This Master Subscription Agreement (“Agreement“) is entered into and effective as of the Effective Date (Effective Date“) for XX months by and between Mod Advisor Inc, an Iowa Corporation (“Vendor“) and the Customer (“Customer“).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, OR USING ANY SUBSCRIPTION SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES. IF YOU REGISTER FOR USE OF A FREE TRIAL OR FREE VERSION OF THE SUBSCRIPTION SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT ALSO GOVERN YOUR USE OF THOSE SERVICES.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Mod Advisor Software Services Agreement.
“Customer Data” means all electronic data or information submitted by Customer to the Service. For the avoidance of doubt, Customer Data does not include Resultant Data.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents for Customer’s purchases from Vendor that are executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein.
“Professional Services“ means the professional services specified in a Service Order, which may include, without limitation, implementation, configuration, consulting, and training services.
“Resultant Data” means data and information related to Customer’s use of the Service that is used by Vendor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service.
“Service Order“ means an ordering document entered into between you or your Affiliate and us (or our authorized reseller) specifying the services to be provided thereunder, including any exhibits, addenda and supplements thereto and any amendments and renewals thereof. By entering into a Service Order under this Agreement, your Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement.
“Subscription Services” means the online, Web-based application provided by Vendor via www.modadvisor.com and/or other designated websites.
“Subscriber Data“ means any data uploaded into the Subscription Services, or otherwise provided for processing by the Subscription Services, by or on behalf of you or your Affiliates in accordance with this Agreement.
“User Guide” means any online user guide for the Service, which may be accessible via www.modadvisor.com, as updated from time to time.
“Users” or “Authorized Users” means individuals who are authorized by Customer to use the Service, for whom subscriptions to the Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Vendor at Customer’s request). Users may include but are not limited to employees, consultants, contractors and agents of Customer or its Affiliates.
“We“ or “Us“ or “Our“ or “Mod Advisor” Mod Advisor Inc, an Iowa corporation, or its designated Affiliate as specified in a Service Order or invoice.
2. SERVICE
2.1 Provision of Service. Vendor shall make the Service available to Customer and its Users pursuant to this Agreement and all Order Forms during a subscription term. Customer agrees that its purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Vendor with respect to future functionality or features.
2.2 Additional Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
2.3 Customer Affiliates. Customer Affiliates may purchase and use User subscriptions subject to the terms of this Agreement by executing Order Forms hereunder.
3. USE OF THE SERVICE
3.1 Vendor Responsibilities. Vendor shall: (i) in addition to its confidentiality obligations hereunder, not use, modify or disclose to anyone other than Users the Customer Data; (ii) maintain the security and integrity of the Service and the Customer Data; (iii) provide basic support to Customer’s Users, at no additional charge; and (iv) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Vendor shall give at least 8 hours notice via the Service and which Vendor shall schedule to the extent reasonably practicable during the weekend hours from 10:00 p.m. CST Friday to 6:00 a.m. CST Monday); or (b) any unavailability caused by circumstances beyond Vendor’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems (other than those involving Vendor employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Vendor’s possession or reasonable control, and denial of service attacks.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Vendor promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Service.
3.3 Use Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
3.4 Third-Party Providers. Certain third-party providers may now or in the future offer products and services related to the Service that work in conjunction with the Service. Vendor does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Vendor as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
3.5 Authorized Users Only. This Agreement restricts the use of the Subscription Services and Installed Software to Authorized Users, up to the number of users specified in the applicable Service Order. An Authorized User license or account must not be shared among users. You may allow your Affiliates and Permitted Third Parties to access and use the Subscription Services as Authorized Users in accordance with, and subject to the terms and conditions of, this Agreement and the applicable Service Order; provided, however, that Authorized Users who are employees of Permitted Third Parties may access and use the Subscription Services solely to perform the Permitted Third Party’s contractual obligations to you. As part of the registration process, you may be asked to identify your company and Authorized Users who should be associated with your account. You will not misrepresent the identity or nature of the company or Authorized Users who should be associated with your account. You are responsible for maintaining the confidentiality of your logins and account and for all activities that occur under your logins and account, including the activities of Authorized Users.
3.7. Beta Versions. From time to time, we may make available for you to try, at your sole discretion, certain functionality, features, software, or services related to the Subscription Services which are clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a “Beta Version“). Beta Versions are intended for evaluation purposes only and are not for production use, are not supported, and may be subject to additional terms and limitations. We may discontinue Beta Versions at any time in our sole discretion and may choose to never make them generally available. Beta Versions are provided “AS-IS” without any warranty. We will have no defense or indemnification obligations with respect to Beta Versions and no liability for any harm or damage arising out of or in connection with Beta Versions.
3.8 Publicity. Neither party may issue press releases or any public announcements, relating to this Agreement, including the use of the other party’s name or logo, without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
3.8a. Exemption for Normal Business Purposes. Notwithstanding the above, either party may include the name and/or logo of the other party in its internal and external lists of customers or vendors, for normal business purposes, in accordance with the other parties standard guidelines, without requiring the Vendors prior written consent.
3.8b. Requirement for Written Approval in Marketing. If the Vendor intends to use the Customer’s name, logo, or any customer information for marketing purposes, including but not limited to customer testimonials, case studies, or other promotional materials, the Vendor must first obtain the Customer’s express written consent. Such consent shall be requested with specific details of the proposed use and shall be subject to the Customer’s sole discretion.
3.9 Service Availability. We perform and maintain regular database backups according to our retention policy appropriate for the particular system. We incorporate database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements and that also help improve query performance. We have implemented and will maintain commercially reasonable measures intended to avoid unplanned interruptions to the Subscription Services. We will use commercially reasonable efforts to notify you in advance of planned interruptions to the Subscription Services. In the event of an unplanned interruption, you may contact us for Technical Support Services. The Subscription Services depend on the availability of Subscriber Data from you and third-party data providers. You are responsible for making the Subscriber Data available as is necessary for us to provide the Subscription Services. We reserve the right, upon reasonable notice, to change the way you access the Subscription Services or to deactivate, change, or require you to change user IDs, the domain name associated with your account, and any custom or vanity URLs, links or domains you may obtain through the Subscription Services.
4. FEES & PAYMENT
4.1 User Fees. Customer shall pay all fees specified in all Order Forms hereunder. All fees are quoted and payable in United States dollars. Except as otherwise specified in an Order Form, Vendor must receive from Customer the applicable fees as set forth in the Order Form in order to receive initial access to the Service. Future reoccurring payments must be paid by Customer monthly or annually thereafter when due, as specified in the Order Form. Except as otherwise provided herein or in an Order Form, fees are based on services purchased per User and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the number of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. If a Customer’s account is overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights or remedies, Vendor reserves the right to immediately suspend the Service provided to Customer, without liability to Customer until such amounts are paid in full.
4.2 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Vendor’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.3 Taxes. Unless otherwise stated, Vendor’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Vendor’s net income or property.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Vendor reserves all rights, title and interest in and to the Service, including all related intellectual property rights. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Vendor an assignment of all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service; (ii) frame or mirror any content forming part of the Service, other than on Customer’s own intranets or otherwise for its own internal business purposes; (iii) reverse engineer the Service; or (iv) access the Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service.
5.3 Customer Data. As between Vendor and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. Vendor shall not access Customer’s User accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request.
5.4 Suggestions. Vendor shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service.
6. CONFIDENTIALITY
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7. WARRANTIES & DISCLAIMERS
7.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Vendor represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall perform materially in accordance with any User Guide; (iii) the functionality of the Service will not be materially decreased during a subscription term; (iv) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User-uploaded attachments or otherwise originating from Users); and (v) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights to use the Service granted herein. Customer represents and warrants to Vendor that Customer has the legal right and authorization to provide all Customer Data to the Service for the purposes and uses as set forth in this Agreement. Customer further represents and warrants that it will not knowingly submit Customer Data to the Service that (a) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal behavior, (b) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (c) is, contains, or transmits Malicious Code.
7.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, VENDOR MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. VENDOR MAKES NO REPRESENTATIONS OR WARRANTIES AND PROVIDES NO INDEMNIFICATION OR REPLACEMENT COVENANTS OF ANY KIND WITH RESPECT TO THIRD-PARTY PRODUCTS OR SERVICES.
8. INDEMNIFICATION.
8.1 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Vendor harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Vendor by a third party alleging that the Customer Data, or Customer’s use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Vendor (a) promptly gives written notice of the Claim to Customer; (b) consults with Customer on the selection of suitable counsel to defend the claim and regarding any settlement of the claim, but the selection of counsel to defend or settle the claim is ultimately Vendor’s; and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
8.2 Indemnification by Mod Advisor, Inc. Subject to this Agreement, Mod Advisor shall defend, indemnify and hold Customer harmless against and loss, damage or costs (Including reasonable attorney’s fees) incurred in connection with Claims made or brought against Customer by a third party resulting from Vendor’s action(s), omission(s), or any violation of any Vendor representation or warranty in this Agreement.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $75,000.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order Form and continue for the subscription term specified therein. Unless otherwise agreed in the Order Form, user subscriptions shall automatically renew for additional subscription terms of 12 months each, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant subscription term. Vendor shall provide Customer with written notice of any price increase for any renewal term no later than 60 days prior to the end of the relevant subscription term.
10.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Vendor shall refund Customer any prepaid fees covering the remainder of the subscription term after the date of termination.
10.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Vendor prior to the effective date of termination.
10.5 Customer Data. Upon termination of the Agreement, Vendor shall, upon receipt of written request from Customer, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control, and provide a written affidavit to Customer confirming such deletion upon Customer’s request.
10.6 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.
11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Vendor shall be addressed to Vendor at the address identified on the Order Form. Notices to Customer shall be addressed to Customer’s signatory on the Order Form unless otherwise designated below.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Iowa, without regard to its conflicts of laws rules.
11.8 Venue; Waiver of Jury Trial. The state and federal courts located in Polk County, Iowa, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.