Scytec DataXchange Process Control System
Master Subscription Agreement
This Master Subscription Agreement (“Agreement”) governs your use of our software and services. By accepting this agreement, either by installing the software or by executing an order form that references this agreement, you agree to the terms of this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the services. You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. Purchased Services
1.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms or purchase orders during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. You must provide your own Internet access to utilize the Service.
1.2. Equipment Subscriptions. Services are purchased as Equipment subscriptions and may be accessed by no more than the specified number of Equipment. Additional Equipment subscriptions may be added during the applicable subscription term and the added Equipment subscriptions shall terminate on the same date as the pre-existing subscriptions.
2. Use of the Services
2.1. Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available as specified below in the section labeled Service Level Agreement, except for planned downtime, or any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
2.2. Our Protection of Your Data. We shall maintain appropriate physical, administrative, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law or as expressly permitted in writing by You, or (c) directly access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
2.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement and You are responsible for all activity occurring under your Account, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit spam or malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks, (g) provide complete and accurate contact information to Us and notifying Us of any changes to such information.
3. Fees and Payment for Purchased Services
3.1. Fees. You shall pay all fees specified in all Order Forms or purchase orders hereunder. Except as otherwise specified herein or in an Order Form or purchase order, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of Equipment subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form or purchase order. Equipment subscription fees are based on monthly or annual periods that begin on the subscription start date. Annual contract will be up for renewal annual thereof. Annual subscriptions fees for Equipment subscriptions added during the subscription will be prorated from the first of the month when the addition was made. Monthly subscriptions will always renew on the 1st day of the month. Monthly subscriptions fees for Equipment subscriptions added during a monthly subscription period will be charged for that full monthly period.
3.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, banking information for automatic withdrawal for monthly subscriptions or with a valid purchase order for annual subscriptions. If You provide credit card or banking information to Us, You authorize Us to charge such credit card or withdrawal for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, in accordance with the billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than automatic payment there will be a service fee as defined on the Order form. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
3.3. Suspension of Service. If any amount owing by You under this or any other agreement for Our services is 15 days overdue Our services to You will be suspend. For the next 15 days after service has been suspended the service can be restored for the amount stated on the Order form. If payment has not been received within the additional 15 days Your account will be cancelled.
4. Proprietary Rights
4.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
4.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) reverse engineer the Services, or (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
4.3. Ownership of Your Data. All title and intellectual property rights in and to the Customer Data is owned exclusively by You. You acknowledge and agree that in connection with Service, We as part of Our standard Service offering will make backup copies of Your Data in Your account and store and maintain such data. You may request a copy of the backup of Your data at any time for the cost as stated on the order form. The backup will be made available for download within 48 business hours of receiving the order and will stay available for download for 30 days from the order date.
4.4. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
5.1. Overview. Confidential Information is information that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
5.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. Term and Termination
7.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all Equipment subscriptions granted in accordance with this Agreement have expired or been terminated.
7.2. Term of Purchased Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
8. Limitation of Liability
8.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
8.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. General Provisions
9.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
9.3. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
9.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9.5. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment).
9.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10. Service Level Agreement
10.1 Expected Up Time Levels. The DataXchange servers are expected to have a 99.9% up time excluding any planned maintenance.
10.2 Response times. The response time is defined as the amount of time it takes Scytec to respond to an initial support request submitted through proper support channels. Response times apply during standard working hours of 8:00 am — 5:00 pm Mountain time, unless the contract between the customer and supplier specifically includes provisions for out of hours support. Scytec will always strive to respond within one hours, and guarantees a response within 4 hours.
10.3 Resolution times. Scytec will always attempt to resolve problems as quickly as possible. Scytec understands that the use of DataXchange is key to your business and that any downtime can cost money. However, Scytec is unable to provide guaranteed resolution times due to the fact that the nature and causes of problems can vary enormously. In all cases, Scytec will make its best efforts to resolve problems as quickly as possible and will also provide frequent progress reports if problems cannot be solved quickly.