MASTER SUBSCRIPTION AGREEMENT
This Enterprise Software Subscription Agreement (“Agreement”) made as of the date of the last party has signed the Order Form or Quote (“Effective Date”) by and between Wave Nine Inc. located at 490 43rd Street Suite 90 Oakland, CA 94609, United States hereinafter referred to as “Wave Nine”, and You (“Client”), each a party and collectively the parties.
In consideration of the mutual promises and covenants and agreement herein contained, the parties agree as follows:
1. DEFINITIONS
The following words will have the given meanings in this Agreement. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Agreement” means this Enterprise Software Master Subscription Agreement. “Consultant Content” means any training materials for the Purchased Services provided by Wave Nine. “Content” means information created or obtained by Wave Nine from Wave Nine’s content licensors or publicly available sources and provided to the Client pursuant to an Order Form or Quote, as more fully described in the Documentation. “Client Data” means electronic data and information submitted by or for the Client to the Purchased Service or collected and processed by or for the Client using the Purchased Services. “Documentation” means Wave Nine’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via login to the applicable Service. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. “Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between the Client and Wave Nine, including any addenda and supplements thereto. By entering into an Order Form or Quote hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. “Professional Services” are any consulting services related the Purchased Services. “Purchased Services” means Services that the Client or the Client’s Affiliate purchase under an Order Form or Quote, as distinguished from those provided pursuant to a free trial. “Services” means the products and services that are ordered by the Client under a free trial or an Order Form or Quote and made available online by Wave Nine, including associated offline components, as described in the Documentation. “Services” exclude Content. “User” means an individual who is authorized by the Client to use a Service, for whom the Client has ordered the Service. Users may include, for example, the Client’s employees, consultants, contractors and agents, and third parties with which the client transacts business. “WorkBoard” means WorkBoard, Inc. and its main software product, WorkBoard Enterprise.
2. WAVE NINE RESPONSIBILITIES
2.1. Provision of Purchased Services. Wave Nine shall make the Purchased Services available to the Client as set forth in this Section 2.1, subject to the terms and conditions of this Agreement. Wave Nine will (a) make the Services and Content available to the Client pursuant to this Agreement and the applicable Order Forms or Quotes, and (b) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Wave Nine shall give at least 8 hours electronic notice and which Wave Nine shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00a.m. Monday (Pacific time), and (ii) any unavailability caused by circumstances beyond Wave Nine’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Wave Nine’s employees), Internet service provider failure or delay, or denial of service attack. 2.2 Protection of Client Data. Wave Nine will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Client Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Client’s Data by Wave Nine’s personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below, or (c) as the Client expressly permits in writing. 2.3 Wave Nine Personnel. Wave Nine is responsible for the performance of their own personnel (including their employees and contractors) and their compliance with such party’s obligations under this Agreement, except as otherwise specified herein.
3. USE OF SERVICES AND CONTENT
4. FEES AND PAYMENT FOR PURCHASED SERVICES
5. PROPRIETARY RIGHTS AND LICENSES
6. CONFIDENTIALITY
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8. MUTUAL INDEMNIFICATION
9. LIMITATION OF LIABILITY
10. TERM AND TERMINATION
10.1 Term of Agreement. This Agreement commences on the date the Client first accepts it and continues until all subscriptions hereunder have expired or have been terminated. The Professional Services and Consulting Services shall be available to be delivered to the client within 6 months after the initial Start Date. Wave Nine and the Client agree to extend the 6-month delivery timeframe by 3 months if any professional services and consulting services cannot be delivered by Wave Nine due to Wave Nine’s unavailability. Extending the timeframe has no effect on the number of services available. If any professional services and consulting services could not be delivered due to the Client’s unavailability, Wave Nine and the Client agree to consider these services as delivered and accepted. 10.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form or Quote. Except as otherwise specified in an Order Form or Quote, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter). 10.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains unresolved at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. 10.4. Refund or Payment upon Termination. The Client may terminate this Agreement or any Order Form or Quote for no reason or any reason upon thirty (30) days prior written notice to Wave Nine. The Client acknowledge that in the event of termination, the Client will not receive a refund of any prepaid Fees and will be obligated to pay all Fees due under the term of the Order Form(s) or Quote(s) being terminated. 10.5 Client Data Portability and Deletion. Upon request by the Client within 15 days after the effective date of termination or expiration of this Agreement, Wave Nine will make the Client’s Data available to the Client for export or download as provided in the Documentation. After that 15-day period, Wave Nine will have no obligation to maintain or provide the Client Data, and may thereafter delete or destroy all copies of the Client Data in Wave Nine’s systems or otherwise in Wave Nine’s possession or control as provided in the Documentation, unless legally prohibited. 10.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchased Services”, “Proprietary Rights and Licenses”, “Confidentiality”, “Disclaimers”, “Mutual Indemnification”, “Limitation of Liability”, “Refund or Payment upon Termination”, “Client Data Portability and Deletion”, “Notices, Governing Law and Jurisdiction”, and “General Provisions” will survive any termination or expiration if this Agreement.
11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the seventh business day after mailing with express mail (or equivalent), or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to the Client shall be addressed to the relevant billing contact designated by the Client. All other notices to the Client shall be addressed to the relevant Services system administrator designated by the Client. 11.2 General. Any notice to Wave Nine is required to be given hereunder shall be given at the address set forth in this Agreement:
Philipp Schett, CEO
Wave Nine Inc.
490 43rd Street, Suite 90
Oakland, CA 94609
United States
Philipp@WaveNine.com
+1 415 316 3389
11.3. Agreement to Governing Law and Jurisdiction. The parties shall use their best efforts to settle amicably and in good faith all disputes arising out of or in connection with this Agreement or the interpretation thereof directly between the two parties. To this purpose, each party shall appoint a principal for such negotiations within twenty (20) calendar days after occurrence of the dispute or after a respective request by one of the Parties. Principal shall mean a board member of the respective Party or any person of equal position. If the parties fail to reach an amicable agreement, all disputes arising out of or in connection with this Agreement shall be finally and conclusively settled by the American Arbitration Association in accordance with the rules and procedures in force at the date of these proceedings and excluding ordinary proceedings. Such conclusive decision shall be rendered through one arbitrator who shall be appointed in accordance with the provisions of those rules of arbitration. The arbitrator shall also be entitled to decide on the validity of this arbitration’s clause. The place of arbitration proceedings shall be San Francisco, CA, USA. The arbitrator shall apply the substantive governing law below. The governing law is California and controlling United States Federal Law without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.