The terms and conditions contained in this Master Subscription Agreement govern use of LogicManager’s Online Service, which includes a browser interface and data encryption, transmission, access and storage. Your use of LogicManager’s Online Service shall be deemed to be your agreement to abide by such terms.
As used herein, the following terms are defined as follows:
“Concurrent User License” means a license that permits a specified number of users to access the software at any given time.
“Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service.
“Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service.
“Effective Date” means the earlier of either the date this Master Subscription Agreement is accepted by selecting the “I Agree” option presented on the screen after this Master Subscription Agreement is displayed or the date you begin using the Service.
“Initial Term” means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter).
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“License Administrator(s)” means those Users designated by you who are authorized to purchase licenses online using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service.
“License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s).
“LogicManager” means collectively LogicManager, Inc., a Delaware corporation, having its principal place of business at 5-11 Drydock Ave, Suite 2080, Boston, MA 02210.
“LogicManager Technology” means all of LogicManager’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by LogicManager in providing the Service.
“Mentoring” means those training and implementation sessions for the purposes of retrofitting and restructuring Customer Data for use in the Service and providing best practice guidance on the use of the Service.
“Named User License” means a license for which there must be a separate license grant to each individual who will have access to the software.
“Online Order Center” means LogicManager’s online application that allows the License Administrator designated by you to, among other things, add additional Users to the Service.
“Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail).
“Service(s)” means the specific edition of LogicManager’s online ERM platform developed, operated, and maintained by LogicManager and accessible via http://www.LogicManager.com or another designated web site or IP address, to which you are being granted access under this Master Subscription Agreement, including the LogicManager Technology and the Content.
“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by LogicManager at your request).
“You” or “your” means if you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “YOU” or “YOUR” shall refer to such entity.
2. Privacy & Security; Disclosure.
LogicManager Customers use the Service to host Customer Data. LogicManager will not review, share, distribute, or reference any Customer Data except as provided in the Agreement, or as may be required by law. Individual records of Customer Data may be viewed or accessed only for the purpose of resolving a problem, support issues, or suspected violation of the LogicManager Master Subscription Agreement, or as may be required by law. Customers are responsible for maintaining the security and confidentiality of their LogicManager usernames and passwords. Note that because the Service is a hosted, online application, LogicManager occasionally may need to notify all users of the Service (whether or not they have opted out) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, both parties can disclose the fact that you are a customer.
LogicManager uses robust security measures to protect Customer Data from unauthorized access, maintain data accuracy, and help ensure the appropriate use of Customer Data. When the Service is accessed using Internet Explorer version 8.0 or later, Firefox version 2.0 or later, Google Chrome, or Safari version 3.0 or later, Secure Socket Layer (“SSL”) technology protects Customer Data using both server authentication and data encryption. These technologies help ensure that Customer Data is safe, secure, and only available to the User to whom the information belongs and those to whom you have granted access. LogicManager also implements an advanced security method based on dynamic data and encoded session identifications, and LogicManager hosts its web sites in a secure server environment that uses firewalls and other advanced technology to prevent interference or access from outside intruders. LogicManager also offers enhanced security features within the Service that permit Users to configure security settings to the level they deem necessary.
3. License Grant & Restrictions.
LogicManager hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by LogicManager and its licensors.
You may not access the Service if you are a direct competitor of LogicManager, except with LogicManager’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. Concurrent User and Named User licenses are subject to LogicManager’s standard usage policy.
You may use the Service only for your internal business purposes and shall not: (i) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (ii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iv) attempt to gain unauthorized access to the Service or its related systems or networks.
4. Your Responsibilities.
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical, personal data and Customer Data. You shall: (i) notify LogicManager immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to LogicManager immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another LogicManager user or provide false identity information to gain access to or use the Service.
5. Account Information and Data.
LogicManager does not own any Customer Data that you submit in the course of using the Service. You, not LogicManager, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and LogicManager shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
6. Intellectual Property Ownership.
LogicManager alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the LogicManager Technology, the Content and the Service, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. The Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the LogicManager Technology or the Intellectual Property Rights owned by LogicManager. The LogicManager name, the LogicManager logo, and the product names associated with the Service are trademarks of LogicManager or third parties, and no right or license is granted to use them.
7. Charges and Payment of Fees.
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payment terms are 100% prepayment. The initial charges will be equal to the current number of total licenses requested times the license fee currently in effect. Payments must be made annually in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide LogicManager with approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add licenses by executing an additional written Order Form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. All pricing terms are confidential, and you agree not to disclose them to any third party.
The Service is offered in two editions:
– Professional Edition – full featured enterprise risk management solution.
– Enterprise Edition – Professional Edition and support for features pertaining to large volume usage, including integration, subscription services, and user administration.
Services include support, maintenance, hosting services, updates and backup services. Support includes multichannel customer service for web, email, and phone support with unlimited cases submissions. Upgrade from Professional to Enterprise Edition or additional licenses can be purchased at anytime at the then current list price.
8. Excess Data Storage Fees.
The maximum disk storage space provided to you at no additional charge is the greater of 5 GB or an aggregate of 1 GB per Concurrent User license, for the Professional Edition and 8 GB or an aggregate of 2 GB per Concurrent User license for the Enterprise Edition. Alternatively, the maximum disk storage space provided to you at no additional charge is the greater of 5 GB or an aggregate of 100 MB per Named User license, for the Professional Edition and 8 GB or an aggregate of 200 MB per Named User license for the Enterprise Edition. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. LogicManager will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum. LogicManager reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
9. Billing and Renewal.
LogicManager charges and collects in advance for use of the Service. The Service will automatically renew and issue an invoice to you each year on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total licenses times the license fee in effect during the prior term, unless LogicManager has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. LogicManager’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on LogicManager’s income.
You agree to provide LogicManager with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any changes. If the contact information you have provided is false or fraudulent, LogicManager reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless LogicManager in its discretion determines otherwise: (i) entities with headquarters and a majority of Users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes (“U.S. Customers”); and (ii) all other entities will be billed in U.S. dollars, Euros or local currency and be subject to either U.S. or non-U.S. payment terms and pricing schemes at the discretion of LogicManager (“Non-U.S. Customers”).
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
10. Non-Payment and Suspension.
In addition to any other rights granted to LogicManager herein, you agree and acknowledge that LogicManager has no obligation to provide access to the Service if your account is 30 days or more delinquent. Delinquent invoices are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for licenses during any period of suspension. If you or LogicManager terminates the Agreement, you will be obligated to pay the balance due on your account computed in accordance with Section 7 herein. You agree that LogicManager may bill you for such unpaid fees.
LogicManager reserves the right to impose a reconnection fee in the event the Service is suspended and you thereafter request access to the Service. LogicManager shall not exercise our rights related to non-payment if Customer is disputing the applicable charges reasonably and in good faith, and cooperating diligently to resolve the dispute.
11. Termination upon Expiration/Reduction in Number of Licenses.
This Agreement commences on the Effective Date. For all editions, the Initial Term will be mutually agreed upon in an Order Form commencing on the start date of the Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at LogicManager’s then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least ten (10) business days prior to the date of the invoice for the following term. In the event this Agreement is terminated (other than by reason of your breach), LogicManager will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that LogicManager has no obligation to retain the Customer Data, and may delete such Customer Data, 30 days after termination.
12. Termination for Cause.
Any breach of your payment obligations or unauthorized use of the LogicManager Technology or Service will be deemed a material breach of the Agreement. LogicManager, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with the Agreement. In addition, LogicManager may terminate a free account at any time in its sole discretion. You agree and acknowledge that LogicManager has no obligation to provide access to the service if you have materially breached this Agreement and such breach has not been cured within 30 days of notice of such breach. Upon termination for cause, your right to access or use the Service immediately ceases, and LogicManager shall have no obligation to maintain or forward any Customer Data.
13. Representations & Warranties.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. LogicManager represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision of the Service and protection of Customer Data, and that the Service will perform substantially in accordance with the online LogicManager help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
14. Mutual Indemnification.
You shall indemnify and hold LogicManager, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or from the use of the Service, including any claim alleging that use, transcription, addition, or integration of the Customer Data by LogicManager or any of its resellers, agents or representatives, infringes the rights of, or has caused harm to, a third party. You shall be notified promptly of any such claims in writing, and if requested to defend said action, be given full and complete authority and assistance for the defense of same; provided, however, you shall have no authority to enter into any settlement on behalf of LogicManager without the prior written consent of LogicManager. In all events LogicManager shall have the right to participate in the defense of any proceedings with counsel of its own choosing.
LogicManager shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, board of governors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party. You shall notify LogicManager promptly of any such claims in writing, and if requested to defend such action, give full and complete authority, information and assistance for the defense of same; provided, however, that LogicManager shall have no authority to enter into any settlement on your behalf without your prior written consent. In all events, you shall have the right to participate in the defense of any proceedings with counsel of your own choosing.
15. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, LOGICMANAGER AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. LOGICMANAGER AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR HEREIN, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LOGICMANAGER AND ITS LICENSORS.
16. Internet Delays.
LOGICMANAGER’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LOGICMANAGER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM INTERNET PROBLEMS.
17. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. Additional Rights.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
19. Local Laws and Export Control.
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. The User acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.
LogicManager and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
LogicManager may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in LogicManager’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in LogicManager’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to LogicManager (such notice shall be deemed given when received by LogicManager) at any time by any of the following: letter sent by confirmed facsimile to LogicManager at the following fax numbers (whichever is appropriate): (617) 321-4500; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to LogicManager at the following addresses (whichever is appropriate): LogicManager, Inc., 5-11 Drydock Ave, Suite 2080, Boston, MA 02210, in either case, addressed to the attention of: Chief Financial Officer.
21. Modification to Terms.
LogicManager reserves the right to modify the terms and conditions of this Agreement at any time, provided that those modifications do not negatively affect you, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
22. Assignment; Change in Control.
This Agreement may not be assigned by you without the prior written approval of LogicManager but may be assigned without your consent by LogicManager to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of LogicManager directly or indirectly owning or controlling 50% or more of you shall entitle LogicManager to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by Massachusetts law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and LogicManager as a result of the Agreement or use of the Service. The failure of LogicManager to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by LogicManager in writing. The Agreement, together with any applicable Order Forms, comprises the entire agreement between you and LogicManager and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to email@example.com.
Copyright © 2016 by LogicManager, Inc. All rights reserved.