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, USA 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
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
USA
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.
12. GENERAL PROVISIONS