision, and billing contacts recorded in the Services.¶
1.21 "Provider Materials" means the Documentation and any artifact or description of the Services or of any part of them, in whatever form and however created, including material prepared by or for Customer. Provider Materials do not include Customer Data, any export of Customer Data, any invoice, order record, report output, or other business record of Customer generated through the Services, or anything Customer is required by law or professional obligation to retain, and nothing in this Agreement requires Customer to return, destroy, or cease using any of them.¶
1.22 "Provider Technology" means the Services and the OMIS application in all versions, together with all software, code, data structures, designs, logic, workflows, configurations, know-how, documentation, and other technology and materials of any kind used in, underlying, or comprising the Services, and all improvements, modifications, enhancements, and derivative works thereof, in each case excluding Customer Data and the Third-Party Components. This definition is to be construed broadly, and the omission of any item does not place it outside it.¶
1.23 "Recovery Objective Add-On" means the optional recovery service selected and separately priced on an Order Form, as described in Section 5.9.¶
1.24 "Restricted-Access Integration" means an Integration Service through which designated individuals may view a limited set of records assigned to Customer and update defined fields on those records, in each case limited to the record types, fields, and functions Provider makes visible and subject to the access conditions in Section 2.7. The Integration Services enabled for Customer, if any, are identified on the Order Form.¶
1.25 "Scheduled Maintenance" means maintenance for which Provider gives Customer at least twenty-four (24) hours’ notice. "Emergency Maintenance" means maintenance Provider reasonably determines is necessary to preserve the security, integrity, or operation of the Services, for which advance notice may not be practicable.¶
1.26 "Services" means Provider's hosting, provision, maintenance, and support of the OMIS application as ordered by Customer under an Order Form, together with any professional services expressly identified therein.¶
1.27 "Standard Export" means the export of Customer Data described in Schedule Y.¶
1.28 "Storage Allowance" means the maximum data storage permitted for a Company Database, stated in gigabytes on the Order Form and measured as set forth in Schedule Z.¶
1.29 "Subscription Term" means, collectively, the Initial Term and each Renewal Term.¶
1.30 "Third-Party Components" means any third-party software, tool, runtime, library, generated code, service, or other material that Provider incorporates in, invokes from, or uses in the operation or delivery of the Services. The identity, composition, configuration, and licensing of the Third-Party Components are Provider Confidential Information and Provider trade secrets, and Provider is under no obligation to identify or describe them.¶
1.31 "Usage Data" means technical and operational data generated by or collected in connection with the operation and use of the Services, including logs, access records, performance metrics, error data, configuration data, and statistical and behavioural information, excluding Customer Data and Personal Data.¶
2.1 Access Grant. Subject to Customer's compliance with this Agreement and payment of all Fees, Provider grants Customer a non-exclusive, non-transferable, non-sublicensable right, subject to the suspension and termination rights in this Agreement, during the Subscription Term to access and use the Services for Customer's internal business operations, solely by Authorized Users and solely within the Company Databases identified on an Order Form.¶
2.2 Hosting. Provider will host the Services on infrastructure controlled by Provider or its hosting suppliers. Provider retains sole discretion over the selection, configuration, and administration of that infrastructure.¶
2.3 Availability. Provider will use Commercially Reasonable Efforts to maintain Availability of the Services twenty-four (24) hours a day, seven (7) days a week, excluding Excluded Downtime. Availability of the Services and availability of support are distinct; support is provided only during the support hours in Schedule Z, and an Outage occurring outside support hours is addressed when support resumes unless an Order Form provides otherwise. Provider makes no uptime percentage commitment or guarantee, and no service level, availability credit, or other remedy for an Outage applies, except as expressly set forth on an Order Form. Where an Order Form states an uptime commitment, uptime is calculated for each calendar month as total minutes in the month less Excluded Downtime and less Outage minutes, divided by total minutes in the month less Excluded Downtime.¶
2.4 Support. Provider will provide support for the Services during the support hours, through the channels, and within the scope set forth in Schedule Z. Schedule Z states what is included in support and what is billable. Any service not expressly identified in Schedule Z as included is billable at Provider's then-current standard rates, subject to the quote procedure in Section 3.13. Support does not include the development of new functionality, report creation, data correction, training, or configuration changes, which are provided, if at all, under Section 3.13 and Schedule Z. Included support is subject to fair and reasonable use. Where Customer's support volume materially and persistently exceeds that of Provider's comparable customers on a per-subscription basis, or where requests arise from Customer's failure to train its personnel, to use the Documentation, or to comply with Section 3, Provider may on thirty (30) days' notice require that further requests be handled as billable time under Schedule Z or that Customer purchase a higher support tier if one is offered.¶
2.5 Changes to the Services. Provider may modify, update, enhance, or replace the Services, any component thereof, or any Third-Party Component at any time and in its sole discretion, subject only to Section 2.14. Provider will use commercially reasonable efforts to avoid a change that, during a Subscription Term, eliminates a core function of the Services on which Customer materially relies without providing a substantially equivalent alternative. This Section is subject to Sections 2.10 and 2.14 and does not entitle Customer to remain on any prior version, configuration, or release. Notwithstanding the notice period in Section 2.14, where Provider reasonably determines that a feature, module, integration, or Third-Party Component presents a security or data-protection risk that Provider cannot remediate, or that a supplier has ceased to provide security maintenance for it, Provider may disable, restrict, or remove it on such notice as is reasonable in the circumstances, which may be immediate. Provider will notify Customer promptly, will use Commercially Reasonable Efforts to provide a substantially equivalent alternative where one is reasonably available, and will not be liable for any such action. Where the removal is permanent and no substantially equivalent alternative is provided, Provider will equitably reduce the recurring Fees attributable to the removed item for the remainder of the then-current Subscription Term.¶
2.6 Platform Acknowledgment. Customer acknowledges that the Services are delivered on an established technology platform of long standing, that the platform and its components evolve and are subject to change, substitution, and end of life over time in the ordinary course, and that Provider may in its discretion migrate Customer to a successor platform upon reasonable notice. Provider's obligations under this Agreement apply equally to any successor platform to which Customer is migrated.¶
2.7 Integration Services. Where an Order Form enables one or more Integration Services, Provider will make them available to Customer during the term of that Order Form, subject to this Agreement. Access to an Integration Service is separate from and additional to the access granted in Section 2.1 and is conditioned at all times on each of the following:¶
2.8 Integration Services: Additional Terms. Customer acknowledges that (a) a Restricted-Access Integration may write to Customer's production records and Customer is solely responsible for the accuracy of every status change and note recorded through it; (b) Provider may log all access and activity and may use those logs to enforce this Agreement; (c) all non-public aspects of the design, structure, and operation of any Integration Service are Provider Confidential Information and Provider trade secrets under Sections 8.5 and 13.1; (d) Integration Services carry no availability, uptime, or service level commitment, and Sections 2.15 and 5.9 apply to them in full; and (e) no right to any Integration Service survives expiration or termination of this Agreement or of the Order Form enabling it, and no Integration Service is transferable to any successor, assignee, or acquirer of Customer except under an Order Form executed by that person.¶
2.9 Platform Migration. Where Provider migrates Customer to a successor platform under Section 2.6, Provider may condition that migration on Customer's execution of a new subscription agreement and order form on Provider's then-current terms and pricing for that platform, on not less than ninety (90) days' written notice. If Customer declines, Customer may continue on the then-current platform for the remainder of the then-current Subscription Term, after which the Order Form will not renew. Nothing in this Agreement grants Customer any right or license to any successor platform, which is a separate product.¶
2.10 Single-Version Platform. The Services are delivered as a single-version, multi-customer product. All customers operate on the same version of the platform. Customer has no right to remain on, revert to, or require Provider to support any prior version, configuration, or release, and no right to defer, decline, or schedule any update. Provider may deploy updates, enhancements, and changes at its sole discretion and may roll them out in phases across the customer base. Provider does not maintain customer-specific instances, branches, forks, or builds of the Services, and nothing in this Agreement obligates Provider to create or maintain one.¶
2.11 No Exclusivity. All functionality of the Services, including every Customization, is or may be made available to all customers of the Services. Customer has no right to (a) exclusive use of any feature, Customization, or functionality; (b) require Provider to withhold, delay, or restrict any feature or Customization from any other customer, including a competitor of Customer; (c) approve or object to Provider providing the Services to any other person; or (d) any period of exclusivity, priority, or first use. Provider serves and will continue to serve customers that compete with Customer.¶
2.12 Feature Requests. Customer may submit feature requests through the process Provider designates. Provider evaluates requests at its sole discretion, is under no obligation to implement any request, and may implement, modify, defer, or decline any request without explanation. Any feature implemented in response to a request is released as part of the platform and is governed by Sections 2.10, 2.11, and 7.4.¶
2.13 Beta Services. Provider may make Beta Services available at its discretion. Beta Services are provided "as is" and "as available," for evaluation only, are excluded from every warranty, service commitment, support obligation, and response target in this Agreement and in Schedule Z, and may contain defects. Provider may modify, suspend, or discontinue any Beta Service at any time without notice and without liability, and may elect never to release it generally. Customer uses Beta Services at its own risk, will not rely on them for production purposes, and acknowledges that Provider has no obligation to preserve any data entered into a Beta Service. Provider's aggregate liability arising from Beta Services is limited to one hundred dollars ($100).¶
2.14 Discontinuation. Provider may discontinue the Services, or any material feature of the Services, in whole or in part, on not less than ninety (90) days' written notice to Customer. If Provider discontinues the Services in their entirety, the affected Order Form terminates on the discontinuation date, Provider will refund Fees prepaid for the period after that date, and no Early Termination Fee is payable. Except as provided in the next sentence, discontinuation of an individual feature is not a termination, does not entitle Customer to a refund or Fee reduction, and does not give rise to any claim, provided the Services as a whole remain materially usable for Customer's ordinary business operations. If Provider discontinues an Integration Service for which the applicable Order Form states a separate Fee, that separate Fee will cease on the discontinuation date and Provider will refund any prepaid portion attributable to the period after that date; Customer is not entitled to terminate or receive a refund or Fee reduction for any other Service. Section 2.14 is Customer's sole remedy for any discontinuation.¶
2.15 No Service Level Credits. Except as expressly stated on an Order Form, Provider does not offer, and Customer is not entitled to, any service level credit, refund, Fee reduction, or other financial remedy for unavailability, delay, degraded performance, missed response target, or failure to meet any operational target described in Schedule Z. The response targets in Schedule Z are operational objectives, not commitments, and are not service levels.¶
2.16 Provisioning and Go-Live. Provider will notify Customer in writing when a Company Database has been provisioned and is available for use (the "Go-Live Date"). Customer will verify configuration, user access, and the completeness and accuracy of any data migrated by Provider, and will report any deficiency in writing within fifteen (15) business days after the Go-Live Date. Absent a written deficiency report within that period, the Services are deemed accepted as provisioned. Acceptance does not limit Section 9.2. Recurring Fees commence on the Go-Live Date or on the date stated on the Order Form, whichever is earlier.¶
2.17 Review of Output. Customer is responsible for reviewing reports, exports, invoices, and other output of the Services and will notify Provider in writing of any material error or omission within thirty (30) days after the output is generated or made available. Provider will correct a confirmed error at no charge where notified within that period. Section 11.6 applies to all output. Invoice disputes are governed exclusively by Section 4.7, and nothing in this Section extends the period stated there.¶
3.1 Responsibility for Users. Customer is responsible for all activity occurring under its Authorized User accounts, for maintaining the confidentiality of access credentials, and for ensuring that its Authorized Users comply with this Agreement. Customer will promptly notify Provider of any unauthorized access.¶
3.2 Restrictions. Customer will not, and will not permit any Authorized User, Affiliate, contractor, agent, or other third party to:¶
3.3 Cooperation. Customer will provide Provider with the access, information, and cooperation reasonably necessary for Provider to deliver the Services, and will designate a point of contact for that purpose.¶
3.4 Authorized User Eligibility; Self-Executing Warranty. Customer will not create, designate, or maintain an account for, or otherwise provide access to the Services to, any person who is engaged in, or who Customer knows or reasonably should know is being engaged to perform, the design, development, specification, evaluation, or procurement of a Competing Application, whether that person is an employee, contractor, consultant, or advisor of Customer, of an Affiliate of Customer, or of any prospective or actual acquirer of Customer. Each creation or maintenance of an account by Customer, through the administrative console or otherwise, constitutes a representation and warranty by Customer, made as of the time of that act and continuing for so long as the account remains active, that the account holder satisfies the definition of Authorized User in Section 1.2 and this Section 3.4. Breach of that warranty occurs upon the act itself and does not require notice to, knowledge by, or detection by Provider.¶
3.5 Domain Restriction. Every Authorized User account must be associated with an email address in a domain owned or controlled by Customer and registered with Provider in advance. Customer will not create an account using a personal email address, a generic mail service, or a domain belonging to any third party, including a contractor, consultant, advisor, or acquirer. Provider may reject, suspend, or delete any account that does not satisfy this Section, without notice and without liability.¶
3.6 User Certification. On Provider's written request, and within ten (10) business days of that request, Customer will deliver to Provider a certification signed by an officer of Customer that lists every active account and, for each, the individual's name, email address, employer, and role, and that certifies that every account holder satisfies Section 1.2 and Section 3.4 and that no account holder is engaged in the design, development, specification, evaluation, or procurement of a Competing Application. Failure to deliver a certification when due, or delivery of a certification that is materially inaccurate, is a material breach of this Agreement. Provider may rely on each certification, and Customer acknowledges that Provider does so in deciding whether to continue providing the Services.¶
3.7 Flow-Down. Customer will ensure that every Authorized User, and every Affiliate, contractor, consultant, advisor, auditor, and other third party to whom Customer provides access to the Services or to any Provider Materials, is bound by written obligations of confidentiality and restricted use no less protective than those in Sections 3.2, 3.4, 8, and 13. Customer is liable for any act or omission by such person that would constitute a breach of this Agreement if committed by Customer.¶
3.8 Security Obligations. Customer will: (a) ensure each Authorized User has an individually assigned account and will not permit shared, generic, or group credentials; (b) enable and require multi-factor authentication where the Services or Customer's access method support it; (c) maintain current anti-malware and supported operating systems on any device used to access the Services; (d) notify Provider without undue delay, and in no event more than twenty-four (24) hours after discovery, of any actual or suspected compromise of credentials, unauthorized access, or security incident affecting the Services or Customer Data; and (e) reimburse Provider for the reasonable costs of investigation, containment, notification, and remediation of any incident caused by Customer's failure to comply with this Section 3.8, Section 3.4, or Section 3.5.¶
3.9 Account Lifecycle; Allocation of Responsibility. Provider makes an administrative console available through which Customer creates, modifies, disables, and deletes Authorized User accounts. Customer is solely responsible for account lifecycle management, including the prompt deactivation of accounts held by individuals who cease to be employed or engaged by Customer or who otherwise cease to qualify as Authorized Users. Provider has no obligation to monitor Customer's workforce, to detect departures or role changes, or to deactivate any account, and Provider will not do so except at Customer's direction or under Sections 3.5, 4.4, or 6. Customer bears all risk, liability, and cost arising from access to the Services by any person whose account Customer has failed to deactivate, and Customer will indemnify Provider against any claim arising from such access.¶
3.10 Authorized Representatives. Customer will designate in writing not more than three (3) individuals authorized to add or remove Authorized Users, request exports, approve statements of work, and give notices under this Agreement. Provider may rely conclusively on instructions from a designated representative and has no obligation to act on instructions from any other person. Customer will keep the designation current.¶
3.11 Customer Delay. Where Provider's performance depends on information, access, decisions, or approvals from Customer, and Customer fails to provide them within five (5) business days of a written request, Provider is relieved of the affected obligation for the duration of the delay, any related timeline is extended accordingly, and Provider may invoice the resulting standby, rescheduling, and re-work time at Provider's then-current time and materials rates.¶
3.12 Customer Environment. Customer is responsible for its own network, internet connectivity, workstations, browsers, printers, and local configuration, and for maintaining them in a configuration compatible with the Services. Provider is not responsible for any failure, degradation, or defect arising from Customer's environment, and time spent diagnosing an issue that proves to originate in Customer's environment is billable at Provider's then-current time and materials rates.¶
3.13 Paid Change Requests. A "Paid Change Request" is a request by Customer that Provider perform specific work for a fee, including a report, data service, configuration change, or Modification. Paid Change Requests are distinct from Feature Requests under Section 2.12, which are product suggestions carrying no fee and no obligation. Any Paid Change Request must be submitted in writing to Provider. No such work is authorized, and Provider has no obligation to perform it, until Provider has issued a written estimate and an Authorized Representative has signed it. Provider will provide a written quote or estimate before commencing billable work, Customer must approve it in writing, and Provider may require prepayment. Unless otherwise stated in it, a quote expires thirty (30) days after issuance, applies only to the work described in it, and does not establish or fix rates for any later request. Provider's standard rates are available on request. Provider is not obligated to perform, and Customer is not obligated to pay for, optional services for which a quote has not been approved, except where an Authorized Representative gives written emergency authorization to proceed, in which case the work is billable at Provider's then-current standard rates. Payment of a fee for a Paid Change Request purchases Provider's development effort and scheduling priority only, and does not purchase ownership, exclusivity, or any right beyond those in Section 2.1, as provided in Section 7.4.¶
3.14 Scope of the Quote Procedure. The written-quote approval procedure in Section 3.13 applies to optional services requested by Customer. It does not apply to reimbursable time, costs, or expenses arising under Sections 3.8(e), 3.11, 3.12, 12.7, or 12.8, to work Provider performs under Section 14.24 or the Data Processing Addendum because applicable law requires Provider to respond, verify, or permit an audit, or to emergency work reasonably undertaken to protect the Services, Customer Data, or Provider's systems. Where Provider elects voluntarily to respond to a security questionnaire, assessment, or similar request that applicable law does not require it to answer, that work is an optional service and Section 3.13 applies to it. For work and charges expressly excluded from the Section 3.13 quote-approval procedure by this Section 3.14, Provider will notify Customer of the charges and provide an estimate when reasonably practicable, but Customer's approval is not a condition of Customer's obligation to pay or reimburse those charges.¶
4.1 Fees. Customer will pay the Fees set forth on each Order Form. Fees are stated and payable in U.S. dollars, are based on subscriptions purchased rather than actual usage, and are non-cancellable and non-refundable except as expressly provided in Sections 2.14, 6.6, and 10.2. All amounts are payable in full without set-off, deduction, counterclaim, withholding, or abatement of any kind, and Customer waives any right to withhold or reduce payment on account of any claim, dispute, or alleged breach by Provider, its sole remedy being to pursue that claim separately.¶
4.2 Invoicing. Provider invoices in the frequency and in advance or arrears as stated on the Order Form, and monthly in advance where the Order Form is silent. Payment is due on the terms stated on the Order Form, which may be due on receipt or on any other terms Provider offers, and within thirty (30) days of the invoice date where the Order Form is silent. Provider may set, and at renewal revise, payment terms based on Customer's payment history and creditworthiness, and may require prepayment or a deposit under Section 4.11.¶
4.2A Accepted Payment Methods. Provider accepts payment by (a) ACH debit or ACH credit, (b) credit card, and (c) debit card. Provider may add, modify, or discontinue any payment method on thirty (30) days' notice. Provider is not obligated to accept payment by check, wire transfer, cash, or any other method not listed, and may impose an administrative fee at the rate in Schedule Z for processing a payment tendered by a method Provider has not designated. Payment is deemed made only when Provider receives collected and irrevocable funds.¶
4.2B Automatic Payment and Continuing Authorization. Customer will enroll and remain enrolled in automatic payment for all recurring Fees. Customer will provide and maintain a valid ACH account or payment card and hereby authorizes Provider and its payment processors to initiate recurring and one-time debits or charges against that account or card for all amounts due under this Agreement, including recurring Fees, overage charges, time and materials charges, taxes, and amounts due under Sections 4.3, 4.3A, and 6. This authorization is continuing, remains in effect until all amounts due have been paid in full and Customer gives written notice of revocation, and survives expiration or termination of this Agreement as to amounts accrued before or payable on termination. Customer will keep its payment information current and will notify Provider of any change at least ten (10) days before the next scheduled charge. Provider may retry a declined or returned payment and may update payment card credentials through card network account updater services.¶
4.2C Card Processing Fee. Provider may impose a processing fee on payments made by credit card, at the rate stated in Schedule Z, which will not exceed Provider's cost of acceptance or the maximum permitted by applicable law and card network rules, whichever is less. No processing fee is imposed on payments made by ACH or by debit card. Any processing fee will be disclosed on the invoice and at the point of payment.¶
4.3 Late Payment. Undisputed amounts not paid when due accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law, from the due date until paid. Customer will reimburse Provider's reasonable costs of collection, including attorneys' fees.¶
4.3A Failed Payments and Chargebacks. If any ACH debit is returned, or any card charge is declined, reversed, or charged back, Customer will pay the returned-item fee stated in Schedule Z in addition to the amount due and interest under Section 4.3, and Provider may immediately re-present the item. Customer will not initiate a chargeback, ACH return, or payment dispute in respect of any amount that is not the subject of a good-faith dispute properly raised under Section 4.7. Any chargeback or ACH return initiated in respect of an undisputed amount constitutes non-payment for purposes of Sections 4.4 and 6.8, and Customer will reimburse Provider's costs of responding to it, including processor fees.¶
4.4 Suspension. If any undisputed amount is more than fifteen (15) days overdue, Provider may, on written notice, suspend the Services until all overdue amounts are paid. Provider may also suspend the Services or any Integration Service immediately, with notice as soon as practicable, where Provider reasonably believes that continued access presents a security risk, that credentials have been compromised, that access is originating from an unapproved source, or that Customer is in breach of Section 3.2, 3.4, 3.8, or 13. Suspension does not relieve Customer of its obligation to pay Fees for the period of suspension, and Provider may charge a reasonable reactivation fee to restore the Services.¶
4.5 Fee Adjustments. Fees increase automatically on commencement of each Renewal Term by the greater of four percent (4%) or the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U, U.S. City Average, all items) over the preceding twelve (12) months, without notice. Provider may increase Fees by more than that amount effective on commencement of any Renewal Term by providing written notice at least sixty (60) days before the end of the then-current Subscription Term. Provider may also adjust Fees during a Subscription Term to reflect (a) an increase in the number of Authorized Users or Company Databases, or (b) an increase in the cost of any Third-Party Component, hosting service, or infrastructure passed through to Provider, in each case on thirty (30) days' written notice accompanied by written evidence of the underlying increase, which Provider may redact to protect Provider Confidential Information or may satisfy by a certification of an officer of Provider stating the amount and effective date of the increase. If a documented pass-through increase under clause (b) exceeds fifteen percent (15%) of the then-current Fees, Customer may terminate the affected Order Form on thirty (30) days' written notice without payment of the Early Termination Fee.¶
4.6 Taxes. Fees are exclusive of taxes. Customer is responsible for all sales, use, VAT, and similar taxes, excluding taxes on Provider's net income.¶
4.7 Disputes. Customer must notify Provider in writing of any disputed invoice amount within fifteen (15) days of the invoice date, specifying the basis of the dispute in reasonable detail. Customer will pay all undisputed amounts when due. Amounts not disputed within that period are deemed accepted. A dispute raised without a reasonable good-faith basis, or raised for the purpose of delaying payment, constitutes non-payment for purposes of Sections 4.4 and 6.8.¶
4.8 No Downward Adjustment. Fees are based on the Authorized User subscriptions and Company Databases purchased, not on actual usage. Customer may add subscriptions or Company Databases during a Subscription Term, which increases the Fees prospectively. Customer may not reduce the number of subscriptions or Company Databases, and the Fees will not be reduced, during a Subscription Term for any reason, including reduced headcount, reduced activity, consolidation, or divestiture. Reductions take effect only on commencement of a Renewal Term and only if requested in the non-renewal notice period under Section 6.2. In no event will the monthly recurring Fee fall below the minimum monthly Fee stated on the Order Form.¶
4.9 Verification and True-Up. Customer will, on Provider's written request and not more than quarterly, certify in writing the number of individuals with access to the Services and the Company Databases in use. If a verification, audit, or Provider's own logs disclose use in excess of the subscriptions purchased, Customer will pay for the excess for the period of the excess use, or for six (6) months if the period cannot be determined, at one hundred fifty percent (150%) of Provider's then-current list rate, plus the cost of the verification if the excess exceeds five percent (5%) of subscriptions purchased.¶
4.10 Implementation and Onboarding Fees. Any implementation, onboarding, provisioning, data migration, or setup fee stated on an Order Form is due in full on execution of that Order Form, is earned on commencement of the work, and is non-refundable in all circumstances, including where Customer terminates before the Services go live, where Customer fails to provide information or cooperation required under Sections 3.3 and 3.11, or where the Order Form is terminated for any reason. Implementation and onboarding fees are separate from, and are not credited against, recurring Fees or the Early Termination Fee.¶
4.11 Creditworthiness and Security. Provider may, at its discretion, condition acceptance of an Order Form, the provisioning of additional Company Databases or subscriptions, or the continuation of the Services following a returned payment or a period of delinquency, on Customer's payment of a deposit, prepayment of Fees, or provision of other reasonable assurance of payment. Provider may obtain and rely on commercially available credit information regarding Customer.¶
5.1 Ownership. As between the Parties, Customer owns all right, title, and interest in Customer Data. Customer grants Provider a non-exclusive, worldwide license to host, copy, transmit, process, and display Customer Data solely as necessary to provide the Services, to prevent or address technical or security issues, and as otherwise permitted by this Agreement.¶
5.2 Responsibility. Customer is solely responsible for the accuracy, quality, legality, and the means by which it acquired Customer Data, and for obtaining all consents necessary for Provider to process it.¶
5.3 Security. Provider will maintain administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data that are commercially reasonable for a hosted application of this type. The particulars of those safeguards are addressed in Section 12.5.¶
5.4 Backups. Provider will perform backups of the Company Databases in accordance with the backup practices described in Schedule Z, which may be updated in accordance with Section 14.13. Backups are maintained for Provider's own operational continuity purposes. Provider retains recovery points for each Company Database for a minimum of thirty (30) days and a maximum of thirteen (13) months, in the tiered pattern described in Schedule Z. Provider will not reduce the thirty (30) day minimum without Customer's consent. Backups are not a records-retention, archival, or e-discovery service, Customer remains responsible for maintaining its own archival copies of Customer Data, and the backup targets stated in Schedule Z are targets and not guarantees. Restoration of Customer Data at Customer's request, including restoration following deletion or alteration by an Authorized User, is a billable service at the rates in Schedule Z, except where the loss resulted from Provider's failure to perform in accordance with Section 9.2.¶
5.5 Aggregated Data. Provider may collect, use, and disclose aggregated and de-identified data derived from the operation of the Services for the purpose of improving, supporting, and operating its products and services, provided such data does not identify Customer, its Authorized Users, or any individual. Provider owns all such aggregated and de-identified data.¶
5.6 Feedback. Customer has no obligation to provide Feedback. If Customer or any Authorized User provides Feedback, Customer grants Provider and its Affiliates a worldwide, perpetual, irrevocable, fully paid, royalty-free, transferable, sublicensable, non-exclusive right and license to use, reproduce, modify, disclose, distribute, commercialize, and incorporate the Feedback into the Services and into any other product or service of Provider, without restriction, attribution, notice, accounting, or compensation to Customer. Customer assigns to Provider all right, title, and interest in any Modification developed by Provider that is based on, derived from, or incorporates Feedback. Feedback is not Customer Confidential Information notwithstanding any designation to the contrary, and Provider is under no obligation of confidentiality with respect to it. Provider is under no obligation to use, implement, or respond to any Feedback.¶
5.7 Storage Allowance. Each Company Database is subject to the Storage Allowance stated on the Order Form, measured as set forth in Schedule Z. Provider will notify Customer when a Company Database reaches eighty percent (80%) of its Storage Allowance. Storage in excess of the Storage Allowance is billable monthly at the storage overage rate stated on the Order Form. An initial Order Form must state a storage overage rate, and that rate may be changed at renewal in accordance with Section 4.5. Provider may, on thirty (30) days' written notice, require Customer to purchase additional Storage Allowance or to authorize archival or removal of data, and may decline to provision storage beyond what the underlying platform can reasonably support. Provider will not delete Customer Data during the Subscription Term on account of a Storage Allowance overage.¶
5.8 Data Retention During Term. Provider does not delete Customer Data during the Subscription Term. All Customer Data is retained in the active Company Database for the duration of the Subscription Term, subject to Section 5.7.¶
5.9 Optional Recovery Objectives. Unless an Order Form expressly selects and prices a Recovery Objective Add-On, no recovery time objective, recovery point objective, failover commitment, or geographic redundancy commitment applies to the Services. Provider maintains the backup procedures described in Schedule Z for its own operational continuity, and those procedures alone do not create any such commitment. A "Recovery Event" means an unplanned event that Provider determines requires restoration of the core production OMIS application or affected Customer Data from backup or activation of alternate infrastructure. If an Order Form selects a Recovery Objective Add-On, Provider will use commercially reasonable efforts to restore the core production OMIS application and affected Customer Data to a materially usable state within the target recovery time objective ("RTO") and to a recovery point no older than the target recovery point objective ("RPO") stated on that Order Form. The RTO begins when Provider declares a Recovery Event and ends when the core production OMIS application and affected Customer Data are materially usable. Non-core features, reports, Integration Services, performance optimization, and historical processing may be restored later. The RPO measures potential data loss backward from the Recovery Event to the most recent usable recovery point. Recovery objectives are targets, not warranties or service levels, and do not apply to planned maintenance, Beta Services, Integration Services, Customer-caused events, Customer systems, third-party systems outside Provider's reasonable control, force majeure events, or delays reasonably necessary to prevent reinfection, corruption, or unlawful processing. A recovery point is restorable only to the version of the Services in effect when it was taken, or to a later version to which Provider can migrate it. Where a change to the Services alters the data model, Provider may be unable to restore a recovery point taken before that change, and no recovery objective or other restoration commitment extends to such a recovery point. The Recovery Objective Add-On provides recovery planning and prioritized recovery efforts, but no credit, refund, termination right, or other remedy applies unless expressly stated on the Order Form.¶
5.10 Usage Data. Provider may collect, generate, store, and use Usage Data to operate, monitor, secure, support, troubleshoot, analyze, and improve the Services and Provider's other products and services, to enforce this Agreement, and to produce statistical and benchmarking analyses. Provider owns all Usage Data. Usage Data is not Customer Data and is not Customer Confidential Information. Provider will not publish or disclose Usage Data in a form that identifies Customer without Customer's consent, except as required by law.¶
6.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms have expired or been terminated, unless terminated earlier in accordance with this Section 6.¶
6.2 Initial Term and Renewal. Each Order Form commences on the start date specified therein and continues for the initial term specified therein (the "Initial Term"). Upon expiration of the Initial Term, the Order Form automatically renews for successive terms equal in length to the Initial Term (each, a "Renewal Term"), unless either Party gives written notice of non-renewal not more than one hundred twenty (120) days and not less than sixty (60) days before the end of the then-current Subscription Term. A notice of non-renewal given outside that window is of no effect. A notice of non-renewal is not a termination for convenience and does not trigger the Early Termination Fee, but Customer remains obligated for all Fees through the end of the then-current Subscription Term.¶
6.3 Termination for Convenience by Customer; Early Termination Fee. Customer may terminate an Order Form for convenience before the end of the then-current Subscription Term by:¶
6.4 Early Termination Fee. The "Early Termination Fee" is an amount equal to the greater of (a) two (2) months of the monthly recurring Fees in effect at the date of the termination notice, or (b) fifty percent (50%) of the monthly recurring Fees that would have become payable for the remainder of the then-current Subscription Term following the end of the notice period. The Early Termination Fee is in addition to, and not in lieu of, Fees payable through the end of the notice period and all other amounts accrued and unpaid as of the effective date of termination.¶
6.5 Liquidated Damages; Not a Penalty. The Parties acknowledge and agree that (a) Provider incurs substantial onboarding, infrastructure, licensing, and support costs that are recovered over the Subscription Term; (b) Provider's actual damages arising from an early termination for convenience are uncertain and difficult to calculate with precision as of the Effective Date; (c) the Early Termination Fee is a reasonable and good-faith estimate of Provider's anticipated lost profit and unrecovered costs, and is not disproportionate to Provider's probable loss; and (d) the Early Termination Fee constitutes liquidated damages and an agreed charge for the exercise of a contractual option, and is not a penalty. Customer waives any right to object to the Early Termination Fee on the ground that it is void as a penalty or is not reasonably related to actual damages.¶
6.6 Termination for Cause. Either Party may terminate this Agreement or any affected Order Form for cause upon written notice if the other Party materially breaches this Agreement and fails to cure that breach within thirty (30) days after receipt of written notice describing the breach in reasonable detail. For this purpose, a breach is "material" only if it substantially deprives the non-breaching Party of the principal benefit it reasonably expected to receive under this Agreement, and, where the breach by Provider consists of a failure of availability or performance of the Services, only if it results in the Services being substantially unusable for Customer's ordinary business operations for a continuous period of more than fifteen (15) business days, or for more than thirty (30) business days in the aggregate in any ninety (90) day period. This limitation applies only to failures of availability or performance and does not apply to any other breach by Provider, including a breach of Section 8, Section 12, or Section 5.1. A notice of termination for cause must specifically identify the provision breached and the facts constituting the breach. Termination by Customer under this Section 6.6, following a valid notice and an unexpired opportunity to cure, does not trigger the Early Termination Fee, and Provider will refund any Fees prepaid for the period after the effective date of termination.¶
6.7 What Does Not Constitute Cause. For the avoidance of doubt, none of the following constitutes cause for termination by Customer under Section 6.6: general dissatisfaction with the Services; the availability of a lower price or an alternative product; a change in Customer's business needs, ownership, structure, or management; or any matter for which Customer has not given written notice and a thirty (30) day opportunity to cure. A purported termination for cause that does not satisfy Section 6.6 is treated as a termination for convenience under Section 6.3 and the Early Termination Fee applies.¶
6.8 Termination for Non-Payment. Provider may terminate this Agreement and all Order Forms immediately on written notice if any undisputed amount remains unpaid more than thirty (30) days after written notice of non-payment. In that event, all Fees that would have become payable for the remainder of the then-current Subscription Term become immediately due as an agreed and liquidated amount, subject to Section 6.5.¶
6.9 Termination for Insolvency. Either Party may terminate this Agreement immediately on written notice if the other Party becomes insolvent, makes an assignment for the benefit of creditors, or becomes the subject of a bankruptcy, receivership, or similar proceeding that is not dismissed within sixty (60) days.¶
6.10 Change of Control of Customer. A Change of Control of Customer constitutes an assignment of this Agreement by Customer for all purposes and requires Provider's prior written consent under Section 14.1. Customer will notify Provider in writing at least thirty (30) days before the closing of any transaction that would result in a Change of Control of Customer. If Customer fails to give that notice, Customer will pay Provider, as liquidated damages and not as a penalty, an amount equal to six (6) months of the monthly recurring Fees in effect at the closing. That amount is in lieu of, and not in addition to, any acceleration of Fees under clause (a) of this Section, and Provider may recover one or the other but not both in respect of the same Change of Control, the Parties agreeing that Provider's damages from being deprived of the opportunity to evaluate and negotiate before closing are real and difficult to quantify. If a Change of Control of Customer occurs without Provider's prior written consent, Provider may, at its option and in addition to any other remedy, (a) terminate this Agreement on thirty (30) days' written notice, in which case all Fees that would have become payable for the remainder of the then-current Subscription Term become immediately due; (b) condition its consent on execution of a new agreement on Provider's then-current terms and pricing; or (c) continue performance without waiver of any right under this Section. Provider's continued performance following a Change of Control does not constitute consent unless given in writing.¶
6.11 Effect of Termination. Upon expiration or termination: (a) Customer's right to access and use the Services ceases immediately; (b) all amounts accrued and unpaid, including the Early Termination Fee where applicable, become immediately due; (c) Customer will immediately cease all use of, and will return to Provider or permanently destroy, all Provider Materials, Documentation, and Provider Confidential Information in its possession or control, and will cause each of its Authorized Users, Affiliates, contractors, and advisors to do the same; and (d) within fifteen (15) days after the effective date of termination, an officer of Customer will certify to Provider in writing that Customer has complied with clause (c). Provider may retain Customer Data in backup media in accordance with its ordinary retention practices.¶
6.12 Data Export. Customer may request the Standard Export by written notice given within fifteen (15) days after the effective date of expiration or termination. On receipt of a timely request, Provider will preserve an extraction snapshot of each affected Company Database and, provided Customer has paid all amounts then due, including without limitation the Early Termination Fee and any amounts accelerated under Sections 6.8 or 6.10 but excluding any amount disputed in good faith and properly raised under Section 4.7, will deliver one Standard Export per Company Database within the period stated in Schedule Y, in accordance with the scope, construction rules, format, delivery terms, and effort allowance set forth in Schedule Y. Provider will perform the extraction, transformation, validation, and delivery work within the effort allowance stated in Schedule Y at no additional charge, and will not exceed that allowance without Customer's written authorization to bill the excess at the rates in Schedule Y. Where Provider notifies Customer that the Standard Export cannot be completed within the allowance, Provider's delivery obligation is suspended until Customer authorizes and prepays the excess, and if Customer does not do so within thirty (30) days after Provider's estimate, Provider's obligations under this Section 6.12 are discharged and Section 6.13 applies. The Standard Export includes complete order history for the Company Database as of the extraction cutoff date. The Standard Export consists of Customer Data only. It excludes, and Provider is under no obligation to provide, any element of the Provider Technology or any file, object, definition, or artifact other than Customer Data itself, in any format.¶
6.13 Additional Export and Transition Services. Any export or transition service beyond the Standard Export (including additional or repeat deliveries, refreshed extraction dates, entities or fields outside the scope defined in Schedule Y, custom formats or filtering, historical report reproduction, expedited delivery, or consultation with a successor provider) is provided, if at all, at the fees set forth in Schedule Y or Schedule Z or, where those Schedules specify time and materials, at Provider's then-current standard rates quoted in writing. Such services are provided under a separate written statement of work, are estimated in advance, and are conditioned on payment in advance. Provider is not obligated to provide any service that would require disclosure of the Provider Technology, and all such services remain subject to Sections 3.2, 8, and 13. Where Customer has not made a timely request under Section 6.12, Provider may permanently delete all Customer Data from active systems thirty (30) days after the effective date of expiration or termination, without further notice and without liability. Where Customer has made a timely request, Provider will retain the extraction snapshot until the Standard Export has been delivered and the verification period in Schedule Y has expired, after which Provider may delete it. Customer Data is deleted from backup media as the backup rotation described in Schedule Z expires.¶
6.14 Survival. Sections 1 (Definitions), 2.8 (Integration Services: Additional Terms), 2.11 (No Exclusivity), 2.13 (Beta Services), 2.15 (No Service Level Credits), 3.2 (Restrictions), 3.4 (Authorized User Eligibility), 3.7 (Flow-Down), 3.9 (Account Lifecycle), 4 (Fees and Payment, as to amounts accrued or payable), 5.1 (Customer Data ownership), 5.5 (Aggregated Data), 5.6 (Feedback), 5.10 (Usage Data), 6.4 through 6.14 (Termination and its consequences), 7 (Intellectual Property), 8 (Confidentiality), 9.4 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12 (Data Protection and Privacy), 13 (Protection of Provider Technology), 12.10 (No Certification or Framework Compliance), 14.24 (No Audit Rights), 14.25 (Confidentiality of this Agreement), 14.1 (Assignment), 14.2 (Change of Control), 14.7 (Governing Law), 14.13 (Amendment and Updates to Terms), 14.15 (Limitation of Actions), and 14.16 (Waivers) survive expiration or termination of this Agreement.¶
7.1 Provider Ownership. Provider owns and retains all right, title, and interest in and to the Provider Technology, including all intellectual property rights therein. No rights are granted to Customer other than the limited access right expressly set forth in Section 2.1. Nothing in this Agreement transfers ownership of, or grants any license under, the Provider Technology beyond that express grant.¶
7.2 No Work for Hire. The Services are provided on a subscription basis. No portion of the Provider Technology is a work made for hire for Customer, a deliverable, or a work product owned by Customer, regardless of whether any component was developed, customized, or configured at Customer's request or in response to Customer's specifications. Any customization, configuration, enhancement, or modification made to the Services, whether or not funded in whole or in part by Customer, is owned exclusively by Provider and is part of the Provider Technology.¶
7.3 Third-Party Components. The Services incorporate Third-Party Components licensed to Provider. Provider makes no representation or warranty with respect to the Third-Party Components. Provider licenses the Third-Party Components for its own use in delivering the Services. Customer receives no license to, and has no direct relationship with the licensor of, any Third-Party Component, and no third-party license terms are passed through to or binding on Customer. Where a Third-Party Component requires that notices be made available to end users, Provider satisfies that requirement through a notices file within the Services. Provider may replace, substitute, or remove any Third-Party Component at any time. Provider is not responsible or liable for any act, omission, failure, defect, discontinuation, price change, license change, security incident, or end-of-support decision of any third-party licensor, supplier, or hosting provider, and no such event constitutes a breach by Provider, except to the extent the event results from Provider's failure to perform its own obligations under Section 12. Customer's sole remedy where a Third-Party Component becomes unavailable is Provider's substitution of a component providing substantially equivalent function or, if none is reasonably available, Section 2.14.¶
7.3A No Obligation to Disclose Composition. The architecture, design, source code, data model, schema, infrastructure, hosting arrangements, component inventory, supplier identities, licensing arrangements, development tooling, and internal operating procedures of the Services are Provider Confidential Information and Provider trade secrets. Provider is under no obligation to disclose, identify, describe, demonstrate, or provide access to any of them, and no provision of this Agreement requires it to do so. Provider may, in its sole discretion and subject to a written confidentiality undertaking satisfactory to Provider, elect to provide summary information in a form Provider determines, and any such election is a one-time accommodation, creates no precedent, and confers no entitlement to further disclosure.¶
7.4 Modifications: Ownership and Platform Release. The Services are a single-version, multi-customer product platform and not a per-customer instance. The following apply to every Modification:¶
7.5 Report Formatting. Provider may, in its discretion and as a billable service, produce customer-specific formatting variations of report output, such as branding, headers, and layout. Report types, report logic, underlying queries, data selection, calculations, screens, workflows, and business processes are platform-wide and are not customized per customer. Any formatting variation produced for Customer is a Customization owned by Provider under Section 7.4.¶
7.6 No Reliance on Future Functionality. Customer acknowledges and agrees that its decision to enter into this Agreement, its purchase of subscriptions, and the Fees payable are not contingent on the delivery of any future functionality, feature, Modification, release, or roadmap item, and are based solely on the Services as they exist on the Effective Date. Any statement by Provider regarding future functionality, product plans, roadmaps, timing, or intended development is a statement of current intention only, is not a commitment, and may change or be abandoned at any time. Customer will not rely on any such statement and has no remedy in respect of it.¶
8.1 Obligations. Each Party will (a) protect the other's Confidential Information with at least the degree of care it uses for its own confidential information of like importance, and in no event less than reasonable care; (b) not disclose it except to those of its employees, Affiliates, and professional advisors who have a need to know and are bound by confidentiality obligations no less protective; and (c) not use it except as necessary to perform under this Agreement. The obligations in this Section 8 apply to Confidential Information whether disclosed or obtained before, on, or after the Effective Date.¶
8.2 Exclusions. Confidential Information does not include information that (a) is or becomes public through no fault of the receiving Party; (b) was rightfully known to the receiving Party without restriction before disclosure; (c) is rightfully received from a third party without restriction; or (d) is independently developed without use of or reference to the disclosing Party's Confidential Information.¶
8.3 Compelled Disclosure. A Party may disclose Confidential Information to the extent required by law or court order, provided it gives prompt notice where legally permitted and reasonably cooperates in any effort to limit or protect the disclosure.¶
8.4 Duration. The obligations in this Section 8 continue for five (5) years after expiration or termination of this Agreement, except that with respect to any Confidential Information that constitutes a trade secret under applicable law, including the Provider Technology and the items identified in Section 13.1, the obligations continue for so long as that information remains a trade secret.¶
8.5 Designation. Without limiting Section 1.9, all non-public aspects of the design, structure, organization, operation, logic, and content of the Services, together with the Documentation and all Provider Materials, are Provider Confidential Information and, as provided in Section 13.1, Provider trade secrets. Nothing in this Section requires Provider to particularize, itemize, or identify any element in order for it to be protected, and Provider's failure to identify an element does not place it outside this Section.¶
8.6 No Residuals. Nothing in this Agreement grants Customer or any of its personnel any right to use, disclose, or rely upon Provider Confidential Information retained in unaided memory or otherwise. Customer expressly waives any residuals right or defense. Use of Provider Confidential Information from memory is use for purposes of this Section 8.¶
8.7 Equitable Relief. Each Party acknowledges that a breach of this Section 8 may cause irreparable harm for which monetary damages are inadequate, and that the disclosing Party is entitled to seek injunctive relief and specific performance without proof of actual damages and, except where applicable law requires otherwise, without posting bond, in addition to any other remedy.¶
9.1 Provider Intellectual Property Warranty. Provider represents and warrants that it has full right, power, and authority to grant the rights granted to Customer under this Agreement and to make the Services available to Customer as contemplated by this Agreement. This Section states Provider's entire representation and warranty with respect to intellectual property, and Provider makes no other representation or warranty, express or implied, regarding ownership, title, non-infringement, provenance, or the licensing of any component of the Services.¶
9.2 Provider Performance Warranty. Provider represents and warrants that it will perform the Services in a professional and workmanlike manner consistent with generally accepted industry practice for hosted applications of this type and vintage. Customer's exclusive remedy and Provider's entire liability for breach of this Section 9.2 is, at Provider's election, (a) Provider's use of Commercially Reasonable Efforts to re-perform or correct the deficient Services at no charge, or (b) where Provider determines that correction is not commercially practicable, termination of the affected Order Form and a refund of Fees prepaid for the terminated period. Provider's obligation under clause (a) is limited to Commercially Reasonable Efforts and does not require Provider to achieve any particular result, to redesign the Services, or to remediate a limitation inherent in the platform as described in Section 2.6.¶
9.3 Mutual Warranties. Each Party represents and warrants that it has full corporate power and authority to enter into this Agreement, that this Agreement is duly authorized and executed, and that its performance will not violate any other agreement to which it is a party.¶
9.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ALL DEFECTS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE DELIVERED ON AN ESTABLISHED PLATFORM WHOSE COMPONENTS ARE SUBJECT TO CHANGE, SUBSTITUTION, AND END OF LIFE OVER TIME, AND THAT PROVIDER HAS MADE NO REPRESENTATION AS TO THE COMPOSITION, ARCHITECTURE, OR SUPPORT STATUS OF ANY COMPONENT.¶
10.1 By Provider. Provider will defend Customer against any third-party claim alleging that Customer's authorized use of the Services infringes a United States copyright or trade secret right, and will indemnify Customer for damages and reasonable costs finally awarded against Customer or agreed in settlement by Provider. This obligation does not apply to any claim arising from (a) the Third-Party Components; (b) Customer Data; (c) use of the Services in combination with anything not supplied by Provider; (d) use in violation of this Agreement or after notice to discontinue; or (e) any modification not made by Provider.¶
10.2 Remedies. If the Services become, or in Provider's opinion are likely to become, the subject of a claim under Section 10.1, Provider may at its option and expense (a) procure the right for Customer to continue using the Services, (b) modify or replace the Services so they are non-infringing while remaining materially equivalent, or (c) terminate the affected Order Form on notice and refund prepaid Fees for the unused portion of the Subscription Term. Sections 10.1 and 10.2 state Provider's entire liability and Customer's exclusive remedy for any claim of infringement, subject to the sublimit in Section 11.3(c).¶
10.3 By Customer. Customer will defend and indemnify Provider against any third-party claim arising from (a) Customer Data, including any claim that it infringes, misappropriates, or violates the rights of a third party or applicable law; (b) Customer's use of the Services in violation of this Agreement; or (c) Customer's breach of Section 3.¶
10.4 Procedure. The indemnified Party will give prompt written notice of the claim, grant the indemnifying Party sole control of the defense and settlement (provided no settlement imposing liability or admitting fault may be made without the indemnified Party's consent, not unreasonably withheld), and provide reasonable cooperation at the indemnifying Party's expense.¶
11.1 Exclusion of Indirect Damages. EXCEPT AS PROVIDED IN SECTION 11.1A, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS OPPORTUNITY, OR DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.¶
11.1A Third-Party Amounts. Section 11.1 does not exclude, and neither Party may invoke it to avoid, amounts that an indemnifying Party is obligated to pay to a third party under Section 10, including damages, costs, and reasonable attorneys' fees finally awarded against the indemnified Party or agreed in settlement by the indemnifying Party, regardless of how those amounts are characterized in the third-party claim and regardless of whether they include or are measured by lost profits, revenue, goodwill, business opportunity, or data. This Section addresses only the characterization of damages and does not increase any monetary limit in Section 11.2 or Section 11.3.¶
11.2 General Cap. EXCEPT AS PROVIDED IN SECTION 11.3, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE ANNUAL FEES. "Annual Fees" means the total Fees paid or payable by Customer, in the twelve (12) months preceding the event giving rise to the claim, under the Order Form to which the claim relates or, where a claim relates to more than one Order Form or to this Agreement generally, under the single Order Form with the greatest such Fees.¶
11.3 Claims Outside the General Cap. The General Cap in Section 11.2 applies except as set out in this Section 11.3. Where a claim falls within more than one subsection, the highest applicable limit governs, and no limit applies where any applicable subsection provides that none applies.¶
(a) Unlimited: Customer obligations. No limit applies to Customer's liability for (i) payment obligations, including Fees, the Early Termination Fee, and amounts accelerated under Sections 6.8 and 6.10; (ii) Customer's indemnification obligations under Section 10.3; or (iii) breach of Section 3.2 (Restrictions), Section 3.4, 3.5, 3.6 (Authorized User Eligibility, Domain Restriction, and Certification), Section 3.8 or 3.9 (Security Obligations and Account Lifecycle), or Section 13 (Protection of Provider Technology).
(b) Unlimited: both Parties. No limit applies to either Party's liability for gross negligence, willful misconduct, or fraud.
(c) Enhanced Sublimit: Provider indemnity. Provider's total aggregate liability under Section 10.1 (infringement indemnity), including the cost of defense and all amounts paid to a third party, will not exceed two (2) times the Annual Fees. This sublimit operates within the aggregate cap in Section 11.3(e).
(d) Enhanced Sublimit: confidentiality and data protection. Each Party's total aggregate liability for breach of Section 8 (Confidentiality) or Section 12 (Data Protection and Privacy) will not exceed two (2) times the Annual Fees. This sublimit operates within the aggregate cap in Section 11.3(e). For the avoidance of doubt, this subsection does not limit Customer's liability under Section 11.3(a), and where conduct by Customer breaches both Section 8 and any provision listed in Section 11.3(a), no limit applies.
(e) Aggregate Cap. Except for amounts within Sections 11.3(a) and 11.3(b), to which no limit applies, a Party's total aggregate liability under this Agreement for all claims combined, on all theories and however arising, will not exceed two (2) times the Annual Fees. The General Cap and the sublimits in Sections 11.3(c) and 11.3(d) operate within, and do not add to, this aggregate cap.
11.4 Allocation of Risk. The Parties acknowledge that the limitations, caps, and sublimits in this Section 11 are reflected in the Fees, form an essential basis of the bargain, and will apply notwithstanding the failure of any limited remedy of its essential purpose. The Parties further acknowledge that the asymmetry in Section 11.3 follows from the obligations imposed by the Sections referenced, several of which bind only one Party, and does not reflect an unequal allocation of comparable risks.¶
11.5 Notice of Claim and Mitigation. Customer will notify Provider in writing of any claim arising out of or relating to this Agreement within sixty (60) days after Customer first becomes aware of the facts giving rise to it, describing the claim in reasonable detail, and will give Provider a reasonable opportunity to investigate and cure before commencing any proceeding. Each Party will take reasonable steps to mitigate its losses, and neither Party is liable for any loss to the extent it could have been avoided by reasonable mitigation. Failure to give notice under this Section does not bar a claim except to the extent Provider is prejudiced by the delay.¶
11.6 No Reliance on Output. The Services present and organize data submitted by Customer. Customer is solely responsible for the accuracy, completeness, and interpretation of Customer Data and of any report, calculation, or output derived from it, and for all business, operational, professional, financial, and regulatory decisions made in reliance on it. Provider is not a professional adviser, records custodian, or system of record for Customer, owes Customer no fiduciary duty, and is not liable for any decision made or not made in reliance on the Services or their output.¶
12.1 Roles. As between the Parties, Customer is the controller of, and determines the purposes and means of processing, all Personal Data submitted to the Services. Provider acts solely as a processor and service provider, processing Personal Data only on Customer's documented instructions, which this Agreement and each Order Form constitute.¶
12.2 Customer Warranties. Customer represents and warrants that (a) it has the legal right and all necessary authority, consents, and lawful bases to submit Personal Data to the Services and to have Provider process it as contemplated by this Agreement; (b) it has provided all notices and disclosures required by applicable law to the individuals whose Personal Data it submits, including property buyers, closing attorneys, and builder, subdivision, and billing contacts who are not employees of Customer; (c) its collection and use of that Personal Data complies with applicable law; and (d) it will not submit to the Services any special category, sensitive, financial account, health, biometric, or government identifier data, or any data subject to HIPAA, PCI-DSS, GLBA, FERPA, or comparable sectoral regulation, unless Provider has agreed in writing in advance.¶
12.3 Provider Processing. Provider will process Personal Data only to provide, maintain, secure, support, and improve the Services, to comply with law, and as otherwise permitted by this Agreement. Provider will not sell or share Personal Data, will not retain, use, or disclose it for any purpose other than performing the Services, and will not combine it with personal information from another source except as permitted by applicable law. Section 5.5 (Aggregated Data) applies only to data that has been de-identified so that it no longer identifies and cannot reasonably be used to identify any individual, and Provider will not attempt to re-identify it.¶
12.4 Personnel and Subprocessors. Provider will ensure that persons authorized to process Personal Data are bound by confidentiality obligations. Provider may engage subprocessors, including hosting and infrastructure suppliers, provided Provider imposes, or the subprocessor's standard terms provide, protections substantially equivalent in effect to those in this Section 12, and Provider remains responsible for their performance. The identity of Provider's subprocessors is Provider Confidential Information, and Provider is under no obligation to name, list, or notify Customer of any subprocessor or of any change in subprocessors, except to the extent applicable data protection law expressly requires it, in which case Section 12.12 and Section 4 of the Data Processing Addendum govern.¶
12.5 Security. Provider will maintain administrative, physical, and technical safeguards designed to protect Personal Data, as described in Section 5.3. The specific controls, technologies, configurations, vendors, and procedures Provider employs are Provider Confidential Information and Provider trade secrets, and Provider is under no obligation to disclose, describe, or evidence them. Customer acknowledges that it has made its own assessment of the suitability of the Services for the Personal Data it elects to submit, that it has not relied on any representation by Provider as to specific security controls, and that it is solely responsible for determining what Personal Data to submit.¶
12.6 Incident Notification. Provider will notify Customer without unreasonable delay, and in any event within the period required by applicable law, after Provider determines, or has reason to believe, that a breach of security leading to the unauthorized disclosure of, or access to, Personal Data processed by Provider has occurred, and in any event, where Section 501.171 of the Florida Statutes or a similar statute applies to Provider as a third-party agent, no later than ten (10) days after such determination or reason to believe. Provider is not obligated to notify Customer of an unsuccessful access attempt or of routine security activity such as scanning, probing, or filtered traffic, none of which constitutes a breach for this purpose. Provider will provide such information as is reasonably necessary for Customer to meet its own notification obligations under applicable law. Provider is not obligated to provide, and will not provide, any forensic report, investigation file, root cause analysis, internal communication, log extract, vulnerability finding, remediation plan, or other internal material, and nothing in this Section requires Provider to disclose information that would compromise its security, its trade secrets, or the confidentiality of any other customer. Customer is solely responsible for determining whether notification to individuals or regulators is required and for making any such notification. Provider's obligations under this Section do not apply to an incident arising from Customer's failure to comply with Section 3.4, 3.5, 3.8, or 3.9, and Provider's assistance with any such incident is billable under Schedule Z.¶
12.7 Data Subject Requests. Customer is responsible for responding to requests from individuals to access, correct, delete, or restrict processing of their Personal Data. Where Customer cannot fulfill a request through the Services, Provider will provide reasonable assistance, which is billable under Schedule Z except where applicable law requires otherwise. Provider will not respond directly to any such request other than to direct the individual to Customer.¶
12.8 Legal Process. If Provider receives a subpoena, civil investigative demand, litigation hold notice, court order, or other legal process seeking Customer Data, Provider will, where legally permitted, notify Customer and provide a reasonable opportunity to object or seek a protective order before responding. Provider's time and costs in responding, including reasonable attorneys' fees, are reimbursable by Customer at the rates in Schedule Z, except where the process arises from Provider's own conduct.¶
12.9 Deletion. Upon expiration or termination, Provider will delete Personal Data in accordance with Sections 6.12 and 6.13, except to the extent retention is required by law.¶
12.10 No Certification, Attestation, or Framework Compliance. Provider does not hold, and does not represent, warrant, or undertake that it holds, will obtain, or will maintain, any SOC 1, SOC 2, SOC 3, ISO 27001, PCI DSS, HITRUST, CSA STAR, or other third-party attestation, examination report, or certification, and Provider makes no representation that the Services, or Provider's controls, policies, or procedures, conform to any such framework or to any information security standard. Customer acknowledges that (a) Customer has made its own assessment of the Services and has not relied on the existence, scope, or content of any attestation, certification, questionnaire response, or security representation in deciding to enter into this Agreement; (b) any statement Provider has made regarding security describes outcomes rather than specific controls and is not a warranty; and (c) if an attestation is material to Customer, Customer's remedy was to decline to enter into this Agreement. Provider may elect to pursue an attestation in the future, and any decision to do so confers no right on Customer and creates no obligation to Customer.¶
12.11 Security Overview. Provider maintains a security overview describing, at a summary and outcome level, the protections applicable to the Services. Provider makes the security overview available on request. The security overview is Provider's complete response to any security inquiry, is provided in lieu of any questionnaire, assessment, attestation, or evidence request, and is Provider Confidential Information. Provider may revise the security overview at any time. Nothing in the security overview is a representation, warranty, or commitment, and Section 9.4 applies to it in full.¶
12.12 Data Processing Addendum. Where and to the extent applicable data protection law requires contractual terms between a controller and a processor, or between parties in analogous roles however denominated, including a "business" and a "service provider" or "contractor" under California law, for the processing of Personal Data under this Agreement, Provider's Data Processing Addendum, as published at the location identified on the Order Form and as updated in accordance with Section 14.13, is automatically incorporated into this Agreement without further signature, and applies only to that processing. Where the Data Processing Addendum applies, it controls over this Section 12 to the minimum extent required by that law; in all other respects this Agreement controls. Where no such law applies, this Section 12 alone governs.¶
13.1 Trade Secret Acknowledgment. Customer acknowledges and agrees that the Provider Technology, including the items specifically designated in Section 8.5, constitutes trade secrets of Provider within the meaning of the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq., and applicable state trade secret law; that Provider derives independent economic value from those items not being generally known to, and not being readily ascertainable by proper means by, other persons who could obtain economic value from their disclosure or use; and that Provider takes reasonable measures to maintain their secrecy, including the restrictions in this Agreement. Customer will not misappropriate the Provider Technology and will not acquire, disclose, or use it by improper means.¶
13.2 Covenant Not to Develop a Competing Application. During the Subscription Term and for a period of twelve (12) months following its expiration or termination, Customer will not, directly or indirectly, alone or with or through any Affiliate, contractor, consultant, successor, acquirer, or other third party, design, develop, commission, procure the development of, or assist any person in designing or developing a Competing Application that is based upon, derived from, or informed by the Provider Technology, the Provider Materials, or Provider Confidential Information.¶
13.3 Scope of Section 13.2. Section 13.2 applies only to development that uses, references, incorporates, or is derived from Provider Technology, Provider Materials, or Provider Confidential Information. It does not restrict Customer from acquiring, licensing, or independently developing an order management application that does not. Customer bears the burden of establishing that any development within the restricted period was independent.¶
13.4 Non-Solicitation of Provider Personnel. During the Subscription Term and for a period of twelve (12) months following its expiration or termination, Customer will not, directly or indirectly, target for solicitation, or knowingly solicit for employment or engagement, any person who is or was within the preceding twelve (12) months an owner, officer, employee, or contractor of Provider who was materially involved in the development, maintenance, hosting, or support of the Services, without Provider's prior written consent. A general advertisement not directed at such persons is not a solicitation, and this Section does not restrict Customer from employing or engaging a person who responds to such an advertisement or who approaches Customer on that person's own initiative without prior solicitation.¶
13.5 Notice of Competing Development. Customer will notify Provider in writing within ten (10) business days if Customer, any Affiliate, or any actual or prospective acquirer of Customer commences, commissions, or evaluates the development of a Competing Application at any time during the Subscription Term or during the twelve (12) months following its expiration or termination. The notice must confirm that the development does not use, reference, incorporate, or derive from Provider Technology, Provider Materials, or Provider Confidential Information.¶
13.6 Audit and Certification. Upon reasonable written notice and not more than once in any twelve (12) month period, Customer will (a) provide Provider with a current list of Authorized Users, (b) certify in writing, signed by an officer, that Customer is in compliance with Sections 3.2, 3.4, 3.7, 8, and 13, and (c) permit Provider or its designated independent auditor, subject to reasonable confidentiality undertakings, to inspect records relevant to that compliance. Provider bears the cost of any such audit unless it discloses a material breach, in which case Customer bears the cost.¶
13.7 Equitable Relief and Remedies. Customer acknowledges that a breach or threatened breach of this Section 13 would cause irreparable harm to Provider for which monetary damages would be an inadequate remedy, and agrees that Provider is entitled to seek temporary, preliminary, and permanent injunctive relief and specific performance without proof of actual damages and, except where applicable law requires otherwise, without posting bond, in addition to all other remedies available at law or in equity. The restricted periods in Sections 13.2 and 13.4 are tolled for the duration of any breach.¶
13.8 Reasonableness; Reformation. Customer acknowledges that the restrictions in this Section 13 are reasonable in scope, duration, and geographic reach; are necessary to protect Provider's legitimate business interests in its trade secrets and confidential information; and are a material inducement to Provider entering into this Agreement and to the pricing of the Services. If any restriction is held unenforceable as written, it will be reformed and enforced to the maximum extent permitted by applicable law rather than struck.¶
13.9 Survival of Section 13. This Section 13 survives expiration or termination of this Agreement and binds Customer's successors and any permitted assignee, and Customer will cause any acquirer in a Change of Control to acknowledge these obligations in writing as a condition of Provider's consent under Section 6.10.¶
13.10 Marking. Provider may apply confidentiality legends, watermarks, or notices to the screens of the Services, to the Documentation, and to Provider Materials. Customer will not remove, obscure, alter, or crop out any such legend from any Provider Material, and will reproduce it on any copy of a Provider Material it makes. Nothing in this Section requires a legend on, or its reproduction within, Customer's own business records described in Section 1.21, except to the extent a Provider Material is embedded in them. The absence of a legend on any item does not mean the item is not Provider Confidential Information.¶
13.11 No Source Code Escrow. Customer acknowledges that Provider does not offer, and is under no obligation to enter into, any source code escrow, deposit, verification, or release arrangement with respect to the Services, and that no event, including Provider's insolvency, discontinuation of the Services, or Change of Control, entitles Customer to receive, access, or inspect the source code or any element of the Provider Technology. Customer waives any claim to the contrary.¶
14.1 Assignment. Provider may assign, transfer, or delegate this Agreement, in whole or in part, together with any of its rights or obligations hereunder, without the consent of Customer, to any Affiliate, parent, subsidiary, or successor in interest, or in connection with any merger, reorganization, or sale of all or substantially all of the assets or equity of Provider or of the business line to which this Agreement relates. Customer may not assign, transfer, delegate, or otherwise dispose of this Agreement or any right or obligation hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of Provider, which consent Provider may grant or withhold in its sole discretion. Any purported assignment, transfer, or delegation by Customer in violation of this Section is void. Subject to the foregoing, this Agreement binds and inures to the benefit of the Parties and their respective successors and permitted assigns.¶
14.2 Change of Control. A Change of Control of Customer is governed by Section 6.10 and constitutes an assignment requiring Provider's prior written consent under Section 14.1.¶
14.3 Successor Notice. Where Provider assigns this Agreement as permitted under Section 14.1, Provider will give Customer written notice identifying the assignee and the effective date of the assignment. Upon the effective date, the assignee succeeds to all rights and obligations of Provider under this Agreement, Provider is released from obligations arising after that date, and this Agreement continues in effect between Customer and the assignee without further action, amendment, or re-execution by either Party.¶
14.4 Notices. Notices must be in writing and delivered by personal delivery, nationally recognized overnight courier, or certified mail return receipt requested, to the addresses set forth on the applicable Order Form or, if none is stated there, on the initial Order Form. Notices to Provider must also be sent to the notice mailbox designated on the Order Form. Electronic mail alone does not constitute notice under this Agreement. A notice is effective only upon (a) written acknowledgment of receipt by the receiving Party, (b) the courier's or postal service's written confirmation of delivery, or (c) completion of the electronic acknowledgment form Provider designates for that purpose, executed by electronic signature. An automated delivery confirmation, read receipt, or out-of-office reply does not constitute acknowledgment. Notices of termination, non-renewal, objection under Section 14.13(e), Change of Control, and any certification required under Section 3.6 or Section 13 must be delivered by courier or certified mail and acknowledged as provided in this Section. This Section does not apply to notices given by Provider under Section 14.13(c), which are governed by that Section.¶
14.5 Publicity. Provider may identify Customer as a customer and use Customer's name and logo in customer lists and marketing materials, subject to Customer's trademark usage guidelines provided in writing.¶
14.6 Force Majeure. Neither Party is liable for any delay or failure in performance, other than a payment obligation, caused by events beyond its reasonable control, including acts of God, natural disaster, war, terrorism, labor disturbance, governmental action, internet or utility failure, cyberattack, or failure of a third-party supplier.¶
14.7 Governing Law and Venue. This Agreement is governed by the law of the state stated on the initial Order Form, without regard to its conflict of laws principles, and excluding the U.N. Convention on Contracts for the International Sale of Goods. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the county and state stated on that Order Form, and waive any objection to that venue. Where a later Order Form does not state a governing law or venue, those stated on the initial Order Form apply.¶
14.8 Attorneys' Fees. In any action to enforce this Agreement, the prevailing Party is entitled to recover its reasonable attorneys' fees and costs.¶
14.9 Independent Contractors. The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship.¶
14.10 No Third-Party Beneficiaries. This Agreement is for the benefit of the Parties only. No third party has any right to enforce any provision hereof, except that Provider's permitted assigns may enforce it as provided in Sections 14.1 and 14.3.¶
14.11 Waiver and Severability. No waiver is effective unless in writing and signed by the waiving Party, and no waiver of any breach is a waiver of any other or subsequent breach. If any provision is held invalid or unenforceable, it will be modified to the minimum extent necessary to make it enforceable, and the remaining provisions will continue in full force.¶
14.12 Entire Agreement; Order of Precedence. This Agreement, together with all Order Forms, Schedule Y, Schedule Z, and, where applicable under Section 12.12, the Data Processing Addendum, constitutes the entire agreement of the Parties regarding its subject matter and supersedes all prior and contemporaneous agreements, proposals, representations, and understandings, whether written or oral, regarding that subject matter. In the event of conflict, the order of precedence is: (a) the applicable Order Form; (b) the Data Processing Addendum, where it applies and only to the minimum extent required by applicable data protection law; (c) this Agreement; (d) Schedule Y; (e) Schedule Z; (f) any other document incorporated by reference. No purchase order, vendor portal terms, click-through terms, or other document originating from Customer has any effect, and any conflicting or additional terms therein are rejected, notwithstanding Provider's acknowledgment, signature, or performance. Where a Schedule or other incorporated document exists in more than one version, the version in effect at the time of the relevant event governs, as provided in Section 14.13(h).¶
14.13 Amendment and Updates to Terms.¶
(a) Negotiated Terms. The following may be amended only by a writing signed by authorized representatives of both Parties: the Order Form; Sections 2.1, 3.2, 4.5, 6.3, 6.4, 6.6, 6.10, 7.1, 7.2, 7.4, 10, 11, 12, 13, and this Section 14.13 (collectively, the "Negotiated Terms").
(b) Updatable Terms. All other provisions of this Agreement, and each Schedule, addendum, policy, and other document incorporated by reference, including Schedule Y, Schedule Z, and the Data Processing Addendum (collectively, the "Updatable Terms"), may be updated by Provider from time to time in accordance with this Section. Provider maintains the current Updatable Terms at the location identified on the Order Form, each version bearing a version identifier and an effective date. Provider does not edit a version after publication and keeps each published version available at its own address for so long as that version governs Customer, including where a version continues to govern by reason of a deferral under Section 14.13(e). Provider applies the Updatable Terms uniformly across its customers and does not maintain customer-specific variations.
(c) Notice. Provider will give Customer notice of an update to the Updatable Terms not less than thirty (30) days before its effective date, by email to Customer's Authorized Representatives, by notice within the Services, or by both. Notice under this Section is effective on transmission and is not subject to the acknowledgment requirement in Section 14.4. Notice will identify the documents affected, the version identifier, and the effective date.
(d) Acceptance. Customer accepts an update by continued use of the Services on or after its effective date, or by earlier written or electronic acknowledgment or acceptance presented within the Services.
(e) Objection and Deferral. Where an update to the Updatable Terms would materially reduce Provider's contractual obligations or materially increase Customer's contractual obligations, in each case other than a change described in Section 14.13(g), Customer may give written notice of objection within thirty (30) days after Provider's notice. Upon objection, the updated Updatable Terms do not apply to Customer during the then-current Subscription Term, the version of the Updatable Terms in effect immediately before the update continues to govern, and the update applies to Customer upon commencement of the next Renewal Term. For the avoidance of doubt, an objection under this Section defers only the application of the amended contract terms. It does not entitle Customer to remain on, revert to, or receive support for any prior version, configuration, or release of the Services, which are governed exclusively by Sections 2.5, 2.10, and 2.14, and the update applies automatically upon commencement of the next Renewal Term. An objection under this Section does not terminate or suspend this Agreement or any Order Form, does not entitle Customer to terminate, does not excuse or reduce any Fee or other obligation, does not constitute a breach or a notice of breach by either Party, and does not give rise to any claim or remedy. Customer's right to decline renewal under Section 6.2 is unaffected and is Customer's sole means of declining to be bound by an update at renewal.
(f) No New Breach on Update. Where an update imposes a new or expanded obligation on Customer, Customer has sixty (60) days from the effective date of that update to come into compliance, and Customer's non-compliance during that period does not constitute a breach of this Agreement and does not give rise to any right of suspension or termination. No update operates retroactively, and no update causes any act or omission occurring before its effective date to constitute a breach.
(g) Changes Not Subject to Objection. None of the following gives rise to a right of objection under Section 14.13(e), and each takes effect on its stated effective date: (i) a change required by applicable law, regulation, or a third-party licensor; (ii) a change to Provider's time and materials rates or optional service fees, which do not alter the recurring Fees payable under the Order Form; (iii) the addition, substitution, or removal of a Third-Party Component under Section 7.3; (iv) a change to Schedule Z that does not reduce support hours or severity response targets; (v) a change that expands functionality or Customer's rights; (vi) a correction of an error or ambiguity; or (vii) a change to Schedule Y that does not reduce the entities exported or the effort allowance.
(h) Prospective Effect. Updates apply prospectively only. The version of the Updatable Terms in effect at the time of an event, act, or omission governs the rights and obligations of the Parties with respect to it. Provider will maintain and make available on request an archive of prior versions with their effective dates.
(i) No Reduction of Negotiated Terms. No update to the Updatable Terms may amend, reduce, expand, or override any Negotiated Term, and to the extent an update purports to do so it is of no effect.
(j) Platform Migration. Provider may migrate the Updatable Terms to a third-party contract management platform and may change the location at which they are maintained, in each case on notice under Section 14.13(c). Such a migration is not itself an update to the Updatable Terms, does not give rise to a right of objection, and requires no further signature by Customer.
14.14 Counterparts; Electronic Signature. This Agreement is not separately executed. Each Order Form may be executed in counterparts and delivered by electronic transmission or electronic signature, each of which is deemed an original and all of which together constitute one instrument. Customer accepts this Agreement electronically in connection with an Order Form or quotation as provided in Sections 14.22 and 14.23, and such acceptance has the same effect as a signed writing.¶
14.15 Limitation of Actions. No action arising out of or relating to this Agreement, regardless of form, may be brought by either Party more than twelve (12) months after the cause of action accrued, except for actions to recover unpaid Fees or amounts due under Sections 6.4, 6.8, or 6.10, and except for claims arising under Sections 8 or 13, to which the applicable statutory period applies.¶
14.16 Waivers. EACH PARTY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO BRING OR PARTICIPATE IN ANY CLAIM AGAINST THE OTHER AS A PLAINTIFF OR CLASS MEMBER IN A CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING.¶
14.17 Non-Reliance. Each Party acknowledges that in entering into this Agreement it has not relied on, and will have no remedy in respect of, any statement, representation, assurance, warranty, estimate, proposal, demonstration, or understanding of any person, whether or not a Party, that is not expressly set out in this Agreement. Nothing in this Section limits liability for fraudulent misrepresentation.¶
14.18 Extended Force Majeure. If a force majeure event under Section 14.6 continues for more than sixty (60) consecutive days, either Party may terminate the affected Order Form on written notice without payment of the Early Termination Fee, and Provider will refund Fees prepaid for the period after the effective date of termination.¶
14.19 Subcontracting. Subject to Sections 7.3 and 14.6, Provider may perform any of its obligations through Affiliates, subcontractors, or third-party suppliers, provided Provider remains responsible for their performance under this Agreement.¶
14.20 Escalation. Before commencing any proceeding other than one seeking injunctive relief or the recovery of unpaid Fees, the Parties will attempt in good faith to resolve the dispute by escalating it to a senior executive of each Party, who will confer within thirty (30) days of a written escalation notice. This Section does not extend any period under Section 14.15 or Section 11.5.¶
14.21 Affiliate Purchases. An Affiliate of Customer may purchase Services under this Agreement provided that Affiliate executes an Order Form and agrees in writing to be bound by this Agreement. Each such Order Form creates a separate agreement between Provider and that Affiliate, and Customer remains liable for its own obligations. Nothing in this Section grants any Affiliate access to the Services absent an executed Order Form, and Section 1.1 continues to apply.¶
14.22 Acceptance; Incorporation by Reference. Customer may accept this Agreement only in connection with an Order Form or quotation that references it, by (a) signing that Order Form or quotation, (b) clicking or otherwise indicating acceptance of it electronically, (c) issuing a written or electronic authorization to proceed under it, or (d) accessing or using the Services provisioned under it. Each such act constitutes Customer's agreement to this Agreement and to all Schedules, addenda, and policies incorporated by reference, in the versions then in effect, whether or not Customer has read them. Provider makes those documents available at the location identified on the Order Form. Customer represents that the individual accepting on its behalf has authority to bind Customer, and Provider may rely on that representation. An Order Form or quotation need not restate the terms of this Agreement, and a reference to this Agreement by name and location is sufficient to incorporate it in full.¶
14.23 Electronic Records. The Parties consent to the use of electronic records and signatures and agree that an electronic signature, acceptance record, or system log has the same legal effect as a handwritten signature. Neither Party will contest the validity or enforceability of this Agreement or any Order Form, notice, certification, or acceptance on the ground that it was executed, delivered, or recorded electronically. Provider's records of acceptance, including the version accepted, the identity of the accepting individual, and the date and time of acceptance, are admissible and constitute prima facie evidence of acceptance absent manifest error.¶
14.24 No Audit, Inspection, or Certification Rights. Provider does not complete security questionnaires, permit audits or assessments, or furnish third-party attestations, except where required by applicable law or expressly agreed in writing. Accordingly, and without limiting that statement, Customer has no right, and Provider has no obligation, to (a) audit, inspect, assess, test, scan, or visit Provider's systems, facilities, networks, records, or premises, or to engage any third party to do so; (b) receive any SOC, ISO, PCI, HITRUST, or other attestation, examination report, certification, audit report, penetration test result, vulnerability scan, risk assessment, or bridge letter; (c) receive Provider's financial statements, insurance policies or certificates, corporate records, personnel records, supplier agreements, security policies, or internal procedures; (d) require Provider to complete any security questionnaire, vendor risk assessment, due diligence request, or compliance survey; or (e) impose on Provider any information security policy, control framework, or vendor requirement of Customer or of any third party. Provider may, in its sole discretion and subject to a written confidentiality undertaking satisfactory to Provider, elect to respond to a request of a kind described in this Section as a billable service under Schedule Z. Any such election is a one-time accommodation, creates no precedent, and confers no entitlement to any further response. Nothing in this Section limits Provider's obligations under Section 12.6 or Section 12.8. Where applicable data protection law expressly grants Customer, as controller, an audit or information right against Provider, as processor, that cannot be satisfied by the security overview described in Section 12.11, Provider will comply to the minimum extent that law requires, at Customer's expense at the rates in Schedule Z, and may satisfy such a right by providing a summary report prepared by or for Provider. Where the Data Processing Addendum applies under Section 12.12, Sections 5.1 and 5.2 of that Addendum govern verification and audits of the processing of Personal Data and control over this Section 14.24 to the extent of any inconsistency, including as to the permissibility of a summary response and the allocation of cost.¶
14.25 Confidentiality of this Agreement. The terms of this Agreement, each Order Form, each Schedule, and Provider's pricing are Provider Confidential Information. Customer will not disclose them to any third party other than its professional advisers and, in connection with a Change of Control, a prospective acquirer that is bound by written confidentiality obligations no less protective than those in Section 8, and in each case only to the extent necessary. This Section does not restrict disclosure required by law or Section 12.8.¶
This Agreement is entered into by Customer's execution of, or acceptance of, an Order Form that references it, as provided in Sections 14.22 and 14.23. No separate signature page to this Agreement is required.
Schedule Y (Data Export), Schedule Z (Service Levels, Support Scope, and Fees), and, where applicable under Section 12.12, the Data Processing Addendum are published separately and incorporated by reference. The version of each in effect at the Order Date is stated on the Order Form.
OMIS Master Subscription Agreement | Version 30 | Effective September 1, 2026
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The Plug Group · OMIS Master Subscription Agreement · Version 30