Team Assurance Master Subscription Agreement (v2017.12.15)
These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
This Agreement constitutes a contract between TeamAssurance and the Customer identified on applicable Order Form. This agreement governs the use of the Products and Services offered by TeamAssurance.
1.1 “Affiliate” means with respect to a party, any other entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity or otherwise having the power to control the decision making of the entity.
1.2 “Aggregated Anonymous Data” means Aggregated, non-personally identifiable End User Data or analyses on the performance of End User Data in the delivery of Services.
1.3 “Agreement” means this Master Subscription Agreement, including its schedules and any associated Order Form(s).
1.4 “Applicable Laws” means all laws and regulations by which a party is bound, including, but not limited to, laws relating to privacy, data protection, or marketing.
1.5 “Authorized Users” means employees, representatives, consultants, contractors, or agents of the Customer who are authorized to access the Product.
1.6 “Claim” means cause of action or other forms of legal proceedings.
1.7 “Confidential Information” means all information provided by TeamAssurance or Customer (“Discloser”) to the other party (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order Form. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, (ii) was known to the Receiver before receipt from the Discloser, (iii) was independently developed by Receiver without breach of any obligation owed to the Discloser, or (iv) is received from a third party without breach of any obligation to the Discloser.
1.8 “Fees” means the amount paid by the Customer (i) as specified on the Order Form for access to the Product, (ii) as specified on the SOW for receipt of Professional Services, or (iii) product implementation fees (set-up fees) as specified on the Order Form.
1.9 “Intellectual Property Rights (IPRs)” means all industrial and intellectual property rights including, but not limited to, copyright (both present and future), Confidential Information (including know-how and trade secrets), patents, designs, and trademarks, and in each case whether registered or not.
1.10 “Order Form” means the document signed by the parties that details the commercial terms of the Product and associated features being purchased by the Customer
1.11 “Product” means TeamAssurance’s web-based tools and platforms that are described on the Customer’s Order Form or that TeamAssurance otherwise makes available to the Customer and are developed, operated, and maintained by TeamAssurance, accessible via https://my.teamassurance.com.<… “Professional Services” means additional services provided by, or procured by TeamAssurance on behalf of the Customer that are specified on a Statement of Work (SOW) and not included in the Product.
1.13 “Scheduled Downtime” means planned maintenance periods or outages, such as updates or other infrastructure upgrades, during which the Product is not able to be used by the Customer; as notified at least 48 hours in advance by TeamAssurance (with such periods, where reasonable, scheduled during low traffic times, and be less than 12 hours in aggregate per year).
1.14 “Services” means any Product and/or Professional Services provided by TeamAssurance.
1.15 “Statement of Work (SOW)” means any agreement executed by TeamAssurance and the Customer that defines any Professional Services to be provided by TeamAssurance.
1.16 “Subscription Fees” means the portion of Fees specified on the Order Form that relate to access to the Product. Subscription Fees exclude any Fees relating to Professional Services or any SOW, as well as any Fees relating set-up or implementation of the Product.
1.17 “Subscription Term” means the initial term of the Customer’s subscription to the Product, as specified on the Order Form, and each subsequent renewal term (if any).
1.18 “Third Party Data” means all data and other intellectual property from third parties used as part of the Product, including Social Networks, APIs, the Customer Data and the End User Content.
1.19 “Uptime Availability” means the actual time that the Product is available to the Customer, excluding (i) Scheduled Downtime, (ii) failure or outages caused by Customer’s act or omission, (iii) downtime caused by networks or infrastructure not under the control of TeamAssurance, or (iv) downtime caused by Force Majeure events.
2. General Commercial Terms
2.1 Provision of Product and Services. During the Subscription Term, TeamAssurance will make available the Services and provide Support, as specified on Schedule A, to the Customer and its Authorized Users in accordance with this agreement.
2.2 License. TeamAssurance grants the Customer a non-exclusive, non-transferrable, non-sub-licensable, royalty-free (other than any fees due under this Agreement), license during the Subscription Term for the Customer and its Authorized Users to use the Product, in accordance with this agreement.
2.3 Access. Customer agrees to (i) only access the Product by means devised by TeamAssurance, which currently is via log-in through website interface and (ii) itself keep and ensure its Authorized Users keep log-in information secure from unauthorized access.
2.4 Hosting. Product is hosted by a third-party hosting solution and hosting costs are included as part of Subscription Fees, unless otherwise specified on the Order Form.
2.5 Updates. During the Subscription Term, Customer will have access to, at no additional charge, all updates to the Products specified on the Order Form.
2.6 Customer and Authorized User Obligations. Customer and Authorized Users agree that it will not use the Services provided by TeamAssurance to attempt any of the following:
2.6.1 store or communicate defamatory, infringing, fraudulent, malicious, or otherwise unlawful content;
2.6.2 gain unauthorized access to, or disrupt the integrity or performance of the Product or the data contained therein;
2.6.3 conduct load testing, penetration tests, port scans, vulnerability assessments, or other similar performance or security testing without the prior written approval and supervision of TeamAssurance, results of which will be deemed Confidential Information of TeamAssurance;
2.6.4 modify, copy, or create derivative works based on the Product or copy any Intellectual Property Rights (IPR), in the Products functional features or user interface without prior approval from TeamAssurance;
2.6.5 reverse engineer or decompile the Product;
2.6.7 use any IPR owned or licensed by TeamAssurance to provide assistance to any other person or entity in building or developing a competitive product or service to the Product;
2.6.8 use the Product for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication or other disclosure without the prior written approval of TeamAssurance;
2.6.9 permit access to the Product by any unauthorized person, including, without limitation, a competitor of TeamAssurance.
2.7 Disclaimer. Customer agrees to the following:
2.7.1 CUSTOMER ASSUMES RESPONSIBILITY AND LIABILITY FOR THE USAGE OF THE PRODUCT AT ALL TIMES BY ITSELF AND AUTHORIZED USERS
2.8 Intellectual Property Rights.
2.8.1 The Product is licensed to the Customer for use strictly as permitted under the terms of this Agreement. As between the parties, TeamAssurance retains all IPR in the Product, including, without limitation, in the Product’s codes and methodologies. TeamAssurance does not own, nor claim to own, any Third-Party Data.
2.8.2 As between the parties, Customer retains all IPR in the Customer Data.
2.8.3 Customer grants TeamAssurance all necessary rights to use the Customer Data for the purposes of (i) performing the functions of the Product, (ii) providing information to TeamAssurance users such as Product Updates, Product news, and Product improvements, (iii) identifying TeamAssurance users who have previously registered with TeamAssurance, and (iv) otherwise performing its obligations under this Agreement.
2.8.4 Customer grants TeamAssurance a royalty-free, non-exclusive, perpetual, irrevocable, worldwide, transferrable, sub-licensable license to use, copy, modify, or distribute any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Authorized Users relating to the functionality of the Product or Professional Services, including, without limitation, by incorporating the same into the Product, provided this shall not include any Confidential Information.
2.8.5 So that TeamAssurance may improve and promote its Services, TeamAssurance may use, display, and commercially exploit Aggregated Anonymous Data. TeamAssurance my disclose Aggregated Anonymous Data to third parties, and may transfer or sublicense its rights with respect to Aggregated Anonymous Data.
3. Fees and Payments
3.1 Invoicing. Except as otherwise stated on the Order Form or SOW, Fees will be invoiced in full upon signing of this Agreement.
3.2 Payment Terms. Except as otherwise stated on the Order Form or SOW, Fees are due within 30 days of the invoice date.
3.3 Late Payments. Except as otherwise stated on the Order Form or SOW, any Fees due to TeamAssurance under this Agreement, upon which payment is not received within 15 days of the invoice due date shall accrue late fees equal to the less of (i) 5% per month, or (ii) the highest rate allowed by Applicable Laws, in each case compounded monthly to the extent allowed by Applicable Laws. Without limitation to TeamAssurance’s other rights or remedies, in the event Customer is more than 15 days delinquent in their scheduled payments, Customer agrees that TeamAssurance may, at its discretion, terminate this Agreement, resulting in forfeiture of any payment received by TeamAssurance up until the termination of this Agreement. In the event Customer’s account becomes delinquent, TeamAssurance will have no choice but to resort to collection proceedings and Customer agrees to be responsible for TeamAssurance’s reasonable attorney’s fees and costs incurred in collection proceedings.
3.4 Taxes. All fees are exclusive of taxes, which TeamAssurance will charge in accordance with Applicable Laws. Customer agrees to pay any taxes applicable to use of the Product or Professional Services. Customer shall have no liability for any taxes based upon TeamAssurance’s gross revenues or net income. If Customer is located in the European Union, all fees are exclusive of any VAT and Customer represents that it is registered for VAT purposes in Customer’s member state. At TeamAssurance’s request, Customer will provide TeamAssurance with the VAT registration number under which member state Customer is registered. If Customer is subject to GST, all fees are exclusive of GST. If Customer is required to deduct or withhold any tax, Customer must pay the amount deducted or withheld as required by Applicable Laws and pay TeamAssurance an additional amount so that payment is received in full as if there were no deduction or withholding.
3.5 Travel Expenses. Customer shall reimburse TeamAssurance for all reasonable and appropriately documented travel and related expenses incurred by TeamAssurance in performing any Professional Services that have been pre-approved in writing by the Customer.
3.6 Payment by credit card. If Customer is paying by credit card, TeamAssurance is authorized to use a third party to process payments, and consent to the disclosure of Customer payment information to such third party. Customer also authorizes TeamAssurance to pass through any credit card processing fees to the Customer.
3.7 Payment Information. Customer will keep contact information, billing information, and credit card information (where applicable) up to date. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term, unless otherwise specified on the Order Form or SOW.
4. Term and Termination
4.1 Term. Unless otherwise specified on the Order Form, the Subscription Term specified on the Order Form shall be the Initial Term, after which time the License will automatically renew for a subsequent term of one (1) year.
4.2 Termination. Unless otherwise specified on the Order Form, either party may terminate this agreement (i) upon 30 days prior written notice to the other party of a material breach by the other party, if such breach remains uncured at the end of such period, (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, or assignment for the benefit of creditors or similar proceeding, or (iii) immediately upon written notice if the other party undergoes a change of control in favor of a direct competitor of the terminating party.
4.3 Result of Termination. Upon any termination, as specified in section 4.2, by the Customer, TeamAssurance will refund Customer any prepaid Fees for the remainder of its Subscription Term after the date of termination. If TeamAssurance terminates this Agreement, no Fees shall be refunded and all contractually committed Fees shall become immediately due and payable to TeamAssurance.
4.4 Suspension. Without prejudice to its termination rights, TeamAssurance may temporarily suspend Customer’s access to the Services and provide reasonable notice to Customer in the event that Customer fails to pay undisputed invoices when due or otherwise fails to comply with this Agreement, including, without limitation under section 2.7 or by using the Product in a manner that materially degrades performance of the Product.
5.1 The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own Confidential Information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except TeamAssurance’s third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors, and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any Applicable Laws, regulation, subpoena, or legal process.
6. Mutual Indemnification
6.1 Each Party shall defend, indemnify and hold harmless the other Party, including Affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all claims of third parties, and all associated losses (including reasonable legal fees) to the extent arising out of (i) a Party’s gross negligence or willful misconduct in performing any of its obligations under this Agreement, or (ii) a material breach by a Party of any of its representations, warranties, covenants or agreements under this Agreement.
6.2 The indemnified party under section 6.1 shall: (i) promptly give written notice of any Claim to the Indemnifying Party, (ii) allow the Indemnifying Party to control the defense and settlement of the Claim, provided that the Indemnified Party may participate in such defense at its own cost and that the Indemnifying Party may not settle any Claim in a manner that imposes any obligation or liability on the Indemnified Party without the Indemnified Party’s prior written consent, and (iii) provide the Indemnifying Party, at the Indemnifying Party’s cost, all reasonably requested assistance in such defense.
6.3 Failure of either party to comply with section 6.2 shall relieve indemnification obligations to the extent of any actual prejudice.
6.4 In the case of a Claim of IPR infringement in respect of the Services, TeamAssurance may, at its sole discretion and expense (i) procure for Customer the right to continue using the Services under the terms of this Agreement, (ii) replace or modify the Services to be non-infringing without material decrease in functionality, and (iii) if the aforementioned options are not reasonably applicable, terminate this Agreement and refund the Customer all prepaid Fees for the remainder of its subscription term after the date of termination.
7. Dislaimers; Limitation Of Liability
7.1 Limitation of Liability. EXCEPT FOR CUSTOMER’S LIABILITY FOR PAYMENT OF FEES, EITHER PARTY’S LIABILITY ARISING FROM OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND EITHER PARTY’S LIABILITY FOR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
7.2 Disclaimer of Warranties. TeamAssurance AND ITS AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE PRODUCT, DATA MADE AVAILABLE FROM THE PRODUCT OR PROFESSIONAL SERVICES FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE PRODUCT AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. TeamAssurance DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THE PRODUCT AND PROFESSIONAL SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
7.3 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITIES.
7.4 Third Party Products. TeamAssurance DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD PARTY PRODUCTS THAT CUSTOMER USES. TeamAssurance’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
7.5 Agreement to Liability Limit. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT CUSTOMER’S AGREEMENT TO THIS LIMITATION OF LIABILITY, TeamAssurance WOULD NOT PROVIDE THE PRODUCT AND/OR PROFESSIONAL SERVICES TO THE CUSTOMER.
8.1 Amendment; No Waiver. TeamAssurance may update and change any part, or all of this Master Subscription Agreement (Customer fees will not change during the Subscription Term except as explained in section 3, above). If TeamAssurance does update or change the Master Subscription Agreement, Customer’s subscription will continue to be governed by the terms and conditions of the Master Subscription Agreement prior to modification for the remainder of Customer’s current Subscription Term. Upon renewal, the updated Master Subscription Agreement will apply. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
8.2 Publicity. Except as otherwise stated on the Order Form or SOW either party may use the name and logo of the other party in public statements, such as customer or vendor lists, with the prior written approval of the other party (not to be unreasonably withheld or delayed). Customer also agrees to consider the following upon TeamAssurance’s reasonable request: (i) serving as a reference or hosting onsite reference visits, (ii) collaborating on press releases announcing or promoting the relationship between Customer and TeamAssurance, and (iii) collaborating on case studies or other marketing collateral following successful deployment of the Services.
8.3 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
8.4 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
8.5 Relationship of the Parties. Customer and TeamAssurance agree that no joint venture, partnership, employment, or agency relationship exists between us.
8.6 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by Applicable Laws, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
8.7 Notices. Notice will be sent to the contract addresses set forth herein, and will be deemed delivered as of the date of actual receipt.
8.7.1 To TeamAssurance Pty, Ltd.: 32 Husband Rd, Forest Hill, VIC Australia.
8.7.2 To Customer: Customer address as provided on the Order Form. TeamAssurance may give electronic notices by general notice via the Product and may give electronic notices specific to Customer by email to the Customer email addresses provided on the Order Form. TeamAssurance may give notice to Customer by telephone calls to the telephone numbers on the Order Form. It is the Customer’s responsibility to notify TeamAssurance of changes to Customer contact information.
8.9 Assignment. Customer will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sales of all or substantially all of Customer’s assets, change of control or operation of law, without prior written consent of TeamAssurance, which will not be unreasonably withheld. TeamAssurance may assign this Agreement to any affiliate or in the event of merger, reorganization, sales of all or substantially all of TeamAssurance’s assets, change of control or operation of law.
8.10 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
8.11 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
8.12 Precedence. In the event of a conflict between the terms of the Master Subscription Agreement and an Order Form, the terms of the Order Form shall control, but only as to that Order Form.
8.13 Dispute Resolution. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the State of Victoria (Australia) or another location mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction.
9. Jurisdiction Specific Terms
9.1 Contracting Entity and Applicable Law. The Customer is contracting with TeamAssurance Pty Ltd, located at 32 Husband Rd, Forest Hill, VIC Australia, and this Agreement is governed by the laws of the state of Victoria, Australia, without reference to conflicts of law principles.
1.1 Support. Support is included in Customer’s Fees. Phone support and Email support are available to Customer.
1.2 Support Contacts and Hours. Support can be contacted at firstname.lastname@example.org 9:00 a.m. – 5:30 p.m. local time in Victoria, Monday through Friday (excluding public holidays)
1.3 Off Hours Support. Email support accepts support requests 24 hours per day, 7 days per week. TeamAssurance will respond to support requests generally within 2 business days of receipt.
1.4 Support Eligibility. Support is available to Customer and its Authorized Users who have successfully completed TeamAssurance Product training as covered in Customer’s Fees.