Master Subscription Agreement
Terms and Conditions
These Master Subscription Agreement Terms and Conditions (these “Terms and Conditions”) are entered into by and between Levelpath, Inc., a Delaware corporation (“Levelpath”), and the counterparty identified as the customer in the applicable Order Form (“Customer”). These Terms and Conditions, together with all Order Forms (as defined below), constitute this “Agreement”. If you are accepting these Terms and Conditions or an Order Form on behalf of your employer or another entity (which will be deemed to the case if you sign up for a Levelpath Product (as defined below) using an email address from your employer or such entity), then the “Customer” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.
Background
Levelpath has developed and makes available a SaaS-based platform, as further described in the applicable Order Form (the “Levelpath Product”). Customer desires to use the Levelpath Product to augment its existing business capabilities.
1. Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists, wherein “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity or power to direct an entity’s management.
“Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Materials” means any data, content or materials that Customer (including its Users) submits to its Levelpath Product accounts, including from Third Party Platforms.
“Documentation” means Levelpath’s standard technical documentation for the Levelpath Product.
“Effective Date” means the date of the initial Order Form entered into between Customer and Levelpath.
“Order Form” means an order form, quote or other similar document that sets forth the specific Levelpath Product, and applicable pricing and subscription term, and that references this Agreement and is mutually executed by the parties.
“Third Party Platform” means any product, add-on or platform not provided by Levelpath that Customer uses with the Levelpath Product.
“User” means anyone that Customer allows to use its accounts for the Levelpath Product, consisting of Customer’s employees and service providers (solely for purposes of providing services to Customer).
2. Levelpath Product
2.1 Provision of Levelpath Product. Subject to this Agreement, Levelpath will make the Levelpath Product available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Levelpath Product (including a non-sublicensable license for its Users to install and use the mobile application made available by Levelpath for the Levelpath Product) for its internal business purposes. Customer may permit Users to use the Levelpath Product on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Levelpath Product and for their compliance with this Agreement.
2.2 Data Security. Levelpath will maintain a security program materially in accordance with industry standards that is designed to (i) protect the security and integrity of Customer Materials; (ii) protect against threats or hazards to the security or integrity of Customer Materials; and (iii) prevent unauthorized access to Customer Materials. To the extent that Levelpath processes any Personal Data (as defined in the DPA referenced below) contained in Customer Materials that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Levelpath Product, the Data Processing Addendum (“DPA”) currently available at: https://www.levelpath.com/security/data-processing-addendum is hereby deemed incorporated herein by reference.
2.3 Customer Responsibilities. Customer acknowledges that Levelpath’s provision of the Levelpath Product is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner. Customer will (i) prevent unauthorized access to or use of the Levelpath Product and notify Levelpath promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Levelpath Product and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Levelpath Product. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Levelpath will have no liability for such failure.
2.4 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Levelpath and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
3. Fees
3.1 Fees. Customer will pay Levelpath the fees set forth in the applicable Order Form. Customer shall pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify Levelpath within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable.
3.2 Late Payment. Levelpath may suspend access to the Levelpath Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Levelpath. Customer will not withhold any Taxes from any amounts due to Levelpath.
4. Proprietary Rights
4.1 Proprietary Rights. As between the parties, Levelpath exclusively owns all right, title and interest in and to the Levelpath Product, System Data and Levelpath’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials and Customer’s Confidential Information. “System Data” means data collected by Levelpath regarding the Levelpath Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Levelpath Product.
4.2 Feedback. Customer may from time to time provide Levelpath suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Levelpath Product. Levelpath will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Levelpath will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided “AS IS” and Levelpath will not publicly identify Customer as the source of Feedback without Customer’s permission.
4.3 Product Improvement and Aggregated Statistics. Customer agrees that, notwithstanding anything herein, Levelpath has the right to aggregate, collect, retain and analyze Customer Materials and other information relating to the performance of the Levelpath Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve Levelpath’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
5. Confidentiality; Restrictions
5.1 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
5.2 Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Levelpath Product; (b) attempt to probe, scan or test the vulnerability of the Levelpath Product, breach the security or authentication measures of the Levelpath Product without proper authorization or wilfully render any part of the Levelpath Product unusable; (c) use or access the Levelpath Product to develop a product or service that is competitive with the Levelpath Product; (d) transfer, distribute, resell, lease, license, or assign the Levelpath Product or otherwise offer the Levelpath Product on a standalone basis; or (e) otherwise use the Levelpath Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
6. Warranties and Disclaimers
6.1 Mutual. Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious
code into the Levelpath Product.
6.2 Levelpath. Levelpath warrants that the Levelpath Product will perform materially as described in the Documentation and Levelpath will not materially decrease the overall functionality of the Levelpath Product during the applicable subscription term (the “Performance Warranty”). Levelpath will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If Levelpath fails to do so within 30 days after Customer’s warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Levelpath Product, in which case Levelpath will refund to Customer any prepaid subscription fees for the terminated portion of the applicable subscription term (for the Performance Warranty). To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Levelpath Product. These procedures are Customer’s exclusive remedies and Levelpath’s sole liability for breach of the Performance Warranty.
6.3 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Levelpath to use the same as contemplated hereunder.
6.4 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON- INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. LEVELPATH DOES NOT REPRESENT OR WARRANT THAT THE LEVELPATH PRODUCT OR ANY DATA REGARDING THIRD PARTY SUPPLIERS WILL BE ERROR-FREE. LEVELPATH IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS (INCLUDING ANY ARTIFICIAL INTELLIGENCE TOOLS OR ANY OUTPUT THEREOF) AND DOES NOT GUARANTEE THE ACCURACY OR CONTINUED AVAILABILITY THEREOF.
7. Indemnification
7.1 Indemnity by Levelpath. Levelpath will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Levelpath Product as permitted hereunder infringes or misappropriates such third party’s intellectual property rights and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Levelpath) in connection with any such Claim; provided that (a) Customer will promptly notify Levelpath of such Claim, (b) Levelpath will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Levelpath may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Levelpath in connection therewith. If the use of the Levelpath Product by Customer has become, or in Levelpath’s opinion is likely to become, the subject of any claim of infringement, Levelpath may at its option and expense (i) procure for Customer the right to continue using and receiving the Levelpath Product as set forth hereunder; (ii) replace or modify the Levelpath Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Levelpath will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) use of the Levelpath Product by Customer not in accordance with this Agreement; (B) modification of the Levelpath Product by or on behalf of Customer; (C) Customer Materials, or (D) the combination, operation or use of the Levelpath Product with other products or services where the Levelpath Product would not by itself be infringing (clauses (A) through (D), “Excluded Claims”).
7.2 Indemnification by Customer. Customer will defend Levelpath against any Claim made or brought against Levelpath by a third party arising out of the Excluded Claims, and Customer will indemnify Levelpath for any damages finally awarded against Levelpath (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Levelpath will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Levelpath’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Levelpath of all liability) and (c) Levelpath reasonably cooperates with Customer in connection therewith.
8. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 5, OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM (THIS CLAUSE (B), THE “ORDINARY CAP”). NOTWITHSTANDING THE FOREGOING, LEVELPATH’S AGGREGATE LIABILITY FOR BREACH OF SECTION 2.2 (INCLUDING THE DPA) AND/OR SECTION 5.1 IN RELATION TO CUSTOMER MATERIALS WILL NOT EXCEED TWO TIMES (2X) THE ORDINARY CAP.
9. Termination
9.1 Term. The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive 12-month renewal terms (unless a different renewal term is specified in such Order Form), unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
9.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
9.3 Survival. Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy, at the disclosing party’s option, any Confidential Information of such disclosing party in the receiving party’s possession or control.
10. General
10.1 Insurance. Levelpath shall, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense: (a) Statutory Worker’s Compensation and Employer’s Liability as required by state law with a minimum limit of $1,000,000 each accident / $1,000,000 each disease / $1,000,000 policy limit per occurrence, Disability and Unemployment Insurance, and all other insurance as required by law, including Employer’s Liability Insurance with limits of no less than $1,000,000 per occurrence, or any amount required by applicable law, whichever is greater; (b) Commercial General Liability, on an occurrence basis, including premises-operations, product completed-operations, broad form property damage, contractual liability, independent contractors and personal liability, with a minimum combined single limit of $1,000,000 per occurrence; and (c) Professional Errors and Omissions and Cyber Liability coverage covering the Levelpath Product, with coverage limits of not less than $1,000,000 per claim or per occurrence/$1,000,000 aggregate, placed either on an “occurrence” basis or on a “claims made” basis.
10.2 Publicity. Customer agrees that Levelpath may refer to Customer’s name and trademarks in Levelpath’s marketing materials and website; however, Levelpath will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
10.3 Assignment. Neither party hereto may assign this Agreement without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.7 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, overnight delivery or, to the extent indicated below, email. Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its Levelpath Product account. Notices to Levelpath must be sent to the following, or such other address designated pursuant to this
Section:
Levelpath, Inc.
50 Fremont St, STE 2250
San Francisco, CA 94105 USA
Attn: Legal
10.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and Levelpath with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Levelpath, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
10.10 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.11 Interpretation. For purposes hereof, “including” means “including without limitation”.