MASTER SUBSCRIPTION AGREEMENT
The terms and conditions contained in this Master Subscription Agreement govern use of LogicManager’s Service, which includes a browser interface and data encryption, transmission, access and storage. By entering into a written Order Form or similar document with LogicManager that references the agreement below, you agree to the terms and conditions of this Agreement. If you enter into a separate written agreement with LogicManager for the Service, then the terms of that separate written agreement shall apply and this Agreement shall have no effect.
As used herein, the following terms are defined as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Content” means information developed or obtained by LogicManager from publicly available sources or its third party content providers and made available to Customer through the Service.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
“Customer Data” means any data, information or material provided or submitted by Customer to the Service in the course of using the Service.
“Effective Date” means the earlier of either the date this Agreement or any Order Form is signed.
“Initial Term” means the initial period for which Customer shall receive a license to use the Service, which shall be mutually agreed upon in an Order Form.
“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 Customer who are authorized to create User accounts and otherwise administer use of the Service.
“License Term(s)” means the Initial Term and any applicable Renewal Terms.
“LogicManager” means 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 Customer by LogicManager in the course of providing the Service.
“Mentoring” means training and implementation sessions provided to Customer 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 Service.
“Order Form(s)” means the order form evidencing the initial subscription for the Service and any subsequent order forms submitted by Customer 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 this Agreement shall prevail).
“Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable law), where for each (i) or (ii), such data is Customer Data.
“Renewal Term(s)” mean any additional periods for which Customer receives a license to use the Service as set forth in the applicable Order Form.
“Service(s)” means LogicManager’s online ERM platform developed, operated, and maintained by LogicManager and accessible via https://www.LogicManager.com or another designated web site or IP address, to which Customer is being granted access under this Agreement, including the LogicManager Technology and the Content.
“User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by LogicManager at Customer’s request).
2. Privacy & Security.
2.1 Privacy. The Service is used to host Customer Data. LogicManager will not review, share, distribute, or reference any Customer Data except as provided in this Agreement, or as may be required by applicable law. Individual records of Customer Data may be viewed or accessed by LogicManager only for the purpose of resolving a problem, support issues, or suspected violation of this Agreement, or as may be required by applicable 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. Unless otherwise instructed by Customer in writing, LogicManager may disclose the fact that you are a Customer.
2.2Security. LogicManager will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). To the extent that LogicManager processes Personal Data about any individual in the course of providing the Service, the terms of LogicManager’s Data Processing Agreement, located at https://www.logicmanager.com/data-processing-agreement/, are hereby incorporated by reference.
3.1 Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; LogicManager’s Confidential Information includes the Service and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
3.2 Exclusions. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party on a non-confidential basis without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
3.3 Duty of Care. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
3.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- License Grant & Restrictions.
4.1 License Grant. LogicManager hereby grants Customer a non-exclusive, non-transferable, worldwide right to use the Service, solely for Customer’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are reserved by LogicManager and its licensors.
4.2 Restrictions. Direct competitors of LogicManager may not access the Service, except with LogicManager’s prior written consent. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Service or the Content in any way; (ii) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, create derivative works of the Service, or merge the Service into another program; (iii) use the Software in order to build a competitive product or service, for competitive analysis, or to copy any ideas, features, functions, or graphics of the Software; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material violative of a third party’s privacy rights; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks. Named 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 and will no longer use the Service.
4.3 Remedial Action. LogicManager may, without limiting any other rights or remedies available to it, suspend Customer’s access to the Service or take any other reasonable action it deems necessary to address a violation or suspected violation of this Section 4.
- Customer’s Responsibilities.
Customer will (a) be responsible for Users’ compliance with this Agreement and any Order Forms; (b) have sole responsibility for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data and Customer’s use of Customer Data with the Services in accordance with the requirements of all applicable laws and regulation, including those pertaining to data protection and privacy; (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify LogicManager promptly of any such unauthorized access or use; (d) use Services and Content only in accordance with this Agreement, Order Forms, and applicable laws and government regulations; and (e) limit the type and amount of Customer Data, as well as its storage, to only what is necessary for the Customer’s reasonable intended purpose in using the Service.
- Account Information and Data.
6.1 Ownership of Customer Data. LogicManager does not own any Customer Data that Customer submits in the course of using the Service. Customer, 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. LogicManager shall not be responsible or liable for Customer’s deletion, correction, destruction, damage, loss or failure to store any Customer Data.
6.2 Statistics. LogicManager may use Customer Data in an aggregated and anonymized form to improve the Service and derive statistical and performance information related to the Services (the “Statistics”). LogicManager may freely use and disclose the aggregated and anonymized Statistics, provided that they do not include any data that would reveal the identification of Customer, Customer Data or any other Customer Confidential Information. LogicManager retains all rights, title and interest in and to the Statistics.
- 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 Customer relating to the Service. The Agreement is not a sale and does not convey to Customer 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.
- Charges and Payment of Fees.
8.1 Fees. Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date. All payment obligations are noncancelable and all amounts paid are nonrefundable. Customer is responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. Customer 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.
8.2 Editions. Unless otherwise agreed on the Order Form, the Service is offered in two editions:
– Professional Edition – full featured solution providing functionality for enterprise risk management, business continuity, policy management, compliance, audit, vendor management, financial reporting, IT governance & security, and incident & event management.
– Enterprise Edition – Professional Edition without user licensing limitations.
The Order Form shall specify whether Customer is procuring the Professional Edition or Enterprise Edition of the Service. The Service includes Mentoring, 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 any time at the then current list price.
- Billing and Renewal.
9.1 Renewal. This Agreement will automatically renew for subsequent Renewal Terms and LogicManager will issue Customer an invoice for each such Renewal Term. Unless otherwise agreed to in an Order Form, each Renewal Term shall be twelve (12) months in length. 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 Customer 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 Customer 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. Unless otherwise agreed in an Order Form, Customer will be billed in U.S. dollars.
9.2 Billing. Customer agrees to provide LogicManager with complete and accurate billing and contact information and notifying LogicManager of any changes to such information. This information includes Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator
- Non-Payment and Suspension.
10.1 Non-Payment. In addition to any other rights granted to LogicManager herein, Customer agrees and acknowledge that LogicManager has no obligation to provide access to the Service if Customer’s 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. Customer will continue to be charged for licenses during any period of suspension. LogicManager reserves the right to impose a reconnection fee equal to 2% of Customer’s annual licensing fees in the event the Service is suspended and Customer thereafter request access to the Service.
10.2 Good Faith Dispute. 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.
- Termination upon Expiration/Reduction in Number of Licenses.
This Agreement commences on the Effective Date and shall continue in effect for the License Term. For all editions, the Initial Term will be mutually agreed upon in an Order Form commencing on the start date of the Order Form. 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 thirty (30) days prior to the end of the then-current License Term. Upon request by Customer made within 30 days after the effective date of termination, LogicManager will make available to Customer a file of the Customer Data for export or download. Customer agrees and acknowledge that LogicManager has no obligation to retain the Customer Data, and may delete such Customer Data, 30 days after termination.
- Termination for Cause.
Either party may terminate this Agreement for cause if, after providing to the other party written notice of a default or material breach, such default or material breach remains uncured for thirty days. Any breach of Customer’s 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 suspend access to the Service if Customer fails to comply with the Agreement. In addition, LogicManager may terminate a free account at any time in its sole discretion.
- 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 (i) it will provide the Service in a manner consistent with industry standards reasonably applicable to the provision of the Service and protection of Customer Data; (ii) the Service will perform substantially in accordance with the online LogicManager help documentation under normal use and circumstances; and (iii) the Service will perform in accordance with and subject to the Service Level Agreement (“SLA”) located at https://www.logicmanager.com/service-level-agreement/. LogicManager will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which LogicManager shall give advance electronic notice), and (b) any unavailability caused by circumstances beyond LogicManager’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, or Internet service provider failure or delay. Customer represents and warrants that Customer has not falsely identified itself nor provided any false information to gain access to the Service.
- Mutual Indemnification for Third Party Claims.
14.1 Indemnification by LogicManager. LogicManager shall indemnify and hold Customer harmless from and against all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising out of a third party claim alleging that the Service infringes any intellectual property right of a third party. Customer 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 Customer’s behalf without Customer’s prior written consent. In all events, Customer shall have the right to participate in the defense of any proceedings with counsel of its own choosing.
14.2 Remedies for Claims of Infringement. If the Services are or are likely to become subject to a claim of infringement or misappropriation, then LogicManager will, at its sole option and expense, either: (i) obtain for the Customer the right to continue using the Service; (ii) replace or modify the Service to be non-infringing and substantially equivalent to the infringing Service; or (iii) if options (i) and (ii) above cannot be accomplished despite the reasonable efforts of LogicManager, then LogicManager may terminate Customer’s rights to use the infringing Service and will refund pro-rata any prepaid fees for the infringing portion of the Services. THE RIGHTS GRANTED TO CUSTOMER UNDER THIS SECTION SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED INFRINGEMENT BY THE SERVICES OF ANY PATENT, COPYRIGHT, OR OTHER PROPRIETARY RIGHT.
14.2 Indemnification by Customer. Customer shall indemnify and hold LogicManager harmless from and against all Losses arising out of a third party claim regarding its 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. Customer 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, Customer 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.
- Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, LOGICMANAGER MAKES NO AND DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE AND ALL CONTENT IS PROVIDED STRICTLY ON AN “AS IS” BASIS. 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.
- Limitation of Liability.
16.1 Limitation on Amount of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
16.2 Limitation on Indirect Damages. 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.
16.3 Exceptions to Limitations. The limitations of liability in Section 16.1 apply to the fullest extent permitted by applicable law, except that there is no limitation on loss, claims, or damages directly arising out of: (i) violations of a party’s intellectual property rights by the other party; (ii) a party’s indemnification obligations; or (iii) a party’s gross negligence or willful misconduct.
- 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.
- Local Laws and Export Control.
The Service, Content, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. LogicManager and Customer each represent that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
LogicManager may give notice by means of a general notice on the Service, electronic mail to Customer’s e-mail address on record in LogicManager’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in LogicManager’s account information. Customer may give notice to 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) 530-1201; 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. 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).
- Assignment; Change in Control.
This Agreement may not be assigned without the prior written approval of the other party, which shall not be unreasonably withheld, provided that either party may assign this Agreement to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger, in each case, without the prior written consent of the other party. Any purported assignment in violation of this Section shall be void.
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 Customer and LogicManager as a result of the Agreement or use of the Service. The failure of either Party 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 the Party in writing. The Agreement, together with any applicable Order Forms, comprises the entire agreement between Customer 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.
IN WITNESS WHEREOF, LogicManager and Customer have executed this Agreement as of the Effective Date.