Subscription Agreement
This Subscription Agreement (“Agreement”) is between Forj Software, Inc., 440 Wells Street, Suite 201, Delafield, WI 53018 (referred to herein as “Forj”) and Customer.
BY AGREEING TO THIS 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. SUBSCRIPTION LICENSE
1.1 LICENSE
Forj grants to Customer a non-exclusive, non-transferable, limited right to access and use the services (“Services”) described in the applicable order form(s) (“Order Form(s)”), the terms of which are incorporated herein. Customer agrees to, shall comply with, and shall ensure that Users (as defined below) agree to and comply with, the terms of this Agreement and any other applicable terms and conditions governing website access set forth on and referenced as part of the Terms of Service designated by Forj from time to time, as posted on the applicable webpage. Customer’s execution of an Order Form or use of the Services constitutes acceptance of all terms and conditions contained herein. Customer agrees to keep the terms of this Agreement and any related Order form confidential and agrees to not disclose, either directly or indirectly, such terms.
2. SERVICES AND SUPPORT
2.1 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 the applicable Order Form.
2.2 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.
3. AUTHORIZED USERS
Services may be accessed and used only by individuals who are (a) Customer’s employees, (b) temporary staff or contractors under Customer’s direct control, limited to the period of engagement and for the sole purpose of providing services to Customer (“Contractor(s)”), (c) members of Customers organization or (d) third parties authorized by Forj. Access and use by any other third party are not permitted without approval by Forj.
Customer is responsible for all activities conducted by its Users and for its Users’ compliance with this Agreement.
4. USE, RESTRICTIONS AND RESPONSIBILITIES
4.1 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 access and use the Services for Customer’s business purposes.
4.2 Customer will not (and will not allow any third party to), directly or indirectly: (a) 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); (b) modify, translate, or create derivative works based on the Services or any underlying software; (c) copy, sell, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; (d) use the Services or any underlying software for time sharing or service bureau purposes or otherwise for the benefit of a third party; (e) use the Services to develop a competing product or service or remove any proprietary notices or labels; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the Service; (g) introduce into or transmit through the Service any virus, worm, trap door, back door, or other malicious code which is intentionally designed to damage or disrupt the Service or any data hosted within the Service; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Service; or (i) send any communication from or via the Service that is unlawful, harassing, libelous, defamatory or threatening. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Forj. 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.
4.3 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.
5. 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.
6. PAYMENT OF FEES
6.1 Customer will pay Forj the Fees for the Services as listed on the applicable Order Form. Unless otherwise agreed by the parties, the fees for any renewal term shall be increased by 5% over the most recent annual fees. All Fees paid under this Agreement are nonrefundable.
6.2 Unless otherwise set forth on the applicable Order Form(s), Forj will invoice for the Fees and Customer shall make a full payment for invoices issued to be received by Forj no later than thirty (30) days after the 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.
6.3 Late Payment Penalty. Customer acknowledges that time is of the essence with respect to their timely payment of all funds required under Section 6 of this Agreement. In the event that any such payments are not fully made within thirty (30) days of the date they are due, then Customer shall be required to pay Forj a late payment penalty equal to one and one-half percent (1.5%) per month on all outstanding balances.
7. TERMINATION
7.1 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 one (1) year, unless either party requests termination in writing prior to the end of the then current Term before the Renewal Notice Date as set forth in the Order Form.
7.2 Forj may terminate this Agreement, an Order Form, and/or any applicable Services upon written notice to Customer if Customer materially breaches any provision of this Agreement. Either party may terminate this Agreement if the other party has any proceedings instituted by or against it seeking relief, reorganization or arrangement under any laws relating to insolvency, or any assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee of any of its property or assets, or the liquidation, dissolution or winding up of its business. The Order Forms shall terminate upon the termination of this Agreement, but the termination of any Order Form shall not itself terminate this Agreement. All obligations with respect to any money that was accrued and owing prior to the effective date of any termination under this Agreement shall survive termination, provided that in the event Forj terminates this Agreement or an Order Form for Customer’s material breach, including but not limited to non-payment, Customer shall owe the remainder of the charges that would otherwise have been payable relating to the balance of the applicable term.
7.3 Upon the termination of the Agreement or Services, (a) Customer’s right to access or use the Services shall terminate and (b) Sections 4, 5, 6, 8, 9 and 10 shall survive termination of the Agreement.
8. WARRANTY
8.1 Forj warrants that (a) the Services, when accessed in accordance with this Agreement, will be free in all material respects from material defect as described in the documentation, (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 use an updated version of a commercially available anti-virus application to scan the software used to provide the Service and identify and remove any viruses, Trojan horses, worms, spyware, or other such malicious code that is intentionally designed to damage or disrupt the Service or any data hosted in the Service (“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, use reasonable commercial efforts to remedy any deficiencies that cause the Services or Professional Services, as applicable, to not conform to the foregoing warranty. Forj will not be liable to the extent that any breach of the foregoing warranties is 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”). If Forj is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a prorated refund of any prepaid subscription fees paid under the Agreement for its use of the Service for the remaining terminated portion of the Term. Forj shall have no obligation with respect to a warranty claim unless notified of such claim within three months of the first instance of any material functionality problem, and such notice must be sent to support@forj.ai. The warranties set forth in this Section are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the documentation, this Agreement and applicable law.
8.2 Forj warrants that it shall comply with commercially reasonable security policies in accordance with this agreement, as well as applicable laws relating to the Services.
8.3 Customer represents and warrants that it 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.
8.4 Customer warrants that it shall (a) comply with this Agreement, Forj’s Terms of Service (incorporated herein by this reference), 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.
8.5 THE EXPRESS WARRANTIES IN THIS SECTION 8 ARE THE EXCLUSIVE WARRANTIES OFFERED BY FORJ AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, 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. FORJ DOES NOT GUARANTEE THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, OR ERROR FREE. FORJ DOES NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF CONTENT RECEIVED VIA THE INTERNET.
9. INDEMNIFICATION
9.1 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.
9.2 Customer Indemnity. Customer shall indemnify, defend, and hold Forj harmless for all Claims (a) alleging that any Customer Data infringes the copyrights, trade secrets, patents or trademarks of any third party and shall hold Forj harmless from and against all Losses to the extent based upon such a Claim; or (b) arising out of the violation of any applicable laws or regulations by Customer or its Users.
10. LIMITATION OF LIABILITY
10.1 IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE TO THE OTHER 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; OR (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL.
10.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT WITH REGARD TO AMOUNTS PAYABLE BY CUSTOMER UNDER THIS AGREEMENT, THE MAXIMUM LIABILITY OF EITHER PARTY TO THE OTHER OR ANY THIRD PARTY WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, OR OTHERWISE, SHALL IN NO CASE 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.
11. MISCELLANEOUS
11.1 Force Majeure. 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.
11.2 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.
11.3 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.
11.4 Customer grants Forj a non-exclusive, royalty-free, license to use Customer’s name, logo, and trademark for the limited purpose of identifying Customer on Forj’s website, social media channels, marketing materials, and presentations. Additionally, Customer agrees that any testimonials or feedback provided by Customer may be used by Forj in its promotional efforts, including but not limited to case studies and social media posts. Customer may revoke this permission at any time with written notice, at which point Forj will make commercially reasonable efforts to cease further use within 30 days.
11.5 Both parties agree that the Order Form and this 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.
11.6 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.
11.7 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
11.8 All notices under the Agreement will be in writing and addressed to the CEO of the other party.
11.9 The Agreement shall be governed by the laws of the State of Wisconsin without regard to its conflict of laws provisions. Exclusive venue for any dispute hereunder shall be in a state or federal court of competent jurisdiction located in Milwaukee County, Wisconsin, and the parties irrevocably submit to the exclusive jurisdiction of such courts. 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.