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Subscription and Support Agreement

This Subscription and Support Agreement is entered into between [PARTY A NAME] with its principal place of business [PARTY A ADDRESS] ("[PARTY A]") and [PARTY B NAME] its principal place of business [PARTY B ADDRESS] ("[PARTY B]")

The parties agree to the terms of this agreement.

Support and Maintenance Agreement

This Support and Maintenance is entered into between [PARTY A NAME] with its principal place of business [PARTY A ADDRESS] ("[PARTY A]") and [PARTY B NAME] its principal place of business [PARTY B ADDRESS] ("[PARTY B]")

The parties agree to the terms of this agreement.

Amendment to [AGREEMENT NAME]

This amendment (the "Amendment") to the [AGREEMENT NAME] dated [EFFECTIVE DATE OF AGREEMENT] (the "Agreement") is made on [AMENDMENT EFFECTIVE DATE] between [PARTY A NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business at [PARTY A ADDRESS] (the "[PARTY A ABBREVIATION]") and [PARTY B NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business at [PARTY B ADDRESS] (the "[PARTY B ABBREVIATION]").

Secretary's Certificate / Incumbency

Filing Form: [FORM AND ACCESSION NUMBER]

File Date: 

Exhibit: 

EXECUTION VERSION

[PARTY A NAME], as [PARTY A FILING CAPACITY],

and

[PARTY B NAME], as [PARTY B FILING CAPACITY].

Carrier Service Agreement

This Carrier Service Agreement is entered into between [PARTY A NAME] with its principal place of business [PARTY A ADDRESS] ("[PARTY A]") and [PARTY B NAME] its principal place of business [PARTY B ADDRESS] ("[PARTY B]")

RECITALS:

A. [PARTY A] provides telecommunications services identified on Exhibit A attached hereto and incorporated herein by this reference and

B. [PARTY B] desires to purchase, upon the terms and conditions set forth in this Agreement, telecommunications services from [PARTY A].

The parties agree to the terms of this agreement

Software Integration Agreement

This Software Integration Agreement is made on [EFFECTIVE DATE] (the "Effective Date") between [PARTY A NAME], with its principal place of business at [PARTY A ADDRESS], and [PARTY B NAME], with its principal place of business at [PARTY B ADDRESS].

Grant of License to Access and Use Service. [PARTY A] hereby grants to [PARTY B], including to all [PARTY B]'s Authorized Users, a non-exclusive, non-assignable, royalty-free, worldwide license to access and use the [DESCRIPTION OF SAAS SERVICE] (the “Service”) solely for [PARTY B]'s internal business operations.

 Grant of License

Software License. The Licensor grants to the Licensee, and the Licensee accepts, a limited, non-exclusive, non-transferable, and revocable license to use the Software in accordance with the terms of this agreement.

Reservation of Rights. Any rights not expressly granted to the Licensee in this agreement are reserved to the Licensor. The Licensee does not acquire any interest under this agreement other than the right to use the Software upon the terms of this agreement. 

 Support Services[PARTY A] shall provide [PARTY B] with the following support services

telephone or electronic support in order to help [PARTY B] locate and correct problems with the Software.

up to [NUMBER OF DEDICATED CONTACTS] dedicated contacts designated by [PARTY B] in writing that will have access to support services.

bug fixes and code corrections to correct Software malfunctions in order to bring the Service into substantial conformity with the operating specifications.

all extensions, enhancements and other changes that [PARTY A] makes or adds to the Service and which [PARTY A] offers, without charge, to all other Subscribers of the Service.

 Support Services. [PARTY A] shall provide [PARTY B] with the following support services

telephone or electronic support during business hours in order to help [PARTY B] locate and correct problems with the Software, and

Internet-based support system generally available seven (7) days a week, twenty-four (24) hours a day.

 Support Services

Scope of Services. [PARTY A] shall provide [PARTY B] with the following support services

telephone or electronic support during business hours in order to help [PARTY B] locate and correct problems with the Software,

Internet-based support system generally available seven (7) days a week, twenty-four (24) hours a day, and

up to [NUMBER OF DEDICATED CONTACTS] dedicated contacts designated by [PARTY B] in writing that will have access to support services.

Support Levels. [PARTY A] will use its best efforts to cure, as described below, reported and reproducible errors in the Software. [PARTY A] utilizes the following four (4) severity levels to categorize reported problems

Severity 1 Critical Business Impact. The impact of the reported deficiency is such that the customer is unable to either use the Software or reasonably continue work using the Software. [PARTY A] will commence work on resolving the deficiency within one (1) hour of notification and will engage staff during business hours until an acceptable resolution is achieved.

Severity 2 Significant Business Impact. Important features of the Software are not working properly and there are no acceptable, alternative solutions. While other areas of the Software are not impacted, the reported deficiency has created a significant, negative impact on the Customer's productivity or service level. [PARTY A] will commence work on resolving the deficiency within two (2) hours of notification and will engage staff during business hours until an acceptable resolution is achieved.

Severity 3 Some Business Impact. Important features of the Software are unavailable, but an alternative solution is available or non-essential features of the Software are unavailable with no alternative solution. The customer impact, regardless of product usage, is minimal loss of operational functionality or implementation resources. [PARTY A] will commence work on resolving the deficiency within one (1) business day of notification and will engage staff during business hours until an acceptable resolution is achieved.

Severity 4 Minimal Business Impact. Customer submits a Software information request, software enhancement or documentation clarification which has no operational impact. The implementation or use of the Software by the Customer is continuing and there is no negative impact on productivity. [PARTY A] will provide an initial response regarding the request within one (1) business week.

Remedial Services. This agreement is not intended as a consulting agreement for customer services. With respect to severity one (1) reported deficiencies, [PARTY A] may, with the concurrence of the Customer, elect to send senior support or development staff to the Customer location to accelerate problem resolution. [PARTY A] will be responsible for the costs associated with this escalated problem resolution if the problem is determined to be related to Software. If it is determined that the problem was not related to the supported Software, the Customer agrees to pay reasonable travel and lodging expenses in addition to Sass Company Australia's standard consulting rates. Travel time will be charged at consulting rates.

Support Exceptions. [PARTY A] does not provide support for hardware faults/misconfiguration and/or hardware setup.

 Professional Services

Provision of Professional Services. [PARTY A] will provide or arrange for the provision to [PARTY B] of the professional services set forth in schedule A.

Rates for Professional Services. Any professional services provided shall be provided at the rates set forth in schedule A .

Remote Provision of Professional Services. Unless otherwise agreed by [PARTY A], none of the professional services will take place physically at any of [PARTY B]'s facilities, and all professional services shall be conducted either at [PARTY A]'s facilities or via telephone, email or other form of electronic communication or connection as determined by [PARTY A].

[PARTY B] Use of Services

 Authorized Use of the Services. [PARTY B] is authorized to permit use by the number of users listed in the service plan or purchase order. [PARTY B] may upgrade to a different service plan at any time.

[PARTY B] Obligations. [PARTY B] will

be responsible for all users' compliance with this agreement and with any software license agreements used in conjunction with the Services,

be responsible for the accuracy, quality, and legality of any of [PARTY B]'s content,

use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify [PARTY A] promptly of any such unauthorized access or use,

use the Services only in accordance with the documentation, acceptable use policies and applicable laws, and 

be responsible for obtaining and maintaining all telephone, computer hardware, Internet access services, and other equipment or services needed to access and use the Services.

[PARTY B] Restrictions. [PARTY B] will not engage in activities that are prohibited under [PARTY A]'s Acceptable Use Policy nor will [PARTY B]

create duplicate accounts or make the Services available to anyone other than the Users,

sell, resell, rent, or lease the Services or create a service bureau using the Services,

use the Services to store or transmit infringing, libelous, or otherwise unlawful, or tortious material, or to store or transmit material in violation of third-party privacy rights,

interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or

attempt to gain unauthorized access to the Services or their related systems or networks.

Term. This agreement begins on [EFFECTIVE DATE], and will continue until terminated.

Term. This agreement begins on [EFFECTIVE DATE] and will continue until [TERMINATION CONDITION OR EVENT], unless terminated earlier.

Term

Initial Term. The "Initial Term" of this agreement begins on [EFFECTIVE DATE] and will continue for [TERM YEARS] years, unless terminated earlier.

Renewal Term. Following the Initial Term, the [PARTY B] may renew this agreement for successive "Renewal Terms" of [RENEWAL YEARS] length, unless terminated earlier, by giving the [PARTY A] notice of the intent to renew this agreement, at least [RENEWAL NOTICE DAYS] business days before the end of the Current Term.

Current Term. The "Current Term" of this agreement means either the Initial Term or the then-current Renewal Term.

Term

Initial Term. The "Initial Term" of this agreement will begin on [EFFECTIVE DATE] and continue for [TERM MONTHS] months, unless terminated earlier.

Renewal Terms

Following the Initial Term. At the expiration of the Initial Term, this agreement will automatically renew for a renewal term of [RENEWAL TERM] months length ("Renewal Term"), unless terminated earlier.

Following a Renewal Term. At the expiration of the then current Renewal Term, this agreement will automatically renew for a another Renewal Term, unless terminated earlier.

Election Not to Renew. Either party may elect not to renew this agreement, by providing notice to the other party at least [NON-RENEWAL NOTICE PERIOD] Business Days' before the end of the Current Term.

Current Term. "Current Term" means either the Initial Term or the then current Renewal Term.

 Term. The term of this agreement begins on [EFFECTIVE DATE], and will continue for [TERM YEARS] years, unless terminated earlier ("Term").

Warranties

Service Warranty. [PARTY A] shall provide the Service in a professional manner consistent with general industry standards.

Performance Warranty. [PARTY A] warrants that the Service will perform substantially in accordance with the Documentation.

Warranty Disclaimer. [PARTY A] does not guarantee that the Service will be error-free, virus-free, or uninterrupted. [PARTY A] will not be liable for any unauthorized alteration, theft, or destruction of any of [PARTY B]'s data.

Limited Warranty. The warranties listed in this section [WARRANTIES] do not cover or apply to:

any error, issues, bugs, other malfunctions, or unavailability of the Service caused by [PARTY B] or other parties within its control,

any error, issues, bugs, other malfunctions, or unavailability of the Service caused by use of the Service in any manner or in any environment inconsistent with its intended purpose, as listed in the Documentation,

any of [PARTY B]'s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Service, or

any equipment or software or other material utilized in connection with the Service used by [PARTY B] contrary to the uses listed in the Documentation.

Failure to Perform

Notice to [PARTY A]. If [PARTY B] discovers any failure of the Services to perform substantially in accordance with the Documentation, [PARTY B] shall promptly notify [PARTY A] of the failure.

Reasonable Efforts to Fix Failures. On receipt of [PARTY B]'s notice, [PARTY A] shall use reasonable efforts to fix the failures.

Exclusive Remedies. The remedy listed in this section [WARRANTIES] will be [PARTY B]'s sole remedy for breach of the warranties under this section.

Confidentiality

Confidentiality Obligations. The receiving party shall hold in confidence all Confidential Information that the disclosing party discloses to it under this agreement.

Use Solely for Purpose. A receiving party may only use the Confidential Information in accordance with the terms of this agreement and solely for the Purpose.

Confidentiality

Confidentiality Obligations. Each party (as a "Receiving Party") shall hold in confidence all Confidential Information that the other party (as a "Disclosing Party") discloses to it under this agreement.

Use Solely for Purpose. A Receiving Party may only use the Confidential Information in accordance with the terms of this agreement and solely for the Purpose.

Non-Disclosure. A Receiving Party may not disclose Confidential Information to any third party, except to the extent:

as permitted by this agreement; or

as required by Law.

Notice. A Receiving Party shall notify the Disclosing Party if the Receiving Party:

is required by Law to disclose any Confidential Information; or

learns of any unauthorized disclosure of Confidential Information.

 Non-Disclosure of Agreement and Purpose. Neither party may disclose to any third-party the existence of this agreement[, the Transaction, or the Purpose,] without prior written consent of the other party.

Confidentiality Obligations

Non-Disclosure of Transaction, Agreement, and Purpose. Neither party may disclose to any third  party the existence of this agreement, the Transaction, or the Purpose, without written consent of the other party.

Confidential Information

Hold Confidential Information in Confidence. Each party (as a "Receiving Party") shall hold in confidence all Confidential Information the other party (as a "Disclosing Party") discloses to it under this agreement.

Use Confidential Information Solely for Purpose. A Receiving Party may only use the Confidential Information in accordance with the terms of this agreement and solely for the Purpose.

Non-Disclosure of Confidential Information. A Receiving Party may not disclose Confidential Information to any third party, except to the extent:

permitted by this agreement; or

required by Law.

Notice on Disclosure of Confidential Information. A Receiving Party shall notify the Disclosing Party if the Receiving Party:

is required by Law to disclose any Confidential Information; or

learns of any unauthorized disclosure of Confidential Information.

1.1. Publicity. The parties

(a) shall consult with each other before issuing any press release or otherwise making any public statements with respect to this agreement, and

(b) shall not issue any such announcement without the other party's prior written consent, which will not be unreasonably withheld or delayed.

1.1.Publicity

(a) Written Approval. Any news release, public announcement, advertisement, or publicity proposed to be released by either party concerning activities related to the agreement will be subject to the written approval of the other party prior to release.

(b) Attribution. Full consideration and representation of the respective roles and contributions of the parties shall be given in any such statement.

1.1.Publicity. The parties

(a) shall consult with each other before issuing any press release or otherwise making any public statements with respect to this agreement,

(b) shall not issue any such announcement without the other party's prior written consent, which will not be unreasonably withheld or delayed, and

(c) may, without the prior consent of the other party, issue any press release or make any public statement required by law, court order, or any stock exchange on which any of the securities of that party or any of its Affiliates are listed. [The parties shall reasonably allow the other party to review and comment on any draft announcement and shall give due consideration to all reasonable suggested changes.]

1.1. Publicity. Without the prior written consent of the other Party, the parties shall not

(a) issue a press release or make any other public statement that references this Agreement, or

(b) use the other Party's names or trademarks for publicity or advertising purposes.

1.1. Publicity

(a) Announcements. The parties

(i) shall cooperate to draft all appropriate press releases and other public announcements relating to the subject matter of this agreement and the relationship between the parties.

(ii) shall not issue any such announcement without the other party's prior written consent, which will not be unreasonably withheld or delayed.

(b) [Confidential Information. Neither party shall include in any public statement any information to which the other party reasonably believes as being within the scope of Confidential Information.]

(c) [Employees and Customers. The parties shall consult with each other concerning the means by which employees, customers, suppliers and others having dealings with the parties will be informed of the transactions contemplated by this agreement.]

1.1. Publicity. The parties

(a) will issue an initial joint press release mutually agreed upon by the parties, and

(b) shall not issue any other announcement without the other party's prior written consent, which will not be unreasonably withheld or delayed.

1.1. Publicity

(a) The parties shall use reasonable efforts to develop a joint communications plan with respect to the subject matter of this agreement.

(b) Each party shall use reasonable efforts to ensure that all press releases and other public statements in connection with the transactions contemplated by this agreement will be consistent with the joint communications plan.

Publicity

Cooperation. The parties shall cooperate to draft all appropriate press releases and other public announcements relating to the subject matter of this agreement and the relationship between the parties.

Consent. Neither party may issue any press release or public announcement without the other party's written consent, unless required by Law.

No Unreasonable Delay. The parties will not unreasonably withhold or delay their consent to press releases or public announcements.

Termination

Termination on Material Breach. Either party may terminate this agreement with immediate effect by delivering notice of the termination to the other party, if

the other party commits any material breach or material default in the performance of this agreement, and

the breach or default continues for a period of [BREACH CONTINUATION DAYS] business days' after the injured party delivers notice to the breaching party reasonably detailing the breach or default.

Termination on Insolvency. Either party may terminate this agreement with immediate effect on the other party's insolvency, bankruptcy, receivership, dissolution, or liquidation.

 Effect of Termination

Payment of Outstanding Amounts. [PARTY A] shall refund to [PARTY B] any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. [PARTY B] will immediately pay to [PARTY A] all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.

Discontinuance of Use. [PARTY B] shall cease all use of the Service upon the effective date of the termination.

Recovery of Your Data. [PARTY B] will have [30] days from the date of termination to retrieve any of data that [PARTY B] wishes to keep, after which time [PARTY B] will have no further access to the Service.

Effect of Termination

Payment of Outstanding Amounts. [PARTY A] shall immediately pay to [PARTY B] all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.

Return of Property. Upon termination or expiration of this agreement, [PARTY B] shall return to [PARTY A] all [PARTY A] property, both originals and copies, under its direct or indirect control.

Indemnification

[PARTY A] Indemnification. The [PARTY A] shall indemnify The [PARTY B] against all Indemnifiable Losses arising out of any Indemnifiable Proceeding.

Notice. The [PARTY B] shall promptly notify the [PARTY A] of the Indemnifiable Proceeding and deliver to the [PARTY A] all legal pleadings and documents necessary to defend the Indemnifiable Proceeding, before bringing a claim for indemnification. If the [PARTY B] fails to notify the [PARTY A] of the Indemnifiable Proceeding the [PARTY A] will be relieved of its indemnification obligations to the extent the [PARTY A] was prejudiced by the [PARTY B]'s failure.

Defense. In addition to indemnifying the [PARTY B] against all Indemnifiable Losses, the [PARTY A] may defend the [PARTY B] against the Indemnifiable Proceeding. To assume the defense, the [PARTY A] must promptly notify the [PARTY B] that it is doing so. 

Authority to Contest, Pay, or Settle. The [PARTY A] may contest, pay, or settle the Indemnifiable Proceeding without obtaining the [PARTY B]'s consent, only if the [PARTY A]'s decision (1) does not require the [PARTY B] to make any admission that it acted unlawfully, (2) does not effect any other legal proceeding against the [PARTY B], (3) provides that the claimant's monetary damages are paid in full by the [PARTY A], and (4) requires claimant release the [PARTY B] from all liability under the Indemnifiable Proceeding. 

Exclusive Remedy. The [PARTY B]'s right to indemnification is the exclusive remedy available in connection with the Indemnifiable Proceedings.

Definitions

“Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding against the [PARTY B] arising out of this agreement and relating to: 

any third party claim or proceeding brought against one party, including those based on product liability, infringement, use of goods or services, or personal injury or death;

any claim or proceeding brought by any governmental agency;

any claim alleging grossly negligent act or omission or willful conduct of the other party;

any claim arising from [specified covered claim(s)].

“Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

“Loss” means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding, including any interest accrued, but excluding any Litigation Expenses.

“Litigation Expense” means any reasonable out-of-pocket expense incurred in defending an Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.

Limits and Exclusions

Minimum Indemnifiable Losses. The [PARTY A] need not indemnify the [PARTY B] against Indemnifiable Losses that are less than [MINIMUM INDEMNIFIABLE LOSS AMOUNT].

Maximum Indemnifiable Losses. The [PARTY A] need not indemnify the [PARTY B] against Indemnifiable Losses that are more than [MAXIMUM INDEMNIFIABLE LOSS AMOUNT].

Exclusions. The [PARTY A] need not indemnify the [PARTY B] against Indemnifiable Losses to the extent the [PARTY B] acted unlawfully, negligently, or intentionally to cause those Indemnifiable Losses.

Indemnification

[PARTY A] Indemnification. The [PARTY A] shall indemnify the [PARTY B] against all Indemnifiable Losses arising out of any Indemnifiable Proceeding.

Notice. The [PARTY B] shall promptly notify the [PARTY A] of the Indemnifiable Proceeding and deliver to the [PARTY A] all legal pleadings and documents necessary to defend the Indemnifiable Proceeding, before bringing a claim for indemnification. If the [PARTY B] fails to notify the [PARTY A] of the Indemnifiable Proceeding the [PARTY A] will be relieved of its indemnification obligations to the extent the [PARTY A] was prejudiced by the [PARTY B]'s failure.

Defense. In addition to indemnifying the [PARTY B] against all Indemnifiable Losses, the [PARTY A] may defend the [PARTY B] against the Indemnifiable Proceeding. To assume the defense, the [PARTY A] must promptly notify the [PARTY B] that it is doing so. 

Authority to Contest, Pay, or Settle. The [PARTY A] may contest, pay, or settle the Indemnifiable Proceeding without obtaining the [PARTY B]'s consent, only if the [PARTY A]'s decision (1) does not require the [PARTY B] to make any admission that it acted unlawfully, (2) does not effect any other legal proceeding against the [PARTY B], (3) provides that the claimant's monetary damages are paid in full by the [PARTY A], and (4) requires claimant release the [PARTY B] from all liability under the Indemnifiable Proceeding. 

Exclusive Remedy. The [PARTY B]'s right to indemnification is the exclusive remedy available in connection with the Indemnifiable Proceedings.

Definitions

“Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding against the [PARTY B] arising out of this agreement and relating to:

any third party claim or proceeding brought against one party, including those based on product liability, infringement, use of goods or services, or personal injury or death;

any claim or proceeding brought by any governmental agency;

any claim alleging grossly negligent act or omission or willful conduct of the other party;

any claim arising from [specified covered claim(s)].

“Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

“Loss” means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding, including any interest accrued, but excluding any Litigation Expenses.

“Litigation Expense” means any reasonable out-of-pocket expense incurred in defending an Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.

 Mutual Indemnification. Each party (as "Indemnitor") shall indemnify the other party (as "Indemnitee") against all losses arising out of any third-party proceeding and relating to this agreement.

Indemnification

Direct Claim Indemnification. Each party (as "Indemnitor") shall indemnify the other party (as "Indemnitee") against all Indemnifiable Losses arising out of any Indemnifiable Proceeding.

Notice. The Indemnitee shall promptly notify the Indemnitor of the Indemnifiable Proceeding, and deliver to the Indemnitor all legal pleadings and documents necessary to defend the Indemnifiable Proceeding, before bringing a claim for indemnification. If the Indemnitee fails to notify the Indemnitor of the Indemnifiable Proceeding, the Indemnitor will be relieved of its indemnification obligations to the extent the Indemnitor was prejudiced by the Indemnitee's failure.

Exclusive Remedy. The Indemnitee's right to indemnification is the exclusive remedies available in connection to Indemnifiable Proceedings.

Definitions

“Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding against the Indemnitee arising out of this agreement and relating to:

any breach of any representation or warranty contained in this agreement;

any breach or violation of any covenant or other obligation under this agreement or applicable law;

any claim alleging grossly negligent act or omission or willful conduct of the other party.

(b) “Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

“Loss” means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding, including any interest accrued, but excluding any Litigation Expenses.

“Litigation Expense” means any reasonable out-of-pocket expense incurred in defending an Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.

Limits and Exclusions

Minimum Indemnifiable Losses. The Indemnitor need not indemnify the Indemnitee against Indemnifiable Losses that are less than [MINIMUM INDEMNIFIABLE LOSS AMOUNT].

Maximum Indemnifiable Losses. The Indemnitor need not indemnify the Indemnitee against Indemnifiable Losses that are more than [MAXIMUM INDEMNIFIABLE LOSS AMOUNT].

Exclusions. The Indemnitor need not indemnify the Indemnitee against Indemnifiable Losses to the extent the Indemnitee acted unlawfully, negligently, or intentionally to cause those Indemnifiable Losses.

Indemnification

Indemnification by [PARTY B]. The [PARTY B] shall indemnify the [PARTY A] against all losses and expenses arising out of any proceeding:

brought by either a third party or the [PARTY A]; and

that arises out of any breach by the [PARTY B] of its obligations, representations, warranties, or covenants under this agreement.

Mutual Indemnification. Each party (as an "Indemnifying Party") shall indemnify the other (as an "Indemnified Party") against all losses arising out of any proceeding:

brought by either a third party or an Indemnified Party; and

that arises out of the Indemnifying Party's willful misconduct or gross negligence.

Indemnification

[PARTY A] Indemnification. The [PARTY A] shall indemnify the [PARTY B] against all Indemnifiable Losses arising out of any Indemnifiable Proceeding.

Defense. In addition to indemnifying the [PARTY B] against all Indemnifiable Losses the [PARTY A] shall defend the [PARTY B] against any Indemnifiable Proceeding. The [PARTY A] shall reimburse the [PARTY B] for any resaonable Litigation Expenses incurred by the [PARTY B] in connection with the Indemnifiable Proceedings before the [PARTY A] assumes the defense of the Indemnifiable Proceeding, except for any expenses incurred by the [PARTY B]'s failure to promptly notify the [PARTY A] of the Indemnifiable Proceeding.

Authority to Contest, Pay, or Settle. The [PARTY A] shall obtain the [PARTY B]'s consent before making any decision to contest, pay, or settle an Indemnifiable Proceeding.

Non-Exclusive Remedy. The [PARTY B]'s right to indemnification is not exclusive, but in addition to any other remedies available to the [PARTY B].

Definitions

“Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding against the [PARTY B] arising out of this agreement and relating to:

any third party claim or proceeding brought against one party, including those based on product liability, infringement, use of goods or services, or personal injury or death;

any claim or proceeding brought by any governmental agency;

any claim alleging grossly negligent act or omission or willful conduct of the other party;

any claim arising from [specified covered claim(s)].

“Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

“Loss” means any amount awarded in, or paid in settlement of, any Indemnifiable Proceeding, including any interest accrued, but excluding any Litigation Expenses.

“Litigation Expense” means any reasonable out-of-pocket expense incurred in defending an Indemnifiable Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.

1.  Limitation on Liability

1.1. [PARTY A] Liability. The [PARTY A] will not be liable for breach-of-contract damages suffered by the [Party B] that are remote or speculative, or that the [PARTY A] could not reasonably have foreseen on entry into this argeement."

1.2. Maximum Liability. The [PARTY A]'s liability under this agreement will not exceed $[PARTY A MAXIMUM LIABILITY].

1.3. Excluded Claims. The [PARTY A] will not be liable for losses due to any claims arising out this agreement and relating to [EXCLUDED CLAIMS SCOPE].

1.  Limitation on Liability

1.1. [PARTY A] Liability. The [PARTY A] will not be liable for breach-of-contract damages suffered by the [PARTY B] that are remote or speculative, or that the [PARTY A] could not have reasonably have foreseen on entry into this agreement.

1.2. Maximum Liability. The [PARTY A]'s liability under this agreement will not exceed $[MAXIMUM LIABILITY].

1.  Mutual Limitation on Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.

 Limitation on Liability.

 Mutual Limitation on Liability. Neither party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not reasonably have foreseen on entry into this agreement.

 Maximum Liability

[PARTY B]'s liability under this agreement will not exceed $[MAXIMUM LIABILITY].

[PARTY B]'s liability under this agreement will not exceed the total amount paid by [PARTY A] to [PARTY B] under this agreement over the six months preceding the claim giving rise to the liability.

1.  Limitation on Liability

1.1. Mutual Limitation on Liability. Neither Party will be liable for breach-of-contract damages that are remote or speculative, or that the breaching party could not have foreseen on entry into this agreement.

1.2. Maximum Liability

(a) The [PARTY A]'s liability under this agreement will not exceed $[MAXIMUM LIABILITY].

(b) The [PARTY B]'s liability under this agreement will not exceed the total amount paid to the [PARTY B] over the six months preceeding the claim giving rise to liability.

1.3. Excluded Claims

(a) The [PARTY A] will not be liable for losses due to any claims arising out of this agreement and related to [PARTY A EXCLUDED CLAIMS SCOPE].

(b) The [PARTY B] will not be liable for losses due to any claims arising out of this agreement and related to[PARTY B EXCLUDED CLAIMS SCOPE].

General Provisions

Entire Agreement. This agreement (together with the documents [referred to in this Agreement] [listed on Exhibit A]) constitute(s) the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, representations and understandings of the parties, written or oral.

Entire Agreement. This agreement, together with the attached exhibits and schedules, constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements, understandings, inducements, or conditions between the parties[, other than the Confidentiality Agreement]. This agreement supersedes anyinconsistent course of performance or usage of the trade.

Entire Agreement. This agreement contains all the terms agreed to by the parties relating to its subject matter. It replaces all previous discussions, understandings, and agreements.

Notices

Form of Notice. All notices and other communications between the parties must be in writing.

Method of Notice. All notices must be given by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.

Receipt of Notice. A notice given in accordance with this agreement will be effective upon receipt by the party to which it is given or, if mailed, upon the earlier of receipt and the fifth business day following mailing. 

Assignment. [PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s prior written consent. [PARTY A] may assign this agreement or any of its rights and obligations under this agreement, effective upon Notice to [PARTY B],

to any subsidiary or affiliate, or

in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of [PARTY A]'s obligations.

Assignment. The [PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without the [PARTY A]'s prior written consent. The [PARTY A] may assign this agreement or any of its rights or obligations under this agreement, effective upon Notice to the [PARTY B].

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the prior written consent of the other party.

Assignment and Successors

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the prior written consent of the other party.

Successors. This agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.

20.10. Force Majeure

(a) No Liability. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.

(b) Best Efforts to Cure. In the event of a threatened default or default as a result of any cause beyond its reasonable control, the defaulting party shall nonetheless exercise its best efforts to avoid and cure such default.

(c) Right to Terminate. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.

1.1.Force Majeure. A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is

(a) beyond the reasonable control of a party,

(b) materially affects the performance of any of its obligations under this agreement, and

(c) could not reasonably have been foreseen or provided against,

but does not include general economic or other conditions affecting financial markets generally.

1.1. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.

Governing Law. This agreement, and any dispute arising out of the [SUBJECT MATTER OF THE AGREEMENT], shall be governed by laws of the State of [GOVERNING LAW STATE].

Governing Law.

Applicable Law. This agreement will be governed by and construed in accordance with the substantive laws in force in:

the State of California, if a license to the Software is purchased when you are in the United States, Canada, or Mexico; or

Japan, if a license to the Software is purchased when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or

England, if a license to the Software is purchased when you are in any jurisdiction not described above.

Jurisdiction. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England applies, shall each have non-exclusive jurisdiction over all disputes relating to this agreement.

United Nations Convention on Contracts. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the State of [GOVERNING LAW STATE], without regard to its conflict of laws rules.

Waiver. A party's failure or neglect to enforce any of rights under this agreement will not be deemed to be a waiver of that party's rights.

Written Waivers. A waiver or extension is only effective if it is in writing and signed by the party granting it.

No General Waivers. A party's failure or neglect to enforce any of its rights under this agreement will not be deemed to be a waiver of that or any other of its rights.

No Course of Dealing. No single or partial exercise of any right or remedy will preclude any other or further exercise of any right or remedy.

Severability. If any part of this agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

Overview

Subscription and Support Agreement is a licensing agreement characterized by periodic or subscription payments (such as monthly or yearly). The agreement may grant the subscriber the right to install and use software making the terms similar to a software license agreement. Alternatively, a subscription agreement may be used where the provider hosts the software making the agreement similar to a software as a service agreement.

Negotiation Guide

What rights are granted?

The key characteristic of a subscription agreement is defined by its payment. The main drafting consideration is whether the licensee is granted possession and control of the software. In the case of a software license agreement, the full fee may be paid upon installation in return for a perpetual license. But in the case of a subscription agreement, the license may have possession of the software, but make payments over a period of time. As a result, the provider will carefully define usage metrics and may require rights to audit and inspection.

What are the customer support terms? What is the response time for each class of service issue?

The customer support terms define the type of support services available and the response time for each class of service issue.

  • Support service (percentage of availability and measurement period)
    • Call center telephone support
    • Email support
    • Dedicated support
  • Response times
    • Severity 1: system down
    • Severity 2: system severely impacted
    • Severity 3: system moderately impacted
    • Severity 4: non-critical services impacted

What level of data protection does the service provide?

A key area of investigation is the level of security the provider uses to protect customer data and applications.

  • Statements
    • Existence of data security plan (and key terms of the plan)
    • Compliance with data security plan
    • Compliance with laws (including applicable data privacy laws)
  • Certifications
    • ISO/IEC 27001 or ISO/IEC 27017 or equivalent certification
    • For cloud services with impact on financial activities seek SSAE 16 certification
    • Regulatory and industry certifications as applicable (e.g. FERPA, HIPAA)
  • Customer audits

What are the limitations of liability?

Most software subscription agreements exclude special or consequential damages. Most will also seek to cap the provider's maximum liability. The cap may be

  • a fixed amount
  • the project cost
  • the last 12 months of subscriber fees (the most common)

What are the terms of indemnification?

Indemnification under a SAAS agreement is typically limited to third party infringement claims. The clause may, in addition, exclude certain claims and define conditions for the exercise of any indemnity claim.

References

Basic differences between SaaS, subscription and traditional perpetual licenses
October 8, 2015