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Master Subscription Agreement

 

This Master Subscription Agreement (the “Agreement”) governs your access and use of services provided by Taqtile, Inc. (“Taqtile”) and is effective between you (“Customer”) and Taqtile as of the date of your acceptance of this Agreement (the “Effective Date”). 

 

YOU ACKNOWLEDGE THAT YOU ARE ACCEPTING THIS AGREEMENT BY: A) CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT; B) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR C) ACCESSING OR USING ANY COMPLIMENTARY OR TRIAL SERVICES THAT MAY OR MAY NOT BE PROVIDED AT FREE OF CHARGE. IF YOU ARE AN INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH COMPANY OR ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

1. Definition.

 

“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services. 

 

“Authorized User” means individuals authorized to use the Services pursuant to this Agreement. 

 

“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services. 

 

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.

 

“Documentation” means any manuals, instructions or other documents or materials that Taqtile provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Documentation, including any aspects of the installation, configuration, integration, operation, use, support, or maintenance thereof. 

 

“Harmful Code” means any software, hardware, or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network, or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent. Customer or any Authorized User from accessing or using the Services or Taqtile Systems as intended by this Agreement. Harmful Code does not include any Disabling Device. 

 

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

 

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

 

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance.

 

“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and Taqtile or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. 

 

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity. 

 

“Personal Information” means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located. 

 

“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information or other content. “Processing” and “Processed” have correlative meanings.

 

“Taqtile Systems” means the information technology infrastructure used by or on behalf of Taqtile in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Taqtile or through the use of third-party services.

 

“Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, that service Taqtile, sublicensees, subcontractors, and legal advisors. 

 

“Resultant Data” means information, data, and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data, or content.

 

“Services” means the products and services that are provided to Customer and made available by Taqtile, as described in the Documentation. “Services” exclude Third Party Materials.

 

“Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Taqtile.

 

1. Services.

 

1. 1. Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Taqtile shall use commercially reasonably efforts to provide to Customer and its Authorized Users the Services in accordance with the Documentation and terms and conditions hereof, including to host, manage, operate, and maintain the Software for remote electronic access and use by Customer and its Authorized Users (“Hosted Services”) in substantial conformity with the Documentation 24 hours per day, seven (7) days per week every day of the year, except for: a) Scheduled Downtime in accordance with Section 5.1; b) service downtime or degradation due to a Force Majeure Event; c) any other circumstances beyond Taqtile’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Documentation; and d) any suspension or termination of Customer’s or any Authorized User’s access to or use of the Hosted Services as permitted by this Agreement.

 

1. 1. Services and System Control. Except as otherwise expressly provided in this Agreement:

 

1. 1. 1. Taqtile has and will retain sole control over the operation, provision, maintenance, and management of the Services and Documentation, including: i) Taqtile’s information technology infrastructure; ii) the selection, deployment, modification, and replacement of the Services Software; and iii) the performance of Services maintenance, upgrades, corrections, and repairs; and 

 

1. 1. 1. Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use the Services and Documentation by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: i) information, instructions, or materials provided by any of them to the Services or Taqtile; ii) results obtained from any use of the Services or Documentation; and iii) conclusions, decisions, or actions based on such use. 

 

1. 1. Changes. Taqtile reserves the right, in its sole discretion, to make any changes to the Services and Documentation that it deems necessary or useful to: a) maintain or enhance: i) the quality or delivery of Taqtile’s services to its customers; ii) the competitive strength of or market for Taqtile’s services; or iii) the Services’ cost efficiency or performance; or b) to comply with applicable Law. 

 

1. 1. Personnel and Subcontractors. Taqtile will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Taqtile’s obligations hereunder except as otherwise specified in this Agreement. Additionally, Taqtile may from time to time in its discretion engage third parties to perform or provide Services (each, a “Subcontractor”).

 

1. 1. Suspension or Termination of Services. Taqtile may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny Customer’s any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Documentation, without incurring any resulting obligation or liability, if: a) Taqtile receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Taqtile to do so; or b) Taqtile believes, in its sole discretion, that: i) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; ii) Customer or any Authorized user is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or iii) this Agreement expires or is terminated. This Section 2.5 does not limit any of Taqtile’s other rights or remedies, whether at law, in equity, or under this Agreement. 

 

1. Authorization and Customer Restrictions. 

 

1. 1. Authorization. Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Taqtile hereby authorizes Customer to access and use, during the Term, the Services and such Documentation as Taqtile may supply or make available to Customer by and through Authorized Users in accordance with the Documentation and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.

 

1. 1. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Documentation or Third Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Documentation and the Third Party Materials are and will remain with Taqtile and the respective rights holder in the Third Party Materials.

 

1. 1. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access, or use the Services or Documentation except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: 

 

1. 1. 1. Copy, modify, or create derivative works or improvements of the Services or Documentation;

 

1. 1. 1. Rent lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Documentation to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;

 

1. 1. 1. Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Documentation, in whole or in part; 

 

1. 1. 1. Bypass or breach any security device or protection used by the Services or Documentation or access or use the Services or Documentation other than by an Authorized User through the use of his or her own then valid Access Credentials;

 

1. 1. 1. Input, upload, transmit, or otherwise provide to or through the Services or Taqtile Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;

 

1. 1. 1. Damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Taqtile Systems or Taqtile’s provision of services to any third party, in whole or in part;

 

1. 1. 1. Remove, delete, alter, or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Documentation, including any copy thereof;

 

1. 1. 1. Access or use the Services or Documentation in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;

 

1. 1. 1. Access or use the Services or Documentation for purposes of competitive analysis of the Services or Documentation, the development, provision or use of a competing software service or product or any other purpose that is to Taqtile’s detriment or commercial disadvantage; or

 

1. 1. 1. Otherwise access or use the Services or Documentation beyond the scope of the authorization granted under Section 3.1. 

 

1. 1. Services Use and Data Storage. Services are subject to designated levels of Hosted Services usage and data storage limit (each a “Service Allocation”) specified in Order Forms and Documentation. Taqtile may, but is not obligated to notify Customer in writing if Customer has reached 80% of its then current allocation. Customer may increase its Service Allocation and corresponding Fee obligations in accordance with the applicable Order Form. If Customer exceeds its Service Allocation for any relevant period, Customer shall also pay to Taqtile the applicable excess usage and storage Fees set forth in the Order Form. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other Taqtile customers and agrees that Taqtile has no obligation to permit Customer to exceed its then-current Service Allocation. 

 

1. Customer Obligations.

 

1. 1. Customer Systems and Cooperation. Customer shall at all times during the Term: 

 

1. 1. 1. Set up, maintain, and operate in good repair and in accordance with the Documentation all Customer Systems on or through which the Services are accessed or used;

 

1. 1. 1. Provide Taqtile with such access to Customer’s premises and Customer Systems as is necessary for Taqtile to perform the Services in accordance with the Availability Requirement and Documentation; and 

 

1. 1. 1. Provide all cooperation and assistance as Taqtile may reasonably request to enable Taqtile to exercise its rights and perform its obligations under and in connection with this Agreement.

 

1. 1. Effect of Customer Failure or Delay. Taqtile is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”). 

 

1. 1. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Documentation and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and notify Taqtile of any such actual or threatened activity. 

 

1. Service Levels. 

 

1. 1. Scheduled Downtime. Taqtile will use commercially reasonable efforts to give Customer at least twelve (12) hours prior notice of all scheduled outages of the Hosted Services (“Scheduled Downtime”). Scheduled Downtime shall not exceed four (4) hours during a thirty (30) calendar days interval.

 

1. 1. Service Support. The Services include Provider’s standard customer support services (“Support Services”) in accordance with the Provider service support schedule, attached as Schedule A (the “Support Schedule”). Provider may amend the Support Schedule from time to time in its sole discretion. Customer may purchase enhanced support services separately at Taqtile’s then current rates. 

 

1. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. TAQTILE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA. 

 

1. Security.

 

1. 1. Taqtile’s Systems and Security Obligations. Taqtile will employ security measures in accordance with Taqtile’s privacy policy as amended from time to time (“Privacy Policy”), which is available at https://taqtile.com/privacy/.

 

1. 1. Data Breach Procedures. In the event of data breach, Taqtile will use commercially reasonable efforts and implement procedures as required under applicable Law. 

 

1. 1. Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: a) Personal Information; b) medical information; c) data that is classified or used on the U.S. Munitions list, including software and technical data; d) articles, services, and related technical data designed as defense articles or defense services; and e) International Traffic in Arms Regulation (ITAR) related data, (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through Taqtile or its Services. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data. 

 

1. 1. Customer Control and Responsibility. Customer has and will retain sole responsibility for: a) all Customer Data, including its content and use; b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and e) all access to and use of the Services and Documentation directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. 

 

1. 1. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services. 

 

1. Fees; Payment Terms.

 

1. 1. Fees. Customer shall pay Taqtile the fees (“Fees”) set forth in the applicable Order Form in accordance with this Section 8. Taqtile may increase Fees for by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of that contract year. 

 

1. 1. Reimbursable Expenses. Customer shall reimburse Taqtile for out-of-pocket expenses incurred by Taqtile in connection with performing the Services (“Reimbursable Expenses”). 

 

1. 1. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Taqtile’s income. 

 

1. 1. Payment. Customer shall pay all Fees and Reimbursable Expenses within thirty (30) days after the date of the invoice therefor or as set forth in the Order Form. Customer shall make all payments hereunder in U.S. dollars. 

 

1. 1. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: Taqtile may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable Law; Customer shall reimburse Taqtile for all reasonable costs incurred by Taqtile in collecting any late payments or interest, including attorney’s fees, court costs and collection agency fees; and if such failure continues for thirty (30) days following written notice thereof, Taqtile may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension. 

 

1. 1. No Deduction or Setoffs. All amounts payable to Taqtile under this Agreement shall be paid by Customer to Taqtile in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason other than any deduction or withholding of tax as may be required by applicable Law. 

 

1. Intellectual Property Rights.

 

1. 1. Services and Documentation. All right, title, and interest in and to the Services and Documentation, including all Intellectual Property Rights therein, are and will remain with Taqtile and the respective rights holders in the Third Party Materials. Customer has no right, license, or authorization with respect to any of the Services or Documentation (including Third Party Materials) except as expressly set forth in Section 3.1 or the applicable third party license, in each case subject to Section 3.3. All other rights in and to the Services and Documentation (including Third Party Materials) are expressly reserved by Taqtile and the respective third party licensors. 

 

1. 1. Customer Data. As between Customer and Taqtile, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3. 

 

1. 1. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer data: a) to Taqtile and its Subcontractors as are necessary or useful to perform the Services; and b) to Taqtile as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder. 

 

1. Confidentiality. 

 

1. 1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. 

 

1. 1. Exclusions. Confidential Information does not include information that: a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. 

 

1. 1. Protection and Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

 

1. 1. 1. Not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

 

1. 1. 1. Except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10.3; and iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.3; 

 

1. 1. 1. Safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and 

 

1. 1. 1. Ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 10. 

 

1. 1. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. 

 

1. Term and Termination. 

 

1. 1. Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until all subscriptions hereunder have expired or have been terminated (the “Initial Term”). This Agreement will automatically renew for additional periods equal to the expiring subscription term or two (2) years (whichever is shorter), unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). 

 

1. 1. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

 

1. 1. 1. Taqtile may terminate this Agreement, effective on written notice to Customer, if Customer: i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Taqtile’s delivery of written notice thereof; or ii) breaches any of its obligations under Section 3.3 (Authorization Limitations and Restrictions), Section 7.3 (Prohibited Data), or Section 10 (Confidentiality).

 

1. 1. 1. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: i) is incapable of cure; or ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and 

 

1. 1. 1. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntary or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; iii) makes or seeks to make a general assignment for the benefit of its creditors; or iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 

 

1. 1. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: 

 

1. 1. 1. All rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; 

 

1. 1. 1. Taqtile shall immediately cease all use of any Customer Data or Customer’s Confidential Information; 

 

1. 1. 1. Customer shall immediately cease all use of any Services or Documentation and: i) promptly return to Taqtile, or at Taqtile’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Taqtile’s Confidential Information; ii) permanently erase all Documentation and Taqtile’s Confidential Information from all systems Customer directly or indirectly controls; and iii) certify to Taqtile in a signed written instrument that it has complied with the requirements of this Section 11.3. 

 

1. 1. 1. Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control Taqtile may retain Customer Data in its then current state and to the extent and for so long as required by applicable Law or as are necessary or useful to perform the Services. Taqtile may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course, and all information and materials described in this Section 11.3(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement; 

 

1. 1. 1. Taqtile may disable all Customer and Authorized User access to the Hosted Services and Documentation;

 

1. 1. 1. If Taqtile terminates this Agreement pursuant to Sections 11.3, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Taqtile’s invoice therefor.  

 

1. 1. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement, including: Section 3.3 (Authorization Limitations and Restrictions), Section 10 (Confidentiality), Section 11 (Effect of Expiration or Termination), Section 12 (Representations and Warranties), Section 13 (Indemnification), Section 14 (Limitation of Liability), and Section 16 (Miscellaneous). 

 

1. Representations and Warranties. 

 

1. 1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:

 

1. 1. 1. It is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; 

 

1. 1. 1. It has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; 

 

1. 1. 1. The execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and 

 

1. 1. 1. When executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms. 

 

1. 1. Additional Representations, Warranties and Covenants by Taqtile. Taqtile represents, warrants and covenants to Customer that Taqtile will perform the Services using personnel of required skill, experience and qualifications, and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement. 

 

1. 1. Additional Representations, Warranties and Covenants by Customer. Customer represents, warrants and covenants to Taqtile that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Taqtile and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or any privacy or other rights of any third party or violate any applicable Law. 

 

1. 1. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 12.1, 12.2, and 12.3, ALL SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND TAQTILE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND TAQTILE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TAQTILE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS. 

 

1. Indemnification. 

 

1. 1. Indemnification by Taqtile. Taqtile shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by such Customer arising out of or relating to any claim, suit, action, or proceeding (each, an “Action Against Customer”) by a third party (other than an Affiliate of a Customer Indemnitee) use of the Services in compliance with this Agreement (including the Documentation) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: 

 

1. 1. 1. Access to or use of the Services or Documentation in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Documentation or otherwise in writing by Taqtile; 

 

1. 1. 1. Modification of the Services or Documentation other than: i) by or on behalf of Taqtile; or ii) with Taqtile’s written approval in accordance with Taqtile’s written specification; 

 

1. 1. 1. Failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Taqtile; or 

 

1. 1. 1. Act, omission, or other matter described in Sections 13.2(a), 13.2(b), 13.2(c), 13.2(d), whether or not the same results in any action against or Losses by Taqtile. 

 

1. 1. Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Taqtile and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns from and against any and all Losses incurred by the same in connection with any claim, suit, action, or proceeding (each, an “Action Against Taqtile”) by a third party (other than an Affiliate of Taqtile) to the extent that such Losses arise out of or relate to any:

 

1. 1. 1. Customer Data, including any Processing of Customer Data by or on behalf of Taqtile in accordance with this Agreement;

 

1. 1. 1.  Any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Taqtile; 

 

1. 1. 1. Allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or 

 

1. 1. 1. Negligence or more culpable act of omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement. 

 

1. 1. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Sections 13.1 and 13.2 as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. 

 

1. 1. Mitigation. If any of the Services or Documentation are, or in Taqtile’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Documentation is enjoined or threatened to be enjoined, Taqtile may, at its option and sole cost and expense:

 

1. 1. 1. Obtain the right for Customer to continue to use the Services and Documentation materially as contemplated by this Agreement;

 

1. 1. 1. Modify or replace the Services and Documentation, in whole or in part, to seek to make the Services and Documentation (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute Services and Documentation, as applicable under this Agreement; or 

 

1. 1. 1. By written notice to Customer, terminate this Agreement with respect to all or part of the Services and Documentation, and require Customer to immediately cease any use of the Services and Documentation or any specified part or feature thereof, provided that if such termination occurs prior to one (1) year after the Effective Date, subject to Customer’s compliance with its post-termination obligations set forth in Section 11.3, Customer will be entitled to a refund on a prorated basis. 

 

1. 1. 1. THIS SECTION 13 SETS FORTH CUSTOMER’S SOLE REMEDIES AND TAQTILE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND DOCUMENTATION) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. 

 

1. Limitations of Liability. 

 

1. 1. EXCLUSION OF DAMAGES. IN NO EVENT WILL TAQTILE OR ANY OF ITS LICENSORS AND AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER FOR ANY LOST PROFITS, REVENUE, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 

 

1. 1. CAP ON LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILTIY OF TAQTILE AND ITS LICENSORS AND AFFILIATES UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE EXCEED THE TOTAL AMOUNT OF FEES (EXCLUDING SUPPORT SERVICES FEES) PAID TO TAQTILE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE AND WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.

 

1. Force Majeure. 

 

1. 1. No Breach or Default. In no event will Taqtile be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any terms of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Taqtile’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.

 

1. 1. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Taqtile shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. 

 

1. Miscellaneous. 

 

1. 1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and either party shall have the authority to contract for or bind the other party in any manner whatsoever. 

 

1. 1. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. 

 

1. 1. Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.3, notices sent in accordance with this Section 16.3 will be deemed effectively given: a) when received, if delivered by hand, with signed confirmation of receipt; b) when received, if sent by a nationally recognized overnight courier, signature required; c) when sent, if by facsimile or email, in each case, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and d) on the fifth (5th) day after the date mailed by certified or registered mail, return receipt requested, postage paid. 

 

If to Taqtile:

 

Taqtile, Inc.

107 Spring Street

Seattle, WA 98014

Phone: (855) 827-8453

Email: Info@taqtile.com

 

If to Customer, billing-related notices will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer. 

 

1. 1. Interpretation. For purposes of this Agreement: a) the words “include,” includes,” and “including” are deemed to be followed by the words “without limitation”; b) the word “or” is not exclusive; c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and e) words denoting any gender include all genders. Unless context otherwise requires, references in this Agreement: x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provision hereof; and z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any. Instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. 

 

1. 1. Headings. The headings in this Agreement are for references only and do not affect the interpretation of this Agreement. 

 

1. 1. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. 

 

1. 1. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Taqtile’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Taqtile’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16.7 is null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. 

 

1. 1. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. 

 

1. 1. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. 

 

1. 1. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 

 

1. 1. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Washington in each case located in the City of Seattle and County of King, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. 

 

1. 1. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. 

Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections 3.3, 4.3, 7.3, and 10 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.[/vc_column_text][vc_column_text]SCHEDULE A

 

SUPPORT SCHEDULE

 

1. Definitions.

 

1. 1. “Business Hours” means 8:00 am through 5:00 pm PST, Monday through Friday, except U.S. Federal Holidays.

 

1. 1. “Fix” means the repair or replacement of Software component to remedy Problem.

 

1. 1. “Problem” means a defect in Software as defined in Provider’s standard Software specification that significantly degrades such Software.

 

1. 1. “Respond” means acknowledgement of Problem received containing assigned support engineer name, date, and time assigned, and severity assignment. 

 

1. 1. “Workaround” means a change in the procedures followed or data supplied by Customer to avoid a Problem without. Substantially impairing Customer’s use of the Software. 

 

1. Support and Maintenance Services.  Provider will provide technical support to Customer via telephone and/or electronic mail on weekdays during the hours of 8:00 am through 5:00 pm Pacific Standard Time, with the exclusion of U.S. Federal Holidays (“Support Hours”). Support and maintenance services include the following:

 

1. 1. Telephone and/or electronic support in order to help Customer locate and correct problem with the Software. Customer support during Support Hours is by emailing help@taqtile.com.

 

1. 1. Bug fixes and code corrections to correct Software malfunctions in order to bring such Software into substantial conformity with the operating specifications.

 

1. 1. All extensions, enhancements and other changes that Provider, at its sole discretion, makes or adds to the Software and which Provider furnishes, without charge, to all other Customers of the Service.

 

Problem Severity	Response Goals	Resolution Goals
(Severity 1- HIGH) The product system is creating a significant impact to the Customer’s business function preventing Customer from performing some significant portion of their job. The application failure creates a serious business and financial exposure.	Provider will Respond within one (1) business hour.	Upon confirmation of receipt, the Provider support personnel begins continuous work on the Problem, and a customer resource must be available at any time to assist with problem determination. Provider will make reasonable efforts to resolve the Problem as soon as reasonably possible once the Problem is reproduceable.  Provider may incorporate fix in future release of software.
(Severity 2- MEDIUM) The production system or application is moderately affected but Customer is still able to complete most tasks. May include questions and requests for information. The application failure created a low business and financial exposure.	Provider will Respond within eight (8) business hours.
(Severity 3- LOW) The production system or application issue is not critical: no data has been lost, and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround. May include general questions, enhancement requests, or the functionality does not match documented specifications. The application failure creates a minimal business and financial exposure.	Provider will Respond within  twenty-four (24) business hours.

 

1. Severity of a Problem Report. Provider, at its sole discretion, will identify the severity of a problem report based on the following characteristics: a) business and financial exposure; b) work outage; c) number of clients affected; and d) Workaround; e) acceptable resolution time. It is not necessary (nor is it likely) to have a perfect match of each characteristic to categorize a problem report at a particular severity level. A given problem will be judged against each of the characteristics to make an overall assessment of which severity level best descripts the problem.

Accessing Support. Customer support offers several ways to resolve any technical difficulties. In addition to help@taqtile.com, online support can be accessed at help.taqtile.com.[/vc_column_text][/vc_column][/vc_row]