Last Updated Date: February 3, 2020
This Master Subscription Agreement (this “Agreement”) is by and between CORADA, LLC, (“CORADA,” “we,” “us,” “our”), and you (“Customer,” “you,” “your”) (CORADA and Customer each a “Party” and, together, the “Parties”). This Agreement applies to the purchase and sale of products and services through corada.com (the "Site"). This Agreement is subject to change by us without prior written notice at any time, in our sole discretion. Any changes to this Agrement will be in effect as of the "Last Updated Date" referenced above. You should review this Agreement prior to purchasing any product or services that are available through this Site. Your continued use of this Site after the "Last Updated Date" will constitute your acceptance of and agreement to such changes.
Read the below terms and conditions carefully. By purchasing products or services from the site, you accept and are bound by these terms and conditions. Further, you affirm that if you place an order through the Site on behalf of an organization, company, or another individual, you have the legal authority to bind any such organization, company, or individual to these terms. You may nto order or obtain products or services from this Site if you do not agree to and abide by this agreement.
A Customer desires to procure certain software-as-a-service solution(s) (“Services”) from CORADA under this Agreement.
B. CORADA desires to provide such Services to Customer under the terms and conditions of this Agreement and one or more Order Forms issued pursuant thereto.
Accordingly, in consideration of the foregoing and the mutual covenants contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. CUSTOMER’S USAGE RIGHTS, RESTRICTIONS, & RESPONSIBILITIES
1.1 Access to the Services. Subject to the terms and conditions of this Agreement and Customer’s payment of all applicable fees, CORADA grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as expressly permitted herein) right to access and use the Services described in one or more Order Forms solely for Customer’s internal business purposes.
1.2 User Subscriptions. Each named individual who is an employee, consultant, contractor, or agent of Customers who has been supplied a user identification and password for the Services by Customer or by CORADA at Customer’s request (“User”) must have a paid subscription for the Services. User subscriptions are for named Users and cannot be shared or used by more than one User, but may be transferred to new Users from Users who no longer require ongoing use of the Services. CORADA reserves the right to monitor Customer’s and its Users’ compliance with any usage restrictions in this Agreement.
1.3 Customer’s Responsibilities. Customer is responsible for (a) the confidentiality of User access credentials that are in your possession or control; (b) the activity of Customer’s Users in the Services; and (c) Customer’s compliance with this Agreement. Customer must notify CORADA immediately if it becomes aware, or reasonably suspects, that the security of Customers’ account(s) has been compromised. Customer is also responsible for storing, maintaining, and backing up any and all data submitted by Users, or otherwise on your behalf, into the Services (“Customer Data”).
1.4 Restrictions. Except as expressly authorized by CORADA prior to each instance, Customer shall not: (a) permit any third party to access or use the Services (other than Customer’s Users); (b) derive the source code or use tools to observe the internal operation of the Services; (c) copy, modify, or make derivative works of the Services; (d) use the Services or any materials provided by us to build a competitive product or service or to benchmark with a non-CORADA product or service; (e) remove any proprietary markings or notices from any materials provided to Customer by CORADA; (f) create internet links to or from, or frame or mirror any part of the Services; or (g) use the Services: (i) to send spam, duplicative, or unsolicited messages in violation of applicable laws or regulations; (ii) to send or store material that violates the rights of a third party; (iii) to send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (iv) in a way that interferes with or disrupts the integrity, security, availability, or performance of the Services; or (v) for any other illegal or unlawful purpose. Customer may not knowingly facilitate or aid a third party in any of the foregoing activities. A knowing breach of this section, or Customer’s failure to promptly cure any breach of this section, is a material breach of this Agreement.
1.5 Third-Party Software. Customer acknowledges and agrees that the Services may require third-party software to operate. Except to the extent third-party software is provided by CORADA to enable Customer to access and operate the Services, (a) Customer is solely responsible for obtaining the right to use all of the third-party software that the Software requires to operate from the owner of such third-party software, and paying directly to such owner the license fees for such third-party software; and (b) CORADA has no responsibility, liability, or obligation with respect to any third-party software.
2. AVAILABILITY AND SUPPORT
2.1 Availability. We will use reasonable efforts to maintain availability of the Services 24 hours a day, 7 days per week, except for scheduled maintenance, of which we shall give at least 24 hours’ notice via the Services. While maintenance is typically conducted outside of ordinary working hours, we cannot guarantee that it will be exclusively conducted outside of ordinary working hours. We do not offer service credits for service outages.
2.2 Customer Support. We will provide you with the customer support related services set forth in your Order Form in accordance with our then-current service level standards which are available in (Order Form).
2.3 Beta Services. From time to time, CORADA may make some early access services available to Customer via the Beta Services. You may choose, but are not required, to try these Beta Services. Beta Services may contain bugs or errors and any participation in or use of the Beta Services is at your own risk. You recognize and understand that Beta Services are provided on an “as is” basis exclusive of any warranty whatsoever. CORADA may discontinue the Beta Services at any time in its sole discretion.
2.4 Professional Services. We may also provide other services, such as implementation and training. Any such services are outside the scope of the Services provided under this Agreement and require a separate written agreement between the parties.
3. FEES AND PAYMENT TERMS
3.1 Fees and Expenses. The subscription fees for the Services (“Fees”) shall be invoiced and due and payable as set forth in the invoice. All payment obligations are non-cancellable and, all amounts paid are non-refundable. All fees are quoted and invoiced in U.S. dollars. A 1.5% per month interest fee will be charged on all past due invoices.
3.2 Taxes. All Fees are exclusive of applicable taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for their payment, excluding taxes on CORADA’s net income.
3.3 Suspension of Access. In addition to any other rights we may have, CORADA reserves the right to suspend Customer’s access to the Services if Customer has amounts more than thirty (30) days past due, until all such amounts are paid in full.
3.4 Order Acceptance and Cancellation. You agree that your order is an offer to buy, under this Agreement, all products and services included in your order. All orders must be accepted by us, or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion.
3.5 Prices. All prices, discounts, and promotions posted on this Site are subject to change without notice. The price charged for a product or service will be the price advertised on this Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in your order confirmation email. Price increases will only apply to orders placed after the time of the increase. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your total price and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
3.6 Payment Methods. Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept Visa, Mastercard, American Express, and Discover credit cards for all purchases. For purchase Order, or pay by check or money order, please contact us at email@example.com. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Site at the time of your order.
4. TERM AND TERMINATION
4.1 Term. This Agreement commences on the Effective Date and continues in effect until the end of the Subscription Term set forth in the applicable Order Form or as otherwise provided herein. Unless otherwise stated in the applicable Order Form, after the Initial Subscription Term as specified in the applicable Order Form, the Subscription Term shall automatically renew each year for subsequent one (1) year terms (a “Renewal Subscription Term”), and Customer will be obligated to pay the Fees for the Services each month for such year in accordance with the applicable Order Form unless Customer notifies CORADA in writing at least thirty (30) days before the end of the then-current term that Customer no longer desires to use the Services under the applicable Order Form.
4.2 Subscription Changes. If you add subscriptions after the beginning of a subscription term, the initial term of the new subscriptions will run for the remainder of the then-current subscription term. You may reduce the number of subscriptions, effective only upon expiration of the then current subscription term, by providing us with at least 15 days’ prior, written notice. This Agreement will remain in effect until all subscriptions have expired.
4.3 Legacy Services. CORADA may, in its sole discretion, discontinue certain Services (“Legacy Services”) upon provision of at least forty-five (45) days notice to you. In the event CORADA discontinues a Service prior to the end of your Subscription Term, CORADA will make the Legacy Service available for the remainder of your Subscription Term, after which the Legacy Services will be unavailable.
4.4 Free Trial. If you register for a free trial, CORADA will make the applicable Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service, or (b) the start date of any Subscription Term as specified in any Order Form, or (c) termination by CORADA in its sole discretion. Trial terms and conditions may appear on the trial registration page. Any such additional terms and conditions shall apply in addition to those in this Agreement, and are incorporated into this Agreement by reference.
4.5 Termination; Suspension. Either Party may terminate this Agreement (and all Order Forms hereunder) by giving written notice to the other Party in the event the other Party is in material breach of this Agreement (including for non-payment by Customer) and shall have failed to cure such breach within thirty (30) days of receipt of written notice thereof from the non-breaching Party. CORADA may also elect to suspend your access to the Services if you materially breach this Agreement.
4.6 Effect of Termination.
(a) Upon termination of this Agreement or any Order Form: (i) Customer and all Users must immediately cease using the Services; (ii) each Party shall return all other Confidential Information (as defined below) of the other Party to such other Party, or else shall permanently destroy all Confidential Information of the other Party, at the other Party’s request, but may retain Confidential Information to the extent required by law or governmental authority or that is automatically backed up in accordance with the receiving party’s generally applicable backup policies; and (iii) Customer shall promptly pay CORADA all unpaid Fees incurred prior to termination or expiration of this Agreement or the applicable Order Form. Unless expressly set forth herein to the contrary, termination of this Agreement and the licenses granted hereunder shall not entitle Customer to any refund of any Fees.
(b) If requested by you within 30 days before the effective date of termination or expiration of this Agreement (“Retention Period”), we will make a file of Customer Data available to you for downloading. After the Retention Period, we will have the right to delete all Customer Data and will have no further obligation to make it available to you. We recommend that you download a copy of this data before the Retention Period expires.
(c) Any provision of this Agreement that expressly or by implication is intended to operate after expiration or termination of this Agreement shall remain in full force and effect.
5. Proprietary Rights
5.1 Services. Subject to the limited rights expressly granted hereunder, as between the parties we own all rights, title and interest, including all intellectual property rights, in and to the Services, including any configurations, customizations, modifications, enhancements, updates and revisions thereof. All rights not expressly granted in this Agreement are reserved by us. The CORADA names and logos and the product names associated with the Services are our or our licensors’ trademarks, and no right or license is granted under this Agreement to use them.
5.2 Customer Data.
(a) You represent and warrant that you have obtained all required permissions, consents, and licenses in order to grant us access to the Customer Data. Subject to the limited rights expressly granted hereunder, as between the parties you own all rights, title and interest, including all intellectual property rights, in and to Customer Data. You grant us, our affiliates and subcontractors a worldwide, royalty-free, non-exclusive license to host and use the Customer Data to the extent necessary to provide the Services and perform our rights and obligations under this Agreement.
(b) Subject to the foregoing, you grant CORADA, our affiliates, and subcontractors, a worldwide, non-exclusive license to use aggregated Customer Data for our own research purposes.
5.3 Logos and Marks. You grant CORADA a limited, non-exclusive, royalty free license to use your logos in CORADA’s advertising, literature, and websites, solely in connection with the marketing and resale of the Services.
5.4 Feedback. You may, but are not required to, provide us with ideas, suggestions, requests, recommendations or feedback about the Services (“Feedback”). If you do so, you grant us and our affiliates a non-exclusive, worldwide, perpetual, irrevocable license to use, exploit, reproduce, incorporate, distribute, disclose, and sublicense the Feedback for any purpose.
(a) Each Party represents and warrants to the other Party that it has the legal power and authority to enter into this Agreement, including any Order Forms pursuant hereto.
(b) We warrant that: (i) the Services will perform materially in accordance with CORADA’s written specifications as detailed in the Order Form; (ii) we will not materially decrease the functionality of the Services during a current subscription term; and (iii) we will provide the Services using reasonable skill and care.
6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CORADA DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER REPRESENTATIONS, WARRANTIES, AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE (A) OF MERCHANTABILITY OR SATISFACTORY QUALITY, (b) OF FITNESS FOR A PARTICULAR PURPOSE, (C) OF NON-INFRINGEMENT, (D) ARISING FROM CUSTOM, TRADE USAGE, COURSE OF PRIOR DEALING, OR COURSE OR PERFORMANCE, AND (E) WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF THE SERVICES.
6.3 Remedies. If you notify us in writing that the Services do not conform with any of the warranties in this section, we will use reasonable efforts to investigate and correct any such non-conformance promptly and at no additional cost to you. You will use reasonable efforts to mitigate any damage you may incur as a result of such non-conformance. Subject to your right to terminate this Agreement for cause, this section constitutes your sole and exclusive remedy for breach of the warranties in section 6.1.
7.1 Disclosure and Use. Neither Party will disclose the Confidential Information of the other Party to any person, other than the employees and contractors of the receiving Party who need to know such information to carry out the purposes of this Agreement. In addition, neither Party will use the Confidential Information of the other Party except for purposes related to their performance pursuant to this Agreement. Each Party will be responsible for any prohibited disclosure or use of the other Party’s Confidential Information by the receiving Party’s employees and contractors. Each Party shall protect the other Party’s Confidential Information using not less than the same degree of care with which it treats its own Confidential Information of like nature, but at all times shall use at least reasonable care.
7.2 Confidential Information. For the purposes of this Agreement, "Confidential Information" means the terms and conditions of this Agreement and any Order Forms, any information concerning the architecture, code, design, functionality, marketing, pricing, or Users of the Services, Customer Data, and all information communicated to one Party by the other Party, whether before or after the Effective Date, which the receiving Party should reasonably understand to be confidential or proprietary given the nature of the information or the circumstances of its disclosure. Notwithstanding the foregoing, Confidential Information shall not include information which is (a) already known by the receiving Party without an obligation of confidentiality; (b) publicly known or that becomes publicly known through no unauthorized act of the receiving Party or its employees or agents; (c) rightfully received from a third party without an obligation of confidentiality; (d) independently developed without use of the disclosing Party’s Confidential Information; or (e) information that was authorized for disclosure in writing by the disclosing Party.
7.3 Disclosure Exceptions. A Party may disclose the other Party’s Confidential Information to the extent required to comply with a law or court order, provided that the receiving Party promptly notifies the disclosing Party of the requirement to disclose such information and cooperates with the other Party in an attempt to obtain an injunction preventing such disclosure or other protective order.
7.4 Equitable Remedies. Each Party acknowledges that any threatened or actual breach of this Section shall constitute immediate, irreparable harm to the disclosing Party for which equitable remedies may be awarded by a court of competent jurisdiction without the need to post a bond or other security.
8.1 Our Indemnification. Subject to section 9, we will indemnify and hold you and your officers, directors, employees, and agents harmless from and against any and all costs, damages, losses, liabilities and expenses, including reasonable attorneys’ fees and costs (collectively, “Damages”), to the extent arising out of a third party claim alleging that the Services infringe or misappropriate the intellectual property rights of a third party, except to the extent that the alleged infringement is based on: (a) a modification of the Services by anyone other than us; (b) use of the Services in combination with any software, hardware, network or system not supplied by us if the alleged infringement relates to such combination; or (c) use of the Services in a manner contrary to our written instructions or specifications. If the Services infringe, or we reasonably believe they may infringe, intellectual property rights, we may, at our own expense and option: (i) procure the right for you to continue use of such Services; (ii) modify such Services so that they become non-infringing without material loss of functionality; or (iii), if (i) or (ii) are not feasible, terminate the Agreement and refund you a pro-rata portion of any prepaid fees for the Services covering the period when you were unable to use the Services due to the infringement claim. The indemnification obligations set forth above represent OUR sole and exclusive liability and YOUR exclusive remedy for any DAMAGES described in this section.
8.2 Indemnification by You. You will indemnify and hold us and our affiliates, officers, directors, employees, and agents harmless from and against any and all Damages to the extent arising out of a third-party claim alleging that your collection, retention, or use of Customer Data, including your breach of your obligations in Section 5.2(a), or your use of the Services in breach of this Agreement infringes the rights of, or has caused harm to, a third party or has violated applicable law.
8.3 Indemnification Procedure. In the event of a potential indemnity obligation under this Section, the party claiming the indemnity shall provide to the other party: (a) prompt written notice of the claim such that the other party’s ability to defend the claim is not prejudiced; (b) sole control of the defense and settlement of the claim; and (c) all reasonable assistance, at the other party’s expense. Without the prior written consent of the party claiming the indemnity, the other party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of, or imposes additional obligations on, the party claiming the indemnity.
9. LIMITATIONS AND EXCLUSIONS
9.1 Limitation of Liability. IN NO EVENT SHALL CORADA’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
9.2 Exclusion of Certain Damages. IN NO EVENT SHALL CORADA HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF USE, LOSS OR CORRUPTION OF DATA, COSTS OF COVER, LOSS OF BUSINESS OR GOODWILL, WORK STOPPAGE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT, WARRANTY, OR UNDER ANY OTHER THEORY OF LIABILTY, REGARDLESS OF WHETHER CORADA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Customer’s Responsibility and Instructions. Except as expressly and specifically provided in this Agreement, Customer assumes sole responsibility for results obtained and conclusions drawn from the use of the Services by Customer. CORADA shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to CORADA by the Customer in connection with the Services, or any actions taken by CORADA at the Customer’s direction.
10. GENERAL PROVISIONS
10.1 Alternative Dispute Resolution. Before either Party initiates any legal proceeding, any matter in controversy will first be referred to the appropriate executives of the Parties, who shall take all reasonable steps to attempt to resolve the controversy. This provision shall not be construed as limiting a Party’s right to immediately seek injunctive or other equitable relief if warranted.
10.2 Governing Law; Venue. This Agreement and all disputes, claims, and other matters arising hereunder (including non-contractual disputes or claims) (individually, or collectively, a “Dispute”) shall be governed exclusively by, and construed exclusively in accordance with, the laws of the state of Alabama, without regard to its conflicts of laws provisions. All Disputes between you and CORADA arising out of or relating to this Agreement, including without limitation Disputes based on or arising from an alleged tort, will be resolved by binding arbitration in accordance with Title 9 of the U.S. Code and the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). Disputes will be arbitrated in Birmingham, Alabama, U.S.A. Defenses based on statutes of limitation and similar doctrines will be applicable in any such proceeding, and commencement of an arbitration proceeding under this Agreement will be deemed commencement of an action for such purposes. You and CORADA agree that each may bring claims against the other only in your individual capacity and not as a plaintiff or class member in any purported class or representative action. Notwithstanding the foregoing, CORADA reserves the right to resolve or bring any Dispute in a court of competent jurisdiction in the state or federal courts of Alabama and the parties irrevocably agree that, except when the Dispute is arbitrated, the exclusive venue for all Disputes between the parties will be the state and federal courts of Alabama, to which jurisdiction each party hereby irrevocably submits. Each party waives any objection or defense that it is not personally subject to jurisdiction of the state and federal courts of Alabama; that venue of the action is improper; and that the action, suit or proceeding is brought in an inconvenient forum. In addition to any other mode of service of process authorized by law, each party consents to service of process by registered or certified mail.
10.3 Force Majeure. A Party’s breach of this Agreement (other than a breach of its obligation to pay money) because of an act of God, act of government, civil commotion, earthquake, epidemic, explosion, fire, flood, labor strike, national emergency, quarantine, riot, terrorist attack, war or any other event outside of such Party’s reasonable control (“Force Majeure Event”) will not give rise to a claim for damages by the other Party. The Party affected by a Force Majeure Event will advise the other Party in reasonable detail of the event (including the estimated duration of the event) as promptly as practicable and keep the other Party reasonably apprised of progress in resolving the event.
10.4 No Assignment. Customer may not assign any of its benefits or delegate any of its duties under this Agreement without the prior written consent of CORADA. Notwithstanding the foregoing, Customer may assign its rights and delegate its duties under this Agreement to a successor to all or substantially all of Customer’s assets and operations, provided that such successor is (a) not a direct or indirect competitor of CORADA or any of its affiliates, and (b) reasonably deemed by CORADA to be creditworthy. This Agreement will be binding upon and inure to the benefit of each Party and its permitted successors and assigns.
10.5 No Third-Party Beneficiaries. Except as expressly set out in this Agreement, a person who is not a party to this Agreement will have no rights to enforce it.
10.6 Future Functionality. You agree that your purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments we make with respect to future functionality or features.
10.7 Non-Solicitation. Customer agrees that, during the term of this Agreement and for one year thereafter, it shall not solicit, offer employment to, employ, engage as an independent contractor, or otherwise obtain the services of any person employed or engaged as a full-time independent contractor then or within the preceding one year by CORADA.
10.8 Independent Contractor. CORADA shall render all Services hereunder as an independent contractor and not as an agent, employee, joint venturer or partner of Customer.
10.9 Notices. All notices and other communications made pursuant to this Agreement shall be in writing and shall be deemed to have been duly received or made when personally delivered or when sent via registered or certified mail or by other delivery services providing evidence of delivery to the addresses of the Parties set forth below.
10.10 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will not invalidate the remaining provisions of this Agreement or affect the validity or enforceability of such provision in any other jurisdiction. In addition, any such prohibited or unenforceable provision will be given effect to the extent possible in the jurisdiction where such provision is prohibited or unenforceable.
10.11 Entire Agreement. This Agreement, including any Order Forms, constitutes the entire agreement and understanding between the Parties and supersedes all prior agreements and understandings, both written and oral, with respect to the subject matter of this Agreement. In the event of a conflict between any of the terms of this Agreement and the terms of an Order Form, the terms of the Order Form shall control.
10.12 Modification; Waiver. The terms and conditions of this Agreement may be modified or waived only by a written document executed by the Parties. The waiver by either Party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
10.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each Party has executed at least one counterpart.