SUPPLY WISDOM MASTER SUBSCRIPTION AND SERVICES AGREEMENT
THIS AGREEMENT GOVERNS THE USE OF THE SUBSCRIPTION SERVICE AND ANY RELATED PROFESSIONAL SERVICES. BY EXECUTING AN ORDER AND/OR BY USING THE SUBSCRIPTION SERVICE OR PROFESSIONAL SERVICES, AS APPLICABLE, YOU AGREE THAT YOU ARE AUTHORIZED TO BIND THE APPLICABLE CUSTOMER TO THIS AGREEMENT AND ARE AGREEING TO BE BOUND BY THE TERMS CONTAINED IN THIS AGREEMENT. YOU SHOULD NOT USE THE SUBSCRIPTION SERVICE AND/OR PROFESSIONAL SERVICES IF YOU CANNOT COMPLY WITH THIS AGREEMENT. THIS AGREEMENT IS BETWEEN YOU AND SUPPLY WISDOM, INC. (“SUPPLY WISDOM”) AND/OR ITS AFFILIATES OR SUBSIDIARIES, AS APPLICABLE.
The following processes shall apply to the Subscription Services and shall be subject to this Agreement (each an “Supply Wisdom Policy,” and collectively the “Supply Wisdom Policies”), as modified and updated periodically from time to time:
Subscription Services: Supply Wisdom grants Customer a personal, term-based, non-exclusive and non-transferable (except as set forth herein) right to access and use the Subscription Services solely for its own internal business purposes, subject to the terms of this Agreement. Customer may not: (i) transfer to any other person any of its rights to use the Subscription Services; (ii) sell, rent or lease the Subscription Services; (iii) make the Subscription Services available to anyone who is not an “Authorized User” (an Authorized User is an employee of Customer, or a person to whom Customer has outsourced services, who is authorized to access the Software as either a named or concurrent user); (iv) create any derivative works based upon the Subscription Services or Documentation; (v) copy any feature, design or graphic in, or reverse engineer the Software; (vi) access the Subscription Services in order to: (A) build a competitive solution or to assist someone else to build a competitive solution; or (B) grant access to any consultant or an employee working for an Supply Wisdom competitor; and (vii) use the Subscription Services in a way that violates any criminal or civil law; or load test the Subscription Services in order to test scalability. Any rights not expressly granted to Customer hereunder are expressly reserved to and by Supply Wisdom.
The Software is located on servers that are controlled by Supply Wisdom or its partners. Customer may access the Software but has no right to receive a copy of the object code or source code to the Software. Customer is responsible for having, and Supply Wisdom shall have no liability for providing, a high-speed Internet connection, hardware and software that is compatible with the Subscription Services, as set out in the Documentation. Supply Wisdom periodically releases upgrades and updates to the Subscription Services which are automatically installed into the Software.
Professional Services: The parties may agree for Supply Wisdom to provide Customer with Professional Services, on an as-needed basis, as set forth in one or more mutually agreed to and signed SOWs. The SOW shall contain the estimated rates/fees and payment terms and a description of the Professional Services, including the scope, assumptions, responsibilities, timelines and any other applicable information. The SOW may include an estimate of charges for the Professional Services, but such estimate shall not be binding on Supply Wisdom or convert the SOW into a fixed price contract with respect to such Professional Services unless expressly set forth in the SOW. Unless expressly stated otherwise, the Professional Services rates are for an 8-hour person-day and do not include reimbursable costs and expenses. Supply Wisdom is under no obligation to perform any Professional Services other than pursuant to an SOW. Notwithstanding the foregoing, if Supply Wisdom performs Professional Services at the direction of Customer and the parties have not signed an SOW for such Professional Services, then such Professional Services shall be subject to all terms and conditions of this Agreement, and Supply Wisdom’s then-current rates for such Professional Services shall apply. Supply Wisdom may provide Professional Services through its third-party contractors that it controls. Customer must assign a project manager who will assume responsibility for management of the project for which the Professional Services are provided. Supply Wisdom will establish the overall project direction, including assigning and managing the Supply Wisdom’s project personnel team. Customer must provide Supply Wisdom with such facilities, equipment and support as are reasonably necessary for Supply Wisdom to provide Professional Services, including remote access to equipment and the Customer environment. In connection with any SOW, Customer should make staffing requests at least four (4) weeks in advance to increase the likelihood that the request can be filled for the date requested. While it is possible to secure staffing within this time frame (and Supply Wisdom will make commercially reasonable efforts to comply with such staffing requests), the probability of obtaining the requested resources decreases the closer the request is made to the need date. The parties agree that once Supply Wisdom and Customer have scheduled a specific time during which Supply Wisdom will provide Professional Services under the terms of an SOW, Customer will be obligated to pay Supply Wisdom for such Professional Services as if Supply Wisdom had performed such Professional Services on the date scheduled and any related travel and living expenses to the extent such travel and living expenses are non-refundable, unless Customer has notified Supply Wisdom that Customer would like to reschedule or cancel the provision of such Professional Services at least twenty one (21) days prior to the date which Supply Wisdom is scheduled to perform such Professional Services.
Intellectual Property Ownership: Supply Wisdom solely owns the intellectual property in the Subscription Services and any Work Product. Upon payment in full of any amounts due for Professional Services, Customer shall have a non-exclusive, non-transferable (except as provided herein) right to use the Work Product for Customer’s internal business purposes. This right shall continue for so long as and be subject to the same terms and conditions as the right to use the Subscription Services.
Customer Data: Customer must provide all data for use in the Subscription Services, and Supply Wisdom is not obliged to modify or add to the Customer Data. Customer is solely responsible for the content and accuracy of the Customer Data. The Customer Data belongs to Customer, and Supply Wisdom makes no claim to any right of ownership in it. Notwithstanding the foregoing, Supply Wisdom may use and disclose Customer Data and statistics regarding use of the Subscription Services in order to improve its services and offerings solely to the extent that (i) such Customer Data has been de-identified or anonymized and aggregated; and (ii) no such data or statistics (or any portion(s) thereof) shall be attributed to Customer or identified as originating from Customer. Supply Wisdom’s obligations and practices with respect to such Customer Data can be found at the applicable Supply Wisdom Policy.
Payments: Customer must pay the fees listed in the relevant SOW, which fees are non-cancellable and non-refundable (except as expressly set forth as otherwise herein). The Subscription Services fees listed in an SOW represent an annually billed amount; however, Customer is responsible and liable for paying Subscription Services fees relating to the entire Subscription Term, including any increases which occur during the term resulting from annual percentage increases to the Subscription Services fee rate as set forth in an SOW, as well as any increased usage which exceeds the authorized usage during the Subscription Term. Supply Wisdom may apply an increase to the Subscription Services fee rate by no greater than ten (10%) percent upon the commencement of the first year of the Renewal Term. Customer must pay a finance charge on any overdue payment of one and one-half percent (1-1/2%) for each month or portion of a month that the payment is overdue, or the highest interest rate permitted by applicable law, whichever is the lower. Interest shall compound monthly. The fees do not include any taxes, and Customer shall pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by Supply Wisdom) due because of any amounts paid to Supply Wisdom. Customer shall bear all Supply Wisdom’s costs of collection of overdue fees, including reasonable attorneys’ fees. If Customer licenses additional licenses or feature from Supply Wisdom, the fees relating to such additional licenses or features shall be added to the then-current Subscription Fee rates, multiplied by the current license count and pro-rated so that the added license or feature shall synch with the then-Subscription Term.
Term and Termination: Each SOW shall be in effect for the duration of the Subscription Term. Each subsequent year of any Renewal Term will conform to the specifications defined in the SOW. Either party may terminate rights granted under a particular SOW if the other breaches any material term of the SOW (including a material term of this Agreement insofar as it applies to the SOW) and the breach is not cured within 30 days of written notice. Supply Wisdom may alternatively opt to suspend the provision of Subscription Services to Customer until such breaching activity ceases. At any time during the suspension period, Supply Wisdom may terminate the rights granted to Customer. If Supply Wisdom terminates an SOW because of non-payment by Customer, all unpaid fees for the remainder of the Subscription Term immediately will become due and payable. Upon termination of an SOW, Supply Wisdom will return to Customer all Customer Data in comma separated value (CSV) format. However, Supply Wisdom may retain Customer Data in backup media for an additional period of up to 12 months, or longer if required by law. All obligations relating to non-use and non-disclosure of Confidential Information, indemnity, limitation of liability, and such other terms which by their nature survive termination, will survive termination of this Agreement.
Warranties and Warranty Disclaimers: Supply Wisdom warrants that:
(i) the Subscription Services will function substantially as described in the Documentation and shall be subject to the commitments set forth in the Supply Wisdom Policies, which are incorporated herein and subject hereto;
(ii) any Work Product resulting from Professional services will substantially conform to the specifications relating thereto as expressly set forth in an SOW;
(iii) it owns or otherwise has the right to provide the Subscription Services and Professional Services to Customer under this Agreement;
(iv) the Professional Services shall be performed in a timely and professional manner, with reasonable care, skill and diligence, by qualified and competent individuals familiar with the types of Services, and consistent with industry practices;
(v) it maintains commercially reasonable security practices.
In the event that Supply Wisdom breaches the foregoing warranty(ies), then Supply Wisdom must, at its option, either
(i) modify the Subscription Services or Professional Services, as applicable, to conform to the Documentation or specifications, as applicable; or
(ii) provide a commercially reasonable workaround.
If neither of these options is commercially feasible, either party may terminate the relevant SOW under this Agreement, in which case Customer may recover the fees paid to Supply Wisdom under the relevant SOW relating to the breaching activity at issue. The remedies set out in this Section are Customer’s exclusive remedies and Supply Wisdom’s sole obligations for breach of warranty.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, SUPPLY WISDOM’S EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGMENT OR FITNESS FOR A PARTICULAR PURPOSE. SUPPLY WISDOM DISCLAIMS ALL OTHER WARRANTIES AND EXPRESSLY DOES NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SUPPLY WISDOM HAS NO WARRANTY OBLIGATIONS FOR DEFECTS IN THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES CAUSED BY ANY THIRD-PARTY SOFTWARE OR HARDWARE, BY ACCIDENTAL DAMAGE OR BY OTHER MATTERS BEYOND SUPPLY WISDOM’S REASONABLE CONTROL. CUSTOMER MUST PROVIDE SUPPLY WISDOM WITH ALL INFORMATION, ACCESS, AND FULL GOOD FAITH COOPERATION REASONABLY NECESSARY TO ENABLE SUPPLY WISDOM TO DELIVER THE SUBSCRIPTION SERVICES AND PROFESSIONAL SERVICES AND MUST DO ANYTHING THAT IS IDENTIFIED IN THE ORDER OR SOW AS CUSTOMER’S RESPONSIBILITY. SUPPLY WISDOM WILL BE RELIEVED OF ITS OBLIGATIONS TO THE EXTENT THAT THE OBLIGATIONS ARE DEPENDENT UPON CUSTOMER’S PERFORMANCE.
CUSTOMER AGREES AND ACKNOWLEDGES THAT SUPPLY WISDOM DISCLAIMS AND IS NOT LIABLE FOR CUSTOMER’S USE OF, OR ITS ACTS OR OMISSIONS TAKEN BASED UPON, OUTPUTS OR RESULTS DERIVED FROM THE SUBSCRIPTION SERVICES. TO THE EXTENT THAT SUPPLY WISDOM INCORPORATES ANY SYNDICATED OR THIRD PARTY DATA ON ITS WEBSITE OR MAKES THE SAME AVAILABLE TO CUSTOMER THROUGH THE SUBSCRIPTION SERVICES, CUSTOMER AGREES AND ACKNOWLEDGES THAT SUPPLY WISDOM CANNOT GUARANTEE THE RELIABILITY OR ACCURACY OF SUCH THIRD PARTY CONTENT AND IS NOT LIABLE FOR CUSTOMER’S RELIANCE ON, OR IN CONNECTION WITH, SUCH THIRD PARTY CONTENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ITS COMPLETENESS, ACCURACY, CORRECTNESS OR TIMELINESS.
Limitation of Liability: NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SUBSCRIPTION SERVICES, SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SUBSCRIPTION SERVICES OR WORK PRODUCT. EACH PARTY’S TOTAL, AGGREGATE LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT ORDER SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER TO SUPPLY WISDOM UNDER SUCH RELEVANT ORDER DURING THE 12 MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN SUPPLY WISDOM AND CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO SUPPLY WISDOM. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.
Indemnification: Supply Wisdom shall indemnify and hold harmless Customer, its affiliates, directors and employees from any damages finally awarded against Customer (including, without limitation, reasonable costs and legal fees incurred by Customer) arising out of any third party suit, claim or other legal action alleging that the use of the Subscription Services or Work Product by Customer infringes any copyright, trade secret or United States patent, (“Legal Action”). Supply Wisdom must also assume the defense of the Legal Action. However, Supply Wisdom shall have no indemnification obligations for any Legal Action arising out of: (i) a combination of the Subscription Services or Work Product with software or products not supplied, or approved in writing by Supply Wisdom; (ii) any repair, adjustment, modification or alteration to the Subscription Services by Customer or any third party, unless approved in writing by Supply Wisdom; or (iii) any refusal by Customer to install and use a non-infringing version of the Subscription Services, or Work Product offered by Supply Wisdom. This paragraph states the entire liability of Supply Wisdom with respect to any intellectual property infringement by the Subscription Services, Software or Work Product.
Customer must immediately give written notice to Supply Wisdom of any Legal Action after first receiving notice of a Legal Action, and must give copies to Supply Wisdom of all communications, notices and/or other actions relating to the Legal Action. Customer must give Supply Wisdom the sole control of the defense of any Legal Action, must act in accordance with the reasonable instructions of Supply Wisdom and must give Supply Wisdom such assistance as Supply Wisdom reasonably requests to defend or settle such claim. Supply Wisdom must conduct its defense at all times in a manner that is not averse to Customer’s interests. Customer may employ its own counsel to assist it with respect to any such claim. Customer must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Supply Wisdom or its counsel, or because Supply Wisdom fails to assume control of the defense. Customer must not settle or compromise any Legal Action without Supply Wisdom's express written consent. Supply Wisdom shall be relieved of its indemnification obligation under Section 14 if Customer materially fails to comply with its obligations hereunder.
Confidentiality: The Subscription Services, Software, Documentation and Work Product contain valuable trade secrets that are the sole property of Supply Wisdom, and Customer agrees to use reasonable care to prevent other parties from learning of these trade secrets. Customer must take reasonable care to prevent unauthorized access to or duplication of the Subscription Services, Software, Documentation, and Work Product. The Customer Data may include valuable trade secrets that are the sole property of Customer. Supply Wisdom must take reasonable care to prevent other parties from learning of these trade secrets. The foregoing constitutes the “Confidential Information” of the parties. The obligations of the parties do not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
Publicity: Supply Wisdom may refer to Customer’s use of the Subscription Services (including displaying Customer’s logo) on Supply Wisdom’s website, on publicly available customer lists, and in applicable media releases.
Non-Solicit: Each party agrees that it will not, directly or indirectly, solicit the other party’s employees or contractors to seek an employment or other contractual arrangement with its company during the term of this Agreement and for twelve (12) months thereafter. Customer agrees that Supply Wisdom employees are not "contract for hire".
Miscellaneous: This Agreement together with the SOW represents the entire agreement of the parties, and supersedes any prior or current understandings, whether written or oral. If there is a conflict between the Agreement and an SOW, the SOW will prevail. This Agreement will be governed by the laws of New York, NY, USA (excluding its choice of law rules). The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in New York County, NY, USA for any claim relating to this Agreement. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party (which consent shall not be unreasonably withheld, delay or conditioned, provided that no consent is required in the case of an assignment by the other of its rights and obligations to an entity that has acquired all, or substantially all of the assets of the other party, or to an assignment that is part of a genuine corporate restructure. Any assignment in breach of this Section is void. Customer must not export or re-export, directly or indirectly, any Subscription Services, Documentation or confidential information to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations. The Subscription Services and Documentation provided to the U.S. Government are "Commercial Items", as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", within the meaning of 48 C.F.R. 12.212 or 48 C.F.R.227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in FAR 12.212, and DFARS 227.7202-1(a), 227.7202-3(a), 227.7202-4, as applicable. Both parties shall abide by all applicable federal and state statutes, rules, regulations, orders and directives of any and all applicable government and regulatory bodies having jurisdiction.
“Customer Data” means any electronic information inputted by Customer stored in the Software database.
“Documentation” means user documentation provided electronically by Supply Wisdom for use with the Subscription Services, as periodically updated.
“Initial Term” means the period of time between the Subscription Term Start Date and the Subscription Term End Date as set forth in an SOW.
“Professional Services” means the training, consulting, development and other professional services identified on a Statement of Work but does not include the Subscription Services.
“Renewal Term” means the period of time equal to the Initial Term for which an SOW auto-renews upon the conclusion of the Initial Term or a Renewal Term, as applicable. An SOW will auto-renew unless the Customer provides written notice to Supply Wisdom that it does not wish to renew at least ninety (90) days prior to the Subscription Term End Date or the anniversary thereof if in a Renewal Term, as applicable.
“Software” means the software whose functionality is described in the SOW.
“Statement of Work” or “SOW” means a document provided by Supply Wisdom and signed by Customer that describes the Professional Services to be provided by Supply Wisdom to Customer.
“Subscription Services” means the hosted customer experience solutions identified in an SOW, and any modifications periodically made by Supply Wisdom, but does not include the Professional Services.
“Subscription Term” means Initial Term and any Renewal Terms.
“Work Product” means object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by Supply Wisdom in providing the Professional Services to Customer.