BY AGREEING TO SUBSCRIPTION AGREEMENT (“AGREEMENT”) YOU REPRESENT THAT YOU HAVE THE RIGHT TO BIND YOUR ORGANIZATION (“CUSTOMER”) TO ITS TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH RIGHT YOU SHOULD NOT AGREE TO THIS AGREEMENT OR USE THE SERVICES.
1. SERVICES AND SUPPORT
1.1 Customer may order from Forj (a) licenses to access and use Forj’s online service including any add-ons or modules (collectively, the “Services”) and/or (b) related professional services (collectively, “Professional Services”). The specifics of each Customer order will be set forth on an order form or similar document agreed to by the relevant parties (“Order Form”).
1.2 By executing the Order Form and using the Services, Customer accepts and agrees to be bound by this Agreement. Each Order Form constitutes a binding commitment to purchase the items described on such Order Form under this Agreement. All Order Forms are incorporated herein by reference.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer may access and use the Services in accordance with and subject to any restrictions set forth in this Agreement and other documents expressly referenced herein. Subject to the terms and conditions of this Agreement, Forj hereby grants to Customer and its designated users (“Users”) a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right to (a) access and use the Services for Customer’s business purposes.
2.2 Customer will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services or any intellectual property included therein); modify, translate, or create derivative works based on the Services or any underlying software; or copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; use the Services or any underlying software for time sharing or service bureau purposes or otherwise for the benefit of a third party; use the Services to develop a competing product or service or remove any proprietary notices or labels. Forj retains all right, title, interest (including, but not limited, to intellectual property rights) in and to the Services and anything developed and delivered under this Agreement.
2.3 If applicable, Forj or its third-party providers will perform the Professional Services set forth on the Order Form. The details of Professional Services to be provided may be specified in a statement of work or similar document (“SOW”). Forj will retain all right, title and interest in and to all deliverables (including any and all intellectual property rights therein) provided under Order Forms and SOWs (“Deliverables”) except to the extent that they contain any pre-existing Customer intellectual property. Customer’s rights to the Deliverables shall be the same as Customer’s rights to the Services to which such Deliverables pertain.
2.4 Forj warrants that it shall comply with proper security policies with this agreement, Forj’s Security and Compliance (incorporated herein by this reference), and applicable laws relating to the Services.
2.5 Customer owns or has sufficient rights to all content (in any form), data and information uploaded by Customer or its Users via the Services (“Customer Content”) to permit Forj to perform its obligations hereunder. Forj may collect and use information derived from general use and operation of the Services (“Usage Data”) for its own internal business purposes, and may only disclose Usage Data in an anonymous, aggregated format that in no way identifies Customer or any User.
2.6 Customer warrants that it shall (a) comply with this Agreement, Forj’s Acceptable Use Policy (incorporated herein by this reference) (the “AUP”), and all applicable laws relating to its use of the Services, including, without limitation, any privacy laws applicable to the collection, use and sharing of Customer Content via the Services; (b) ensure that Customer and Forj have the right to collect, use and share Customer Content via the Services; and (c) provide adequate notice to, obtain any necessary consents from, and establish any applicable terms and conditions with Recipients and any other third parties, as required under all applicable laws with respect to Customer Content, collected, used, transmitted and shared by Customer or by Forj via the Services.
2.7 Customer authorizes Forj and its sub-processors to transfer Customer’s Personal Data across international borders, including from the European Economic Area, Switzerland, and/or the United Kingdom to the United States.
3. CONFIDENTIALITY
“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonably should have known is considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that the receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before the effective date of this Agreement without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.
4. PAYMENT OF FEES
4.1 Customer will pay Forj the Fees for the Services as listed on the applicable Order Form. The fees for any renewal term shall be increased by 5% over the prior Service Term Fees. All Fees paid under this Agreement are nonrefundable.
4.2 Forj will invoice for the Fees a full payment for invoices issued must be received by Forj thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Customer is responsible for any and all applicable sales, use and other taxes (other than taxes based on Forj’s income). Each party is responsible for its own expenses under this Agreement.
4.3 Late Payment Penalty. The Customer acknowledges that time is of the essence with respect to their timely payment of all funds required under Section 4 of this Agreement. In the event that any such payments are not fully made with ten (10) days of the date they are due, the Customer shall be required to pay Forj Networks, Inc. a late payment penalty equal to five percent (5%) on all outstanding balances.
5. TERMINATION
5.1 Subject to earlier termination as provided below or as set forth in the Order Form, the initial Service Term is as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional terms (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current Term.
5.2 In addition to any other remedies, either party may also terminate the Order Form upon written notice if the other party materially breaches any of the terms or conditions of the Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within thirty (30) days after receipt of notice.
5.3 Upon the termination of the Agreement or Services, (a) Customer’s right to access or use the Services shall terminate and Sections 2.2, 2.4, 2.5, 3, 4, 5.3, 6.3, 7, and 9 shall survive termination of the Agreement.
6. WARRANTY, INDEMNIFICATION AND LIMITATIONS ON LIABILITY
6.1 Forj warrants that (a) the Services will be free from material defect, (b) the Professional Services will be performed in a professional and workmanlike manner in accordance with the standards in Forj’s industry, and (c) Forj will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Services that are intentionally designed to permit unauthorized access to or use of either the Services or Customer’s computer systems (“Viruses”). In the event of any breach of the warranty in subsections (a) or (b) above, Forj shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies that cause the Services or Professional Services, as applicable, to not conform to the foregoing warranty promptly after its receipt of written notice from Customer. Forj will not be liable to the extent that any breach of the foregoing warranties are caused by (i) third-party components (including in combination with the Services) not provided by Forj; (ii) unauthorized use or use of the Services or (iii) Viruses introduced by Customer or its agents (collectively, “Exclusions”).
6.2 Forj agrees, at its own expense, to indemnify, defend Customer and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with the Order Form infringes any copyright, trademark or patent, provided that Customer (i) promptly notifies Forj in writing of any such suit, claim or proceeding, (ii) allows Forj, at Forj’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Forj all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Forj’s written consent. The foregoing obligations do not apply to Customer Content or with respect to any Exclusion . This section states Forj’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
6.3 THE EXPRESS WARRANTIES IN SECTION 6 ARE THE EXCLUSIVE WARRANTIES OFFERED BY FORJ AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT (INCLUDING THE ORDER FORM) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE 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 ANY LOSS OF BUSINESS, ANY LOSS OF REVENUE OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO FORJ FOR THE APPLICABLE SERVICES UNDER THE AGREEMENT OR RELATING TO ANY SUBJECT MATTER THEREOF IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES.
8. INSURANCE
Forj, at its own expense, will maintain at a minimum the following insurance coverages: (a) Commercial General Liability Insurance with coverage in an amount equal to or greater than US$1,000,000 per occurrence combined single limit, (b) Commercial Automobile Liability Insurance with coverage in an amount equal to or greater than US$1,000,000 per occurrence/aggregate, (c) Worker’s Compensation Insurance with coverage complying with at least the statutory limits of coverage within the relevant state of employment, (d) Errors and Omissions Insurance with coverage in an amount equal to or greater than US$5,000,000 per occurrence/aggregate (e) Umbrella/Excess Liability Insurance with coverage in an amount equal to or greater than US$10,000,000 per occurrence/aggregate and (f) Data Breach, Cyber Coverage, or Professional Tech Liability Insurance in an amount equal to or greater than US$1,000,000 per occurrence/aggregate that shall include claims involving infringement of copyright, trademark, invasion of privacy violations, information theft, extortion and network security and Cyber Liability coverage in an amount sufficient to cover the replacement of damage to, alteration of, loss of, or destruction of electronic data and or information property of the Customer that will be in the care, custody or control of Forj and its subsidiaries, parent corporation, or related business entities. The insurance requirements under this agreement are independent of the indemnity and warranty obligations in Sections 6 and 7 above.
9. MISCELLANEOUS
Except with respect to Customer’s payment obligations, each party will be excused from any delay or failure in performance hereunder solely to the extent it could not perform due to any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent, except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise.. Both parties agree that the Order Form and this Master Service Agreement, including all exhibits, 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 the Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. The terms on any purchase order or similar document submitted by Customer to Forj will have no effect and are hereby rejected. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind or attempt to bind Forj in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Agreement will be in writing and addressed to the CEO of the other party. The Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to the Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Order Form.
