Last Updated: July 29, 2015
This Subscriber Agreement (the “Subscriber Agreement”) is between Map Decisions, LLC, a Pennsylvania limited liability corporation (“Company”) and the organization (or the person or party acting on behalf of the Company) agreeing to these terms or using the MD Solution in any way (“Customer”). This Subscriber Agreement governs Customer’s access to Company’s software and web development service (the “Service”), its associated software (the “Software”), applications (mobile or otherwise) and website (the “Website” and collectively with the Service and Software, the “MD Solution”).
By signing Company’s proposal, clicking “I Agree”, attaching a signed copy of this Subscriber Agreement to an email, purchase order or similar order form, or using any part of the Solution, Customer agrees to be bound by the terms of this Subscriber Agreement. If an individual is entering into this Subscriber Agreement on behalf of an organization such organization shall be deemed the Customer hereunder and such individual hereby represents and warrants that he has the power and authority required to bind such organization to this Subscriber Agreement.
- The Service and Associated Software. Customer and users of the MD Solution under Customer’s account (the “End Users”) may access and use the MD Solution in accordance with this Subscriber Agreement and Company’s Acceptable Use Policy (which is incorporated by reference herein). Company may update or modify the MD Solution from time to time in its sole discretion.
- MapDecisons Software. The Software may be updated automatically and, if such Software is designed for use on a mobile device, then a compatible mobile device is required for use. The license being granted to Customer hereunder does not constitute a sale of the Software or any copy thereof, and as between Company and Customer, Company retains all right, title, and interest in the Software.
Company will use industry standard technical and organizational security measures in connection with the storage, processing and transfer of Customer Data that are designed to protect the integrity of Customer Data and to guard against the unauthorized or unlawful access to, use of or processing of such Customer Data. For purposes hereof, the term “Customer Data” shall mean the structured data and any files or attachments submitted to the Service by Customer, as well as the account and contact information submitted to the Service by Customer and its End Users. Company will use reasonable efforts, consistent with standard industry practices, to ensure that the Software does not contain any viruses, backdoors, Trojans, or other computer code that is designed to disrupt, disable or harm the operation of the Service or Software.
- Customer Obligations.
- Administration of Customer’s Account. Customer may specify one or more administrators (each an “Administrator”) to manage its account. Administrators have the ability to access, monitor, use, export and disclose all content posted by End Users. Customer is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the MD Solution complies with this Subscriber Agreement. Company shall not be held liable for any actions on the part of Customer’s Administrator(s).
- End User Conduct; Compliance. Customer is responsible for use of the MD Solution by its End Users and for their compliance with Company’s Acceptable Use Policy. Customer is also responsible for providing any notice and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use and disclose the content posted by the End Users on the MD Solution; and (ii) to allow Company to provide the Administrator with access to such End User content. The MD Solution is not authorized for use by persons under the age of 13 and Customer will ensure that it does not allow any person under 13 to use the MD Solution. Customer will promptly notify Company if it becomes aware of any unauthorized access to Customer’s account or the MD Solution.
- Restrictions. Customer will not:
- attempt to undermine the security or integrity of Company’s computing systems or networks or, where any part of the MD Solution is hosted by a third party, that third party’s computing systems and networks;
- use, or misuse, the MD Solution in any way which may impair the functionality of the Service, Software or Website, or other systems used to deliver the MD Solution or impair the ability of any other user to use the MD Solution;
- attempt to gain unauthorized access to any web pages, data, code or functionalities, software or applications other than those to which Customer has been given express permission to access or to the computer system on which the MD Solution is hosted;
- transmit, or input into the MD Solution, any files that may damage any other person’s computing devices or software, content that may be offensive, or input data in violation of any law;
- attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the MD Solution or to operate any part of the MD Solution except as is strictly necessary to use either of them for normal operation; and
- sell, lease, rent, loan, transfer or sublicense use of the MD Solution, in whole or in part, to third parties or provide access thereto or derive income from the use or provision of the MD Solution via service bureau, time sharing or application service provider services or otherwise; whether for direct commercial or monetary gain or otherwise, without prior written consent of Company.
- Suspension. Company may request that Customer suspend the account of any End User who: (i) violates this Subscriber Agreement or Company’s Acceptable Use Policy; or (ii) is using the Service in a manner that Company reasonably believes may cause a security risk, a disruption to others’ use of the MD Solution, or liability for Company. If Customer fails to promptly suspend or terminate such End User’s account, Company reserves the right to do so.
- Customer’s Use of Third Party Services. Company does not warrant or represent that it will support any third party service (e.g., a service that utilizes the Company API in connection with Customer’s use of the MD Solution) and will not be responsible for any act or omission on the part of such third party or its service.
- Intellectual Property Rights.
- Company retains all right, title and interest in and to the MD Solution, including all Intellectual Property Rights associated therewith including all modifications, revisions, changes, copies, partial copies, translations, compilations, partial copies with modifications and derivative works thereto including resulting from the provision of services by Company and any new Intellectual Property developed in connection with this Agreement. Except for Customer’s use of the MD Solution in accordance with this Agreement, Company does not grant to Customer any license, by implication or otherwise, to use or copy the MD Solution or any subsequent version of the MD Solution, or any license rights in any patent, copyright or other Intellectual Property Rights owned by or licensed to Company. “Intellectual Property Rights” shall mean any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
- Customer hereby grants to Company a limited, non-exclusive and non-transferable (except in connection with the sale or transfer of Company’s business) license to access, use, copy, reproduce, process, adapt, publish, transmit and display content and/or data submitted to the Service by the End Users (the “Customer Content”) for the limited purpose of (i) providing the MD Solution and associated customer support to Customer; (ii) displaying the Customer Content to the End Users; and (iii) analyzing and improving the MD Solution. Company may also share and publish aggregate, anonymized data about the use of the MD Solution by our customers. Except as expressly set forth herein, this Subscriber Agreement does not grant Company any rights or interest in or to the Customer Content or any Customer Intellectual Property. Customer and/or End User must maintain copies of all data inputted into the MD Solution. Company takes commercially reasonable steps to prevent data loss, but does not make any guarantees that there will be no loss of data. Company expressly excludes liability for any loss of Data no matter how caused.
- Company may incorporate into the MD Solution any suggestions or feedback received from Customer without any obligation to Customer and any such modifications to the MD Solution shall be the sole and exclusive property of Company. Customizations to the Software, regardless if provided free or paid for, shall be considered modification to the MD Solution and shall be the sole and exclusive property of Company.
- Company may include Customer’s name and/or logo in a list of Company’s Customers online and in print and electronic marketing materials.
- Fees and Payment. Fees are non-refundable except as required by law or as explicitly set forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit card or other electronic means, Customer authorizes Company to charge such fees using Customer’s selected payment method. By default, customer accounts are set to auto-renew and Company may automatically charge Customer for such renewal on or after the renewal date associated with Customer’s account unless Customer has cancelled the Service prior to its renewal date. Company may revise fee rates for the Service from time to time and will provide Customer’s designated administrator(s) with email notice of any changes in fees at least thirty (30) days prior to Customer’s Service renewal date. Customer is responsible for providing complete and accurate billing information to Company. Company may suspend or terminate Customer’s use of the Service if fees become past due. Customer is responsible for all taxes (excluding taxes on Company’ net income) and Company will charge tax when required to do so by law.
If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase; and (b) agrees that, except for any amendments to this Subscriber Agreement that are signed by Company, any terms and conditions on a Customer purchase order that conflict with (or are additional to) this Subscriber Agreement will not apply and are null and void. Company may charge, and Customer shall pay, interest on amounts not paid by Customer when due at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is lower.
- Term and Termination. This Subscriber Agreement will remain in effect until Customer terminates its subscription to the Service or until this Subscriber Agreement is otherwise terminated as provided for herein. Customer may terminate this Subscriber Agreement at any time. In addition, either party may terminate this Subscriber Agreement if: (a) the other party is in material breach and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. In the event that this Subscriber Agreement is terminated, (i) the rights granted to Customer pursuant to this Subscriber Agreement (except as specifically set forth in this section) will cease immediately; and (ii) any premium features provided to Customer will cease to be provided. The following sections will survive expiration or termination of this Subscriber Agreement: Sections 3, 5, 6, 8, 9, 10 and 12.
- Neither Party shall use or disclose “Confidential Information” of the other Party (1) for any purpose other than as contemplated in this Agreement or (2) in any manner to any third party, without the prior written consent of the party disclosing the Confidential Information (the “Disclosing Party”). The receiving party (the “Recipient”) may disclose Information to its employees and those of its legal affiliates, attorneys and accountants (“Recipient Representatives”) as necessary, provided that Recipient Representatives are bound by Recipient to maintain confidentiality of the Information in compliance with this Agreement. “Confidential Information” as used in this Agreement shall mean any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of a Party, its suppliers and customers, and includes its respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information. However, the following information shall not be considered Confidential Information:
- at the time of receipt, is in the public domain;
- after its receipt, becomes part of the public domain through no fault of the Recipient;
- was in the possession of the Recipient before its receipt from Disclosing Party or its representatives; or
- is received in good faith by Recipient from a third party who is not subject to an obligation of confidentiality.
If Recipient becomes legally compelled, whether by deposition, interrogatory, request for documents, subpoena, civil investigation demand, other demand or request by government agency or the application of statutes, rules and regulations under the federal securities Laws or similar process, to disclose any of the Information, Recipient shall provide the Disclosing Party with prompt written notice of such requirement prior to such disclosure to allow the Disclosing Party to seek a protective order or other remedy. If a protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, Recipient agrees to furnish only that portion of the Information which Recipient reasonably believes is legally required to be furnished.
- Each Party shall indemnify, defend and hold harmless the other Party and its affiliates, employees, agents, and representatives from and against any and all costs, liabilities, losses, and expenses (including, without limitation, attorneys’ fees) resulting from any claim, suit, action, or proceeding brought by a third party against such other Party and its affiliates, employees, agents, or representatives, arising out of any breach of any of its representations, warranties, covenants, or agreements set forth in this Agreement. The failure of a Party to provide to the other Party notice of any such claim, suit, action, or proceeding shall not relieve it of its obligations hereunder, except to the extent that it shall have been materially prejudiced by such failure. A Party seeking to be indemnified, , must comply with the following conditions: (i) notification to the indemnifying Party in writing within ten (10) days of becoming aware of any claim for which indemnification will be sought (the “Claim”); provided, however, that the failure to timely give such notification shall not preclude a Party’s right to indemnification except to the extent such failure to notify adversely affects the indemnifying Party’s ability to defend against such Claim; (ii) full cooperation with the defense of the Claim, including assisting the indemnifying party in the gathering of information concerning the facts giving rise to the Claim; (iii) authorization to the indemnifying Party to carry out sole management and defense of the Claim, provided that the indemnifying Party shall not without the indemnified party’s written approval (A) admit the fault of an indemnified Party or bind the indemnified Party to any obligation, or (B) consent to the entry of any judgment or enter into any settlement which does not include, as an unconditional term thereof, a release to the indemnified Party of all liability in respect of the Claim. The indemnified Party shall not compromise or settle any Claim without the written approval of the indemnifying Party.
- LIMITATION OF LIABILIY; WARRANTIES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR LOSS OF GOODWILL) SUFFERED OR INCURRED IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS OR LICENSES GRANTED HEREUNDER, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS IMPOSED HEREUNDER, EVEN IF SUCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY REFLECTS DELIBERATE AND BARGAINED FOR ALLOCATION OF RISKS AND IS INTENDED TO BE INDEPENDENT OF ANY EXCLUSIVE REMEDIES. IN NO EVENT SHALL COMPANY’S LIABILITY TO CUSTOMER EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY CUSTOMER HEREUNDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY SUCH LIABILITY.
THE MD SOLUTION AND THE TECHNOLOGY EMPLOYED THEREIN ARE PROVIDED TO CUSTOMER ON AN “AS IS,” “WITH ALL FAULTS” BASIS. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, NO PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MD SOLUTION OR ANY OTHER MATTER COVERED BY THIS AGREEMENT. ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ACCURACY, FREEDOM FROM INTERFERENCE WITH ENJOYMENT, OR FITNESS OF RESULTING WORK PRODUCT, ARE HEREBY DISCLAIMED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
- Hosting of the Service; Export Restrictions. The MD Solution is controlled and operated from facilities in the United States. Company makes no representations that the Service is appropriate or available for use in other locations. Customers who access or use the MD Solution from other jurisdictions (or who allow their End Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. If Customer is located outside of the United States, Customer agrees that Company may transfer, store and process Customer Content in locations other than Customer’s country. The export and re-export of Content via the MD Solution may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The MD Solution may not be used in any country that is subject to an embargo by the United States and Customer may not use the Service in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the MD Solution is not made available for use by persons or entities blocked or denied by the United States government
- Company may revise this Subscriber Agreement from time to time by posting the modified version on its website at least twenty (20) business days prior to the effective date of the modifications being made; provided, however, that no such modification shall include a reduction in Customer’s rights or Company’ obligations unless affirmatively agreed to by Customer in advance. If, in Company’ sole and reasonable discretion, the modifications being proposed are material, Company will notify Customer of such proposed modifications via email to the email address associated with Customer’s account. By continuing to access or use the Service after the posted effective date of modifications to this Subscriber Agreement that do not include a reduction in Customer’s rights or Company’ obligations hereunder, Customer agrees to be bound by such modifications.
- Governing Law; Dispute Resolution. This Subscriber Agreement will be governed by the laws of Pennsylvania without regard to its conflict of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Claims relating to this Agreement or the Service will be resolved through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under it Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in the City of Bethlehem, Northampton County, Pennsylvania. Notwithstanding these arbitration provisions, either party may bring suit in the federal or state courts located in Northampton County, Pennsylvania solely for injunctive relief to stop unauthorized use or abuse of the Service or infringement of intellectual property rights and both Company and Customer agree to personal jurisdiction there. All disputes will be resolved on an individual basis and customer may not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidations with other arbitrators are not allowed under this Subscriber Agreement.
- Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Subscriber Agreement.
- Force Majeure. Except for payment obligations, neither Company nor Customer will be liable for inadequate performance to the extent caused by a condition that is beyond the party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or failure of the Internet or any utility service.
- Neither this Subscriber Agreement nor any of the rights and licenses granted hereunder, may be transferred or assigned by either party without the other party’s express written consent; provided, however, that either party may assign this Subscriber Agreement without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or assign this Subscriber Agreement will be null and void. Each party intends that this Agreement shall not confer any rights or remedies upon any entity (including End Users) other than the parties and their permitted successors and assigns.
- Entire Agreement. This Subscriber Agreement, together with any Customer purchase order or order form associated herewith (as limited by Section 6), constitutes the entire agreement of the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter hereof. If a court of competent jurisdiction deems any provision of this Subscriber Agreement invalid, the invalidity of such provision shall not affect the validity of the remaining provisions hereof, which shall remain in full force and effect.
- No Waiver. No waiver of any term of this Subscriber Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Subscriber Agreement shall not constitute a waiver of such right or provision.
- Agreement to be Bound by this Agreement. Customer acknowledges and agrees that, in providing Customer access to and use of the MD Solution, Company has reasonably relied on Customer’s agreement to be bound by the terms and conditions of this Agreement. For the avoidance of doubt, Customer shall be deemed to have agreed to be legally bound by this Agreement in the event that Customer (or its End Users) utilize any part of the MD Solution in any way, shape or form. If Customer does not agree with these terms, then Customer should not utilize the MD Solution in any way.
For questions about these or any Company terms or policies, email us at admin@MapDecisions.com.