Master Subscription Agreement Terms of Service
- Subject to the terms and conditions of the Agreement, and during the Term, Company (i) shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to the Discovery Platform, and (ii) Customer the Services. Subject to the terms and conditions of this Agreement, and during the Term, Company hereby grants Customer and Authorized Users a non-exclusive, non-sub-licensable, nontransferable, worldwide license to access and use the Discovery Platform.
- Company may, in its sole discretion, make any changes to the Discovery Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Company’s products or services to its customers, (b) the competitive strength of, or market for, Company’s products or services, (c) the Discovery Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
2. PLATFORM ACCESS AND AUTHORIZED USER
- Administrative Users. During the configuration and set-up process for the Discovery Platform, Customer will identify an administrative user name and password for Customer’s account. Company reserves the right to refuse registration of or cancel user names and passwords it deems inappropriate.
- Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Customer account, passwords (including but not limited to administrative and user passwords). Company is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
- Customer will manage their passwords and accept updates. Customer is responsible for securely managing Customer's password(s) for the Services and to contact Company if Customer becomes aware of any unauthorized access to Customer's account.
3. RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (collectively, the “Software”); (ii) modify, translate, or create derivative works based on the Services or the Software (except to the extent expressly permitted in writing by Company or authorized within the Services); (iii) use the Services or the Software for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or (iv) remove any proprietary notices or labels.
- Customer shall be responsible for maintaining any ancillary equipment and/or services needed to connect to, access or otherwise use the Services and Software, including, without limitation, a network-capable device to interface with the Service and Software, such as a smartphone, computer, or other appropriate communications hardware (collectively, “Ancillary Equipment”). Customer shall also be responsible for maintaining the security of the Ancillary Equipment.
- Company is not responsible for the misuse, lack of use or the outcome of the use of the Services or Software by Customer.
4. CONTENT AND USE OF THE SERVICES
A. RESPONSIBILITY FOR CONTENT AND USE OF THE SERVICES
- Content includes any data, information, materials, text, graphics, images, music, software, audio, video, works of authorship of any kind, that are uploaded, transmitted, posted, generated, stored or otherwise made available through the Services and Software ("Content"), which will include without limitation any Content that account holders (including Customer) provide through Customer’s use of the Services. By making Customer’s Content available through Customer’s use of the Services, Customer grants Company a worldwide, royalty free, non-exclusive license to host and use Customer Content. Company is not responsible for any Content that Customer submits through the Services. Customer has responsibility to archive Customer Content frequently. Company is not responsible for any lost or unrecoverable Customer Content. Customer must provide all required and appropriate warnings, information, and disclosures on any Content provided by Customer.
- Customer agrees not to use, nor permit any third party to use, the Services to upload, post, distribute, link to, publish, reproduce, engage in, promote or transmit any of the following: (a) Content that would impersonate someone else or falsely represent Customer's identity or qualifications, or that may constitute a breach of any individual’s privacy, is illegally unfair or deceptive, or creates a safety or health risk to an individual or the public; (b) Except as permitted by Company in writing, any investment opportunities, solicitations, chain letters, pyramid schemes; other unsolicited commercial communication or spamming or flooding; and/or, and any virus, Trojan horse, worm or other disruptive or harmful software or data; (c) Any Content that Customer does not own or have the right to use without permission from the intellectual property rights owners thereof; and, (d) Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that is excessively violent, incites or threatens violence, encourages "flaming" others or criminal or civil liability under any local, state, federal or foreign law.
B. RESTRICTED USE OF THE SERVICES
- Customer shall not, and shall not permit any users of the Services or any other party to, engage in, solicit, or promote any activity that is objectionable or may be illegal, violates the rights of others, is likely to cause notoriety, harm or damage to the reputation of Company or could subject Company to liability to third parties, including: (i) unauthorized access, monitoring, interference with, or use of the Services or third party accounts, data, computers, systems or networks; (ii)interference with others’ use of the Services or any system or network, including mail bombing, broadcast or denial of service attacks; (iii) unauthorized collection or use of personal or confidential information, including phishing, pharming, spidering, and harvesting; (iv) viewing or other use of any Content that, in Company’s opinion, is prohibited under this Agreement; (v) any other activity that places Company in the position of fostering, or having potential or actual liability for, illegal activity in any jurisdiction; or (vi) attempting to probe, scan, penetrate or test the vulnerability of a Company system or network or to breach Company’s security or authentication measures, whether by passive or intrusive techniques. Company reserves the right to not authorize and may terminate Customer’s use of the Services based on reasonable suspicion of Customer activities, business, products or services that are objectionable or promote, support or engage in any of the restricted uses described above.
C. ADDITIONAL TERMS REGARDING USE OF THE SERVICES
- Customer shall own all right, title, and interest in any Customer Content.
- Company shall own all right, title and interest in any data that is derived from the Content and provided to Customer as part of the Services. Company shall own and retain all right, title and interest, including all intellectual property rights, in and to (a) the Services and Software and all improvements, enhancements or modifications thereto, and (b) any software, works, applications, inventions, methods, processes, trade secrets or other technology developed in connection with implementation of and/or support to the Services and Software. Customer acknowledges and agrees that in the event of a breach of this Section 4(C.)(2.), Company would be irreparably and immediately harmed and could not be made whole by monetary damages. It is accordingly agreed that Company, in addition to any other remedy to which it may be entitled in law or equity, shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, and to compel specific performance of this Agreement, without the need for proof of actual damages. Customer also agree to reimburse the Company for all costs and expenses, including attorneys’ fees, incurred by or in enforcing its obligation hereunder.
- Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and Software, together with any related systems and technologies (including, without limitation, information concerning Content and data derived therefrom), and Company will be free (during and after the term hereof) to: (i) use such information and data to improve and enhance the Services and Software and for other development, diagnostic and corrective purposes in connection with the Services, Software, and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- Company may freely use feedback Customer provides. Customer agrees that Company may use Customer's feedback, suggestions, or ideas in any way, including in future modifications of the Services, Software, and other products or services, advertising or marketing materials. Customer grants Company a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use any feedback Customer provides to Company in any way.
- Company may monitor Content. Company may, but has no obligation to: (i) monitor access to or use of the Services or Content, and/or (ii) review or edit any Content for the purpose of operating the Services, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. Company may disclose any information necessary to satisfy Company’s legal obligations, protect Company or its customers, or operate the Services properly. Company, in its sole discretion, may refuse to post, or remove or disable, any Content, in whole or in part, that is alleged to be, or that we consider to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
- Discovery Account: A Discovery Account is the unique combination of any distinct location and any vendor account, billed once per month by vendor. Examples for illustration purposes only: One location with 3 vendor accounts result in 3 Discovery Accounts. Five Hundred locations on one vendor master account result in 500 Discovery Accounts. For situations that do not fit within these parameters (eg: high volume vendor invoices billed more frequently than 1 time per month), custom billing options may exist. Unless otherwise agreed upon in writing between Company and Customer, standard rates and conditions will apply to each Discovery Account.
5. PAYMENT OF FEES
- Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
- Company will issue monthly invoices to Customer including an itemized detail of the basis of fees charged. Payments to Company will be issued via ACH or credit card by Customer within 30 days of receipt of each invoice. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
- If Customer's payment and registration information is not accurate, current, and complete and Customer does not notify Company promptly when such information changes, Company may suspend or terminate Customer's account and refuse any use of the Services.
- If Customer does not notify Company of updates to Customer's payment method (e.g., credit card expiration date), and to avoid interruption of the Services, Company may participate in programs supported by Customer's card provider (e.g., updater services, recurring billing programs, etc.) to try to update Customer's payment information, and Customer authorizes Company to continue billing Customer's account with the updated information that Company obtains.
- Company will automatically renew Customer's monthly, quarterly, or annual Services at the then-current rates, unless the Services subscription is cancelled or terminated under this Agreement.
6. SERVICE LEVEL AGREEMENT
- The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than 3 Business Days, Company will credit the Customer a percentage of the monthly rate for each full day of downtime; provided that no more than one such credit will accrue per day.
- Credits may not be redeemed for cash. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
7. TERM AND TERMINATION
- Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then current term.
- In addition to any other remedies a party may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Content available to Customer for electronic retrieval for a period of ninety (90) days, but thereafter Company may, but is not obligated to, delete stored Content. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations (if any), warranty disclaimers, and limitations of liability.
8. WARRANTY AND DISCLAIMER
- Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- Company does not give professional advice. Unless specifically included with the Services, Company is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice. Customer should consult the services of a competent professional when Customer needs this type of assistance.
9. LIMITATION OF LIABILITY
- NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, INEACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND CUSTOMER.
Customer shall indemnify, defend and hold harmless Company against any and all damages, suits, penalties, fines, remediation costs, and liabilities including court costs and reasonable attorney fees (collectively, "Losses") resulting or arising from: (a) The breach by Customer of any of its obligations, warranties, or covenants under this Agreement, including a Customer default under its obligations as set forth in the Agreement; (b) Bodily injuries (including death), property damage arising out of the use of or related to the Ancillary Equipment; (c) Any violation or alleged violation of law to the extent caused by Customer's breach of this Agreement; (d) Negligence, willful misconduct of the Customer or its employees, agents, or contractors.
The Customer shall be responsible for and shall pay any and all local, municipal, and/or state taxes which shall be imposed upon Services during the term of this Agreement and any extension terms thereof and shall defend and hold the Company harmless from any and all liability in connection therewith.
12. USE OF LOGO, NAME, TRADEMARK
- Neither Party shall use logo, name or trademarks of the other Party in advertising or marketing of any kind without first obtaining the prior written consent in each instance from the other Party.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- This Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent.
- Company may transfer and assign any of its rights and obligations under this Agreement without consent.
- This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
- No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
- In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys’ fees.
- All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested at the following addresses and contact information: For Company: DSQ Technology, LLC C/O Legal Department 1010 Western Ave Fl. 7 Pittsburgh PA 15233. For Customer: At Address as provided by Customer.
- This Agreement shall be governed by the laws of the State of Pennsylvania without regard to its conflict of laws provisions.
- Any dispute between Company and Customer, arising out of this Agreement, which cannot be settled through negotiation or mediation, will be resolved exclusively, and shall be enforceable, in the state and federal courts located in Pittsburgh, Pennsylvania. Customer hereby expressly agrees that summons and complaint commencing an action or proceeding in such Courts shall be properly served and shall confer personal jurisdiction if served personally or if served by certified mail to Customer at Customer’s address set forth above, or as otherwise provided under the laws of the Commonwealth of Pennsylvania or the United States of America. Customer hereby waives any claim that the state and federal courts in Pittsburgh, Pennsylvania are an inconvenient forum and any claim that any action or proceeding arising out of or relating to this Agreement and commenced in the Courts lacks proper venue.