Subscription Services 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 At-Your-Service Software, Inc, a New York corporation (AYS) and the customer agreeing to these
terms (Customer).
1.
ONLINE service. This agreement provides Customer access to and usage of an
Internet based software service as specified on an order (Service).
2.
USE OF SERVICE.
a.
Customer Owned Data. All data uploaded by Customer remains the
property of Customer, as between AYS and
Customer (Customer Data). Customer grants AYS the right to use the Customer Data solely for purposes of
performing under this agreement. During the term of this agreement, certain
parts of Customer Data will be
provided upon request. For more information please contact us at
support@reciprofity.com
b.
Access and
Usage. Customer may allow its contractors to access the Service in
compliance with the terms of this agreement, which access must be for the sole
benefit of Customer. Customer is responsible for the compliance with this
agreement by its contractors.
c.
Customer
Responsibilities. Customer (i) must keep its passwords secure
and confidential; (ii) is solely 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 AYS promptly of any such unauthorized access; and
(iv) may use the Service only in accordance with the Service’s online technical documentation and applicable
law.
d.
Technical Support. AYS will provide customer support for the Service under the terms of AYS’s Technical Support Policy (Support) which is located at http://reciprofity.com/pricing/support/
e.
Trial. If Customer has
registered for a trial use of the Service, Customer may access the Service for the
duration specified by AYS. The Service is provided AS IS, with no warranty
during this time period. All Customer
data may be deleted within 30 days after the trial period, unless Customer
converts its account to a paid Service.
f.
Beta. If Customer has registered for a beta
use of the Service, Customer may access the Service for the duration specified
by AYS. The Service is provided AS IS, with no warranty during this time
period. AYS does not guaranty that the
final version of the Service will contain all the beta features. All Customer
data may be deleted within 30 days after beta period, unless Customer converts
its account to a paid Service.
g.
Data Security Measures.
i.
Reasonable Security Measures. In order to protect Customer’s Confidential Information, AYS will (i) implement and maintain all
reasonable security measures appropriate to the nature of the Confidential
Information including without limitation, technical, physical, administrative
and organizational controls, and will maintain the confidentiality, security
and integrity of such Confidential Information; (ii) implement and maintain
industry standard systems and procedures for detecting, preventing and
responding to attacks, intrusions, or other systems failures and regularly test
or otherwise monitor the effectiveness of the safeguards’ key controls,
systems, and procedures; (iii) designate an employee or employees to coordinate
implementation and maintenance of its Reasonable Security Measures; and (iv)
identify reasonably foreseeable internal and external risks to the security,
confidentiality and integrity of Customer Data that could result in the
unauthorized disclosure, misuse, alteration, destruction or other compromise of
such information, and assess the sufficiency of any safeguards in place to
control these risks (collectively, Reasonable Security Measures). AYS shall provide 10 business days’ prior
written notice to Customer and any applicable Customer Company before making
substantive adverse changes to Vendor’s security procedures and protections.
ii.
Notice of Data Breach. If AYS knows that Customer
Confidential Information may have been accessed, disclosed, or acquired without
proper authorization and contrary to the terms of this agreement, AYS will alert Customer of any data breach
within two business days, and immediately take such actions as may be necessary
to preserve forensic evidence and eliminate the cause of the data breach.
AYS will give highest priority to
immediately correcting any data breach and devote such resources as may be
required to accomplish that goal. AYS
will provide Customer with all information necessary to enable Customer to
fully understand the nature and scope of the data breach. To the extent
that Customer, in its sole reasonable discretion, deems warranted Customer may
provide notice to any or all parties affected by any data breach. In such
case, AYS will consult with Customer in a
timely fashion regarding appropriate steps required to notify third parties. AYS will provide Customer information about
what AYS has done or plans to do to
minimize any harmful effect or the unauthorized use or disclosure of, or access
to, Confidential Information.
3.
SERVICE LEVEL AGREEMENT & WARRANTY.
a.
Warranty. AYS warrants to Customer: the functionality or
features of the Service may change but will not materially decrease during any
paid term; and that the Support may change but will not materially degrade
during any paid term.
b. third party data source disclaimer. AYS SPECIFICALLY DISCLAIMS AND PROVIDES NO WARRANTY
REGARDING THE ACCURACY OR COMPLETENESS OF ANY THIRD-PARTY DATA SOURCES, SUCH AS
USDA NUTRIENT AND CONVERSION DATA AND THE BOOK OF YIELDS, AMONG OTHERS.
customer should make its owns decision on whetehr and to what extent it wants
to rely on such data.
c.
general DisclaimerS. all calcuations by the service are estimates and do not necessarily
represent the actual cost of an item. AYS disclaims all OTHER warranties, including, without
limitation, the implied warranties of merchantability, title and fitness for a
particular purpose. While AYS takes
reasonable physical, technical and administrative measureS to secure the
Service, AYS does not guarantEE that the
Service cannot be compromised. Customer understands that the Service may not
be error free, and use may be interrupted.
4.
Payment. Customer must
pay all fees as specified on the order, but if not specified then 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.
5.
MUTUAL CONFIDENTIALITY.
a.
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). AYS’s Confidential
Information includes without limitation the Service, its user interface design
and layout, and pricing information, and the Software and Documentation
(defined below).
b.
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 Discloser 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.
c.
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. The Recipient may disclose
Confidential Information to the extent required by law or court order, but will
provide Discloser with advance notice to seek a protective order.
6.
AYS PROPERTY.
a.
Reservation of Rights. The software, workflow processes, user interface, designs and
Software and Documentation, and other technologies provided by AYS as part of the Service are the proprietary
property of AYS and its licensors, and
all right, title and interest in and to such items, including all associated
intellectual property rights, remain only with AYS.
Customer may not remove or modify any proprietary marking or restrictive
legends in the Service or Software and Documentation. AYS reserves all rights unless expressly granted in this agreement.
b.
Restrictions. Customer may
not (i) sell, resell, rent or lease the Service or use it in a service
provider capacity; (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 its related
systems or networks; (v) reverse engineer the Service or the Software and
Documentation; or (vi) access the Service or use the Software and Documentation
to build a competitive service or product, or copy any feature, function or
graphic for competitive purposes.
c.
Software and Documentation. All software
provided by AYS as part of the Service,
and the Service documentation, sample data, marketing materials, training
material and other material provided through the Service or by AYS (Software and Documentation) are
licensed to Customer as follows: AYS grants
Customer a non-exclusive, non-transferable license during the term of this
agreement, to operate such Software in accordance with the Documentation, solely
in connection with the Service.
d. Anonymized Data. During and after the term of
this agreement, AYS may use without
restriction and owns all statistical, aggregated and anonymized data within the
Service for purposes of enhancing the Service, technical support and other
business purposes.
7.
TERM and
Termination.
a.
Term.
This agreement continues until all
orders have expired or are terminated for material breach under Section 7(b).
b.
Mutual Termination for Material Breach. If either party
is in material breach of this agreement, the other party may terminate this
agreement at the end of a written 30-day notice/cure period, if the breach has
not been cured.
c.
Return of Customer Data.
·
Within 30-days after termination, certain parts
of Customer Data will be
provided upon request. Please contact us at support@reciprofity.com
·
After such 30-day period, AYS has no obligation to maintain the Customer
Data and may destroy it.
d.
Return AYS Property Upon Termination. Upon termination of this agreement for any
reason, Customer must pay AYS for
any unpaid amounts, and destroy or return all property of AYS. Upon AYS’s
request, Customer will confirm in writing its compliance with this destruction
or return requirement.
e.
Suspension for
Violations of Law. AYS
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. AYS will attempt to
contact Customer in advance.
f.
Suspension for Non-Payment. AYS may
suspend or terminate, or both, the Service if Customer is more than 15 days
late on any payment due or violates any restriction in Section 6(b).
8.
LIABILITY LIMIT.
a.
Exclusion of
indirect Damages. AYS 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
or unauthorized access to data or information; and lost profits, revenue or anticipated
cost savings), even if it
knows of the possibility of such damage or loss.
b.
total limit on
Liability. AYS’s total liability arising out of or related
to this agreement (whether in contract, tort or otherwise) does not exceed the amount
paid by Customer within the 12-month period prior to the event that gave rise
to the liability.
9.
Indemnity. If any third-party
brings a claim against AYS related to Customer’s acts, omissions, data or
information within the Service, Customer must defend, indemnify and hold AYS
harmless from and against all damages, losses, and expenses of any kind
(including reasonable legal fees and costs) related to such claim.
10.
GOVERNING LAW AND FORUM.
·
For US Customers. This agreement is governed by the laws
of the State of New York, without regard to conflict of laws principles. Any
dispute between customer and AYS arising out of or related to this agreement
must be exclusively determined by binding arbitration in Westchester County,
NY, under the then current commercial
rules of the American Arbitration Association. The arbitration proceedings must
be held in Westchester County, NY. Any judgment on the award rendered by the
arbitrator is final and may be entered in any court of competent jurisdiction.
Nothing in this agreement prevents either party from seeking injunctive or
equitable 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.
·
For International Customers. This agreement is governed by the laws of the State of New York, without
regard to conflict of laws principles. Any dispute between customer and
AYS arising out of or related to this agreement must be exclusively determined
by binding arbitration in Westchester County, NY, US in English, 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.
11.
OTHER TERMS.
a.
Community forums. The Services may include a community forum or other social
features to exchange Customer content and information with other users of the
Services and the public (Community Forum).
AYS does not support and is not responsible for the content in these Community
Forums. Please use respect when you interact with other users in a Community
Forum. Do not reveal confidential or other information that you do not want to
make public. Users may post hypertext links to content of third parties for
which AYS is not responsible.
b. Entire
Agreement and Changes. This agreement and
the order constitute the entire agreement between the parties and supersede any
prior or contemporaneous negotiations or agreements, whether oral or written,
related to this subject matter. Customer
is not 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, however this agreement may
be modified through an online process provided by AYS.
No waiver is effective unless the party waiving the right signs a waiver
in writing.
c.
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, without the consent of the
other party, as part of a merger, or sale of substantially all the assets, of a
party.
d.
Independent Contractors. The parties
are independent contractors with respect to each other.
e.
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 its reasonable control, including, without
limitation force majeure events.
f.
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.
g.
No Additional Terms. AYS rejects additional or conflicting terms of
any Customer form-purchasing document.
h.
Order of Precedence. If there is
an inconsistency between this agreement and an order, the order prevails.
i.
Survival of Terms. Any
terms that by their nature survive termination of this agreement for a party to
assert its rights and receive the protections of this agreement, will survive
(including without limitation, the confidentiality terms). The UN Convention on
Contracts for the International Sale of Goods does not apply. Customer hereby
expressly waives the application of New York General Obligation Law section
5-903 to any renewal of an order.
j.
Feedback. If Customer provides feedback
or suggestions about the Service, then AYS
(and those it allows to use its technology) may use such information without
obligation to Customer.