MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement for provision of SaaS services (this “Agreement”) is entered into as of the date (the “Effective Date”) on which the customer (the “Customer”) submits an order for free trial or paid services (the “Order Form”) via the Onna Technologies website and is between Onna Technologies, Inc., with a place of business at 609 Greenwich St, 4th Floor, New York, NY 10014 (“Onna”), and Customer, with a place of business as indicated on the Order Form. This Agreement includes and incorporates the Service Level Terms in Exhibit A and any Order Form executed by the parties hereunder, and contains, among other things, warranty disclaimers, liability limitations and use limitations. Onna and Customer are herein collectively referred to as the “parties” and individually as a “party.”
Customer and Onna agree to be bound by the terms of the Order Form and this Agreement. This Agreement shall apply to Customer’s use of Onna SaaS services (the “Services”) and the Onna platform (the “Platform”) to the exclusion of any different terms of any purchase order submitted by Customer, even if signed by Onna and Customer. This Agreement represents the parties’ entire understanding regarding the Platform and shall control over any different or additional terms of any purchase order or other non-Onna ordering document, and no terms included in any such purchase order or other non-Onna ordering document shall apply to the Platform. In the event of a conflict between this Agreement and an Order Form, the terms of this Agreement shall control. All capitalized terms not defined herein shall have the meanings attributed in the applicable Order Form. Subject to the terms of this Agreement, Onna hereby grants Customer a non-exclusive, non-sublicensable, non-assignable and non-transferable license to use the Platform during the Term. Customer’s obligations under this Agreement shall also be binding on any client of Customer (to the extent Customer is a service provider) and on any other user that uses the Platform or Services relating to an Order Form executed hereunder and Customer shall be responsible for obtaining each such client’s or user’s written agreement to comply with such obligations. Customer shall be liable for the obligations and activity under this Agreement of any such client or user.
2. SAAS SERVICES AND SUPPORT
2.1. As part of the registration process, Customer will identify an administrative username and password for Customer’s Platform account. Onna reserves the right to refuse registration of or cancel passwords it deems inappropriate.
2.2. Onna shall respond to requests by email (firstname.lastname@example.org) during Onna Business Hours, which are defined as the hours between 7 a.m. and 7 p.m. Eastern Standard Time, Monday – Friday, excluding U.S. national holidays.
2.3. ONLY for Customers ordering and paying for “Premium Support”, the Service Level Terms for support in Exhibit A shall apply.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms of the Platform or other software, documentation or data related to Platform; modify, translate, or create derivative works based on the Platform (except to the extent expressly permitted by Onna); use the Platform for timesharing or service bureau purposes or otherwise outside of the rights expressly granted to Customer; or otherwise for the benefit of a third party (including by assisting a third party in building or supporting, products or services competitive to Onna); use the Services to deliver any application other than the Customer Application without Onna’s express written consent; or remove any proprietary notices or labels.
3.2. Customer represents, covenants, and warrants that Customer will use the Platform only in compliance with all applicable laws and regulations. Without limiting the foregoing, Customer may not remove or export from the United States or allow the export or re-export of the Platform, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Platform and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.3. Customer shall not knowingly or willfully use the Platform in any manner that could damage, disable, overburden, impair or otherwise interfere with Onna’s provision of the Platform.
3.4. From time to time, Onna may provide updates to the Platform
3.5. Although Onna has no obligation to monitor Customer’s use of the Platform, Onna may do so, and Onna may immediately suspend Customer’s password, account, and access to the Platform if Customer violates this Agreement or the Agreement. Any suspension by Onna of the Platform under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement during the period of suspension.
3.6. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.7. If Onna believes or becomes aware of an actual or potential security breach affecting Customer’s assets or information, Onna shall immediately notify Customer.
3.8. If Customer is a service provider purchasing on behalf of its client, Customer will ensure that only such client’s data will be used in the Platform and Services. Customer may not purchase or use the Platform or Services with multiple clients without the prior written consent of Onna. Onna reserves the right to terminate this Agreement if Customer is using the Platform or Services with data from of multiple clients or companies.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Onna includes non-public information regarding features, functionality, pricing, and performance of the Platform. Proprietary Information of Customer includes non-public data provided by or on behalf of Customer (and in the case of a reseller, Customer’s client) to Onna to enable the provision of the Platform (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Agreement or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Receiving Party’s obligations hereunder will last for five years following disclosure by the Disclosing Party. Notwithstanding the foregoing, the Receiving Party will have no obligations with respect to Proprietary Information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2. Customer (and in the case of client data for a Customer that is a reseller, such client) shall own all right, title and interest in and to the Customer Data. Onna shall own and retain all right, title and interest in and to (a) the Platform, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Platform or support, and (c) all intellectual property rights related to any of the foregoing listed in (a) – (c). “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority. Any design, development or product used by Customer hereunder shall not be deemed to be a work for hire, and nothing in this Agreement shall be construed to grant to Customer any right or license in any patent, copyright, trade secret, or other intellectual property or rights relating to the Platform.
4.3. To the extent that Onna is processing Customer Data that relates to an identified or identifiable natural person that is protected as personal data under applicable data protection laws and regulations of the European Union, the EEA and its member states, Switzerland and the United Kingdom (“Applicable Data Protection Law”), Onna shall process such data in accordance with the Applicable Data Protection Law.
4.4. Notwithstanding anything to the contrary, subject to its obligations under Applicable Data Protection Law, Onna shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and related systems and technologies (including, without limitation, information concerning Customer Data and any data derived therefrom), and Onna will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Onna offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
5. PAYMENT OF FEES
Customer will pay Onna by credit card or other mutually agreed means the entirety of the one-year license or any longer agreed term upon submission of the Order Form on the Onna website, and upon the first day of each renewal term thereof. Any additional charges that may arise will be paid thirty (30) days after date of each invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Platform. All payments tendered under this agreement shall be tendered in U.S. dollars. Customer shall be responsible for all taxes associated with Platform other than U.S. taxes based on Onna’s net income.
6. TERM AND TERMINATION
6.1. Subject to earlier termination as provided below, this Agreement is (i) for one year or (ii) any longer agreed term specified in the Order Form or (ii) 30 days in the case of a free trial (the “Term”), and except for a free trial which shall end after 30 days and not be renewable, shall be automatically renewed for additional periods of the same duration as the Term, unless either party requests termination at least ninety (90) days prior to the end of the then-current Term. Onna will make reasonable efforts to send Customer notice prior to renewal as a reminder but a failure to do so will not relieve Customer of its obligation to provide 90-day non-renewal notice.
6.2. If either party materially breaches any of the terms or conditions of this Agreement, the non-breaching party must provide written notice thereof. If the breaching party does not cure the breach within ten (10) days after written notice, the non-breaching party may terminate this Agreement upon thirty (30) days’ notice.
6.3. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, intellectual property rights, proprietary rights, dispute resolution/arbitration, limitations of liability, and provisions mentioned in the Miscellaneous Section.
6.4. Upon any termination of the Agreement, Onna will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, after which Onna may permanently and irrevocably destroy all Customer Data in its possession or control. In addition, upon the termination of this Agreement for any reason or upon the conversion of a free trial to a paid service, Onna may promptly permanently delete all Customer Data (other than basic contact and billing information that does not constitute personal data under Applicable Data Protection Law) from all Onna systems and databases according to standard industry practice.
6.5. Upon termination of this Agreement, Customer shall promptly cease to use the Platform.
6.6. Force Majeure: Neither party will be liable for any delay or failure to perform its obligation under this Agreement if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
7. WARRANTY AND DISCLAIMER
Each party represents and warrants to the other party that: (a) it is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority, and is duly authorized, to enter into the Agreement and to carry out the provisions thereof; (b) the person executing the Agreement on such party’s behalf is authorized to do so; (c) the execution, delivery and performance of the Agreement does not violate any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it; and (d) will comply with all applicable federal, state and local laws, rules and regulations in fulfilling its obligations hereunder, including, without limitation, privacy and data security statutes and regulations promulgated and in effect under such statutes and all applicable privacy and data security standards and generally accepted industry standards. Furthermore, Onna represents and warrants to Customer that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Platform in a manner which minimizes errors and interruptions in the operation of the Platform. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Onna or by third-party providers, or because of other causes beyond Onna’s reasonable control, but Onna shall provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ONNA DOES NOT WARRANT THAT THE PLATFORM OR ANY OTHER SERVICES OR PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM (INCLUDING ANY SUPPORT AND MAINTENANCE SERVICES) ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Onna shall hold Customer harmless from liability to third parties resulting from infringement by the Platform of any United States patent, or any copyright, provided Onna is promptly notified of any and all threats, claims and proceedings related thereto, Customer provides reasonable assistance to Onna in defending any such claims, and Customer provides Onna with sole control over defense and settlement. Onna will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Platform (i) not supplied by Onna, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery without Onna’s authorization, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vi) where Customer failed to upgrade the Platform as specified by Onna, and such upgrade would have avoided the alleged infringement, or (vii) where Customer’s use of the Platform is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Platform is held by a court of competent jurisdiction to be or are believed by Onna to be infringing, Onna may, at its option and expense and as Customer’s sole remedy (a) replace or modify the Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Platform, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Platform. Customer shall indemnify, defend and hold harmless Onna and its officers, employees, contractors, agents, and advisors against any and all claims, damages, liabilities, charges or expenses raised against or incurred by Onna as a result of a third-party claim arising out of: (a) Customer’s breach of any representation or warranty under this Agreement; or (b) Customer’s breach of this Agreement
9. LIMITATION OF LIABILITY
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ONNA AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO FOR ANY REASON INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR GOODWILL; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ONNA’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE PLATFORM UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 To the extent any of the limitations in section 9.1 are not permissible in a given jurisdiction, ONNA’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW
10. DISPUTE RESOLUTION; ARBITRATION
Any dispute that arises under this Agreement or relating to the Services shall be resolved first through negotiation in good faith between the Parties. Failing an agreement, the dispute shall be settled by binding arbitration by a single arbitrator selected from the roster of American Arbitration Association (“AAA”) arbitrators, with the arbitration conducted according to the AAA Commercial Arbitration Rules then in force, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof, with the prevailing party entitled to recover costs and attorneys’ fees. The seat of the arbitration shall be New York, New York. All aspects of the arbitration shall be treated as confidential.
11. UPDATES TO AGREEMENT TERMS
Onna may update and amend the terms and conditions of this Agreement from time to time and will provide notice to Customer by posting the updated Agreement on the Onna website including the date of the updated Agreement which shall be binding upon Customer and any clients and users of the Platform or Services.
Any notice, request, demand or other communication required or permitted hereunder shall be made in writing shall reference this agreement and shall be deemed to be properly given: (a) when delivered personally; (b) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) one (1) business day after deposit with an express courier, with written confirmation of receipt. All notices shall be sent or emailed to the addresses below as follows (or to such other address or person as may be designated by a party by giving written notice to the other party pursuant to this Section).
Onna Technologies, Inc.
609 Greenwich St, 4th Floor, New York, NY 10014
Customer at the address and contact information indicated in the Order Form
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Onna’s prior written consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties. This Agreement, as well as any amendment hereto or Order Form, may be signed in counterparts, each of which shall be deemed an original, but each of which together shall constitute one and the same instrument. The parties hereby consent to the use of electronic signatures, if applicable, and further agree that an electronic signature or a signature transmitted via facsimile or scanned email shall be considered binding and deemed the same as an original written signature for all purposes hereunder. The headings used in this Agreement are for convenience only and shall not be considered in construing or interpreting this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Onna in any respect whatsoever. The waiver by either party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any such right or remedy. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws/provisions.
Premium Support Service Level Terms
THIS EXHIBIT SHALL ONLY APPLY TO ORDERED AND PAID FOR “PREMIUM SUPPORT” SERVICES HEREUNDER
Onna will use commercially reasonable efforts to make the Services available at least 99.9% of the time per month (“Uptime Availability”), except for any scheduled maintenance or unscheduled emergency maintenance, either by Onna or by third-party providers, or because of other causes beyond Onna’s reasonable control.
“First Level Support” means the initial support level responsible for basic customer issues, including resolving username and password problems, uninstalling/reinstalling basic software applications, verification of proper hardware and software setup, and assistance with navigating around application menus. First Level Support will generally handle issues falling under Severity Level 3 and 4 defined below, without the need of Second Level Support.
“Second Level Support” means advanced technical troubleshooting and analysis methods beyond what can be accomplished under First Level Support, and includes any escalation from First Level Support to Second Level Support. Second Level Support will generally handle issues falling under Severity Level 1 and 2 defined below.
“Severity Level ” means the following for any reported error:
Severity Level Definition
1. A suspected critical error that: (1) renders the Platform inoperative; or (2) causes the Platform or the Customer’s network to fail catastrophically (system down condition); and (3) can be reproduced in more than one instance.
2. A suspected high impact error that materially restricts the use or performance of the Platform or the Customer’s network; or (2) suspected error that renders the Platform or Customer’s network inoperative but the error cannot be reproduced; or (3) an issue that renders the Onna Vendor portal inoperative.
3. A Platform error that causes a minor impact on the use of the Platform or a documentation error; or (2) an issue that materially restricts the use of the Platform.
4. A question about Platform use or implementation; or (2) an error which causes a minor impact on the use of the Platform.
2. FIRST LEVEL SUPPORT.
A. Onna shall respond to requests for First Level Support by email (support@Onna.com). Onna shall provide First Level Support (a) during Onna Business Hours, which are defined as the hours between 7 a.m. and 7 p.m. Eastern Standard Time, Monday – Friday, excluding U.S. national holidays, and (b) on a 24/7 basis for Severity 1 faults. For all First and Second Level Support, Onna shall use reasonable efforts to respond to Customer requests for service within the following response times:
Severity Level Response Times During Normal Business Hours
1. 4 Hours
2. 3 Business Hours
3. 4 Business Hours
4. 1 Business Day
3. SECOND LEVEL SUPPORT.
A. Onna will provide Second Level Support to Customer with respect to the Platform in accordance with the Severity level reported by Customer after first passing through First Level Support.
B. Onna shall respond to requests for Second Level Support of Severity Level 1 by email (support@Onna.com) on a worldwide, twenty-four hour, 7 days per week, 365 days per year basis. For all Second Level Support, Onna shall use reasonable efforts to respond to requests for service within the response times noted in Section 2 above.
C. If any correction to the Platform is required as part of Second Level Support, Onna will provide the applicable Maintenance Releases in the appropriate format to Customer. Onna will use reasonable efforts to provide corrections or workarounds to all errors reported in the following time periods:
Severity Level Delivery of Correction or Workaround
1. Onna will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 1 fault within ninety (90) minutes after notification by Customer. Onna will use commercially reasonable efforts to “resolve critical severity faults as soon as possible. The resolution will be delivered to Customer or the applicable end user as a work-around or as an emergency software fix. If Onna delivers an acceptable work-around instead of a solution, the severity classification will drop to Severity 2 or lower.
2. Onna will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 2 fault within eight hours after notification by Customer. Onna will use commercially reasonable efforts to resolve critical severity faults as soon as possible. The resolution will be delivered to Customer or the applicable end user as a work-around or as an emergency software fix. If Onna delivers an acceptable work-around instead of a solution, the severity classification will drop to Severity 3 or lower.
3. Onna agrees that it will provide an initial response by a qualified member of its staff to begin to diagnose a Severity 3 fault within one (1) business day of notification by Customer. Onna will use commercially reasonable efforts to resolve Severity 3 faults within thirty (30) days or in the next update of the Platform. If Onna determines, in its sole discretion, that the requirement is unique to a Customer’s operations, Onna will notify Customer within two (2) weeks of receiving notification of the fault with an appropriate recommendation and estimate for resolving the incident.
4. Onna will provide an initial response by a qualified member of its staff to begin to respond to a Severity 4 issue within one (1) business day of notification by Customer.