Subscription Services Agreement
1.1 “Software Services” means the web-based software offering(s) identified in the applicable Schedule and hosted in Customer’s own cloud environment, and provided on one Application Domain as defined in the applicable Schedule, as such software offerings may be updated from time to time by Chart as part of its ongoing mission to improve the Software Services.
1.2 “Documentation” means Chart-provided user documentation, in all forms, relating to the Software Services (e.g., user manuals, on-line help files).
1.3 “Scope Limitations” means the limitations on Subscriber’s use of the Software Services specified in the applicable Schedule.
1.4 “Customer Support Services” means customer support services relating to the Software Services as described in Chart’s Customer Support Services Policy.
2. USE OF THE SOFTWARE SERVICES
2.1 Use of the Software Services. Subject to the terms and conditions of this Agreement, Chart grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) right during the term set forth on the applicable Schedule and of this Agreement to use the Software Services solely in connection with Subscriber’s internal business operations. Subscriber’s right to use the Software Services is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations.
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Chart grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Software Services in accordance with this Agreement.
2.3 Customer Support Services. For so long as Subscriber is current with its payment of the fees specified in the applicable Schedule, Chart will provide the Customer Support Services during the term of this Agreement.
2.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: rent, lease, or otherwise permit third parties to use the Software Services or Documentation; use the Software Services to provide services to third parties (e.g., as a service bureau); nor circumvent or disable any security or other technological features or measures of the Software Services.
2.5 Compliance with Laws. Subscriber will use the Software Services and Documentation in compliance with all applicable laws and regulations.
2.6 Limited Right to Use Subscriber Data. Chart may collect usage data, query data and other aggregated or de-identified data in connection with Subscriber’s use of the Software Services. Chart and its affiliates may use such data for purposes of improving its products and services (e.g., corroborating the data in Chart’s databases). Provided that (a) such data does not identify, relate to, describe, present a capability of being associated with, or risk being reasonably linked with, directly or indirectly, a particular person, entity, household, or Subscriber; (b) Chart does not seek to re-identify such data; and (c) such data do not reveal any confidential information of Subscriber, Chart may also collect, retain, disclose, distribute and otherwise utilize the foregoing data.
2.7 Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Software Services and Documentation and immediately notify Chart in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Software Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Chart to prevent or terminate unauthorized use of the Software Services or Documentation.
2.8 Reservation of Rights. Chart grants to Subscriber a limited right to use the Software Services and Documentation under this Agreement. Subscriber will not have any rights to the Software Services or Documentation except as expressly granted in this Agreement. Chart reserves to itself all rights to the Software Services and Documentation not expressly granted to Subscriber in accordance with this Agreement.
3. FEES AND PAYMENT
3.1 Fees and Payment Terms. Subscriber will pay Chart the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in the applicable Schedule. Unless otherwise specified in the applicable Schedule, Subscriber will pay all amounts due within thirty (30) days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Chart to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
3.2 Taxes. Other than net income and gross receipt taxes imposed on Chart, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Chart after all such taxes are paid are equal to the amounts that Chart would have been entitled to in accordance with this Agreement as if the taxes did not exist.
4. PROFESSIONAL SERVICES
4.1 Performance of Services. Chart will provide configuration, implementation, training and other professional services (“Professional Services”) as set forth in written statements of work that are executed from time to time by both parties and attached to this Agreement as a schedule (each, a “Statement of Work”). All Professional Services to be performed under this Agreement must be evidenced by a Statement of Work, which becomes part of this Agreement from the date of its execution by both parties.
4.2 Statements of Work. Unless otherwise agreed by the parties, to the extent applicable, Statements of Work will include the following information with respect to the Professional Services covered by the Statement of Work: a description of the Professional Services; a description of the process and timeline for defining and scoping the specific work to be included within the Professional Services; the schedule for definition and performance of the Professional Services; the fees, reimbursable expenses, and other compensation payable by Subscriber to Chart for the Professional Services; any deliverables to be delivered by Chart to Subscriber in connection with the Professional Services; and any other terms agreed to by the parties.
4.3 Coordination and Schedule. Subscriber will provide Chart physical and remote access to Subscriber’s facilities, personnel, information systems, data sources, records, documentation, and other materials as reasonably requested by Chart in connection with its performance of the Professional Services and other obligations under this Agreement. Chart will use commercially reasonable efforts to perform the Professional Services in accordance with the schedule and timeline in each Statement of Work.
4.4 Changes to Services. Any change in the Professional Services to be provided under any Statement of Work must be agreed to in writing by the parties. Either party may propose changes in the Professional Services to be performed under a Statement of Work (including without limitation additions to the Professional Services, reduction to the Professional Services, and changes in the schedule, order, priority, or manner of performing particular Professional Services). If any agreed-upon change in the Professional Services causes an increase or decrease in the time required for the performance of any Professional Services or in Chart’s costs to perform any Professional Services, then the schedules for performance of the Professional Services and the compensation payable to Chart will be equitably adjusted. If the parties agree upon any such change and related adjustments, the parties will prepare and sign an amendment to the applicable Statement of Work.
5. TERM AND TERMINATION
5.1 Term. This Agreement will commence upon the Effective Date and continue for the initial term specified in the applicable Schedule unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive one-year terms unless at least sixty (60) days before the end of the then-current term either party provides written notice to the other party that it does not want to renew. If the applicable Schedule does not specify an initial term, the initial term will be deemed to be three years.
5.2 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within thirty (30) days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the thirty (30) day cure period. If Subscriber fails to timely pay any fees, Chart may, without limitation to any of its other rights or remedies, suspend performance of the Software Services and Customer Support Services until it receives all amounts due.
5.3 Post-Termination Obligations. If this Agreement is terminated for any reason any and all liabilities accrued prior to the effective date of the termination will survive, Subscriber will provide Chart with a written certification signed by an authorized Subscriber representative certifying that all use of the Software Services and Documentation by Subscriber has been discontinued, (c) Subscriber shall cease to use any Software Services will be shut off except for read/write access of Subscriber data to the applications; (d) Chart will make all Subscriber data available to Subscriber for electronic retrieval and migration for a period of 30 days per one petabyte of Subscriber data (the “Migration Period”), but thereafter Chart will delete stored Subscriber data prior to recovery of any hardware; (e) visibility of the Software Services will remain so long as Subscriber does not cut off communication with the Software Services console (in case of such shutoff or restriction of access by the Software Services console, Subscriber acknowledges and accepts that the Software Services’ time-bound security features may be triggered thereby and render the Software Services useless); and (f) Chart will provide Subscriber support during the Migration Period. If this Agreement is terminated by Chart because of an uncured material breach by Subscriber, Subscriber will pay to Chart any subscription fees remaining to be paid by Subscriber for the balance of any fixed term, multi-year subscription. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. CONFIDENTIALITY & DATA SECURITY
6.1 Mutual Confidentiality. Each party agrees to use the other party’s confidential information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party’s confidential information to any third party, unless: (a) any disclosure is necessary or appropriate in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law (e.g., pursuant to applicable securities laws or legal process); provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof (i.e.¸ so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its confidential information from any unauthorized use or disclosure); or (c) any disclosure is made with the consent of the disclosing party.
6.2 Data Security. Chart will use commercially reasonable efforts to establish and maintain safeguards for the Software Services that are designed to protect against the accidental or unauthorized access, use, alteration or disclosure of data properly loaded to the Software Services, which in all cases will be at least as protective as Chart uses to protect its own data. Such efforts will be Chart’s sole obligation with respect to the security and protection of Subscriber’s data as it is processed or stored on a computer network owned or controlled by Customer in connection with the Software Services.
7. WARRANTIES AND DISCLAIMER
7.1 Mutual Warranties.. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
7.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, CHART MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. CHART EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CHART DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SOFTWARE SERVICES. CHART DOES NOT WARRANT THAT THE SOFTWARE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SOFTWARE SERVICES WILL BE SECURE OR UNINTERRUPTED. CHART EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SOFTWARE SERVICES.
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 Defense of Infringement Claims.. Chart will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Software Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: Subscriber gives Chart prompt written notice of the Claim; Subscriber grants Chart full and complete control over the defense and settlement of the Claim; Subscriber provides assistance in connection with the defense and settlement of the Claim as Chart may reasonably request; and Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Software Services). Subscriber will not defend or settle any Claim without Chart’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Chart will have sole control over the defense and settlement of the Claim.
8.2 Indemnification of Infringement Claims. Chart will indemnify Subscriber from and pay all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 8.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Chart’s consent after Chart has accepted defense of the Claim); and, all amounts that Chart agrees to pay to any third party to settle any Claim under Section 8.1.
8.3 Exclusions from Obligations. Chart will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Software Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; the Software Services are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Software Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; Subscriber’s failure to use the Software Services in accordance with instructions provided by Chart, if the infringement or misappropriation would not have occurred but for such failure; or any modification of the Software Services not made or authorized in writing by Chart where such infringement or misappropriation would not have occurred absent such modification.
8.4 Limited Remedy. This Section 8 states Chart’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Software Services.
9. SUBSCRIBER INDEMNIFICATION
9.1 Defense. Subscriber will defend Chart from any actual or threatened third-party Claim arising out of or based upon Subscriber’s use of the Software Services or Subscriber's breach of any of the provisions of this Agreement if: Chart gives Subscriber prompt written notice of the Claim; Chart grants Subscriber full and complete control over the defense and settlement of the Claim; Chart provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and Chart complies with any settlement or court order made in connection with the Claim. Chart will not defend or settle any Claim without Subscriber’s prior written consent. Chart will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
9.2 Indemnification. Subscriber will indemnify Chart from and pay all damages, costs, and attorneys’ fees finally awarded against Chart in any Claim under Section 9.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Chart in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 9.1.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. EXCEPT WITH RESPECT TO THE PAYMENT OBLIGATION IN SECTION 3, THE INDEMNIFICATION OBLIGATIONS IN SECTIONS 8 AND 9, AND CONFIDENTIALITY OBLIGATIONS IN SECTION 6.1, EACH PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO CHART DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CHART TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTI
11.1 Relationship. Chart will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
11.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that either party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
11.3 Subcontractors. Chart may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Chart remains responsible for all of its obligations under this Agreement.
11.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the introductory paragraph of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 11.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
11.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco County, California in connection with any action arising out of or in connection with this Agreement.
11.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Software Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Software Services will immediately terminate.
11.9 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
11.10 Entire Agreement. This Agreement, including all applicable Schedules, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Software Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Software Services that Chart may provide. No employee, agent, or other representative of Chart has any authority to bind Chart with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Chart will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Chart specifically agrees to such provision in writing and signed by an authorized agent of Chart.