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Master Subscription Agreement
 

This Master Subscription Agreement (“Agreement”) is made as of ____________________, (“Effective Date”) by and between Limelight Software. (“Limelight”), an Ontario corporation, having its principal place of business at 4950 Yonge Street, Suite 2308, Toronto, Ontario M2N 6K1, and _____________________ a corporation having its principal place of business at _____________________________ (“Subscriber”).

 

1. Definitions

"Agreement" means this Software (SaaS) Master Subscription Agreement together with any Order Form, and Appendices executed by Limelight and the Subscriber.

“Limelight” means Limelight Software and its incorporated business, entity and/or subsidiaries

"Authorized User(s)" means Subscriber employees who are authorized to use the Service and have been supplied user identifications and passwords by Subscriber (or by Limelight at Subscriber’s request).

“Applicable Privacy Laws” means all applicable data protection legislation, regulations and rules related to data security and data integrity and those data protection laws applicable to Limelight and Subscriber in Canada and the United States of America.

“Content” means: (i) information obtained or developed by Limelight related to the Service and provided to Subscriber, including all products specified and agreed upon pursuant to this Agreement; (ii) the Documentation, as defined within this Agreement; and (iii) Updates.

"Documentation" means, collectively, technical information and materials, in written or electronic form, delivered with the Service by Limelight to Subscriber and that are intended for use in connection with the Service.

“Fees” means the fees and charges specified in an Order Form, including both recurring and one-time charges.

“Intellectual Property Rights” means the legal entitlement to any works or inventions that is the result of creativity to which Limelight has applied for, or obtained a patent, copyright, trademark, or any other type of protection worldwide.

“Maintenance and Support” means the level of support and maintenance and system availability provided to the Subscriber in accordance with the terms and conditions set forth in Appendix “A”.

"Modification" means a change to the Service that changes the delivered source code or an enhancement to the Service that is made using Limelight tools, software or utilizing or incorporating Limelight Proprietary Information.

“Order Form” means any validly executed Order Form between Limelight and the Subscriber.

“Professional Services” Each applicable Statement of Work shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.

"Proprietary Information" means (i) with respect to Limelight, the Service, and Documentation and any complete or partial copies thereof, the Service Concepts, Third-Party Databases and any benchmark or survey results; (ii) information relating to the respective technologies, Service, strategies, trade secrets, internal operating environments, products, Subscriber lists and business of either party; (iii) other documents or information customarily regarded as being proprietary or confidential; and (iv) information reasonably identifiable as the confidential or proprietary information of Limelight or Subscriber, including Subscriber Data.

“Services” means the Limelight Software and services that are ordered by Subscriber under the Order Form .

"Service Concepts" means the concepts, techniques, ideas, and know-how embodied and expressed in any computer programs included in the Service, including their structure, sequence and organization.

"Subscriber Data" means any data, information or material provided or submitted by Subscriber or Users to the Service in the course of using the Service.

“Subscription Term” means the period of time Subscriber may access and use the Services as set forth in an Order Form.

“Updates” means all upgrades, modified versions, updates, additions to the products and Service, whether provided to the Subscriber by Limelight through maintenance and support services or otherwise at any time.

"Use" means to directly or indirectly load, execute, access, employ, utilize, store, or display the Service.

2. Subscription

2.1. Software Subscription. Subject to the payment of the Subscription Fees and the terms and conditions of this Agreement, Subscriber may access and use the Software in the configuration described in the Order Form for internal business purposes during the Subscription Term and in accordance with any other terms and conditions provided in the Order From.   Subscriber may purchase additional services, products, environments, or Authorized Users to add to existing subscription at any time and the Subscription Fees for these purchases will be prorated for the remainder of the applicable Subscription Term.  Limelight provides product support and updates for the Software during the Subscription Term (at no additional charge) according to the Maintenance Support Terms.

2.2 Subscription Term. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified below or in an Order Form, Order Forms and all subscriptions thereunder will automatically renew for additional periods of one year, on the same terms and without entry into a new Order Form, unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term.

2.3 Non-Renewal of Subscriptions. If Subscriber provides timely notice of non-renewal, the Service will expire and Subscriber access to the Service will cease on the subscription end date.

2.4. Professional Services.  Any professional services to be performed by Limelight in connection with the configuration and implementation of the Software will be described in the Order Form under, statement of work.

3. Restrictions On Use

3.1 Subscriber is responsible for all activity occurring under the Service and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Subscriber Use of the Service, including those related to applicable privacy laws, international communications and the transmission of technical or personal data.

3.2 Subscriber acknowledges that the Service and its structure, organization and source code constitute valuable trade secrets of Limelight. Accordingly, Subscriber agrees: (a) Not to modify, adapt, alter, translate, or create derivative works from the Service (except as expressly permitted by the Documentation); (b) Not to merge the Service with other service or software; or sublicense, lease, rent, loan, or otherwise transfer the Service to any third party; (c) To not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service; (d) Not to provide services to third parties using the Service (e.g. business process outsourcing, service bureau applications or third party training) or otherwise Use or copy the Service; (e) To notify Limelight immediately of any unauthorized Use of any password or account or any other known or suspected breach of security; (f) To report to Limelight immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Subscriber or Subscriber’s Users; (g) Not to remove, alter, or obscure any proprietary notices (including copyright notices) of Limelight and/or its licensors incorporated with the Service; and (h) Not to provide false identity information to gain access to or Use the Service.

3.3 Subscriber shall not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to (i) any third party the Service in any way; or (ii) "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iii) reverse engineer or access the Service in order to: (a) build a competitive product or Service; (b) build a product using similar ideas, features, functions or graphics of the Service; or (c) copy any ideas, features, functions or graphics of the Service.

3.4 User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer Use the Service.

4. Limelight Proprietary Rights; Subscriber Data Security and Data Backups

4.1 Limelight alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Service (specifically excluding all Subscriber Data) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or any other party relating to the Service, including any data that is based on or derived from the Subscriber Data and provided to Subscriber as part of the Services. Limelight shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Subscriber Data and data derived therefrom), and Limelight will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Limelight offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. This Agreement is not a sale and does not convey to Subscriber any rights of ownership in or related to the Service or the Intellectual Property Rights owned by Limelight.

4.2 Limelight, in its discretion, reserves the right to supply new application source code of the Service and all copies thereof in Subscriber's possession or control whenever a future Update provides for like functionality in an object code format. Other than as specified herein, any tools licensed with or included in the Service may not be copied, in whole or in part, without the express written consent of Limelight.

4.3 Limelight is responsible for maintaining a backup of Subscriber Data and for an orderly and timely recovery of such data in the event that the use of the Service may be interrupted. Unless otherwise agreed between the parties in writing, Limelight shall maintain daily backups of all Subscriber Data that can be recovered within four (4) hours during the following business day.

4.4 In accordance with the applicable privacy laws, Limelight shall implement appropriate physical, organizational, and technological measures to ensure the security and confidentiality of all Subscriber Data in its possession from time to time, including, protecting against any anticipated threats or hazards to the security or integrity of the Subscriber Data, and protecting against unauthorized access to or use of the Subscriber Data that could result in substantial harm or inconvenience to Subscriber.

4.5 In the event of any act, error or omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of Subscriber Data or the physical, technical, administrative, or organizational safeguards put in place by Limelight that relate to the protection of the security, confidentiality, or integrity of Subscriber Data, Limelight shall, as applicable: (a) notify Subscriber as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence; and (b) reasonably cooperate with Subscriber in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by Subscriber; (c) perform or take any other actions reasonably required to comply with applicable law as a result of the occurrence; (d) to be responsible for using commercially reasonable efforts to recreate lost Subscriber Data in the manner and on the schedule set by Subscriber without charge to Subscriber.

4.6 Subscriber will own and retain all rights to their Data. Subscriber is responsible for the accuracy, quality, integrity, and legality of their Data.  Subscriber agrees to abide by and be responsible for compliance with applicable laws and regulations regarding access and use of Subscriber Data with the Software and acknowledges that the Software is not designed, nor intended to process or manage any Protected Information.

5. Confidentiality

5.1 During the Term and for a period of three (3) years thereafter, each party shall keep confidential, shall not use for itself or the benefit of others, and shall not copy or allow to be copied, in whole or in part, any Proprietary Information other than as reasonably necessary to fulfill the terms of this Agreement or as permitted under the applicable privacy laws. Neither party shall, without the other party's prior written consent, disclose, provide, or make available any of the Proprietary Information of the other party in any form to any person, except to its bona fide employees, officers, or directors whose access is necessary to enable such party to exercise its rights hereunder.

5.2 Each party agrees to take all reasonable steps and the same protective precautions to protect the Proprietary Information of the other party from disclosure to third parties as with its own proprietary and confidential information, but in no circumstances with less than reasonable care.

5.3 The obligations of confidentiality imposed upon the parties by the foregoing paragraph shall not apply with respect to any alleged Proprietary Information which: (a) is known to the recipient thereof prior to receipt thereof from the other party hereto; (b) is disclosed to said recipient by a third party who is not restricted from making such disclosure; (c) is or becomes a part of the public domain or public knowledge through no fault of said recipient; (d) is independently developed by the recipient without reference to the disclosing party’s Proprietary Information; or (e) is required to be disclosed under operation of law, as long as the party affected has the opportunity to apply to the applicable legal entity for a protective order.

5.4 Upon the expiration or termination of the Agreement, or on completion of a party’s obligations under the Agreement, each party shall use its commercially reasonable best efforts to return, or destroy, or cause to be returned or destroyed, in a prompt manner, all materials in any medium that contain, refer or relate to the Proprietary Information of the other party.

6. Payment, Taxes and Renewals

Limelight shall invoice Subscriber in accordance with the fees, charges, and billing terms set for in the Order Form, plus all applicable taxes, out-of-pocket expenses, in advance of services rendered, and continuing on an annual basis. Invoices are due and payable Net 30 days from the invoice date. Any amount remaining unpaid after payment is due shall accrue interest at a rate of one-half percent (1.5%) per month. Invoices submitted by Limelight to Subscriber are deemed accepted and approved unless disputed by Subscriber within five (5) business days of Subscriber’s receipt of the invoice. Except as otherwise provided in this Agreement, all payment obligations are non‐cancelable and once paid are non-refundable.

In the event Subscriber disputes a portion of an invoice, Subscriber agrees to fully pay the undisputed portion and Limelight’s acceptance of such partial payment shall not waive any of its rights as to the remaining balances nor in any way constitute accord and satisfaction.

Subscription Fees do not include any applicable sales or use taxes (such as GST).  These taxes, if applicable, will be charged separately on the Invoice.

7. Term and Termination

7.1 Subscriptions shall start on the Effective Date of this Agreement and continue for the Term specified on the Order Form. At the end of said Term, Subscriber may elect to renew their subscription by entering into a new Order Form or terminate this agreement and stop using the software.

7.2 Upon completion of the term specified on the Order Form, (the Renewal), Subscriber may elect not to renew the subscription by giving at least sixty (60) days’ written notice before the end of the subscription term. Should Subscriber wish to terminate their subscription prior to the end of the Term specified in the Order Form, all subscription fees remaining for the Term(s) shall become due and be paid in full within thirty (30) days.

7.3 Limelight may terminate this Agreement at any time prior to the expiration of the then-current Term if: (a) Subscriber defaults in any payment due to Limelight and such default continues unremedied for at least twenty (20) business days after receipt by Subscriber of written notice thereof; (b) Subscriber is in default with respect to any other provision of this Agreement and such failure or default continues unremedied for at least thirty (30) days after receipt of written notice; or (c) Subscriber breaches any obligation related to Sections 2, 3 4 or 5 of this Agreement or its obligations related to the protection of Limelight’s Proprietary Information in this Agreement.

7.4 The Subscriber may terminate this Agreement at any time prior to the expiration of the then-current Term if: (a) Limelight is in default with respect to any provision of this Agreement and such failure or default continues unremedied for at least thirty (30) days after receipt of written notice; or (b) Limelight breaches any obligation related to the protection of Subscriber’s Proprietary Information as provided for herein.

7.5 Upon termination of this Agreement, Subscriber’s access to the Service shall be revoked and, subject to the limited access rights described below, Subscriber shall immediately cease using the Service. Following any termination of this Agreement, Subscriber shall have seven (7) calendar days to access the Service solely to retrieve the Subscriber Data and Limelight hereby disclaims any and all liability, express or implied, should Subscriber fail to retrieve its Subscriber Data during such time period. Other than as set out herein, following the termination of this Agreement, Subscriber agrees and acknowledges that Limelight has no further obligation to retain the Subscriber Data and may erase such Subscriber Data. Termination of this Agreement shall not relieve either party from its obligations arising hereunder before termination, including relating to the other party’s Proprietary Information, and shall not relieve Subscriber from its obligations to pay any accrued fees and its obligations to protect Limelight’s proprietary rights hereunder.

7.6 Limelight reserves the right to temporarily suspend access to the Service if (1) Subscriber has undisputed amounts more than 30 days past due, (2) Subscriber has not paid the subscription renewal fees when due, or (3) Limelight reasonably determines that you are using the Software in a way that creates a security vulnerability to the Software or is in breach of this Agreement.  Limelight will provide Subscriber prior notice if access will be suspended and will promptly restore access once the issue has been resolved.

8. Indemnification

8.1 Subscriber shall indemnify and hold Limelight, and subsidiaries, affiliates, officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Subscriber Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Subscriber of Subscriber’s representations and warranties; or (iii) a claim arising from the breach by Subscriber or Subscriber’s Users of this Agreement, provided in any such case that Limelight (a) gives written notice of the claim promptly to Subscriber; (b) gives Subscriber sole control of the defense and settlement of the claim (provided that Subscriber may not settle or defend any claim unless Subscriber unconditionally releases Limelight of all liability and such settlement does not affect Limelight’s business or Service); (c) provides to Subscriber all available information and assistance; and (d) has not compromised or settled such claim.

8.2 Limelight shall indemnify and hold Subscriber, its officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (excluding attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the unmodified version of the Service directly infringes any copyright or patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Limelight of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Limelight; provided that Subscriber (a) promptly gives written notice of the claim to Limelight; (b) gives Limelight sole control of the defense and settlement of the claim (provided that Limelight may not settle or defend any claim unless it unconditionally releases Subscriber of all liability); (c) provides to Limelight all available information and assistance; and (d) has not compromised or settled such claim. Limelight shall have no indemnification obligation, and Subscriber shall indemnify Limelight pursuant to this Agreement, for claims arising from any infringement arising from Subscriber’s modification of the Service, its combination, operation, or use with equipment, data, or service not approved by Limelight or as a result of any combination with or use of the Subscriber Data.

8.4 If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Limelight to be infringing, Limelight may, at its own expense and option, either (a) procure for Subscriber the right to continue using such Service; (b) replace the same with non-infringing Service or modify the Service so that it becomes non-infringing; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Subscriber’s rights hereunder and provide Subscriber with a refund of any prepaid, unused fees for the Service.

9. Representations and Warranties

9.1 Limelight represents and warrants that: (a) it has title to the Service or has acquired the right to license portions of the Service from third parties and Limelight has full power and authority to grant to the Subscriber the rights granted hereunder; (b) it has not placed, nor is Limelight aware of, any disabling code or any viruses in the Service which would alter, destroy, or inhibit the Service, or its use by Subscriber; (c) to the best of its belief and knowledge, the Service does not infringe upon any copyright, registered patent, trademark, software mark or trade name owned by a third party; and (d) Limelight personnel shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services.

9.2 Subscriber represents, warrants and covenants to Limelight as follows: (i) Subscriber exists under the laws of its own jurisdiction and is not under any contractual obligation that would preclude it from entering into this Agreement or would interfere with the use of the Subscriber Data provided under this Agreement; (ii) Subscriber owns or has properly licensed all rights in the Subscriber Data at all times during the Term; (iii) the Subscriber Data is not, nor will be, in violation of any laws or third party intellectual property rights; (iv) all Subscriber Data and Subscriber’s use of the Service does and will comply with all applicable laws, including applicable privacy laws; and (v) neither this Agreement nor the performance of or exercise of rights under this Agreement will violate, conflict with, or result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not existing at the effective date) to which Subscriber is a party or by which it may be bound, or constitute a default thereunder.

9.3 THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY LIMELIGHT WITH RESPECT TO THE SERVICE AND ANY PART THEREOF. LIMELIGHT DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL OPERATE CONTINUOUSLY OR WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS WILL BE CORRECTED, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, THE SERVICES ARE PROVIDED “AS IS” AND LIMELIGHT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9.4 The representations and warranties set forth in the Agreement hereto shall not apply: (i) if the Service is not used in accordance with the Documentation or any alteration of the Service made by Subscriber to fit a particular requirement of Subscriber not intended by Limelight; (ii) if Subscriber or a third party acting on behalf of Subscriber is granted administrative access to the Service; (iii) if Subscriber’s internal system does not employ reasonable, or industry standard latency levels; (iv) to the extent that a defect is caused by or is contributed to by Subscriber or a Subscriber third party; (v) if the defect is caused by a Third-Party Databases or other third party software malfunction; or (vi) to the preparation or conversion of data into the form required for Use with the Service.

10. Limitation of Liability

10.1 In no event will Limelight be liable for any loss of profits, loss of business or goodwill, loss of use or data, interruption of business, or for indirect, special, incidental or consequential damages of any kind.

10.2 Limelight’s entire liability to the Subscriber under this Agreement, regardless of whether the claim for such damages is based in contract or tort (including negligence) or misrepresentation or breach of statutory duty or any duty under general law or any other legal theory (except for Limelight’s duty to indemnify against infringement as provided for herein) will not exceed the Fees paid by Subscriber to Limelight for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability.

10.3 LIMELIGHT AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE SERVICE AND/OR THIRD-PARTY SERVICE LICENSED HEREUNDER.

11. Dispute Resolution

11.1 Any controversy or claim arising out of or relating to this Agreement or involving any dispute regarding the interpretation or breach of this Agreement shall be resolved as follows: (a) Upon written request of either party, both parties shall appoint a designated representative whose task it will be to meet for the purpose of resolving such dispute. (b) Formal proceedings for the resolution of a dispute may not be commenced until the earlier of: (i) the designated representatives concluding in good faith that amicable resolution through continued negotiations does not appear likely; and (ii) the expiration of the 30-day period immediately following the initial request to negotiate such dispute.

11.2 In the event the parties are unable to resolve a dispute, a party shall commence arbitration and each party hereto agrees to be bound by the decision of the arbitrators. Judgment upon the award of the arbitrators may be entered in any court of competent jurisdiction. Arbitrations shall take place in the City of Toronto, province of Ontario, be pursuant to and in accordance with the provisions of the Arbitration Act (1991) (Ontario), and the language of the arbitration shall be in English. The costs of arbitration shall be awarded by the arbitrator based on the success of each party of the arbitration.

12. General

12.1 Entire Agreement. This Agreement, forms the entire agreement between the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by a duly authorized representative of each party to this Agreement.

12.2 Assignment. This Agreement may not be assigned by Subscriber or by operation of law to any other person, persons, firms, or corporations without the express written approval of Limelight, which consent shall not unreasonably be withheld. Limelight may transfer and assign any of its rights and obligations under this Agreement without consent.

12.3 Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein. This Agreement shall be governed without regard to conflict of laws provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods and shall exclude the application of the Uniform Computer Information Transactions Act.

12.4 Force Majeure. Neither party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, terrorism, epidemics, failure of suppliers to perform, governmental regulations, power failure, earthquake, or other disasters. If the anticipated or actual delay or nonperformance exceeds thirty (30) calendar days, the other party may immediately terminate the Agreement by giving notice of termination and such termination will be in addition to the other rights and remedies of the terminating party under the Agreement, at law or in equity.

12.5 Survival of Certain Provisions. The obligation to pay all accrued Fees, Limelight’s proprietary rights, limitation of liability and the confidentiality obligations set forth in the Agreement shall survive the termination of the Agreement by either party for any reason.

12.8 Counterparts. Any Order Form or other document relating to this Agreement may be executed in counterparts, each of which may be original or electronic and shall together constitute one and the same binding instrument.

IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Agreement by their respective duly authorized officers to become effective as of the date first above written.