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TEAM MANAGEMENT SYSTEMS, INC.
11928 FAIRWAY LAKES DRIVE
FORT MYERS, FL 33913
SERVICEFACTOR SUBSCRIPTION AGREEMENT
This software as a service subscription agreement (the "Agreement") is effective upon Your acceptance of the Terms of this Agreement and governs Your (hereinafter referred to as “You,” “Your” or “Customer”) use of the System (as defined below) and any related services provided by Team Management Systems, Inc. (“TMS”). If you use the System, then you have agreed to and are bound by these terms. If you are an agent or employee of the intended subscriber or user, you individually represent and warrant to TMS that you are authorized to bind that party to this Agreement. If you do not agree to this Agreement, then you are not authorized to use the System.
(a) Components. "Components" means the individual modules or products that make up the System. From time to time, new Components or features will be introduced to the System, and those Components or features may be restricted to specific Editions.
(b) Customer Data. "Customer Data" means any of Your information, documents, or electronic files that are provided to TMS hereunder.
(c) Documentation. "Documentation" means the online documentation provided by TMS relating to the System and any related materials, including but not limited to manuals, documents, workbooks, worksheets or other such materials in any media form.
(d) Error. “Error” means any reproducible material failure of the System to function in accordance with its Documentation, design functionality or intended functions.
(e) Service Administrator. "Service Administrator" means the person(s) that You designate to purchase usage of the Service on Your behalf, authorize Users under the Agreement, create accounts for additional Users and otherwise administer Customer's use of System.
(f) Support. "Support" means the ongoing services by TMS to support the System as defined below.
(g) System. "System" means the software service for which Customer has paid, including any Updates relating thereto that may be provided hereunder or thereunder, and any derivative works of the foregoing. A System is made up of individual Components.
(h) Update. "Update" means any patch, bug fix, release, version, modification or successor to the System.
(i) User. "User" means a named individual to whom You have granted access to use the System on Your behalf, regardless of whether or not the User actually accesses the System. Users may be Your employees, consultants, contractors or agents.
2. Use Rights
(a) Use Rights. During the term and subject to the terms of this Agreement, TMS hereby grants to You a nonexclusive, nontransferable, nonsublicensable right to permit Your Users to use the licensed Edition of the System for Your business purposes. The use right in the preceding sentence is limited to use by the number of Users for which You have paid. Said use rights are nontransferable, except in the event of a voluntary transfer of substantially all assets by You to a transferee that also expressly agrees to be bound by all of the terms and conditions of this Agreement. All rights in and to the System not expressly granted herein are reserved to TMS.
(b) License and Use Restrictions. You shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the System; (ii) modify, create derivative works based upon, or translate the System; (iii) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the System in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder. You acknowledge and agree that TMS shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the System and any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Users relating to the System.
(c) System Administrator; User Access. You are required to designate one or more System Administrators. System Administrators shall be responsible for managing User access, including adding and subtracting Users. The System Administrator shall ensure that multiple Users do not share a password or user name. You expressly acknowledge and agree that You are prohibited from sharing passwords and/or user names with unauthorized users.
(d) Customer Data. You own all right, title and interest in the Customer Data. You hereby grant to TMS, a nonexclusive, nontransferable (except as set forth in Section 10(c) below), nonsublicensable right and license to use, copy, transmit, modify and display the Customer Data solely for purposes of Your use of the System and as otherwise provided in this Agreement. TMS may use Customer Data to improve the System and as necessary to perform its obligations hereunder.
(e) Your Responsibilities. You are responsible for ensuring that You and Your Users' use of the System is in compliance with all applicable laws and governmental regulations and further acknowledges that You assume all risk arising from any such use that is not compliant with applicable laws and regulations. The foregoing specifically includes Your compliance with all privacy laws and, to the extent it is required, You are responsible for notifying parties that telephone calls are being recorded.
(f) Security. You are solely responsible for maintaining the security of all user names and passwords, for the security of its information systems used to access the System, and for Your Users’ compliance with the terms of this Agreement. TMS will act as though any electronic communications it receives under any of Your user names have been sent by You. You will immediately notify TMS if You become aware of any loss or theft or unauthorized use of any of Your passwords or user names. TMS has the right at any time to terminate or suspend access to You or any of Your Users if TMS believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the System or TMS's network.
(a) Services Generally. Subject to the terms of this agreement, TMS shall use commercially reasonable efforts to make the System available to Customer.
(b) Updates. TMS shall deliver general and technical Updates to the System that apply to Your currently licensed Edition at no additional charge. From time to time, TMS may offer You additional Updates containing new or enhanced Components, modules, or features (“Premium Enhancements”). Terms, conditions and fees relating to such Premium Enhancements will be made available to You at the time of availability of such Premium Enhancements. Premium Enhancements will only be delivered to You upon your express assent to delivery and acceptance of all terms, conditions and fees associated with the Premium Enhancement(s). Should you assent to delivery of any Premium Enhancement(s), all routine, general and technical Updates to such Premium Enhancement(s) will be provided at no additional cost.
(c) Support. TMS shall provide general support to the Customer for the Customer's currently licensed Edition.
(d) Error Correction. TMS shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during TMS's normal business hours. Customer shall provide such access, information, and support as TMS may reasonably require in the process of resolving any Error. This paragraph is Customer's sole and exclusive remedy for Errors.
(e) Support Exclusions. TMS is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by:
(i) the acts, omissions, negligence or willful misconduct of Customer, including any unauthorized modifications of the System or its operating environment;
(ii) any failure or defect of Customer’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of TMS's firewall);
(iii) Customer’s use of the System other than in accordance with the System’s documentation; design functionality or intended functions
(iv) a Force Majeure Event.
(f) Limitation of Remedies. Correction of Errors as defined in this Agreement are Customer’s sole remedies for any Errors in the System.
4. Financial Terms
(a) Subscription Fees. The Subscription Fee for the System will be invoiced monthly commencing with the date You execute and return the ServiceFactor Quotation, hereinafter incorporated by reference, and recurring every following month on the same date. (“Subscription Period”). The Subscription Fee covers access to the System and basic Support and is based on the number and type licenses You have purchased. Fees related to any Premium Enhancements or third-party services You have selected are additional to the Subscription Fee and will be invoiced monthly along with the Subscription Fee.
(b) Addition and Removal of Users.
(i) You may add Users at any time. You acknowledge that Subscription Fees may increase by the addition of new Users. If a User is added during a Subscription Period, The initial Subscription Fees for such additional user will be pro-rated against that portion of the Subscription Period that the User was active. Thereafter, You will be invoiced monthly for any additional User(s) for the full Subscription Period until such time as the User(s) are removed as provided herein.
(ii) Users can only be removed by contacting TMS and requesting removal of such User(s). You will be responsible for all Subscription Fees, Premium Enhancement fees and third-party fees associated with all Users until such time as You contact TMS to remove such User(s). If any User(s) are removed during a Subscription Period, there will be no proration of Subscription Fees for such User(s) and You will be invoiced for the full Subscription Period such User(s) is/are removed
(c) Payment Terms. The Subscription Fee as well as any fees related to Premium Enhancements or third-party services You have selected will be charged to You at the time of invoicing to the credit card You have provided. You acknowledge that You are obligated to maintain accurate and valid credit card data with TMS.
(d) Refused Payments. Should any payment be refused by Your bank or credit card issuer, TMS will notify you of same and You will then have seven (7) days to make payment in full by alternate means. You acknowledge that failure to make payment in full as provided by this Paragrpah will result in immediate Termination of the Agreement without further notice and You will no longer have any access to the System or Customer Data except as otherwise provided herein.
(e) Fee Changes. TMS may change Subscription Fees and fees related to any Premium Enhancements at any time by providing You with at least fourteen (14) days prior notice of such changes.
(f) Third Party Service Fees. You acknowledge that fees related to any third party services you have selected may change at any time and without notice from such third-party service providers.
(g) Non-Refundable. Except as otherwise provided herein, all fees paid to TMS for Subscription Fees, Premium Enhancements and/or third-party services are non-refundable.
(i) Florida Customers: TMS will collect all sales and use taxes and fees as required under Florida law for Customers having billing addresses within the State of Florida.
(ii) Non-Florida Customers. All Customers with billing addresses outside the State of Florida are responsible for the payment of all taxes (other than taxes based on TMS’ income), fees, duties and other governmental charges, and any related penalties and interest, arising from the payment of fees to TMS under this Agreement for Subscription Fees, Premium Enhancement fees and third party service fees You have selected. All payments to TMS will be made with no reduction or offset for any taxes and, if requested by TMS, You will provide official receipts from any applicable taxing authority, or such other evidence that will demonstrate You have paid such taxes. You further agree to indemnify and hold TMS harmless for any liability (including penalties and interest) resulting from any failure by You to make any required tax payments.
5. Term and Termination
(a) Term. The term of this Agreement is effective upon Your acceptance of the Terms of this Agreement and shall remain in force and effect until terminated as provided herein.
(b) Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party:
(i) if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within 7 days of written notice of same;
(ii) immediately upon any breach by Customer of Section 2(b) and/or Section 2(e) above;
(iii) immediately upon any breach of any confidentiality obligations owed to such party by the other party;
(iv) except as otherwise provided herein, if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the nonbreaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or
(v) upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
(c) Post Termination Obligations. Upon expiration or termination of this Agreement:
(i) All licenses granted to You under this Agreement will terminate along with termination of this Agreement and TMS will immediately terminate Your access to the System.
(ii) Notwithstanding the foregoing, provided that You have paid all amounts owed to TMS hereunder, TMS shall provide You with access to the System for a period of twenty-four 24 hours for the limited purpose of exporting Customer Data;
(iii) Following termination of this Agreement for any reason, TMS will continue to maintain Your Customer Data for a period of thirty (30) days and may provide you with access to Your Customer Data on such terms as You and TMS may agree. After thirty (30) days, Your Customer Data may be deleted at any time and without any notice to You.
(iv) Customer shall immediately pay TMS any amounts payable or accrued but not yet payable to TMS, including any deferred payments or payments originally to be made over time.
(v) Customer agrees that within seven (7) days of termination or expiration of the Subscription that it will return all copies of any Documentation provided to Customer in connection with the Subscription or affirmatively attest in writing that all such materials have been destroyed.
(a) Confidential Information. "Confidential Information" means any and all tangible and intangible information (whether written or otherwise recorded or oral) of a party, including Customer Data, that:
(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy;
(ii) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential;
(iii) nonpublic information relating to a party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs;
(iv) constitutes thirdparty information that You or TMS are obligated to keep confidential; or
(v) is nonpublic information relating to any activities conducted hereunder.
(b) Exclusions. Notwithstanding the above, the term "Confidential Information" does not include any information that is either: readily discernible from publicly available products or literature; or approved for disclosure by prior written permission of an executive officer of the disclosing party.
(c) Use of Confidential Information. Each party shall only use Confidential Information furnished to it hereunder in furtherance of the activities contemplated by this Agreement, and, except as authorized in this Agreement, it shall not disclose the Confidential Information to any other persons without the disclosing party’s express written authorization.
(d) Required Disclosures. A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
(e) Return of Information. Except as set forth otherwise in the specific provisions concerning Customer Data set forth above, if a disclosing party so requests at any time, the receiving party shall return promptly all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession.
(f) Survival. The parties hereto covenant and agree that this Section will survive the expiration, termination, or cancellation of this Agreement for a period of 3 years, except for Confidential Information constituting a trade secret, with respect to which this Section will survive the expiration, termination, or cancellation of this Agreement for so long as such Confidential Information remains a trade secret.
(a) Indemnification by TMS. TMS shall defend, indemnify and hold harmless Customer from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any thirdparty claim, suit or proceeding that arises from Customer and/or the Customer's Users' use of the System in accordance with this Agreement that, to TMS's knowledge, infringes or misappropriates any U.S. trade secret, trademark, or copyright. TMS will have no indemnity obligation to Customer if the alleged infringement or misappropriation is based on:
(i) any combination, operation, or use of the System with products, services, information, materials, technologies, business methods or processes not furnished by TMS to the extent the infringement or misappropriation is based on such combination, operations or use;
(ii) any modification (other than by TMS) to the System to the extent the infringement or misappropriation is based on such modification; or
(iii) Customer's failure to promptly install any Update that is provided by TMS that would have eliminated the actual or alleged infringement or misappropriation.
(b) Indemnification by Customer. Customer shall defend, indemnify and hold harmless TMS from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any thirdparty claim, suit or proceeding that arises from the Customer and/or the Customer's Users' use of the System (other than to the extent indemnified by TMS under Section 7(a)).
(c) Sole Remedy. Indemnification pursuant to this Section is the parties’ sole remedy for any third party claim against the other party in the nature of intellectual property infringement or misappropriation.
8. Disclaimers of Warranty and Limitations of Liability
(a) DISCLAIMER OF WARRANTIES. TMS MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM, THE SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SYSTEM. WITHOUT LIMITING THE FOREGOING, TMS DISCLAIMS ANY WARRANTY THAT THE SYSTEM, THE SERVICES PROVIDED BY TMS, OR THE OPERATION OF THE SYSTEM ARE OR WILL BE ACCURATE, ERRORFREE OR UNINTERRUPTED. TMS MAKES NO WARRANTY OF AND SHALL HAVE NO LIABILITY FOR ANY THIRD-PARTY SYSTEMS, INCLUDING BUT NOT LIMTED TO THIRD-PARTY HOSTING OF THE SYSTEM OR ANY MEANS BY WHICH YOU ACCESS THE INTERNET AND FURTHER MAKES NO WARRANTY AND SHALL HAVE NO LIABILITY FOR THE OPERATION OR PERFORMANCE OF THE INTERNET. TMS MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
(b) DISCLAIMER OF CONSEQUENTIAL DAMAGES. TMS HAS NO LIABILITY WITH RESPECT TO THE SYSTEM, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF TMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) LIMITATIONS OF REMEDIES AND LIABILITY. TMS'S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO TMS BY THE CUSTOMER IN RESPECT OF USER LICENSES FOR THE SYSTEM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
9. Dispute Resolution
(a) Customer agrees that except as provided herein that every dispute arising in connection with this Agreement will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS AGREEMENT THAT CUSTOMER HAS WAIVED THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to:
(i) bring an individual action in small claims court;
(ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available;
(iii) seek injunctive relief in a court of law in aid of arbitration; or
(iv) file suit in a court of law to address an intellectual property infringement claim.
(c) Any arbitration related to this Agreement will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified herein. Customer can obtain a copy of all AAA Rules and filing forms at www.adr.org or by contacting TMS. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(i) Any arbitration hearing will take place at a location to be agreed upon in Fort Myers, Florida, but if the claim is for $10,000 or less, You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator or through a non-appearance based telephone hearing
(d) A Party who intends to seek arbitration must first send a written notice of the dispute to the other Party by certified U.S. Mail or by Federal Express (signature required). The Notice of Arbitration must describe the nature and basis of the claim or dispute and set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received either Party may commence an arbitration proceeding.
(e) The Parties agree to bear their own costs and attorney fees in connection with any arbitration or other action under or related to this Agreement.
(f) YOU AGREE THAT YOU MAY ONLY BRING CLAIMS AGAINST TMS IN YOUR INDIVIDUAL CAPACITY AND NOT AS A CLASS PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
(g) If TMS makes any future change to this arbitration provision, other than changes to its address for Notice of Arbitration, You may reject the change by sending TMS written notice within 30 days of the change, in which case this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(h) If this Section is found to be unenforceable the parties agree that the exclusive jurisdiction and venue described above will govern any action arising out of or related to this Agreement.
(a) Notices. All notices and communications between the Parties relating to this Agreement must be provided in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid, (iv) fax, or (v) by electronic mail. Notice to TMS may be provided to TMS, 11928 Fairway Lakes Drive, Fort Myers, FL 33913 or to firstname.lastname@example.org. Notice to You will be provided to the mailing or email addresses You have provided to TMS. You acknowledge you are responsible for maintaining current mailing and email addresses with TMS. All Notices given under this Agreement will be considered effective upon (i) a Party’s receipt of such notice, or (ii) if mailed, the earlier of the other Party's receipt of it and the fifth business day after mailing.
(b) Force Majeure. "Force Majeure Event" means any act or event that
(i) prevents a party (the "Nonperforming Party") from performing its obligations or satisfying a condition to the other party’s (the "Performing Party") obligations under this Agreement;
(ii) is beyond the reasonable control of and not the fault of the Nonperforming Party, and
(iii) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome.
"Force Majeure Event" does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
(c) Assignment by TMS. TMS may assign any of its rights or obligations under this Agreement at any time; provided, however, that TMS shall not assign the rights granted to Customer Data except in connection with the sale (whether by merger, asset sale, equity sale or otherwise) of:
(ii) the System; or
(iii) a portion of TMS or the System that would reasonably require the acquirer of said portion to be assigned such rights to the Customer Data.
(d) Assignment by Customer. Customer shall not assign any of its rights under this Agreement, except with the prior written approval of TMS. The preceding sentence applies to all assignments of rights, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee which executes TMS’s form of agreement agreeing to be bound by all of the terms and conditions of this Agreement. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section is void.
(e) Entire Agreement. This Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement.
(f) Amendments. TMS may amend or modify this Agreement at any time and You acknowledge that each time you access the system, You agree to the then-current terms of this Agreement at the time of access.
(g) Survival of Certain Provisions. Each party hereto covenants and agrees that the provisions in Sections 1, 2, 5, 6, 7, 8, and 9 in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.