Master Subscription Agreement Last Update: September 28, 2017
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is considered effective between you and us as of the date of start the free trial.
WHEREAS, Software WORX Inc. provides certain services related to Software WORX Inc.’s proprietary system for monitoring, measuring and reporting on public cloud infrastructure services and resources, described in detail and accessible through an Amazon Machine available within the Amazon Marketplace (the “Service”)
WHEREAS Client desires to use the Service, and Software WORX Inc. is willing to provide the Service, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the parties agree as follows:
1.1 Service. Subject to the terms of this Agreement, Software WORX Inc. will provide the Client access to an API based access to perform various cost management, configuration and application monitoring solutions.
1.2 Permitted Use. A client may use the Service solely to monitor and manage the Account. Client agrees that Client will not, nor will Client allow or facilitate a third party to, directly or indirectly (i) reproduce or modify any software or technology incorporated in the Service (“Technology”), (ii) modify, alter or delete any of the copyright, trademark, or other proprietary notices displayed on, embedded in, or affixed to the Service, the Technology, or reports furnished by Software WORX Inc.( the “Reports”), (iii) use the Service, the Reports, or the Technology in any manner other than as permitted by this Agreement. Client shall not be allowed to modify the Reports for purposes of white-labeling under the Client’s brand without written permission from Software WORX.
1.3 Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED HEREIN, Software WORX INC. PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. Software WORX INC. DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, Software WORX INC. DOES NOT WARRANT THAT THE SERVICE WILL (1) BE UNINTERRUPTED; (2) BE FREE FROM INACCURACIES OR ERRORS; (3) MEET REQUIREMENTS OTHER THAN THAT FOR WHICH THE CLIENT IS CONTRACTING; OR (4) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE CLIENT USES.
2. FEES AND PAYMENT TERMS
2.1 Regular Fees. A client will pay Software WORX fees at a rate equal to those listed on the service page.
2.2 Invoicing; Payments. Payments will be collected according to its standard terms of service.
2.3 Taxes. Client shall be responsible for paying all federal, state, local, foreign or other taxes, duties, tariffs or other charges that are invoiced to Client, however, designated, arising from or based upon this Agreement, or the transactions contemplated by it, except for taxes based on Software WORX Inc.’s income. Payments will be collected through the Amazon Marketplace according to its standard terms of service.
3. SERVICE AND SUPPORT
3.1 Regular Support. Software WORX Inc. will provide initial training for set- up and usage along with on-going email support through the term of engagement. Additional and enhanced support can be purchased directly from Software WORX.
4. TERM AND TERMINATION
4.1 Term. Cancellation of service may be effected according to standard Amazon Marketplace terms.
5. INTELLECTUAL PROPERTY
5.1 Proprietary Rights. Software WORX Inc. owns all right, title and interest, including without limitation all intellectual property and other rights, in and to the Service and Technology. Use of the Service and Technology for any purpose not set forth in this Agreement is prohibited.
5.2 No License. Nothing in this Agreement shall be deemed to grant Client any license to use the Technology other than as expressly stated herein.
6. LIMITATIONS ON LIABILITY AND INDEMNITY
6.1 Exclusion of Damages. EXCEPT FOR CLAIMS UNDER THE INDEMNIFICATION AND CONFIDENTIALITY SECTIONS OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) THAT RESULT FROM THIS AGREEMENT, CLIENT’S USE OF, OR INABILITY TO USE, THE SERVICE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. WITHOUT LIMITING THE FOREGOING, Software WORX INC. WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) Software WORX INC.’S TERMINATION OF THIS AGREEMENT OR THE SERVICE, OR (3) THIRD PARTY CONTENT CONTAINED IN THE REPORTS OR THE SERVICE.
6.2 Limitation of Liability. EXCEPT FOR INDEMNITY OBLIGATIONS AND BREACHES OF CONFIDENTIALITY, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 3 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.
7. INDEMNIFICATION & CONFIDENTIALITY
7.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that We breached the Confidentiality clause herein or that the use of Software WORX Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs incurred by You as a result of, or for amounts paid by You provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability). If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 9.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions.
7.2. Exclusive Remedy. This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 7.
7.3. Confidentiality. Software WORX Inc. shall protect as confidential, and shall not disclose to any third party, any Confidential Information received, viewed, or obtained while providing the Services or as a result of this Agreement from Client or Client’s customers. For purposes hereof “Confidential Information” shall mean information and data that is not publicly known and that is deemed by the owner of such information to be confidential or proprietary.
7.4. Survival. The indemnification and confidentiality terms of this Section 7 shall survive the termination of this Agreement.
8.1 Entire Agreement. This Agreement and the parts of the Proposal referenced herein represent the entire agreement between the parties hereto concerning the subject matter hereof and supersedes any and all prior or contemporaneous correspondence, quotations and negotiations.
8.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, USA, without reference to its conflicts of law principles.
8.3 Arbitration. Any controversy or claim between the parties arising out of or relating to this Agreement or the breach hereof shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
8.4 No Assignment. A client may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written notice to Software WORX Inc.
8.5 Severability. If any provision of this Agreement is deemed to be invalid or inoperative for any reason, that part shall be deemed modified to the extent necessary to make it valid and operative, or if it cannot be so modified, then severed, and the remainder of this Agreement shall continue in full force and effect as if this Agreement had been signed with the invalid portion so modified or eliminated.
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