User Agreement
e2b Master Subscription Agreement 1. Subscription. 1.1. Deployment Model. E2BTEK shall make the Anytime Collect Product, known as "Anytime Collect" available to the Company pursuant to the terms of this Agreement and the Order Form during the Subscription Term. The Anytime Collect Product is an online, Web-based platform and applications that are hosted by E2BTEK, or a third party hosting facility designated by E2BTEK and provided as a service). The Anytime Collect Product is currently hosted by E2bteknologies, Inc. (“e2b”) which in turn contracts with Microsoft for hosting services. 1.2. Use of the Anytime Collect Product. 1.2.1. Terms of Use. E2BTEK shall make the Anytime Collect Product available to Company for use by the Subscription Users, pursuant to the terms of this Agreement and in accordance with the terms and conditions contained in Exhibit A, attached hereto. Company acknowledges and agrees that the terms and conditions contained herein and in Exhibit A will govern Company’s use of the Anytime Collect Product for the Subscription Term, unless explicitly stated otherwise in a written agreement between the parties. 1.2.3. License Key. E2BTEK will provide Company with a license key to allow access to the applicable Anytime Collect Product by the specific number of Subscription Users for which Company has paid the applicable fees. Company understands and agrees that the Anytime Collect Product may not be accessed or used by more than the specified number of each category of Subscription Users for which Company has paid the applicable fees and that additional Subscription Users may only be added per the terms of Section 4.2 in this Agreement. 1.3. Support. During the Subscription Term, and at no additional charge to the Company, E2BTEK will provide Company with the standard level of support indicated at the following URL, which corresponds to the Anytime Collect Product purchased by Company: https://www..e2banytime.com/__ (the “Support Services”). E2BTEK reserves the right, from time to time, to make modifications to the Support Services or particular components of the Support Services and will use commercially reasonable efforts to notify Company of any material modifications by posting a notice of the modification on the URL noted above. Additional upgraded support service may be purchased by Company via submission of an Order Form. Company understands and agrees that E2BTEK may subcontract and/or assign the provision of its Support Services to a third party. 1.4. Company Responsibilities. Company shall: (a) be responsible for all Subscription Users’ compliance with the terms and conditions of this Agreement, (b) be solely Responsible for the accuracy, integrity, and legality of Company Data and the means by which it acquires and uses such Company Data, (c) use the Anytime Collect Product only in accordance with the applicable online user guide and applicable laws, rules, regulations (including, without limitation, export, data protection and privacy laws, rules and regulations) and any Anytime Collect Product documentation, (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Anytime Collect Product , and (e) notify E2BTEK in writing of (i) any unauthorized use of, or access to, the Anytime Collect Product or any Subscription User account or password thereof. For the avoidance of doubt, Subscription User accounts and passwords are specific to individual Subscription Users, and under no circumstances may Subscription User accounts or passwords be shared among or by different Subscription Users; provided, however, that the Company administrator(s) may reassign a Subscription User account during the Subscription Term, if a former Subscription User no longer requires a Subscription User account. 1.5. Restrictions. Company shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Anytime Collect Product or any modified version or derivative work of the Anytime Collect Product created by or for Company, (b) provide the Anytime Collect Product , or any modified version or derivative work of the Anytime Collect Product created by or for Company, on a timesharing, service bureau or other similar basis, (c) remove or alter any copyright, trademark or proprietary notice in the Anytime Collect Product , (d) develop Forked Software, (e) copy any features, functions or graphics of the Anytime Collect Product for any purpose other than what is expressly authorized in this Agreement, (f) modify, remove or disable any portion of the Critical Control Software, (g) use or modify the Anytime Collect Product in any way that would subject the Anytime Collect Product , in whole in or in part, to a Copy left License, (h) send, store, or authorize a third party to knowingly send or store spam, unlawful, infringing, obscene or libelous material, or Malicious Code, (i) attempt to gain unauthorized access to, or willfully disrupt the integrity or performance of the Anytime Collect Product or the Company Data contained therein, (j) access the Anytime Collect Product for the purpose of building a competitive Product or service or copying its features or user interface, or (k) use the Anytime Collect Product , or permit it to be used, for purposes of Product evaluation, benchmarking or other comparative analysis intended for publication without E2BTEK 's prior written consent. 2. Proprietary Rights. 2.1. Ownership. 2.1.2. Ownership of Core Modifications. As between E2BTEK and Company, E2BTEK owns all right, title and interest, including all Intellectual Property Rights, in and to the Anytime Collect Product and any Core Modifications thereto, including, without limitation, any Core Modifications created by or for Company under the Agreement. This Agreement does not convey or transfer any ownership rights in the Anytime Collect Product or any Core Modifications, or any Intellectual Property Rights therein, to Company. Company hereby does and will assign to E2BTEK all right, title and interest worldwide in the Intellectual Property Rights embodied in any and all Core Modifications. To the extent any of the rights, title and interest in and to Core Modifications are found by a court of competent jurisdiction not to be assignable by Company to E2BTEK , Company irrevocably agrees to grant, and hereby grants to E2BTEK an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sub licensees) to fully use, practice and exploit those non-assignable rights, title and interest, including, but not limited to, the right to make, have made, use, have used, sell, offer for sale, have sold, distribute and import, the Core Modifications. E2BTEK reserves all rights, title, and interest in and to all copies of the Anytime Collect Product and any Core Modifications. 2.1.3. Trademarks. E2btek’s name, logo, trade names and trademarks are owned by E2BTEK, and no right is granted to Company to use any of the foregoing except as expressly permitted herein or by written consent of E2BTEK. e2b’s name, logo, trade names and trademarks are owned by e2b, and no right is granted to Company to use any of the foregoing except as expressly permitted herein or by written consent of e2b. 2.1.4. Freedom to Operate and Innovate. Nothing in this Section 3 shall inhibit, hamper, encumber or otherwise impede E2btek’s freedom to improve, extend and/or modify any and all Anytime Collect Product s and Core Modifications. Nothing in this Agreement prevents Company from developing or procuring services that are the same as or similar to those provided by E2BTEK herein. 2.2. Company Data. 2.2.1. Ownership of Company Data. As between Company and E2BTEK, Company owns all Intellectual Property Rights in and to the Company Data. 2.2.2. Data Processing. Company hereby grants to E2BTEK a limited, non-exclusive, fully-paid, royalty-free, transferable (in accordance with Section 11.3) license to use, access and process the Company Data solely in order to provide the Services to Company, including, without limitation to address service or technical problems, or at Company’s request, in connection with providing Support Services to the Company. E2BTEK shall not use, access, disclose Or process any Company Data, except a) to perform the obligations under this Agreement; b) comply with applicable laws; and c) in accordance with the Terms of Use in Exhibit A, attached hereto. 2.2.3. Data Protection & Security. E2BTEK uses technical, administrative and physical safeguards that are designed to protect the Company Data from loss, unauthorized access, disclosure, alteration, or destruction. E2BTEK shall not (a) modify Company Data, or (b) disclose Company Data except as compelled by law in accordance with Section 6.1, as expressly set forth in this Agreement or as otherwise permitted in writing by Company. 2.3. Suggestions. E2BTEK shall have a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use, copy, modify, or distribute, including by incorporating into any Product or service owned by E2BTEK , any suggestions, enhancement requests, recommendations or other feedback provided by Company and any of its Subscription Users, relating to any Product or service owned by E2BTEK . 3. Payment. 3.1. Fees and Payment. Company agrees to pay all fees specified in the relevant Order Form. Except as otherwise provided, fees set forth in each Order Form hereunder will be: (i) fixed during the Subscription Term set forth in such Order Form; (ii) quoted and payable in United States dollars; (iii) based upon the number of Subscription User licenses purchased, even if actual usage is lower; and (iv) non-cancelable and non-refundable. Fees are due thirty (30) days from the invoice date, unless otherwise noted in an Order Form. Company agrees to provide E2BTEK with complete and accurate billing and contact information and to notify E2BTEK of any changes to such information 3.2. Additional Subscription Users. Additional Subscription User licenses may be added for different categories of Subscription Users during any given month at the then-current Subscription User fee. Company understands and agrees that Company will be charged the equivalent of a full monthly fee for Subscription Users that are added in the middle of a monthly period and each of the monthly periods remaining in the then-current Subscription Term. The Subscription Term for the additional Subscription User subscriptions will terminate on the same date as the pre-existing Subscriptions. Company will be Responsible for submitting a new Order Form to E2BTEK, to request the additional Subscription User license(s) during the Subscription Term. Company also understands and agrees that the number of Subscription User licenses purchased under a specific Order Form cannot be decreased during the relevant Subscription Term set forth on such Order Form. 3.3. Renewal. All fees required for renewal of a Subscription Term will be invoiced in advance prior to expiration of the current Subscription Term (the “Renewal Invoice”), and any pricing or changes in the number of Subscription Users for such renewal Subscription Term will be reflected in the Renewal Invoice. Fees for any subsequent renewals shall be set at the then-current E2BTEK pricing, unless otherwise stated on the Order Form, Renewal Invoice or otherwise agreed to in writing by the parties. Renewal of the Subscription Term requires a written agreement signed by both parties. Mere transmission of an invoice to Company indicating a renewal shall not be sufficient to renew this Agreement beyond the initial Subscription Term. 3.4. Intentionally deleted. 3.5. Overdue Charges If any charge owing by Company to E2BTEK or the applicable E2BTEK Authorized Reseller is thirty (30) days or more overdue, E2BTEK may, without limiting its other right and remedies, suspend Services until such amounts are paid in full. 3.6. Taxes. Unless otherwise provided, fees specified in quotes or Order Forms, do not include any Taxes, and Company is Responsible for payment and reimbursement of all Taxes associated with its purchases hereunder, excluding any Taxes based on E2btek 's net income or property. 3.7. Intentionally deleted. 4. Term and Termination. 4.1. Term. This Agreement commences on the Effective Date and continues for one (1) year unless earlier terminated as provided herein. This Agreement may be renewed for successive Subscription Terms in accordance with Section 4.3 above, which includes receipt of the applicable fees by E2BTEK. An Order Form or Renewal Invoice commences on the effective date of such Order Form or Renewal Invoice and after signature by both parties authorizing such extension, and continues for the Subscription Term specified in such Order Form or Renewal Invoice. 4.2. Termination by Company or E2BTEK. Either party may terminate this Agreement prior to the end of a Subscription Term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. 4.3. Effect of Termination. No refunds of payments will be made, unless termination of this Agreement is a result of a breach by E2BTEK under Section 4.2, in which case Company will be entitled to a refund of the pro rata portion of fees associated with the remainder of the Subscription Term. Company understands and agrees that upon expiration of the Subscription Term or termination of the Agreement, whichever occurs first, the licenses granted under this Agreement will be immediately revoked and E2BTEK may immediately deactivate Company’s account. In no event shall any termination relieve Company of the obligation to pay any fees payable to E2BTEK for the period prior to the effective date of termination, unless otherwise stated in this Agreement. E2BTEK shall provide all Company Data to Company upon any termination or expiration of this Agreement. 4.4. Surviving Provisions. Company’s obligation to make a payment of any outstanding, unpaid fees,E2BTEK’s obligation to return any amounts to Company pursuant to Section 5.3, the defined terms used in the Agreement and the terms of Sections 3, 4.1, 4.5, 4.6, 5.4, 6, 7.3, 8, 9, 10, 11 and 12 shall survive termination or expiration of this Agreement. 5. Confidentiality. 5.1. Confidentiality. The parties acknowledge that in the course of performing their obligations under this Agreement, each may receive Confidential Information. Each party covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written agreement, with terms at least as restrictive as the confidentiality terms herein, , or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (a) previously known to it without obligation of confidence, (b) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (c) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (d) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this Agreement, Original Code and the structure, sequence and organization of the Anytime Collect Product are Confidential Information of E2BTEK or its licensors. 5.2. Destruction. Subject to Section 4.3, within five (5) days after a Disclosing Party’s request, the Receiving Party shall destroy the Disclosing Party’s Confidential Information... 6. Warranties, Exclusive Remedies and Disclaimers. 6.1. E2BTEK Warranties. E2BTEK warrants that (i) it has the legal power to, and hereby does, enter into this Agreement; (ii) the Anytime Collect Product shall perform in accordance with the online user guide for the applicable Anytime Collect Product; (iii) E2BTEK will not contain any Malicious Code. Notwithstanding the foregoing, Malicious Code present in the Company Data made available to E2BTEK by Company shall not constitute a breach of the warranty specified in Section 7.1(iii); (iv) that this Agreement does not violate any preexisting contractual or legal obligations of E2BTEK; and (v) that E2BTEK has all necessary licenses, clearances, authorizations, and permissions necessary to provide services as set forth in this Agreement. Without prejudice to E2BTEK’s indemnification obligations set forth in Section 7.1, Company’s sole and exclusive remedy for a breach of any of warranties contained in this Section 6, 1, shall be to terminate the Agreement pursuant to Section 4.2 and, notwithstanding anything to the contrary in Section 3.1 of the Agreement, have E2BTEK refund to Company the pro rata unused portion of any pre-paid Subscription fees. 6.2. Company Warranties. Company warrants that (i) it has the legal power to, and hereby does, enter into this Agreement, (ii) it has all rights in and to the Company Data necessary to permit E2BTEK to exercise its rights to access and use the Company Data as permitted by this Agreement; and (iii) the Company Data or the media on which the Company Data resides does not, to Company’s knowledge, contain any Malicious Code. 6.3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN SECTION 7.1, THE ANYTIME COLLECT PRODUCT IS PROVIDED TO COMPANY STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BOTH PARTIES. E2BTEK 'S PRODUCT OR SERVICE MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND E2BTEK IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO COMPANY. 7. Mutual Indemnification. 7.1. E2BTEK. E2BTEK shall defend and hold Company and its Affiliates, officers, directors, employees and agents harmless from and against all third party claims, actions and demands brought against Company arising from: (1) E2BTEK’s breach of its representations and warranties in this Agreement; (2) claims that E2BTEK failed to comply with applicable laws, rules or regulations in its performance of this Agreement; and/or (3) Anytime Collect Product infringing such third party’s trademark, copyright or misappropriating such third party’s trade secret. E2BTEK shall indemnify Company for any liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) as a result of such claim (any or all of the foregoing hereunder referred to as “Losses”), subject to the exclusions (i)-(iv) set forth below. E2BTEK will have no obligation to indemnify Company for any claim, action or demand to the extent that such claim, demand or action is based on: (i) Third Party Software, Company Software or Company Data, (ii) Modifications to the Anytime Collect Product other than those made by E2BTEK or a third party authorized by E2BTEK where the Anytime Collect Product would not infringe or misappropriate except for such Modifications, (iii) combination of the Anytime Collect Product with other Product s, processes or materials where the Anytime Collect Product would not infringe or misappropriate except for such combination, , or (iv) where Company’s use of the Anytime Collect Product is not materially in accordance with this Agreement. In the event that E2BTEK believes the Anytime Collect Product, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 8.1 applies, then E2BTEK may, in its discretion and at its sole expense: (a) procure for Company the right to continue using such Anytime Collect Product or any applicable part thereof, (b) replace such Anytime Collect Product, or infringing part thereof, with a non-infringing version (or part thereof), (c) modify such Anytime Collect Product , or infringing part thereof, so as to make it non-infringing, or (d) in the event that (a), (b) or (c) are not commercially feasible, then Company shall have the right to terminate this Agreement solely with respect etc. to the infringing Anytime Collect Product , and, notwithstanding anything to the contrary in Section 4.1 of this Agreement, have E2BTEK refund to Company the pro rata unused portion of any pre-paid subscription fees. 7.2. Company. Company shall defend and hold E2BTEK and its Affiliates, officers, directors, employees and agents harmless from and against all third party claims, actions and demands brought against E2BTEK and shall indemnify E2BTEK for any Losses arising from: (i) Company’s breach or violation of Company’s responsibilities under Section 1.4 or 1.5 or (ii) claims that Company Data independent of the Company Software or E2btek 's transmission or hosting thereof, infringes or violates the rights of a third party; (iii) claims that Company's use of the Product or Service in violation of this Agreement infringes or violates the rights of such third party; or (iv) claims that Company failed to comply with applicable laws, rules or regulations in its performance of this Agreement. 7.3. Indemnification Procedures. The party or other person entitled to seek indemnification pursuant to this Section 8 (the “Indemnified Party”) shall: (i) promptly notify the other party obligated to provide such indemnification (the “Indemnifying Party”) in writing of any such claim, (ii) give sole control of the defense and settlement of any such claim to the Indemnifying Party (provided that Indemnifying Party may not settle any claim in a manner that adversely affects Indemnified Party’s rights, imposes any obligation or liability on the Indemnified Party or admits liability or wrongdoing on the part of Indemnified Party, in each case, without Indemnified Party’s prior written consent) and (iii) provide all information and assistance reasonably requested by the Indemnifying Party, at the Indemnifying Party’s expense, in defending or settling such claim. The Indemnified Party may join in defense with counsel of its choice at the Indemnified Party’s own expense. 8. Limitation of Liability. 8.1. Limitation on All Damages. EXCEPT FOR THE PARTIES CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE LESSER OF THE TOTAL AMOUNT PAYABLE BY COMPANY TO E2BTEK UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY OR FIVE HUNDRED THOUSAND DOLLARS. THE FOREGOING SHALL NOT LIMIT COMPANY’S PAYMENT OBLIGATIONS UNDER SECTION 3. 8.2. Disclaimer of Consequential Damages. EXCEPT FOR THE PARTIES CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE), ARISING UNDER THIS AGREEMENT 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. 8.3. THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 9. United States Government Users. 9.1. Commercial Computer Software. The Anytime Collect Product and related modifications were fully developed at private expense and are commercial computer software as defined in FAR 2.101. Any related documentation, technical data, or services are also commercial. In accordance with FAR 12.212 and DFARS 227.7202, all rights conferred in the E2BTEK Product , related documentation, technical data, services, or any deliverable to the United States Government are specified in this Master Subscription Agreement. All other uses are prohibited and no ownership rights are conferred. 10. General. 10.1. Publicity. Neither party shall use the other's name or logos without the prior written consent of the other party, which consent shall not be unreasonably withheld. 10.2. Export Compliance. Company acknowledges and agrees that the Anytime Collect Product is subject to all applicable export control laws and regulations, including, without limitation, those of the United States Government. Company shall strictly comply with all applicable export control laws and regulations related to the Anytime Collect Product, including, without limitation, U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, and all licenses and authorizations issued under such laws and regulations. Company shall fully cooperate with E2BTEK in securing any export licenses and authorizations required under applicable export control laws and regulations. Company agrees that it shall not, and shall cause its representatives, employees, agents, contractors and customers to agree not to, export, re export, divert, release, transfer, or disclose any such Anytime Collect Product , or any direct Product thereof, to any prohibited or restricted destination, end-use or end-user, except in accordance with all relevant export control laws and regulations. Company shall make its records available to E2BTEK upon reasonable request to permit E2BTEK to confirm Company's compliance with its obligations as set forth in this Section 10.2. Company's obligations as set forth in this Section 10.2 shall survive expiration or termination of this Agreement for any reason whatsoever. 10.3. 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), provided that E2BTEK may license in software and contract for hosting and support from e2b and other third parties. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without the consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section 10.3 shall be void. 10.4. Relationship of the Parties. E2BTEK and Company are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 10.5. No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement. 10.6. Choice of Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. Company and E2BTEK agree to submit to the personal and non-exclusive jurisdiction of the courts located in Geauga County, Ohio. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 10.7. Attorney’s Fees. In any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the prevailing party’s reasonable attorneys’ fees and reasonable costs. 10.8. Manner of Giving Notice. Notices regarding this Agreement shall be in writing and addressed to Company at the Address Company provides, or, in the case of E2BTEK, when addressed to E2b Technologies Inc. - 521 Fifth Avenue, Chardon, OH 44024. Notices regarding the Anytime Collect Product in general may be given by electronic mail to Company’s e-mail address on record with E2BTEK. 10.9. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's reasonable control, and denial of service attacks. 10.10. Official Language. The Agreement and any Order Forms or exhibits attached hereto (the “Collective Agreements”) entered into between Company and E2BTEK shall be in English. Any translations of the Collective Agreements that E2BTEK may provide to Company, are for Company’s convenience only, and in all cases, unless otherwise prohibited by law, the English version of the Collective Agreements will govern the relationship between the parties. For the avoidance of doubt, if there is any contradiction between the English language version of the Collective Agreements and the translations, the English language version of the Collective Agreements will govern. 10.11. Entire Agreement. This Agreement and any Order Forms or exhibits attached hereto or URLs referenced herein represent the entire agreement of the parties and supersede all prior discussions, emails, and/or agreements including requests for proposals (“RFP”), between the parties and is intended to be the final expression of their Agreement. To the extent there is a conflict between this Agreement and any additional or inconsistent terms, including any pre-printed terms on a customer purchase order, the terms of this Agreement shall prevail, unless expressly stated otherwise. Notwithstanding any language to the contrary therein, and except as set forth in Section 3.1, no terms stated in a purchase order or in any other order document (other than an Order Form expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. The Agreement and all exhibits hereto, including any related Order Forms may not be modified or altered except by written instrument, and no amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Company and E2BTEK . All rights not expressly granted to Company are reserved by E2BTEK and its licensors. 10.12. Equitable Relief. Except as otherwise provided, remedies specified herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 10.13. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such 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 shall remain in effect. 10.14. Electronic Signatures; Counterparts. This Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement in ink by both parties. 11. Definitions. 11.1. “Affiliate” means a company that is controlled by, under common Control with or Controlling Company during the period of such control. 11.2. “API” means application programming interfaces provided by E2BTEK as part of the Anytime Collect Product, which set forth rules and specifications that Third Party Plug-Ins may utilize to access Company Data in accordance with this Agreement. 11.3. "Company Data" means any data, information or material submitted by Company, or stored by Company in the Anytime Collect Product. 11.4. “Company Software” means online, Web-based applications and offline software Product s that are developed by or for Company. 11.5. “Confidential Information” means information that one party (the “Disclosing Party”) provides to the other party (“Receiving Party”) during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. 11.6. “Control” means ownership, directly or indirectly, of more than 50% of the voting securities that vote for the election of the board of directors or other managing body. 11.7. “Copy left License” means a software license that requires that information necessary for reproducing and modifying such software must be made available publicly to recipients of executable versions of such software (see, e.g., GNU General Public License and http://www.gnu.org/copyleft/). 11.8. “Core Modifications” mean any Modifications that are not Metadata Custom Components. 11.9. “Critical Control Software" means functionality that reports the number of authorized Subscription Users, and provide E2BTEK (and Authorized E2BTEK Resellers, where applicable) with the ability to monitor certain usage of the Anytime Collect Product. 11.10. “Forked Software” means modifications to any open source version of the Original Code to develop a separately maintained source code program (a) with features not present in the Original Code or (b) where modifications to the Original Code are not automatically integrated with the Original Code. 11.11. “Intellectual Property Rights" means any patents and applications thereto, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property and proprietary rights. 11.12. “Loosely-Coupled Integrations” means Company software and/or modifications, enhancements or customizations made by or for Company to Third Party Software that interoperate with the Anytime Collect Product solely via an API. 11.13. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs. 11.14. “Metadata Custom Components” means any Modifications developed by or for Company using E2btek 's “Studio,” “Workflow,” and/or “Module Builder” customization tools, or via a substantially similar methodology, which Modifications would reside in either the Anytime Collect Product directory named “custom” or the Anytime Collect Product directory named “modules,” including, for example, Modifications to the field, screen layout and workflow metadata in Company’s instantiation of the Anytime Collect Product . 11.15. “Modifications” means any work based on or incorporating all or any portion of the Anytime Collect Product, including, without limitation, modifications, enhancements and customizations to the Anytime Collect Product. 11.16. “Order Form” means a document for purchases of Subscriptions hereunder, including purchase orders, order notifications and order confirmation documents and addenda thereto, that are agreed to by E2BTEK , or entered into between E2BTEK and Company or Company and an E2BTEK Authorized Reseller, as applicable, from time to time. Order Forms are deemed incorporated herein by reference. 11.17. “Original Code” means Anytime Collect Product source code. 11.18. “Patent(s)” means: (i) any patent application or issued patent (including any utility patent, design patent, patent of importation, patent of addition, certificate of addition, inventor’s certificate, re-examination certificate or model of utility) granted by or applied for in the United States or any other country, (ii) any reissue, continuation (in whole or in part), parent, division, extension, renewal or re-examination of any of the foregoing, (iii) any counterpart anywhere in the world of any of the foregoing, and (iv) any patent application that is a continuation, continuing application, continuation-in-part or division of any such application. 11.19. “Pre-Existing Company Intellectual Property Rights” means Company Intellectual Property which Company identifies in a written notice to E2BTEK. 11.20. “Service” means the service provided by E2BTEK to the Company pursuant to this Agreement 11.21. “Software Releases” has the meaning ascribed to it in Exhibit A of this Agreement. 11.22. “Subscription” means Company’s right to use the Anytime Collect Product for the Subscription Term, per the terms of the Agreement and the related Order Form(s). 11.23. "Subscription Term” means the period of time which Company may access the applicable Anytime Collect Product as set forth in an Order Form. 11.24. “Subscription User” means an individual employee, contractor or agent of Company and its Affiliates authorized by Company to use the applicable Anytime Collect Product for which a Subscription has been purchased and who has been given a user identification and password. There are three categories of Subscription Users: (a) Credit Representative Users; (b) Sales Representative Users; and (c) Customer Portal Users. 11.25. “E2BTEK Authorized Reseller” means an Anytime Collect Product reseller that is in good standing with E2BTEK under a fully-executed E2BTEK reseller agreement and is associated with an Order Form under this Agreement. 11.26. “Support Services” shall have the meaning defined in Section 1.3 of this Agreement. 11.27. "Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes. 11.28. “Third-Party Modules” means software developed by a third party that Company may use to add functionality to the Anytime Collect Product , the use of which software is governed by the applicable terms and conditions specified by such third party. 11.29. "Third-Party Software" means online, Web-based applications and offline software Product s that are developed by third parties, and may interoperate with the Anytime Collect Product. IN WITNESS WHEREOF, the parties hereto have caused this Master Subscription Agreement to be executed as of the Effective Date set forth above. Exhibit A Terms of Use of Anytime Collect Products The Company’s use of the Anytime Collect Product s shall be subject to the additional terms and conditions which can be found at: http://www.e2banytime .com__ (the “Terms of Use”). Company acknowledges and agrees that the Terms of Use, together with the terms of the Agreement, shall govern the relationship between Company and E2BTEK. In addition, Company agrees that unless explicitly stated otherwise in writing, any new features, Software Releases (as defined in Section -b- below) or additions to the Anytime Collect Product s that are procured by Company, will also be subject to the Terms of Use and the terms in the Agreement. E2BTEK hereby reserves the right to modify the Terms of Use and/or the Anytime Collect Product s, from time to time, at its sole discretion. E2BTEK shall use commercially reasonable efforts to notify Company of any material modifications to the Terms of Use or Anytime Collect Product s by posting a notice at the URL noted above and/or sending an email to the administrative user of the Company account. E2BTEK shall not be liable to Company nor to any third party for any modification of the Terms of Use or the Anytime Collect Product. For Company’s convenience, the following are the Terms of Use as of the Effective Date of the Agreement: 1. Service. Subject to the Terms of Use and the terms of the Agreement, Company shall have the right to access, use and modify the Anytime Collect Product during the Subscription Term solely for Company’s own internal business purposes. The Anytime Collect Product may be accessed through a web browser and/or mobile web client. 2. Software Releases. During the Subscription Term, if Company has paid the applicable fees and is in compliance with the terms and conditions of the Agreement, E2BTEK may provide automatic updates to Company’s instance of the Anytime Collect Product with Software Releases. “Software Releases” may be comprised of Maintenance Releases and/or Feature Releases (as defined below). a. “Maintenance Releases” means an update to the Anytime Collect Product which includes fixes to known defects and does not intentionally introduce any new or modified application behavior. b. “Feature Releases” means a software update which includes both fixes to known defects and introduces new or modified application behavior. 3. Customizations. If Company decides to customize the Anytime Collect Product for Company’s environment, Company hereby agrees that such customization will be E2BTEK -certified customizations using the E2BTEK Module Loader and compliant with established industry security standards. 4. Usage Data. a. In the course of providing Company with the Service described in the Agreement, E2BTEK may collect, use, process and store diagnostic and usage related content from the computer, mobile phone or other devices the Company’s Subscription Users use to access the Service. This may include, but is not limited to, IP addresses and other information like internet service, location, the type of browser and modules that are used and/or accessed (the “Usage Data”). E2BTEK collects the Usage Data on an aggregate basis to maintain, enhance or add functionality to our web-based services as well as to understand the use of the Anytime Collect Product s and services. For the avoidance of doubt, Usage Data is not Company Data and E2BTEK agrees not to use, access, disclose, read or copy the Company Data, except for the purpose of providing the Service as described in the Agreement. However, E2BTEK reserves the right to utilize the Usage data associated with the Company Data to: 1) maintain and improve the performance and integrity of the Service; 2) comply with all regulatory legislative or contractual requirements; and 3) further develop and enhance the Service. b. The Anytime Collect Product also includes Critical Control Software that regularly transmits certain usage data, including but not limited to, licensing, system and Service performance data, to E2BTEK and, if applicable, an E2BTEK Authorized Reseller, to verify compliance with the terms of the Agreement and to improve E2btek 's Product and Services. Company hereby authorizes and directs E2btek’s and E2btek’s Authorized Reseller, if applicable, to use the Critical Control Software in accordance with the terms of the Agreement. Critical Control Software does not collect or access any Company Data. c. E2BTEK recognizes and confirms that the content of all Company Data sent to or received by the Service is confidential and hereby agrees not to collect any personally-identifiable information of Company’s Subscription Users. 5. Development. Company agrees that it will not, directly or indirectly, conduct any activity that will degrade performance beyond an acceptable level, including but not limited to: (i) conducting automated functionality tests or load tests on the Anytime Collect Product against Company's staging and/or testing environments, (ii) creating Internet links to the Anytime Collect Product , and/or (iii) deploying custom modifications that adversely impact the E2BTEK infrastructure due to incompatible code, inefficient code or architecture practices. Company also agrees not to "frame," "fork" or "mirror" any part of the Anytime Collect Product on any other device. If Company does any of the foregoing, E2BTEK shall have the right to terminate or suspend Company’s account and access to the Anytime Collect Product s without any refund or credit until Company corrects such violation to E2btek’s reasonable satisfaction. 6. Data Storage. With respect to the Service, the maximum disk storage space, including any replication(s) of Company’s environment (i.e., sandbox) will be determined based on the Anytime Collect Product purchased by Company (the “Storage Limit”). If the amount of storage required by Company exceeds the Storage Limit, E2BTEK shall invoice Company the then-current storage fees for such excess use. Company agrees to pay such data storage fee within thirty (30) days of invoice. 7. Backup of Data. Company is entitled to receive two (2) recoveries of Company’s Data from backup per calendar month free of charge (the “Two Recoveries”). Recoveries beyond the Two Recoveries may be available for an additional charge at E2btek’s then-current rate for such backup services, which rate can be ascertained by contacting an E2BTEK sales representative. 7. Handling of Company Data upon Termination. Company agrees that following expiration or termination of the Agreement, E2BTEK may immediately deactivate Company’s account and access to the Anytime Collect Product. Upon written request by Company made within ninety (90) days of the effective date of expiration or termination of the Agreement (the “Post-Term Period”), E2BTEK agrees to make available to Company, a copy of Company’s Product ion environment. Further, during the Post-Term Period and upon the Company’s request, E2BTEK shall grant the Company limited access to the Service for the sole purpose of permitting the Company to retrieve Company Data, provided that the Company has paid in full all good faith undisputed amounts owed to E2BTEK. Upon expiration of the Post-Term Period, E2BTEK will have no further obligation to maintain for or provide to Company any of the Company Data and may thereafter, unless legally prohibited, delete all Company Data in its systems or otherwise in its possession or under its control. 8. Use of the Portal in Enterprise Edition of the Software. a. Definitions. i. “Portal” means a Software module that is designed to communicate with the Anytime Collect Product and Company's Customers. ii. “Portal User” means an individual who is an employee of one of Company’s customers, who is permitted to access and use the Portal. A Subscription User, Company and/or Affiliate employee, contractor or agent shall not be a Portal User. b. Where applicable, Company shall have a non-exclusive, revocable, non-transferable, right to access, and use the Portal in a development and Product ion environment during the Subscription Term, in each case solely for Company’s own internal business purposes and limited to the number of Portal Users set forth the Order Form. Portal User accounts cannot be shared or used by more than one individual. Notwithstanding anything to the contrary in this Exhibit A, one (1) Company employee may access and use the Portal for administration purposes only (i.e., to provide access to Portal Users). c. If the Portal is hosted by E2BTEK, fifty (50) concurrent Portal Users may access and use the Portal at any given time. Notwithstanding the foregoing, however, E2BTEK may further limit the number of Company’s Portal Users at any time by providing Company with a written notice, if E2BTEK reasonably believes that Company’s Portal Users are unduly burdening or overwhelming E2btek’s Anytime Collect Product s. If Company is hosting the Portal, then Company may have an unlimited number of Portal Users access and use the Portal. d. By entering into the Agreement, Company is acting as agent for Company’s Portal Users and binding them to the terms hereof. Company shall be Responsible for any acts or omissions of Company’s Portal Users and Company’s Portal Users' compliance with all of the terms of the Agreement.
© Copyright 2014, Anytime Collect. All rights reserved.