MASTER SERVICES AGREEMENT
Last Updated: March 10, 2025
This Master Service Agreement,
any applicable Order Forms, Exhibits, and/or Addenda hereto (collectively, the “Agreement”)
a legal agreement between you (“Client”) and Fullsteam Software Holdings
LLC DBA Enrollware Software (“Company”) to purchase access to the Company
Platforms (defined below) and the related subscription services and other
services that Company may provide to Client in an Order Form (defined below) (collectively,
the “Services”). This Agreement governs the use of the Services Company
provides to you. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in any applicable Order Form.
“Order Form” means a
separate ordering agreement (including but not limited to a statement of work,
proposal, or change order), or page on the Site pursuant to which Client
purchases Services.
“Company Platforms” means
collectively and individually, https://www.enrollware.com/ and any of their subdomains (collectively,
the “Site”) and any websites, platforms, exchanges, successor platforms and
exchanges, software, hardware, portals, applications, and Application
Programming Interfaces (“API”s), programs, components, functions, screen
designs, reporting data, and report formats owned or operated by Company and
all updates, upgrades, and other derivative works, releases, fixes, patches,
etc. related to the software that Company develops, deploys, or makes available
to Client during the Term of this Agreement, as they may be modified, relocated
and/or redirected from time to time, to receive, or review data and results of
the Services.
BY ACCESSING OR USING THE SERVICES
OR ENTERING INTO AN ORDER FORM HEREUNDER, YOU REPRESENT THAT YOU ARE AUTHORIZED
TO ACCEPT THIS AGREEMENT ON CLIENT’S BEHALF, AND YOU ACCEPT THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS OF COMPANY’S PRIVACY
POLICY. IF YOU DO
NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ARE NOT
AUTHORIZED TO ACCEPT THIS AGREEMENT ON CLIENT’S BEHALF, THEN YOU ARE NOT AUTHORIZED
TO AND ARE PROHIBITED FROM ACCESSING THE SERVICES. THE SERVICES ARE OFFERED AND
AVAILABLE TO USERS WHO ARE EIGHTEEN (18) YEARS OF AGE OR OLDER. BY USING THE SERVICES,
YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT
WITH COMPANY AND MEET ALL OF THE FOREGOING ELIGIBILITY REQUIREMENTS. IF YOU DO
NOT MEET ALL OF THESE REQUIREMENTS, YOU MUST NOT ACCESS OR USE THE SERVICES.
In the event there is
any conflict between the terms and conditions in this Master Service Agreement
and the terms and conditions in any applicable Order Form, the terms of the Order Form shall prevail.
The “Effective Date” of this
Agreement is the date which is the earlier of (a) Client’s initial access to
the Services through any online provisioning, registration, or order process,
or (b) the effective date of the first Order Form. This Agreement governs
Client’s initial purchase of Services on the Effective Date as well as any
future purchases made by Client that reference this Agreement.
1.
SERVICES
AND TERMS.
1.1.
Grant of
Access. Subject to
the terms and conditions of this Agreement, the Company grants to Client a
limited, non-exclusive, revocable, non-transferable, and non-sublicensable right
for Client’s authorized employees, agents, representatives, consultants, and
contractors (“Authorized Users” or “User”) to access and use the Services
described in an applicable Order Form during the Term of the Order Form for
Client’s internal business purposes only in accordance with the Documentation
(as defined below),
and, if the Client is a franchisor and Client is specifically permitted in the
applicable Order Form, to sub-license the Services to its franchisees and their
respective employees, contractors, agents, and affiliates (the “Franchisees”),
for the same business and no other purpose whatsoever. The
Services may allow Client to designate different types of Authorized Users,
which may have different pricing, functionality, and use restrictions, as
described on the Site, in the Documentation, or in the applicable Order Form. Each
Authorized User must keep its login credentials confidential and not share them
with anyone else. Client is responsible for its Authorized Users’ compliance
with this Agreement and actions taken through their accounts. This Agreement
does not permit access to the Services by persons who are not Authorized Users.
1.2.
Reservation
of Rights. Access
to the Services is provided on a limited term and Services basis. All rights
not specifically granted to Client hereunder are reserved by Company. Nothing
herein shall prevent the Company from promoting, providing, licensing, sub-licensing
or subcontracting the Services or providing the Services to other parties.
Client shall promptly notify Company of any determination, discovery, or
notification that any person or entity is or may be misusing or infringing the Services,
including without limitation if it becomes aware of any compromise of its Authorized
Users’ login credentials.
1.3.
Professional
Service Deliverables. All
work product, customizations, improvements, and/or enhancements to the Services
performed by Company for Client pursuant to this Agreement or as identified on
any separate Order Form executed by the parties (collectively, “Professional
Service Deliverables”), shall be owned exclusively by Company, unless
otherwise provided in the corresponding Order Form. If, by operation of law or
otherwise, any Professional Service Deliverables are not owned exclusively by Company
immediately upon creation thereof, Client agrees to assign, and hereby
irrevocably assigns, to the Company exclusive ownership of such Professional
Service Deliverables and expressly disclaims any ownership rights thereto.
Client will cooperate with the Company to confirm and/or execute such
assignments and Company’s ownership of Professional Service Deliverables.
1.4.
Feedback. If Client provides the Company
with feedback or suggestions regarding the Services (“Feedback”), Company
may use Feedback without restriction or obligation. In addition, Client hereby
irrevocably assigns ownership of any and all Feedback to Company and will
cooperate with Company to confirm and/or execute such assignments and Company ownership
of Feedback.
1.5.
Anonymized
Data. As between
Client and Company, Company owns all rights, title, and interest in and to information
which does not relate to an identified or identifiable natural person, or
personal information rendered anonymous in such a manner that the natural
person is not or no longer is identifiable (“Anonymized Data”). Accordingly, Company
may, during the Term and thereafter, use, display, transmit, modify and prepare
derivative works of Anonymized Data in any media for any lawful purpose,
including maintaining and improving the Services.
1.6.
Third-Party Providers. Client’s use of any platform,
add-on, service, code (including open source) or product not provided by
Company that Client chooses to integrate or enable for use with the Services (“Third-Party
Provider”) shall be subject to the terms and conditions of Client’s
agreement with such third party, and Client is solely responsible for its
compliance with such terms and conditions. Client acknowledges that Company does
not control, is not responsible for, and will not be liable in any way for Client’s
use of any Third-Party Provider or any damage or loss resulting from Client’s
access to, use of, or interaction with, any Third-Party Providers. Client further
acknowledges that any Client data loss, downtime or periodic unavailability of
the Services due to Third-Party Providers’ system maintenance, upgrades, or any
other reason is outside of Company’s control. The foregoing does not exclude or
limit Client’s right to pursue any remedies directly against a Third-Party Provider.
1.7.
Documentation. Subject to the terms and
conditions of this Agreement, Company grants to Client a limited,
non-exclusive, non-transferable, revocable, and non-sublicensable right and
license to use and make copies of the usage guidelines and standard technical
documentation for the Services as may be provided or made available online or
in writing by the Company (“Documentation”). Documentation is for Client’s
internal use only, for archival purposes, and for training and education of
Authorized Users, provided that all proprietary notices of the Company and its
licensors, if any, are reproduced and retained. Company reserves the right to
modify the Documentation in Company’s sole determination without prior notice
to Client.
2.
PROHIBITIONS. Use of and access to the Services
is permitted only by Client and its Authorized Users. Under no circumstances
may Client or any Authorized User modify, decompile, reverse compile,
disassemble, reverse engineer, decrypt, or otherwise seek to recreate the
source code of the Services, modify or adapt the Services in any way, use the Services
to create a derivative work, or grant any other person or entity the right or
access to do so, without the Company’s advance written consent. Except as
expressly authorized by this Agreement, and without limiting the foregoing,
Client and Authorized Users represent and warrant that they will not (a)
modify, copy, duplicate, reproduce, unbundle, license, sublicense, sell,
assign, transfer, display, distribute, lend, rent, lease, sublease, or make
available the Services or any portion thereof to any third party; (b) provide,
transmit, disclose, divulge, or make available to, or permit use of the Services
by, any third party or entity or machine; (c) use the Services in a service
bureau, out-sourcing or other arrangement to process or administer data on
behalf of any third party; (d) publish, post, upload, or otherwise transmit any
unlawful, false, offensive, defamatory, or infringing data or any data that
contains any viruses, Trojan horses, worms, time bombs, corrupted files or
other computer programming routines that damage, detrimentally interfere with,
surreptitiously intercept, or expropriate any systems, data, personal
information, or property of another; (e) use or knowingly permit the use of any
security testing tools in order to prove, scan, or attempt to penetrate or
ascertain the security of Company or the Services without the prior written
consent of Company; (f) attempt to gain any unauthorized access to the Services
or Company customer data or attempt any unauthorized alteration or modification
thereof; (g) use or launch, or knowingly permit the use or launch of, any
automated system, including, without limitation, “robots,” “spiders,” or “offline
readers,” that access the Services; or (h) use the Services or the information
contained therein in violation of any applicable law or regulation.
3.
SUSPENSION. Company may, at its sole
discretion, suspend Client’s and/or Authorized Users’ use of the Services (in
whole or in part) if Company determines that (a) Client or Authorized Users
breaches any terms of this Agreement including the AUP or applicable Order Form,
(b) Client’s account is thirty (30) days or more overdue for payment after
being notified, or (c) Client’s or Authorized Users’ use of the Services risks
harm to other customers of Company or the security, availability, or integrity
of the Services.
4.
CLIENT
DATA.
4.1.
Client Data. Use of the Services may involve
the Company’s receipt, processing, and storage of data, information, or
material input by Client, Authorized Users, and Client’s end user customers who
use the Services (“End Users”) (collectively, “Client Data”). Client
affirms, represents, and warrants that Client owns or has the necessary
licenses, rights, consents, and permissions to collect, use, and authorize
Company to use all Client Data in the manner contemplated hereunder and to
transfer to and process such Client Data. Client further represents and
warrants that Company’s use of Client Data does and will not violate or
infringe any applicable law, any third-party rights, or any terms or privacy
policies that apply to the Client Data.
4.2.
License to
Client Data.
Client hereby grants the Company the worldwide, non-exclusive, right to use,
copy, store, transmit, display, modify and create derivative works of Client
Data, as necessary to provide the Services under this Agreement.
4.3.
Accuracy of
Client Data.
Client is solely responsible for the accuracy, content, currency, completeness,
and delivery of the Client Data provided by Client, Authorized Users, and
Client’s End Users.
4.4.
Return of
Client Data. Upon termination
or expiration of this Agreement, or at Client’s request, Company shall provide
access to all Client Data in a commonly used machine-readable format or such
other format as agreed by Client and Company. Company shall provide access to the
Client Data for no more than thirty (30) days after the termination or expiration
of the Agreement. After this thirty (30) day period, Company may delete Client
Data in accordance with its standard schedule and procedures.
5.
PAYMENT.
5.1.
Fees
and Expenses. Client’s
use of the Services is subject to prompt payment of all fees and other amounts,
including without limitation, expenses (“Fees”) as described in each
applicable Order Form. Company may adjust Fees at any time with thirty (30)
days’ notice. Unless the Order Form provides otherwise, Company will send
Client an invoice for all Fees owed on a monthly basis, and all Fees not
subject to a good faith dispute are due within thirty (30) days of the invoice
date. To the extent
that Client disputes any invoice, Client must provide Company notice of such
dispute in writing within ten (10) business days of the invoice date, or Client
shall waive any claim with respect to such invoice. Late payments are subject to
a service charge of 1.5% per month (18% per annum), or the maximum amount
allowed by law, whichever is more. All Fees are nonrefundable and
non-cancellable, except as expressly provided in this Agreement, and are
exclusive of taxes. In the event of nonpayment or any
shortfall in Fees paid, Client authorizes Company
and its Affiliates (defined below) to increase fees,
dues, assessments, and/or debit any of Client’s accounts with Company or
Company’s Affiliates, including those accounts associated with a payment
processing agreement between Client and Affiliate. As used in this Section, “Affiliate” of a party
means any corporation or other entity that such party directly or indirectly
controls, is controlled by, or is under common control with. In this context, a
party “controls” a corporation or other entity if it or any combination of it
or any combination of it and/or its Affiliates owns more than fifty percent
(50%) of the voting rights for (i) the board of directors, or (ii) other
mechanism of control for such corporation or other entity.
5.2.
Taxes. Client is responsible for any
sales, use, goods and services taxes (GST), harmonized sales taxes (HST),
value-added, withholding or similar taxes or levies that apply to any Order Form,
whether domestic or foreign (“Taxes”), other than Company’s income tax.
If Company is legally obligated to pay or collect Taxes for which Client is
responsible under this Agreement, the appropriate amount will be computed based
on Client’s address listed in the Order Form, unless Client provides Company
with a valid tax exemption certificate authorized by the appropriate taxing
authority. Fees listed on or invoiced pursuant to an Order Form are exclusive
of Taxes.
6.
CLIENT
OBLIGATIONS.
6.1.
Client
Contact. Client
will cooperate with Company in all matters relating to the Services and appoint
a primary contact who will have the authority to act on behalf of Client for matters
pertaining to this Agreement. Client will provide access to Client’s premises, or
access to Client Data, reasonably needed for Company to perform the Services. If
Client fails to do so, Company’s obligation to provide the Services will be
excused until access is provided, and the parties agree on an updated timeline.
6.2.
Client
Requirements.
Client shall be responsible for providing and maintaining all necessary
hardware, software, electrical and other physical requirements for Client’s use
of the Services, including, without limitation, telecommunications and internet
access connections and links, web browsers or other equipment, programs and
services required to access and use the Services.
6.3.
Accessibility. As it relates to Client’s use of the
Services, Client is solely responsible for compliance with all applicable accessibility
laws, rules, and regulations, including, but not limited to, Title III of the
Americans with Disabilities Act (“ADA”), and (if applicable) New York’s state
and city level Human Rights Act and California’s Unruh Civil Rights Act.
6.4.
Acceptable
Use Policy. Client
is solely responsible for the content of any postings, communications, data, or
transmissions using the Services, or any other use of the Services by Client or
by any person or entity Client permits to access the Services. To the extent
the Services allows uploading or posting of content or data by Client,
Authorized Users, or End Users, Client will ensure that any content or data
posted by or on behalf of Client, Authorized Users, or End Users is not
inappropriate, illegal, obscene, threatening, libelous, discriminatory,
hateful, or in violation of any third-party rights. If and to the extent the
Services includes, integrates or links to any third party content, data or
software, including without limitation any open source services (collectively, “Third
Party Content”), Client acknowledges and agrees that (a) Company is not
responsible for any Third Party Content and it is provided as is; and (b) any
Third Party Content may be subject to additional terms and conditions
(including applicable terms of use, privacy policies, end user license terms,
etc., for which Client shall be responsible for agreeing to and complying with.
Client represents and warrants that it will: (a) not use the Services in a
manner that is prohibited by any law or regulation, or to facilitate the violation
of any law or regulation; (b) not violate or tamper with the security of any Company
computer equipment or program. If Company has reasonable grounds to believe
that Client is utilizing the Services for any illegal or disruptive purpose, Company
may suspend the Services immediately with or without notice to Client. Company
may terminate the Agreement for breach of this Agreement if Client fails to
adhere to the foregoing acceptable use standards. Client shall defend,
indemnify and hold harmless Company from and against all liabilities and costs
(including reasonable attorneys’ fees) arising from any and all third-party
claims based upon the content of any such communications.
6.5.
Calls and Messaging. If the Services include email,
calling, and/or text messaging features which enable Client to text third
parties via the Services, Client is solely responsible for ensuring that the
email, calling and/or text message feature(s) of the Services are utilized in a
manner that complies with all applicable local, state, and federal laws, rules
and regulations governing the sending of emails, calls, and/or text messages.
This includes, but is not limited to, compliance with applicable email and
telemarketing laws such as the CAN-SPAM Act and Telephone Consumer Protection
Act (“TCPA”), 47 U.S.C. § 227, the EU ePrivacy Regulation, and comparable state
laws. Client also represents and warrants that each third party to whom Client
calls or texts has specifically granted Client permission to send such
messaging; and that opt-out options are provided to such third parties pursuant
to applicable law, rule, or regulation. Client is solely responsible for the
content of any messaging by Client via the Services to third parties, and under
no circumstances shall Company be identified by Client as the sender of such
messaging. Client acknowledges it is responsible for obtaining any and all
permissions required to use the Services’ calls, text messaging, or email
features.
6.6.
Payment
Processing. Unless
otherwise stated in an applicable Order Form, Client must be enrolled in and
processing payments through Company’s integrated payments processing platform
within sixty (60) days of the Effective Date of this Agreement. If Client does
not process payments through Company’s integrated payment solution within the
required timeframe, Company, in its sole discretion, may delay or remove access
to the Services, restrict certain Services product features, increase Fees
and/or charge a non-integrated payment processing fee unless Company determines
that Client qualifies for a temporary or ongoing exemption (in whole or in
part). Client acknowledges that Company may delay access or restrict access to
certain product features or the Services altogether for non-compliance within
the required timeframe. Company reserves the right to apply non-integration
payment processing fees in its sole discretion to Client or Franchisee, and to
apply, modify, increase, decrease the non-integration payment processing fee at
any time.
7.
SECURITY AND
PRIVACY; DATA PROCESSING.
Company shall use reasonable and appropriate administrative, physical, and
technical security programs and procedures designed to protect and secure the
Services and Client Data. Client agrees to use reasonable efforts to prevent
unauthorized persons from having access to the Services or any equipment
providing the Services. Company and Client agree to notify the other party
promptly upon becoming aware of any unauthorized access or use of the Services
or Client Data by any third party. Client
Data may be stored and processed in the United States or any other country in
which Company or its service providers maintain facilities. If you are located
in the European Union or other regions with laws governing data collection and
use that may differ from U.S. law, please note that we may transfer
information, including personal information, to a country and jurisdiction that
does not have the same data protection laws as your jurisdiction, and you
consent to the transfer, use, and disclosure of Client Data to the U.S. or any
other country in which Company, Company’s Affiliates, or its service providers
maintain facilities
8.
TERM AND
TERMINATION.
8.1.
Term. This Agreement starts on the
Effective Date and continues until expiration or termination of all applicable
Order Forms or until terminated as authorized in this Agreement, whichever
occurs first (the “Term”).
8.2.
Termination. Either party may terminate this
Agreement (including all Order Forms) if the other party (a) fails to cure a
material breach of this Agreement (including a failure to pay Fees) within thirty
(30) days after receipt of written notice of such breach by the other party,
(b) ceases operation without a successor, or (c) seeks protection under a
bankruptcy, receivership, trust deed, creditors’ arrangement, composition or
comparable proceeding, or if such a proceeding is instituted against that party
and not dismissed within sixty (60) days.
8.3.
Early
Termination. If
Client terminates the Agreement prior to the expiration of the applicable Order
Form, or Company terminates for material breach, then Client shall forfeit all
pre-paid amounts for Fees, and for those arrangements in which the Fees are not
paid in advance, Client shall pay Company an amount equal to the monthly Fee multiplied
by the number of months remaining in the Term.
8.4.
Effect of
Termination. Upon
termination or expiration of this Agreement or Order Forms for any reason,
Client’s access to the Services will cease, other than limited use of the Services
to export Client Data. Client will immediately return any Documentation in its
possession to Company. Upon termination or expiration of this Agreement, the Client
will return or destroy all of Company’s Confidential Information within its
possession, custody, or control and will certify such destruction to Company
upon request. Client Data and other Confidential Information may be retained
subject to the receiving party’s retention practices until such information is
scheduled to be deleted in accordance with the receiving party’s policies and
procedures, but will remain subject to this Agreement’s confidentiality
restrictions until deleted.
8.5.
Survival. Any provision of this Agreement
which contemplates performance or observance subsequent to its termination or
expiration, either explicitly or by its nature, shall continue in full force
and effect.
9.
LIMITED
WARRANTY AND DISCLAIMER.
9.1.
Limited
Warranty. Client
and Company warrant that each party has the corporate power and authority to
enter into and carry out the terms of the Agreement. Company further warrants
to Client that: (a) the Services will perform materially as described in the
Documentation; (b) Company will perform any Services in a professional and
workmanlike manner; and (c) Company will use industry-standard measures
designed to ensure that the Services (excluding Client Data) does not contain
viruses, malware or similar harmful code.
9.2.
Warranty
Remedy. If Company
breaches this Section and Client makes a reasonably detailed warranty claim
within thirty (30) days of discovering the issue, then Company will use
reasonable efforts to correct the non-conformity. If Company determines such
remedy to be impracticable, either party may terminate the affected Order Form
as it relates to the non-conforming Services. Company will then refund Client
any pre-paid, unused amounts for Fees for the terminated portion of the Services.
These procedures are Client’s exclusive remedy and Company’s entire liability
for breach of this Section. These warranties do not apply to (i) issues caused
by misuse or unauthorized modifications by Client or its authorized users, or
(ii) issues in or caused by Third-Party Providers or other third-party systems.
9.3.
Warranty
Disclaimer. EXCEPT
AS STATED AND EXPRESSLY PROVIDED IN THE WARRANTY SECTION ABOVE, THE SERVICES,
THE DOCUMENTATION, AND ANY PROFESSIONAL SERVICES DELIVERABLES PROVIDED BY COMPANY
UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE
FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL
OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, LEGAL, OR OTHERWISE, WITH
RESPECT TO THE SERVICES, THE DOCUMENTATION AND ANY PROFESSIONAL SERVICES
DELIVERABLES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUALITY,
DURABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
COMPLETENESS, ACCURACY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE
PRACTICE. COMPANY EXPRESLY DISCLAIMS THAT CLIENT’S USE OF THE SERVICES, OR
PROFESSIONAL SERVICES DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, WILL
MEET CLIENT’S PARTICULAR REQUIREMENTS, THAT DEFECTS IN THE
SERVICES, IF ANY, WILL BE
CORRECTED; OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE OR THAT IT WILL MAINTAIN CLIENT
DATA WITHOUT LOSS. COMPANY
DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE SECURITY AND
PROTECTION OF CLIENT DATA NOR GUARANTEE DATA AVAILABILITY. CLIENT BEARS THE
SOLE RESPONSIBILITY AND LIABILITY FOR MAINTAINING BACKUP AND ARCHIVE COPIES OF CLIENT
DATA. COMPANY DOES NOT WARRANT OR
REPRESENT THAT USE OF THE SERVICES WILL RESULT IN COMPLIANCE WITH ANY
APPLICABLE LAWS OR REGULATIONS, AND CLIENT UNDERSTANDS THAT IT IS SOLELY
RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND
REGULATIONS. COMPANY IS
NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE COMPANY’S CONTROL, INCLUDING
THE FAILURE TO PROMPTLY IMPLEMENT THE LATEST RELEASE OF THE SERVICES BY OR AT
THE DIRECTION OF CLIENT. CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY
STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY
PERMITTED PERIOD. CLIENT
ALONE IS RESPONSIBLE FOR ANY THIRD-PARTY CONTENT, AND COMMUNICATIONS, MESSAGES,
OR OTHER CONTENT THAT ITS AUTHORIZED USERS’ POST, UPLOAD, SUBMIT, TRANSMIT, OR
SHARE VIA THE SERVICES, OR THE PROFESSIONAL SERVICES DELIVERABLES, INCLUDING
ALL CLIENT DATA.
10.
LIMITATION
OF LIABILITY.
10.1. UNDER NO CIRCUMSTANCES WILL COMPANY
BE LIABLE TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER
THIS AGREEMENT OR OTHERWISE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE,
WORK STOPPAGE, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR
PUNITIVE DAMAGES, HOWEVER CAUSED, EVEN IF COMPANY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST
PROFITS, LOSS OF USE OF EQUIPMENT, LOSS OF REPUTATION, OR LOST CONTRACTS, OR
FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CLIENT.
10.2. TO THE FULLEST EXTENT ALLOWED UNDER
APPLICABLE LAW, COMPANY’S ENTIRE AGGREGATE LIABILITY, AND CLIENT’S SOLE AND
EXCLUSIVE REMEDY, FOR ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT
OR ANY OTHER AGREEMENT BETWEEN THE PARTIES SHALL NOT EXCEED THE LESSER OF (1) TEN
THOUSAND US DOLLARS ($10,000,00), OR (2) TOTAL FEES PAID OR PAYABLE BY CLIENT
TO COMPANY, PURSUANT TO THE APPLICABLE ORDER FORM IN THE SIX (6) MONTH PERIOD
IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
10.3. The waivers and limitations in this
Section apply regardless of the form of action, whether in contract, tort
(including negligence), strict liability or otherwise and will survive and
apply even if any limited remedy in this Agreement fails of its essential
purpose. Neither party may bring a claim or action, regardless of form, arising
out of the Agreement more than twelve (12) months after the claim or cause of
action arose.
11.
INDEMNIFICATION.
11.1. Company Indemnification. Company will indemnify, defend,
and hold harmless Client and its officers, directors, agents and employees from
and against any third-party claims (including any and all liabilities, damages,
losses, costs and expenses and reasonable attorneys’ fees) (“Claims”) finally
awarded to the extent such Claims directly arise from Client’s use of the
Services infringes on a third-party’s intellectual property rights in the
United States.
11.2. Client Indemnification. Client will indemnify, defend,
and hold harmless Company, its affiliates and their respective officers,
directors, agents and employees from and against any and all third-party Claims
to the extent such Claims arise from or relate to (1) Client Data or Third
Party Content; (2) Client’s breach of the Agreement or Order Form; (3) Client’s
gross negligence or willful misconduct; (4) modification to the Services or any
deliverables made by or at the direction of Client and designed solely in
accordance with specifications provided by Client; (5) Client’s violation of
applicable law; and/or (6) Client’s infringement of intellectual property
rights of a third party.
11.3. Indemnification Procedure. When seeking indemnification
pursuant to this Agreement, the party seeking indemnification shall (1)
promptly notify the indemnifying party in writing of the Claim provided that
any failure or delay to provide such notice shall not affect a party’s
obligation to indemnify to the extent the indemnifying party is materially
prejudiced by such failure or delay (2) give the indemnifying party reasonable
information and cooperation required to defend such suit, claim or proceeding,
and (3) allow the indemnifying party to control the defense of any such Claim and
all negotiations for its settlement or compromise; provided, however, the
indemnifying party shall not settle any claim without the indemnified party’s
prior written consent, which shall not be unreasonably withheld or delayed. The
indemnified party may be represented in the defense of any such claim, at the
indemnified party’s expense, by counsel of its selection. The indemnified party
shall have no liability for settlements made or costs incurred without its
consent. The absence of insurance shall not diminish any responsibility of
either party’s obligation to indemnify under the Agreement.
11.4. Mitigations and Exceptions. In response to an actual or
potential infringement Claim, Company may at its option: (a) procure rights for
Client’s continued use of the Services, (b) replace or modify the allegedly
infringing portion of the Services to avoid infringement without reducing the
Services’ overall functionality, or if options (a) and (b) are not commercially
practicable, (c) terminate the affected Order Form and refund to Client any
prepaid, unused amounts for Fees for the terminated portion of the Services.
11.5. Conditions. Company shall have no obligation or
otherwise (including no indemnification obligations) with respect to any
infringement or misappropriation Claims arising out of or resulting from (1)
Client’s modification of the Services or use of the Services in combination
with any products, equipment, software, data, Third Party Content, or any
content not provided by Company (2) Client’s use of the Services other than the
most recent release, (3) Client’s unauthorized or non-compliant use of the
Services, or (4) if Client settles or makes any admissions about a claim
without Company’s prior written consent.
11.6. Exclusive remedy. This Section sets out Client’s
exclusive remedy and Company’s entire liability regarding infringement of
third-party intellectual property rights.
12.
CONFIDENTIALITY.
12.1. Confidential Information. Except as expressly provided
herein, the parties agree that the receiving party shall not publish or
otherwise disclose and shall not use for any purpose any non-public information
about the disclosing party’s business or activities that is proprietary and
confidential that is furnished to it by the disclosing party pursuant to the
Agreement which (i) if disclosed in tangible form is marked “Confidential” or
with other similar designation to indicate its confidential or proprietary
nature, or (ii) if disclosed orally is indicated orally to be confidential or
proprietary by the disclosing party at the time of such disclosure, or (iii) is
confirmed in writing as confidential or proprietary by the disclosing party
within a reasonable time after such disclosure, or (iv) by its nature or the
circumstances surrounding its disclosure should reasonably be regarded as
confidential (collectively, “Confidential Information”). Notwithstanding the
foregoing, Confidential Information shall not include information that, in each
case as demonstrated by written documentation: (i) was properly in receiving
party’s possession or properly known by it, without restriction, prior to
receipt from the disclosing party; (ii) was rightfully disclosed to receiving
party by a third party without restriction; (iii) is, or becomes generally
available to the public or otherwise part of the public domain, other than
through any act or omission of the receiving party (or any subsidiary, agent or
employee of the receiving party) in breach of the Agreement; (iv) was
independently developed by the receiving party without reference to or use of
any Confidential Information disclosed by the disclosing party; or (v) is
approved in writing by the disclosing party for release.
12.2. Return of Confidential Information. Upon termination of the
Agreement for any reason or upon request of the disclosing party at any time,
the receiving party will (i) promptly return to the disclosing party the
original and all copies of all Confidential Information or, in lieu thereof,
certify that all such Confidential Information has been destroyed; and (ii)
destroy all notes and copies thereof made by receiving party containing any
Confidential Information, provided that neither party shall be obligated to
return or destroy Confidential Information to the extent necessary to fulfill
its obligations and to enforce its rights under the Agreement or to the extent
otherwise required by law, regulation, legal, regulatory or judicial process,
rule or practice governing professionals or any internal compliance policy or
procedure relating to the safeguarding or backup storage of data; provided that
any such Confidential Information so not returned or destroyed shall remain
subject to the confidentiality and use covenants contained herein, without
regard to Term.
12.3. Confidentiality and Non-Use. As receiving party, each party
will (a) hold in confidence and not disclose Confidential Information to third
parties except as permitted in this Agreement, and (b) only use Confidential
Information to fulfill its obligations and exercise its rights in this
Agreement. The receiving party shall use reasonable care to protect the
Confidential Information using at least the same degree of care the receiving
party uses to protect its own Confidential Information of a similar nature, but
in no event with less than reasonable care. The receiving party may disclose
Confidential Information to its employees, agents, contractors and other
representatives having a legitimate need to know (including, for Company the
subcontractors referenced herein), provided it remains responsible for their
compliance with this Section and they are bound to confidentiality obligations
no less protective than this Section.
12.4. Remedies. Each party agrees that unauthorized
use or disclosure of Confidential Information may cause substantial harm for
which money damages alone are an insufficient remedy. Each party may seek
appropriate equitable relief, including an injunction (without the necessity of
posting any bond or surety), in addition to other available remedies, for
breach or threatened breach of this Section.
12.5. Permitted Disclosures. Nothing in this Agreement
prohibits either party from making disclosures, including of Client Data and
other Confidential Information, to the extent such disclosure is reasonably
necessary for: (i) exercising the rights granted to it and fulfilling its
obligations under the Agreement, provided such disclosure is only made to the
receiving party’s employees, agents, consultants, or representatives with a
need to know such Confidential Information and who are bound by a
confidentiality agreement or other duty of confidentiality no less restrictive
than the duties in this Section; (ii) complying with applicable law, rules, or
regulations; or (iii) submitting information to tax or other governmental
authorities. If a party is required to make any disclosure of the disclosing
party’s Confidential Information in accordance with subsections (ii) and (iii)
above, to the extent it can legally do so, it will give reasonable advance
written notice to the disclosing party of such intended disclosure, and will
use its reasonable efforts to secure confidential treatment of such information
prior to its disclosure (such as seeking, or allowing the disclosing party a
reasonable opportunity to seek, a protective orders or otherwise).
13.
NON-SOLICITATION.
During the Term of
this Agreement and for a period of twelve (12) months thereafter, Client shall
not, directly or indirectly, in any manner solicit or induce for employment any
person who performed any work under this Agreement on behalf of Company or its
affiliates who is in the employment of the Company or its affiliates. Client
agrees to pay Company as liquidated damages an amount equal to 50% of the
annual salary of an employee solicited and hired from Company or its
affiliates, unless the parties mutually agree to another amount.
14.
PUBLICITY.
Neither party may
publicly announce this Agreement except with the other party’s prior written
consent or as required by law. However, Company may include Client and its
trademarks in its customer lists and promotional materials but will cease use
at Client’s written request.
15.
GENERAL PROVISIONS.
15.1. Relationship of the Parties. The parties are independent
contractors, not agents, partners, or joint venturers.
15.2. Assignment. Company and Client may not assign
this Agreement without the prior written consent of the other party, except
that either party may assign this Agreement upon notice in connection with a
merger, reorganization, acquisition or other transfer of all or substantially
all its assets or voting securities. Any non-permitted assignment is void. This
Agreement will bind and inure to the benefit of each party’s permitted
successors and assigns.
15.3. Entire Agreement. This Agreement is the parties’
entire agreement regarding its subject matter and supersedes any prior or
contemporaneous agreements or communications regarding its subject matter,
whether written or oral. In this Agreement, headings are for convenience only
and “including” and similar terms are to be construed without limitation. This
Agreement may be executed in counterparts (including electronic copies and
PDFs), each of which is deemed an original and which together form one and the
same agreement.
15.4. Updates to Agreement and Services. Company reserves the right to revise and
update the terms of this Agreement, to add or revise applicable terms of use
for its website or the Services, or modify or discontinue the Services (or any
part thereof) at any time with or without notice. All revisions and updates are
effective immediately when posted to the Site as indicated in the “Last Updated”
date above and apply to all access and use of the Services thereafter. Client
agrees to review the latest version of the Agreement on the Site periodically
to remain aware of any modifications to the Agreement. Any use of the Services
after any revisions or updates will constitute acceptance by Client of such
changes. We may update
the functionality, content, method, provision or integration methods of
Services from time-to-time and note the Service content is not necessarily
complete or up-to-date. Any of the material on Services may be out of date at
any given time, and we are under no obligation to update such material. Company
shall not be liable to
Client or to any third party for any modification, price change, suspension or
discontinuation of the Services.
15.5. Notices. Except as set out in this
Agreement, notices to Client under this Agreement must be in writing and will
be deemed received (a) immediately upon delivery as set forth below, (b) the
business day following delivery via nationally-recognized overnight courier
service, or (c) the third business day after it is sent to either the email
address for Client that is on file with the Company, or by U.S. mail to the mailing
address on the applicable Order Form, or the contact information associated
with Client’s account provided at registration, as applicable. Any notices to Company shall
be deemed effective upon receipt and must be delivered by sending by (i) certified
US mail, return receipt requested, or (ii) by overnight courier to Legal Department – Enrollware
Software, 540 Devall Drive, Suite 301, Auburn AL 36832, Attn: General Counsel;
in either case with an Email to: info@enrollware.com with another email cc to: Legal@fullsteam.com. Client may update their
contact information for
notice by providing notice to Company. Company may also send operational
notices to Client electronically, including through the Services.
15.6. Equitable Relief. Client and Company agree that a
breach of this Agreement may cause irreparable injury and damage, and that the
non-breaching party will be entitled to injunctive and other equitable relief
to prevent a breach, in addition to any other remedy to which the non-breaching
party might be entitled.
15.7. Governing Law and Jury Trial Waiver. The Agreement
shall be governed by and
construed in accordance with the laws of (i) the United States of America and
the State of Alabama, if Client is domiciled or resident in the United States
or anywhere other than Canada or Europe, (ii) Canada, and Province of Ontario,
if Client is domiciled or resident in Canada, and (iii) France, if Client is
domiciled or resident in a country in Europe, in each case excluding rules
governing conflict of law and choice of law. The (A) state and federal courts
located in Lee County, Alabama shall have exclusive jurisdiction to adjudicate
any dispute arising out of the Agreement if United States and the State of Alabama
laws apply, (B) the provincial
and federal courts in in the City of Toronto,
Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out
of this Agreement if Canadian law applies, and (C) the courts in Paris, France
shall have exclusive jurisdiction to adjudicate any dispute arising out of the
Agreement if French law applies. Each party hereto expressly consents to the
personal jurisdiction of, and venue in, such applicable courts. The parties
agree that the UN Convention on Contracts for the International Sale of Goods
(Vienna, 1980) and the Uniform Computer Information Transaction Act or similar
federal or state laws or regulations shall not apply to the Agreement nor to any
dispute or transaction arising out of the Agreement. THE PARTIES HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, ARISING
OUT OF THIS AGREEMENT.
15.8. Dispute Resolution. In the event of a dispute by
Client arising out of this Agreement, the parties agree that in good faith they
will escalate the dispute to management in their respective organizations and
agree to meet and confer at least once in an effort to resolve any such dispute
within ninety (90) days of first written notice of the dispute. If such
escalation and meet and confer attempts do not resolve the dispute, the parties
agree to participate in at least one (1) day of non-binding mediation (costs to
be split by the parties) with a mediator to which they jointly consent before
proceeding filing a claim in court against the other party.
15.9. Force Majeure. Company and Client are not liable
for any delay or failure to perform any obligations under this Agreement
(except for payment obligations) due to events beyond their reasonable control,
such as a strike, blockade, war, act of terrorism, riot, Internet or utility
failures, refusal of government license, or natural disaster provided, however, that in the
event such period of extended delay exceeds ninety (90) days in respect of a
Party, either Party may terminate this Agreement upon notice to the Party, as
applicable or, in the case of Company, may invoke its right of suspension in
accordance with the Agreement.
15.10. Subcontractors. Company may use subcontractors and permit them to
exercise Company’s rights under the Agreement, but Company remains responsible
for the subcontractors and the delivery of the Services to Client under this
Agreement.
15.11. Waivers and Severability. Waiver by a party of any breach
of any provision of the Agreement must be in writing and signed by the waiving
party’s authorized representative and cannot be implied from conduct. If any
provision of this Agreement is held impermissible pursuant to applicable law, invalid
by a court of competent jurisdiction, or otherwise illegal or unenforceable, it
will be limited to the minimum extent necessary, so the rest of this Agreement
remains in full force and effect to the fullest extent possible.
15.12. Third Parties.
Except as expressly provided herein, this Agreement does not create or
establish any rights or beneficiaries for any person or entity that is not a
party to this Agreement.
15.13. Export.
Client acknowledges that the Services may be subject to export control and
economic sanctions restrictions imposed by the U.S. government and import restrictions
by certain foreign governments (collectively “Trade Laws”). In using or
accessing the Services, Client will not and will not allow any third party to
use the Services in violation of any Trade Laws or remove or export from the
U.S. or allow the export or re-export of any part of the Service or any direct
product thereof to any location, party or end-use which the U.S. government or
any agency thereof requires an export license or other governmental approval at
the time of export or re-export without first obtaining such license or
approval. Client represents and warrants that it and any of its Authorized Users:
(i) are not listed on any U.S. government list of prohibited or restricted
parties, including the U.S. Treasury Department list of Specially Designated
Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons
List or Entity List; (ii) are not an entity or person who is organized under
the laws of, ordinarily resident in, or controlled by the government of, any
country or region (1) that is subject to a U.S. government embargo or comprehensive
sanction, (2) to which the U.S. has prohibited export transactions, or (3) that
has been designated by the U.S. government as a “terrorist supporting” country;
(iii) will not use the Services for the manufacture, design or development of
nuclear, chemical or biological weapons or missile technology, or for terrorist
activity; and (iv) will not submit to the Service any information controlled
under the U.S. International Traffic in Arms Regulations or listed on the
Commerce Control List unless approved in writing by Company. Client will notify
Company promptly if it or any Authorized User becomes subject to any order or
restriction listed in this Section.
15.14. Compliance with Laws. Client and Company will comply
with all applicable laws in their access, use and provision of the Services.
15.15. Open Source and Third-Party
Software. The Services may incorporate
third-party open-source software (“OSS”), as listed in the Documentation or
provided by Company upon request. Client’s internal use of the unmodified
Services in the form provided and as authorized in this Agreement will not
require Client to comply with the terms of OSS licenses.
15.16. Government End-Users. Elements of the Services are
commercial computer software. If the user or licensee of the Services is an
agency, department, or other entity of the United States Government, the use,
duplication, reproduction, release, modification, disclosure, or transfer of
the Service or any related documentation of any kind, including technical data
and manuals, is restricted by the terms of this Agreement in accordance with
Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal
Acquisition Regulation Supplement 227.7202 for military purposes. The Services
were developed fully at private expense. All other use is prohibited.
15.17. Antibribery and Kickbacks. Client has not received or been
offered any bribe, kickback, illegal or improper payment, gift, or thing of
value from any Company personnel or agents in connection with the Agreement,
other than reasonable gifts and entertainment provided in the ordinary course
of business. If Client becomes aware of any violation of the above restriction,
Client will promptly notify Company.
16. CLASS ACTION
WAIVER
16.1. THIS SECTION
CONTAINS A BINDING CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO
RESOLVE ANY DISPUTE WITH US.
To the extent permitted
by applicable law (“Excluded Disputes”), Client may only bring any claims related to this Agreement in
court or arbitration on its own behalf and not on a class or collective
basis on behalf of others. Client agrees that it will not participate in any class or
collective action or as a member of any such class or collective proceeding for
any claims related to or arising out of covered this Agreement and Services
from Company. Client also agrees not to
participate in claims brought in a private attorney general or representative
capacity, or consolidated claims involving another person’s account, if we are
a party to the proceeding. YOU AGREE THAT YOU VOLUNTARILY,
KNOWINGLY, AND INTELLIGENTLY WAIVE ANY RIGHT YOU MAY HAVE TO BRING OR OTHERWISE
PARTICIPATE WITH OTHER PERSONS IN ANY CLASS, COLLECTIVE, CONSOLIDATED ACTION OR
REPRESENTATIVE ACTION UNDER ANY FEDERAL, STATE OR LOCAL LAW OR STATUTE TO THE
FULLEST EXTENT PERMITTED BY LAW. To opt out,
you must notify us in writing within thirty (30) days of the date that you
first became subject to this provision. You must use this address to opt out: legal@fullsteam.comYou must include your
name and residence address, the email address you use for your account with us,
and a clear statement that you want to opt out. If and to the extent the
prohibition against class actions and other claims brought on behalf of third parties
contained above is found to be unenforceable, then such preceding language in
this section will be null and void.
16.2. Language.
The parties hereto acknowledge that they have expressly requested and are
satisfied that this Agreement and all related documents and notices be drawn up
in English. Les
parties reconnaissent qu’elles ont expressément exigé que le présent Contrat et
tous les documents et avis qui s’y rattachent soient rédigés en anglais et s’en
déclarent satisfaites.