You (Customer) are entering into this Agreement with “Company” NationalField, LLC (Us) – a Delaware company with offices at 1801 Connecticut Avenue NW, Suite 300, Washington, DC 20009. Each of Company and Customer may be referred to herein individually as a “Party” or collectively as the “Parties.” If you purchase our services, this Agreement will also govern your purchase and ongoing use of those services. By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an applicable Estimate Form that references this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of an organization or other such legal entity, you assert that you have the authority to bind that entity and its affiliates to these terms and conditions. If you lack such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the services. Your use of our services indicates acceptance of this Agreement. This Agreement was last updated on July 25, 2011. It is effective between You (including the organization you represent) and Us as of the date you accepted this Agreement.
Company offers a commercially available suite of software programs and data available as a service over the Internet used for NationalField a web-based reporting tool (the “Company Software”). Customer desires to license from Company the right to use the Company Software in accordance with the terms and conditions set forth herein.
1. LICENSES; RESTRICTIONS
1.1 Access to Company Software and Licenses; Hosting. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive right to access and use the Company Software solely for its business purposes as contemplated by the Agreement. Company will support administrative access by Customer via a password-protected web interface. Company will host Company software on third-party servers located within the United States.
1.2 Services. Company will provide the initial set-up services to Customer as set forth in this Agreement. Company will also provide customization services to Customer on an as-requested basis, unless states otherwise in an applicable Estimate Form.
1.3 License Restrictions. The license set forth in Section 1.1 is granted subject to the following restrictions:
(a) Company Software shall be used or accessed only by Authorized Users (as defined below);
(b) Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Company Software available to any third party, other than as expressly permitted by this Agreement; (ii) use the Company Software to process data on behalf of third parties, (iii) interfere with or disrupt the integrity or performance of the Company Software or the data contained therein; or (iv) attempt to gain unauthorized access to the Company Software or its related systems or networks.
1.4 Authorized Users. “Authorized Users” shall mean individuals who are authorized to access the Company Software using a user identifier and password provided to Customer by Company. Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business. Customer shall not make available the Company Software to any person or entity other than Authorized Users. Customer shall cooperate with Company if Company wishes to monitor Customer’s compliance with this requirement. Unless otherwise specified in an applicable Estimate Form, (i) Services may be accessed by no more than the specified number of Users as states herein or in an applicable Estimate Form, (ii) parties will renegotiate a new monthly rate for users in excess of the user limit established in Section 1.4(i), (iii) additional User subscriptions may be added during the subscription term, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iv) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. 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 access to Services.
1.5 Feedback. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
1.6 Reservation of Rights. Subject only to the rights expressly granted to Customer under this Agreement, all rights, title and interest in and to the Company Software will remain with and belong exclusively to Company.
1.7 Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
2. SUPPORT; TRAINING
2.1 Support. Company shall provide basic phone and email support and assistance to Customer for the Company Software.
2.2 Training. Company will provide training documentation on the Company’s website. Paying clients will receive an initial training session upon the launch of the Customer instance of Company Software, either in-person or web-based at Company’s discretion, follow-up trainings as-needed, either in person or web-based, at Company’s discretion, to train new administrative users or to introduce new features, and web videos documenting new features and updates, posted to Customer’s instance of Company Software. Basic training of Customer by Company is included in the Setup Fee and Monthly Fee. Comprehensive training, staff coaching, and management consulting services are available for an additional fee.
3. FEES; PAYMENT TERMS
3.1 Fees. If you opt to purchase Services, You shall pay all fees specified in an applicable Estimate Form, or fees specified in Section 3.1(a) in the absence of an applicable Estimate Form. Excepted as otherwise stated herein or in an applicable Estimate Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions cannot be decreased during the term stated.
(a) Monthly Fee. Monthly fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof, as outlined in Section 8.1; therefore, fees for additional User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
(b) Customization. Customizations beyond those agreed upon as part of the initial setup shall be charged at an hourly rate of 250, unless otherwise quoted in an applicable Estimate Form.
3.2 Payment Terms. All payments for fees described in Section 3 shall be made by Customer to Company via credit card, unless otherwise stated on an applicable Estimate Form. You will provide Us with Your valid and updated payment information, unless otherwise stated on an applicable Estimate Form. You authorize Us to charge such credit for all Services listed in an applicable Estimate Form for the initial subscription term and any renewal subscription terms as set forth in Section 8.1 within thirty (30) days of receipt by Customer of an invoice from Company. Monthly fees are prepaid quarterly unless otherwise specified on an applicable Estimate Form. Customers who wish to pay monthly agree to pay the monthly processing fee referenced in an applicable Estimate Form.
3.3 Late Payments. Customer agrees to pay Company a fee of 5% in addition to the Monthly Fee in Section 3.1 in the event Customer does not pay within 30 days after receipt of invoice. Payment is due with the payment of Monthly Fee in Section 3.1.
3.4 Net of Taxes. All amounts payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer shall be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Customer will not withhold any Taxes from any amounts due Company.
4. CONFIDENTIALITY AND SECURITY
As used herein, “Confidential Information” means, any and all information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”), provided, however, that Customer Data shall be considered the Confidential Information of Customer and Company Data shall be considered Confidential Information of Company. Information and data will not be deemed “Confidential Information” if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information. The Parties shall use the Confidential Information of the other party solely in connection with its rights and obligations under this Agreement. The Parties shall use reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use or reproduction of, the other Party’s Confidential Information. Without restricting or otherwise limiting the exercise by a Party of the rights and licenses expressly granted to it under this Agreement, Confidential Information may be disclosed to only (a) such employees and agents of the Parties as may have a need to know such information in the course of their duties and who have agreed to be bound by confidentiality obligations as least as restrictive as those set forth herein; (b) legal or financial advisors of the Parties on a need to know basis; or (c) any competent authorities following a judicial order to do so. Each party agrees that in the event of a breach or threatened breach of this Section 5, the other party will suffer irreparable harm for which it will have no adequate monetary remedy, and therefore will be entitled to injunctive and other equitable relief for such breach, in addition to and not in limitation of any other legal or equitable remedies to which it would otherwise be entitled.
4.1 EU Safe Harbor Program Compliance.
NationalField complies with the U.S.-EU Safe Harbor Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information from European Union member countries. NationalField has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement. To learn more about the Safe Harbor program, and to view our certification page, please visit http://www.export.gov/safeharbor/.
5. REPRESENTATIONS, WARRANTIES AND EXCLUSIONS
5.1 Representations and Warranties. Company represents and warrants to Customer that Company shall provide the Company Software and services in a professional and workmanlike manner. Company further represents and warrants that it owns all right, title, and interest in and to the Company Software, is authorized to grant the licenses set forth herein, and the Company Software does not infringe upon the intellectual property rights of third parties. Each Party represents and warrants to the other Party that such Party has the required rights, power and authority to enter into this Agreement and to grant all rights, authority and licenses granted hereunder.
5.2 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT WARRANT THAT THE COMPANY PROPERTY WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES, OR THAT THE COMPANY SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OTHER THAN THOSE ENUMERATED UNDER THIS AGREEMENT OR AGREED UPON PURSUANT TO THE INITIAL SETUP.
6.1 Indemnification by Company. In the event of a claim against Customer arising from or related to: (i) the Company Software or Customer’s use of the Company Software as authorized by this Agreement; (ii) the infringement or alleged infringement or misappropriation of a third party right, including copyright, patent, trade secret or trademark rights by reason of the use of the Company Software by Customer as permitted hereunder, or (iii) a breach or alleged breach by Company of its representations and warranties hereunder, Company shall, at its expense, indemnify, defend and hold harmless Customer, and its affiliates, directors, officers, employees and agents, against such claim, losses, liabilities, costs, damages, and expenses (including without limitation reasonable attorneys’ fees). If the use of the Company Software by Customer has become, or in Company’s opinion is likely to become, the subject of any claim, including a claim of intellectual property infringement, Company may at its option and expense (x) procure for Customer the right to continue using the Company Software as set forth hereunder; (y) replace or modify the Company Software to make it non-infringing so long as the Company Software has at least equivalent functionality; or (z) if options (x) or (y) are not reasonably practicable, terminate this Agreement. Company shall have no liability or obligation under this Section 0 with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by Customer; (y) modification of the Company Software by any party other than Company without Company’s express consent; or (z) the combination, operation or use of the Company Software with other applications, portions of applications, product(s), data or services where the Company Software would not by itself be infringing.
6.2 Indemnification by Customer. Customer shall, at its expense, defend Company against any and all claims directly or indirectly brought against Company by any third party arising from Customer’s unauthorized use of the Company Software in violation of the terms of this Agreement. Customer shall pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Company for such defense; provided that: (x) Company shall promptly notify Customer of such claim, (y) Customer shall have the sole and exclusive authority to defend and/or settle any such claim and (z) Company reasonably cooperates with Customer in connection therewith.
7. LIMITATION OF LIABILITY
7.1 LIMITATIONS ON REMEDY. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.3, (B) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7: (I) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE FEES PAID OR PROPERLY PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME OF ANY CLAIM. MONETARY DAMAGES, AS LIMITED BY THIS SECTION, WILL BE EACH PARTY’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8. SUBSCRIPTION TERM, TERMINATION
8.1 License Term. Unless earlier terminated as described below, the term of the Agreement shall commence on the Effective Date and continue for a period of twelve (12) months unless otherwise noted in an applicable Estimate Form (the “Initial Term”). Client subscription shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other Party written notice of non-renewal at least sixty (60) days before the end of the relevant subscription term, or unless otherwise noted in an applicable Estimate Form. The pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least ninety (90) days before end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
8.2 Termination. Each Party may terminate this Agreement upon written notice in the event the other commits any material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach.
8.3 Obligations on Termination. Upon termination of this Agreement, and except as otherwise provided in this Agreement, all rights granted hereunder and all obligations of Company to provide Company Software shall immediately terminate and the Parties shall return any Confidential Information of the other Party in its possession or control to the other Party. Termination of this Agreement or expiration of the Term shall not relieve Customer from paying all fees accruing prior to termination. Sections 1.6, 4, 5, 6, 7, and 9 shall survive the termination or expiration of this Agreement for any reason whatsoever.
8.4 Force Majeure. Neither Party shall be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”); provided that financial inability in and of itself shall not be a Force Majeure Event.
9.1 Compliance with Laws. Without limiting the generality of the foregoing, Customer shall not transfer, either directly or indirectly, the Company Software, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and shall otherwise comply with all other applicable import and export laws, rules and regulations.
9.2 No Assignment. Neither Party may assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the non-assigning Party, which consent will not be unreasonably withheld by the non-assigning Party, except either Party may assign this Agreement, without the prior written consent of the non-assigning Party, to a corporation or other business entity succeeding to all or substantially all of the assets and business of the assigning Party by merger or purchase, provided that such corporation or other business entity assumes, in a writing delivered to the non-assigning party, all of the terms and conditions of this Agreement. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.
9.3 Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representatives of both parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.4 Relationship. Nothing in this Agreement shall be construed to place the parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties.
9.5 Disclosure of Contract. Customer hereby agrees that Company may at its discretion, reveal Customer’s identity, through but without limitation to, promotional literature, Internet pages, presentations, etc. Revealing the Customer’s identity shall be done for public relations purposes. The revelation of Customer’s identity in no way gives Customer the right to reveal any trade secrets or confidential information, concerning the organization, business, or finances of NationalField or any third party whose information NationalField is obliged to keep confidential.
9.6 Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the Effective Date.
9.7 Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its rules of conflict of laws. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of Delaware and of the United States of America located in State of Delaware (the “Delaware Courts”) for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Delaware Courts and agrees not to plead or claim in any Delaware Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Delaware Courts.
9.8 Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the Cover Page or such other addresses designated pursuant to this Section 9.8.
9.9 Entire Agreement. This Agreement, along with an applicable Estimate Form, and including any Schedules hereto, constitutes the entire agreement between the parties. In the event of any conflict between these Agreements and any other document, the following order of precedence shall apply: (i) an applicable Estimate Form, (ii) this Subscription Agreement, and (iii) Schedules (in chronological order, with the newest taking precedence).