MASTER SUBSCRIPTION AGREEMENT
Please read this agreement carefully before using this service.
By using the service or clicking “Agree” customer is agreeing to be bound by this agreement. If you are agreeing to this agreement on behalf of or for the benefit of your employer, then you represent and warrant that you have the necessary authority to agree to this agreement on your employer’s behalf.
This agreement is between Samanage Ltd. (Samanage), and the customer agreeing to these terms (Customer).
- SOFTWARE SERVICE. This agreement provides Customer access and usage of proprietary software as a service as specified on an order. Samanage will provide this functionality through the Internet within a hosted server environment, its application programming interface (API), mobile software application, or other Samanage approved interface under the terms below (collectively, Service).
- USE OF SERVICE.
- Customer Owned Data. All data uploaded by Customer and collected by the Licensed Software (defined below) remains the sole property of Customer, as between Samanage and Customer (Customer Data). Customer grants Samanage the right to use and store the Customer Data solely for purposes of Samanage performing the Services under this agreement. Customer hereby warrants to Samanage that it either owns or licenses the Customer Data it provides, has the authority to grant Samanage such usage rights and that there are no additional approvals required for granting such usage rights. During the term of this agreement, Customer may download the Customer Data from the Service or schedule the Customer Data to be automatically downloaded, which in each case will only be provided in csv format and in accordance with the download functionality within the Service.
- Contractor Access and Usage. Customer may authorize its employees, service providers, and other third parties to access the Services with user credentials, which access must be for the sole benefit of Customer and in compliance with this agreement. Customer is responsible for such representative’s compliance with this agreement.
- Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Samanage promptly of any such unauthorized access; and (iv) may use the Service only in accordance with applicable law.
- Samanage Support. Samanage provides customer support for the Service under the terms of Samanage’s Customer Support Policy (Support), which is located at http://www.samanage.com/support.html and is incorporated into this agreement for all purposes.
- Trial. If Customer has registered for a trial use of the Service, Customer may access the Service for the time period specified by Samanage.
- Warranty. Samanage warrants that (i) it will not materially decrease the overall security of the Services during a subscription term, (ii) it will not materially decrease the functionality of the Services during a subscription term, and (iii) the Services will not introduce Malicious Code into Customers systems. Malicious Code means any code, files, scripts or programs designed to do harm (e.g. viruses, worms, time bombs or trojan horses).
- Performance. The availability performance of the Service is reported on this site http://status.samanage.com/
- GENERAL DISCLAIMER. OTHER THAN THE WARRANTIES PROVIDED IN SECTION 3(A) ABOVE, THE SERVICE IS PROVIDED AS IS AND SAMANAGE DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT USE OF SERVICE MAY NOT BE UNINTERRUPTED OR ERROR FREE. WHILE SAMANAGE TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, SAMANAGE DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED.
- THIRD PARTY SERVICE DISCLAIMER. CERTAIN SUPPORTED THIRD-PARTY WEB SERVICES OR TECHNOLOGY THAT THE SERVICE INTEGRATES WITH MAY BE MADE AVAILABLE WITHIN THE SERVICE, IF CUSTOMER HAS AN ACCOUNT AND CONTRACT WITH THE APPLICABLE THIRD PARTY (THIRD PARTY SERVICES). SAMANAGE HAS NO LIABILITY REGARDING THOSE THIRD PARTY SERVICES OR TECHNOLOGY, AND CUSTOMER’S CONTRACT WITH THAT THIRD-PARTY SOLELY GOVERNS CUSTOMER’S ACCESS AND USAGE OF THAT THIRD PARTY SERVICE OR TECHNOLOGY.
- PAYMENT. Customer must pay all fees as specified on the order, but if not specified then no later than within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. If Customer does not pay the amounts due within 10 days of the due date, Samanage may suspend or terminate the Service, or both.
- MUTUAL CONFIDENTIALITY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Samanage’s Confidential Information includes without limitation the Service and Licensed Software (including without limitation the Service user interface design and layout).
- Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information, as can be demonstrated. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to enable Discloser to seek a protective order.
- SAMANAGE PROPERTY.
- Reservation of Rights. The software, scripts, graphics, form, text, content of text, workflow processes, user interface, and designs of the Service as well as the Licensed Software, and any other technologies provided by Samanage as part of the Service are the property of Samanage and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Samanage. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Licensed Software. Samanage reserves all rights unless expressly granted in this agreement. Samanage owns and may use during and after the Term all anonymized and aggregate data contained within the Service for purposes of enhancing the Service, technical support and other business purposes.
- Restrictions. Customer may not (i) sell, resell, rent or lease or otherwise exploit, reproduce, distribute the Service or use it in a service provider capacity, unless otherwise provided under an order or separate agreement; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service or the Licensed Software; or (vi) access the Service or use the Licensed Software to build a competing service or product, or copy any feature, function or graphic for competitive purposes.
- Licensed Software. All agent software provided as part of the Service (Licensed Software) is licensed to Customer as follows: Samanage grants Customer a non-exclusive, nontransferable license, during the Term, to internally download, reproduce and operate the Licensed Software on computers and networked appliances within Customer’s network environment, for use solely with the Service.
- API. Samanage provides access to its API as part of the Service for no additional fee. Subject to the other terms of this Agreement, Samanage grants Customer a non-exclusive, nontransferable, revocable license to interact with the API only for purposes of interacting with the Service as allowed by the API.
- Customer may not use the API in a manner, as reasonably determined by Samanage, that exceeds reasonable request volume or constitutes excessive or abusive usage. If any of these occur, Samanage can suspend or terminate Customer’s access to the API on a temporary or permanent basis.
- Samanage may change the API or remove existing endpoints or fields in API results upon at least 30 days notice to Customer, but Samanage will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Samanage may add new endpoints or fields in API results without prior notice to Customer.
- The API is provided on an ‘AS IS’ and ‘WHEN AVAILABLE’ basis. Samanage has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.
- LIABILITY LIMIT.
- EXCLUSION OF INDIRECT DAMAGES. SAMANAGE IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF DATA, RECORDS OR INFORMATION; AND LOST PROFITS OR ANTICIPATED COST SAVINGS.
- LIMIT ON LIABILITY. EXCEPT FOR SAMANAGE’S INDEMNITY OBLIGATIONS OR BREACH OF CONFIDENTIALITY, SAMANAGE’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT WITHIN THE 12 MONTH PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
- TERM AND TERMINATION.
- Term. This agreement continues until all orders terminate. All orders automatically renew from year to year until terminated by either party upon at least 30 days electronic or written notice prior to the renewal date. Samanage will provide written or electronic notice of all renewals, and send an invoice at least 30 days in advance of the renewal date.
- Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement with immediate effect, if the breach has not been cured within a 30 day notice/cure period.
- Data Rights Upon Termination. Within 30 days of termination of an order, upon request Samanage will provide Customer with access to the Service to download Customer Data. After such 30 day time period, Samanage may delete the Customer Data.
- Return or Destroy Samanage Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Samanage any amount owed to Samanage, and uninstall and destroy the Licensed Software and all other property of Samanage. Customer will confirm its compliance with this destruction or return requirement in writing upon request by Samanage.
- Suspension of Service for Violations of Law. Samanage may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law or any provision of this Agreement. Samanage will attempt to provide prior notice.
- GOVERNING LAW AND FORUM.
- US Customers. For Customers located in the United States, this agreement is governed by the laws of the State of North Carolina, without regard to conflict of law principles. Any dispute arising out of or related to this agreement may only be brought in the state and federal courts for Wake County, NC. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
- International Customers. For Customers located outside the United States, this agreement is governed by the laws of North Carolina, without regard to conflict of laws principles. Any dispute arising out of or related to this agreement must be exclusively determined by binding arbitration in Wake County, NC, US, under the then current commercial or international rules of The International Centre For Dispute Resolution. The decisions of the arbitrators may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.
- INDEMNITY BY SAMANAGE.
- Defense of Third Party Claims. Samanage will defend or settle any third party claims against Customer that alleges that the Service, not related to Customer Data, used in accordance with this agreement violates a copyright, patent, trademark or other intellectual property right, if Customer: promptly notifies Samanage of the claim in writing; cooperates with Samanage in the defense; and allows Samanage to solely control the defense or settlement of the claim.
- Costs, Settlement and Court Damages. Samanage will pay infringement claim defense costs as part of its obligations above, Samanage negotiated settlement amounts and court awarded damages.
- Remedies. If such a claim appears likely, then Samanage may modify the Service, procure the necessary rights, or replace the Service with the functional equivalent. If Samanage determines that none of these are reasonably available, then Samanage may terminate the Service and provide a refund of any prepaid and unused amounts.
- Exclusions. Samanage has no obligation for any claim arising from: Customer Data; a combination of the Service with other technology, aspects or processes where the infringement would not occur but for the combination; or technology, aspects or processes not provided by Samanage.
THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND SAMANAGE’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
- Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
- Entire Agreement and Changes. This agreement and each order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. Neither party is relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it or agree to it as part of an online electronic process, and no waiver is effective unless the party waiving the right signs a waiver in writing.
- No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond their reasonable control, including without limitation, force majeure events.
- No Additional Terms. Samanage rejects additional or conflicting terms of any Customer form or purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
- Survival of Terms and no CISG. Any terms that by their nature survive termination or expiration of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.
- Export Control. Each party must comply with the export control laws of the United States and other applicable countries.
- Data Processing Addendum (EU Data Protection). If Customer is required to comply with the EU Data Protection Directive, the Samanage Data Processing Addendum located at this link https://www.samanage.com/master-subscription-agreement/addendum-data-processing/ is incorporated by reference into this agreement for all purposes.
Ver. January 2016